Bias of Judge

2022 MLD 908 QUETTA-HIGH-COURT-BALOCHISTAN Judicial Precedent

S.24Transfer of caseBias of Judge

Types of bias listed.

2022 MLD 908 QUETTA-HIGH-COURT-BALOCHISTAN Judicial Precedent

S.24Transfer of caseGroundsBias of JudgeAssumption / apprehension of partyScope

Petitioners (applicants under S.24, C.P.C, 1908) sought transfer of case on the basis of alleged statement/utterance made by the opposing side that they would get favour from the Court

Held, that contention of the petitioner did not constitute sufficient ground for transfer of case as they had failed to establish the bias in judge which was not supported by any sort of evidence or some act or expression of judge visible on ground adversely affecting the case

Mere assumption and apprehension could not be entertained as a tangible evidence, therefore, a mere statement could not be made basis for transfer of case

Case would not be transferred as a matter of routine or at the whims of the parties

No illegality or infirmity was found in the impugned order passed by the Appellate Court rejecting application of petitioners to transfer their civil suit to another civil court

Revision petition was dismissed, in circumstances.

2014 PCrLJ 684 ISLAMABAD Judicial Precedent

Objection relating to bias of Judge, raising ofFirst available opportunityDoctrine of waiverScope

Even in cases which gave rise to a real danger of bias it was generally desirable that objection should be raised at the first available opportunity

Where such an objection was raised at a belated stage, it would be wrong for the Judge to yield to the objection and that party could not subsequently complain that the matter disclosed gave rise to a real danger of bias.

2014 PCrLJ 684 ISLAMABAD Judicial Precedent

S. 3Criminal Law Amendment (Special Court) Act (XVII of 1976), S. 4Complaint for high treasonJudges of Special CourtBias of JudgePrinciple of necessity, applicability of

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.

2014 PCrLJ 684 ISLAMABAD Judicial Precedent

S. 3Criminal Law Amendment (Special Court) Act (XVII of 1976), S. 4Complaint for high treasonJudges of Special CourtBias of JudgeScopeDisqualification of a Judge from hearing a case

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.

2014 PCrLJ 684 ISLAMABAD Judicial Precedent

ScopeDisqualification of a Judge from hearing a caseGroundsLitigant had a fundamental right to have his rights and obligations determined by an impartial court or a tribunalJudge must not have any interest of his own in the outcome of a case, criminal or civil, which he was to decide

Main factor which was to be considered while deciding an application seeking disqualification (of a Judge from hearing a case) was the existence of the possibility of bias rather than probability of bias based on mere suspicion

In criminal matters if a Judge had any association or relationship either with the complainant or the accused, he should recuse himself from hearing such a case

Basic question in the determination of disqualification of a Judge from hearing a case was whether any benefit or detriment, that was caused to a litigant, was also caused to the Judge

If the answer was in affirmative then the Judge should recuse himself from hearing the case

Personal friendship or animosity between Judge and any member of the public, involved in a case would be sufficient to connect his (Judge's) personal interest in the outcome of litigation and there would be a real apprehension of bias

If such an interest of a Judge came to light or was timely pointed out then it raised a question mark on the credibility of the decision

Judge should not act in his own cause and if he did, it would definitely undermine the public confidence in the integrity of the administration of justice

Judge had a duty that when a matter came before him for a decision he must hear the case and should not recuse himself, if apparently there is no real apprehension of bias

If he did so, then he would avoid public obligation which was entrusted to him as a Judge and would cause delay in disposal of the proceedings

Such an approach would be regarded as undesirable.