Complaint for high treason

Plea of accused that Federal Government as defined in Art. 90(1) of the Constitution consisted of the Prime Minister and the Federal Ministers, hence there had to be a collective decision on their part, but in contravention thereof the decision to file the present complaint was taken solely by the Prime Minister without consulting the Federal Ministers

Validity

Accepting said plea of accused would make provisions of Art. 99(3) of the Constitution redundant and any business of the Federation, if not placed before the Prime Minister and the Federal Ministers for their approval, would be regarded as invalid

Such an interpretation of Art.90(1) of the Constitution would hamper the entire functioning of the Federal Government

Article 90(1) of the Constitution was not incorporated with such an intent

Complaint was held to be maintainable accordingly.

Objection of accused (relating to bias of other two Judges of the Special Court) lost its strength when the objection against one of Judges was withdrawn by the counsel for accused

An objection had to stand or fall in its entirety and not in piece meal for the reason that the ground of bias in such context was agitated against all the three Judges and not against the other two

Objection of bias of Judges was dismissed accordingly.

Plea of accused that one of the Judges of Special Court had a bias against him because said Judge was removed from office on the basis of Provisional Constitution Order (PCO) of 2007 dated 3-11-2007 (introduced by the accused while in office of Chief of the Army Staff); that other two Judges of the Special Court were appointed as Judges of High Court due to the fact that former Chief Justice of the Supreme Court was interested in their appointments, and said Chief Justice had a bias against the accused

Validity

Principle of necessity was to be invoked when disqualification was pleaded on certain basis, which if accepted, would leave no Judge available to hear the matter and therefore out of sheer necessity the case was to be heard

Objection regarding bias of Judges of Special Court, if entertained, would result in no category of Judges left to hear the present complaint, due to the fact that at present there were only two categories of Judges in the Superior Courts i.e. those who were removed from the office on account of Provisional Constitution Order (PCO) of 2007 dated 3-11-2007, and those whose appointments were processed when the former Chief Justice of the Supreme Court in question was in office

Principle of necessity was attracted in the present case.

Plea of accused that one of the Judges of Special Court had a bias against him because said Judge refused to take oath under the Provisional Constitution Order (PCO) of 2007 dated 3-11-2007 (introduced by the accused while in office of Chief of the Army Staff) as he considered it to be violative of the Constitution; that said Judge, therefore, could not remain impartial to decide the present complaint where one of the charges against the accused was issuance of Provisional Constitution Order (PCO) of 2007; that said Judge, as a member of an Election Tribunal, dismissed election appeal filed by the accused, wherein the imposition of Provisional Constitution Order (PCO) of 2007 dated 3-11-2007 was the basis to disqualify the accused from contesting the general elections

Validity

Accused neither raised the apprehension of bias before the Judge in question at the time of hearing of the election appeal, nor when the order was challenged by way of a constitutional petition, which was heard by a bench headed by a Judge who was also removed from the office under the Provisional Constitution Order (PCO) of 2007 dated 3-11-2007

Objection as to bias of Judges was also not raised by the accused when he moved bail applications in the High Court in other criminal matters, which were heard by a bench headed by a Judge who was also removed from his office under the Provisional Constitution Order (PCO) of 2007 dated 03-11-2007

Such objection on the ground of Provisional Constitution Order (PCO) of 2007 was raised for the first time in the proceedings before this (Special) Court, which was a subsequent stage in the same context, therefore, the objection was no more available to the accused.

Plea of accused that one of the Judges of Special Court had a bias against him because while working as an Additional Judge of the High Court his tenure was extended by the Chief Justice of the Supreme Court, who had a bias against the accused; that tenure of said Judge of the Special Court was extended by the Chief Justice of the Supreme Court on purely extraneous considerations, ignoring the recommendation of the concerned Chief Justice of the High Court to drop his name

Validity

Said plea of accused was misconceived as the entire matter of extension of tenure of Judge in question was discussed at length by the Supreme Court in the case of Munir Hussain Bhatti, Advocate and others v. Federation of Pakistan (PLD 2011 Supreme Court 407)

Said judgment clearly stated that concerned Chief Justice of the High Court had also recommended name of Judge in question for extension, and had not at all made any recommendations for his name to be dropped

Plain reading of the said judgment made it clear that the concerned Chief Justice of High Court never gave any advice in writing to drop the name of Judge in question, and when the Judicial Commission met, it by a unanimous decision recommended that ten (10) Additional Judges of Lahore High Court be dropped (Judge in question being not one of them)

Decision taken by the Judicial Commission was totally in line with the written advice of the then concerned Chief Justice of High Court

No animosity was attributed to any of the members of Special Court against the accused rather only an apprehension of bias was alleged on certain grounds, which in fact did not attract any rule of disqualification (from hearing the present case)

Plea of bias of Judge was dismissed accordingly.

Plea of accused that one of the Judges of Special Court had a bias against him because said Judge refused to take oath under the Provisional Constitution Order (PCO) of 2007 (introduced by the accused while in office of Chief of the Army Staff) as he considered it to be violative of the Constitution; that said Judge, therefore, could not remain impartial to decide the present complaint where one of the charges against the accused was issuance of Provisional Constitution Order (PCO) of 2007; that said Judge, as a member of an Election Tribunal, dismissed election appeal filed by the accused, wherein the imposition of Proclamation of Emergency was the basis to disqualify the accused from contesting the general elections

Validity

Plea of Judge's bias on the basis of his (Judge's) decision in a case previously heard and decided before a different forum was not sustainable

Matter decided within the legal framework would by itself not become a ground to plead bias against a Judge

Person while holding office of a Judge was bound to apply the law to the facts of the case before him without any fear or favour, affection or ill will, and the judicial decision could not be used to allege that he would be biased in any subsequent legal proceedings

Plea of bias raised against Judge in question was held to be not sustainable accordingly.

Plea of accused that selection of Judges for the Special Court was made in consultation with the Chief Justice of the Supreme Court, which was a violation of the statutory provisions on the subject

Validity

Section 4 of the Criminal Law Amendment (Special Court) Act, 1976 required that the Special Court shall comprise of three serving Judges each of whom was a Judge of a High Court, therefore their nomination was to inevitably come from the Chief Justices of the High Courts concerned, which was exactly what had been done, in the present case

Letters of correspondence between Law, Justice and Human Rights Division and the Supreme Court and the relevant notification issued in such regard, showed that Judges for the Special Court were in fact nominated by their respective Chief Justices of the High Courts and not by the Chief Justice of the Supreme Court

Relevant notification was issued by Ministry of Law, Justice and Human Rights after selecting the senior most three Judges from the five nominated Judges

Plea of accused was held to be without substance accordingly.