P L D 1969 Supreme Court 201 (PLP)

AHDUS SATTAR, J.‑

This petition, by Syed Akhlaque Hussain, is the fourth of its kind and directed against the Report submitted by this Court, on the 11th of August 1959, to the President of Pakistan in Special Reference No. 2 of 1958, under Article 169 of the Constitution of 1956 in which he was found to have been guilty of gross misconduct, in respect of two out of the three charges referred to for enquiry, as a Judge of the High Court of West Pakistan and that this was sufficient to justify his removal from office. The Report was accepted by the President on the 31st of August 1959, and the petitioner was removed from office with immediate effect. The Reference was made in the following terms :‑ "The President is pleased to refer to the Supreme Court for report the question whether the conduct of Mr. Justice Akhlaque Hussain of the High Court of West Pakistan in the following matters, namely :‑ (a) in filing, while a Judge, false income‑tax returns for the assessment years of 1953‑54 and 1954‑55 basing himself upon the purported deed of partnership dated the 27th February 1953, which was executed for the purpose of evading tax ; (b) on the Election Petition Tribunal of which he was appointed Chairman in 1956 by the then Governor of West Pakistan, both in hearing the petitions at places on distant as to show complete disregard of public expenditure and expense .and inconvenience caused to the parties and witnesses and in travelling in connection with those hearings, and otherwise, in such a way as must be considered to have been to his personal profit ; and (c) in Court, in allowing his son, Mr. Raza Kazim, to appear before him in a manner contrary to judicial propriety, constitutes a ground of misbehaviour on which the Judge ought to be removed from the office of a Judge. (Sd.) E. A. A. Snelson, Secretary." The petitioner was found guilty of the first two charges and not guilty in respect of the third charge. The concluding portion of the Report reads as follows :‑ We have formed the opinion‑that the misbehaviour proved against the respondent in the two first‑mentioned cases is of a gross nature, and amply sufficient to justify the removal of the respondent from his office and we hereby make our report accordingly. The petitioner's case in the present petition is that the Bench of this Court which conducted the inquiry and made the Report to the President was not legally constituted as the petitioner had reasonable belief and apprehension that the. Presiding Judge, Mr. Justice Munir was biased against him. Consequently, it is submitted, the said Report is liable to be set aside ex debito justitiae being contrary to natural justice, contrary to the law of Pakistan, illegal and void. In the petition a catalogue of facts from which the petitioner inferred bias of the learned Judge has been given but we do not think it is necessary to refer to them in detail. Suffice it, however, to say that the allegation of the petitioner is and, has always been, that Mr. Justice Munir for the reasons mentioned in the petition became hostile to him and took personal interest in getting the Special Reference made to the Supreme Court. He had further, before the Reference was made, examined some of the materials on which one of the charges was founded. The case of the petitioner, therefore, is that Mr. Justice Munir was dis qualified to sit on the Bench which inquired into the charges against him. The petitioner has cited a number of decisions to show the effect of bias on a decision. His contention is that the decision of a Judge who is interested or biased is void and a nullity. He bas also in this connection urged that if one of the Judges hearing a case was interested the Court was improperly constituted and its decision is liable to be declared null and void. This contention receives support from the decisions in the cases of The Queen v. Hinley and others ((1892) 1 Q B 504) and of Frome United Breweries Company, Limited and others v. Keepers of the Peace and Justices for County Borough of Bath (1926 A C 586). We have already noticed that the case of the petitioner in regard to bias is not that Mr. Justice Munir had any pecuniary or proprietary interest in the subject‑matter of the proceeding. His case is that the interest of the learned Judge rested on the hostility which he entertained towards the petitioner. The principle relied upon in this connection was stated in the well known decision in Rex v. Sussex Justices Ex parte : McCoilly ((1924) 1 Q B 256, 259) by Lord Hewart, C. J. as :‑ " . . that it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done." It is true that this proposition has been generally acknowledged ,and given effect to not only in England and U. S. A. but in this sub‑continent too. The question that remains, however, to be considered is what interest in a judicial or quasi‑judicial proceed ing does the law require as sufficient to incapacitate a person from adjudicating on the ground of bias or appearance of bias. A According to Mr. Akhlaque Hussain mere suspicion or reason able suspicion of bias is sufficient to vitiate a decision. In the case of Reg. v. Rand ((L R) 1 Q B 230, 233), Blackburn, J. said that there must be "a real likelihood" of bias. In the recent case of Regina v. Camborne Justices and another, Ex parte : Pearce ((1955) 1 Q B 41(1955) 1 Q B 41), Slade, J. has said :‑ "In the judgment of this Court the right test is that prescribed by Blackburn, J., namely, that to disqualify a person from acting in a judicial or quasi judicial capacity upon the ground of interest (other than pecuniary or proprietary) in the subject‑matter of the proceeding, a real likelihood of bias must be shown." The learned Judge then observed :‑ "Whilst indorsing and fully maintaining the integrity of the principle reasserted by Lord Hewart, this Court feels that the continued citation of it in cases to which it is not applicable may lead to the erroneous impression that it is more important that justice should appear to be done than that it should in fact be done." In a case where bias is based on pecuniary or proprietary interest the position is different. There, however, small the interest may be, it operates as a disqualification as was the position in the case of Dimes v. Grand Junctional Canal (Proprietors) ((1852) 3 H L C 759). We are, therefore, of the view that mere suspicion of bias even if it is not unreasonable is not sufficient to render a decision void. A real likelihood of bias must be established. There is yet an exception to this rule which can be gathered from the American jurisdiction and which the petitioner has not contested before us. This rule is to be found in the following passage in the American Jurisprudence, Vol. 30, page

770. It reads as follows :‑ By the great weight of authority, the rule of disqualification must yield to the demands of necessity, and a Judge or an officer exercising judicial functions may act in a proceeding wherein he is disqualified by interest, relationship, or the like, if his jurisdiction is exclusive and there is no legal provision for calling in a substitute, so that his refusal to act would destroy the only tribunal in which relief could be had and thus prevent a determination of the proceeding. Under such circumstances, it is the duty of the disqualified Judge to heat and decide the controversy, however disagreeable it may be. The petitioner in order to meet some preliminary objections which may possibly be raised with regard to the maintainability of the petition has made some submissions. He has firstly argued that the Report submitted under Article 169 of the 1956‑Constitution was a Report by the Supreme Court of Pakistan and not by the Judges of the Court as persona designata and therefore this Court has the jurisdiction to declare, in exercise of its inherent jurisdiction, the Report to be a nullity if the facts alleged by him in the present petition go to show that one of the Judges making the Report was biased. Reference in this connection has been made to a judgment of this Court in Criminal Petitions Nos. 97 to 101 of 1962 in which the! Editors and Publishers of live newspapers were proceeded against for contempt in connection with the publication of a summarized version of the contents of the petition filed by the petitioner on the 12th of July 1962 for reviewing the Report. It was observed in the judgment "upon a plain reading of the Article (169) itself we find no difficulty in coming to the conclusion that the jurisdiction under the said Article was given clearly to the Supreme Court as such and not to the Judges of the Supreme Court . . . . ". It has been then argued that as the Presidential Order is founded on the Report it will become inoperative if the Report is found to be void. The petitioner has in this connection relied upon two decisions of this Court reported as Muhammad Saeed v. Election Petitions Tribunal, West Pakistan etc. (P L D 1957 S C (Pak.) 91) and Yousuf Ali v. Muhammad Aslam Zia and two others (P L D 1958 S C (Pak.) 104). These decisions lend some support to the contention of the petitioner. The petitioner has then urged that it will be incorrect to hold that since the function that used to be performed by the Supreme Court under Article 169 of the 1956‑Constitution vested in the Supreme Judicial Council under Article 128 of the 1952 Constitution this Court ceased to have jurisdiction in regard to the Report in question. The contention appears to be that once the Report is found to be a nullity the Reference made by the: President must be deemed to be pending before this Court and in. view of Article 250 of the Constitution of 1962 this Court will be the only body competent to deal with the Reference. The further argument advanced in this connection is that since the inherent.' jurisdiction which has been invoked in the present petition is coeval and coexistent with the ordinary jurisdiction the former, jurisdiction can only be exercised by the body which exercised the latter jurisdiction. It is to be exercised in the case of a nullity for correcting the record. It has been argued that while it is the right of the party to have nullities set aside it is the duty of the Court to set them aside. A number of decisions have been relied upon in this connection. The petitioner has then urged that delay is not a relevant consideration for setting aside nullities in exercise of the court's inherent jurisdiction. Lastly it has been Poll out that the fact that the petitioner has filed a suit for the relief sought in the present petition cannot be a bar to its maintain, as the Court once apprised of a nullity must set it aside to correct its own record. The consideration of these submissions will be necessary only if we come to the conclusion that it is otherwise at this stage open to us to exercise our inherent jurisdiction. The inquiry against the petitioner started on the 27th January 195`

9. The petitioner by any application dated the 18th December 1958, brought the facts on which he relied, for alleging that the learned Chief Justice was interested in the proceedings, to the notice of the Judges and prayed :‑ "(a) that the Chief Justice of Pakistan may neither hear the Reference nor deal or having anything with it in any manner ; (b) that this petition may be disposed of, after hearing me before any other proceedings are taken in the Reference." On receipt of this application the learned Chief Justice made a note on the 20th December 1958, which reads as follows :‑ "Circulate this to the Judges with the following information at present After the Supreme Court s decision in the Jhang case Mr. Justice the Supreme Court's decision in the Jhang case Mr. Akhlaque Hussain asked for an enquiry and the Governor consulted me in the matter. I advised against an enquiry for the reason that a bona fide; though a patent error of law way a possibility. Later the Governor informed me that he had put before Mr. Justice Akhlaque Hussain the alternative that if on enquiry the Supreme Court found that the errors in the judgment were due to inefficiency, Mr. Justice Akhlaque Hussain would resign and that since Mr. Justice Akhlaque Hussain had not agreed too this the papers were not sent up to the Central Government. I have not yet, seen that T. A. bills, which Mr. Justice Akhlaque Hussain says were examined for months in the office of the Supreme Court. These bills were sent for only after the Reference was received and I have not yet touched them. At the Government House, I took Mr. Justice Akhlaque Hussain aside intending to give him a bit of advice and to inform him of the kind of information that I was receiving against him. It is entirely incorrect that I addressed the Government in the matter of T. A. bills after this incident or that I attempted to convince the Government of anything or that I had any talk with President Iskandar Mirza about Mr. Justice Akhlaelue Hussain. In fact it was, I believe, after this incident that I wrote to the Government on the 18th May 1958, that I was no longer interested in the three cases, including that of Mr. justice Akhhaque Hussain, which had earlier reported to the Government. The other two cases related to false certification of T.A., bills, and Mr, justice Akhlaque Hussain is wrong in believing that he was singled out for this charge ; nor is it correct that before writing to the Government I did not take his Chief Justice into confidence. On complaint by a member of the Bar I did send for the file of the writ case in which the Judge's son had appeared before him and obtained a stay order. I found that information to be correct except as regards the payment of fee, there being no fee certificate on the record. I asked the Registrar if there were any standing instructions by Mr. Justice Akhlaque Hussain that his son's case should not be listed before him but he was not aware of any such instructions. I am sure I could not have mentioned to the Chief Justice of the High Court of West Pakistan as my belief that Mr. Justice Akhlaque Hussain's son had received a sum of Rs. 40,000 in the case. In fact when it came to my notice recently that the police were seeking for evidence that the amount paid to Mr. Justice Akhlaque Hussain's son was more than that mentioned by him in his fee certificate, I sent for the Attorney‑General and told him, that if the enquiry was not immediately stopped the officer conducting the enquiry would have to answer a charge of contempt. The papers relating to the Income‑tax charge were received by me when I was in Karachi, from a High Army Officer, with the remarks that out of great regard and respect for the judiciary he was not making any comments. I sent up these papers, together with the original letter, to the Ministry of Law with the remark that if what has been stated by the partners of Akhlaque Hussain & Co., was true, the matter needed enquiry. As Chief Justice of Pakistan I claim for myself the right, and consider it to be my duty, to check any information received against a Judge of a High Court which, if true, would disclose a case of misbehavior, and report the fact to the Government." The petitioner then asked for a copy of the order passed by the Judges on his application filed on the 18th of December 1958, from the Registrar of this Court. On this, the learned Chief Justice, on the 9th of January 1959, passed the following order :‑ "He may see my note which I wrote for the information of the Judges. Certified copy cannot be granted. Whether I take any part in the inquiry is a matter between me and my sense of duty." The learned Judges, after a few days thereafter proceeded to examine witnesses in connection with the inquiry. The above facts clearly point to the conclusion that the learned Judges holding the inquiry, did not accept the objection raised by the petitioner with regard to the participation of Mr. Justice Munir. It is true that no specific order was passed disallowing the objection but the facts and circumstances referred to already clearly indicate that the objection of the petitioner was no accepted. This will be further evident from the note which Mr. Justice Munir appended to the Report and which appears on pp. 119 to 124 of the Paper Book (Part I1). It is not disputed that if the objection is found to have been overruled by the learned Judges then it is not open to us in exercise of our inherent jurisdiction to set aside that decision. The inherent jurisdiction which has been invoked by the petitioner does not permit us to exercise the power of an appellate Court. On a careful examination of the above facts we are of the view that the objection of the petitioner was not accepted though no specific order to that effect was passed by the learned Judges. We have already seen that the petitioner before filing the present petition filed three more similar petitions. In each of these four petitions, challenging the Report, the ground taken has been the same, namely, that the Report was void on account of the bias of the Chief Justice (Mr. Justice Munir). By the first petition leave was sought for review of the Report in the exercise of the Court's inherent jurisdiction. The petition was filed on 12‑7‑1962 and dismissed on 13‑3‑1963. In the order dismissing the petition it was observed :‑ Whether the inherent powers of the Court could be availed of depends upon what are the powers vested in the Court when dealing with a reference made under Article 169 of the late Constitution. Article 169 is as follows :‑

169. A Judge of a High Court shall not be removed from his office except by an order of the President made on the ground of misbehavior or infirmity of mind or body, if the Supreme Court, on reference being made to it by the President, reports that the Judge ought to be removed on any of these grounds. The Article deals with matters unconnected with the ordinary jurisdiction of this Court. It provides for removal of High Court Judges on the grounds of misbehavior, or infirmity of mind or body. On a reference being made to the Supreme Court for the purpose of investigation of the charges which may constitute a ground of misbehavior it submits its report to B the President who alone has the power to remove a Judge from his office. Hence only the President and no one else could recall or review the order. Once the Supreme Court submitted its findings to the President it became functus officio and therefore, it had no jurisdiction to recall or review its findings." It was further found that under the Constitution of 1962, the power which was exercised by the Supreme Court under Article 169 of the 1956‑Constitution had been conferred on a different body called the Supreme Judicial Council by Article

128. Thus a totally new procedure had been provided for removal of Judges under the Constitution of 1962 and as there was no existing thread connecting the two authorities, namely, the Supreme Court and the Supreme Judicial Council this Court could no longer have that jurisdiction which it exercised by virtue of Article 169 of the Constitution of 1956. Lastly it was observed that "an application to this Court would no longer lie for review said Article 169". The petitioner then, ~on 14‑1‑1964, filed ~a petition for review of the order dated the 13th of March 1963. This petition was found to be barred by 277 days and was dismissed as time barred. The third petition was filed on the 12th of May 1964. In this petition it was prayed that the Court in exercise of its inherent jurisdiction should set aside its findings and Report dated the 11th of August 1959 on the ground that they were, nullities. This petition was withdrawn on 28‑6‑1965. The present petition was filed on the 5th of December 1968. It is therefore, evident that the petitioner in his petition crated the 12th of July 1962 invoked the inherent jurisdiction of this Court for setting aside the Report on the ground of bias. This petition was dismissed on two grounds, namely, that after submission of the Report to the President the Court became functus officio and that after the 1962‑Constitution was promul gated this Court could not exercise the jurisdiction which it exercised under Article 169 of the Constitution of 1956. The petitioner's prayer for review of this decision was rejected. The petitioner, therefore, cannot reagitate the question before us. We are, of opinion that this petition is not maintainable on two grounds viz. (a) that the objection with regard to bias was raised in the proceedings of the Special Reference arid disallowed by the Court and (b) that this Court by its order dated the 13th of March 1963, found that it had no longer jurisdiction to question the Report in exercise of its inherent powers. The petition is, therefore, dismissed. K. B. A. Petition dismissed.