Muhammad Saleem petitioner, a Head Constable, was tried along with Ghulam Hussain, Foot Constable (petitioner in Writ Petition No. 5358/78) for offences under section 161, P. P. C. Read with section 5(2) of Prevention of Corruption Act, 1947 and Martial Law Regulation No. 14 read with Martial Law Order No. 7. They were convicted by Summary Military Court No. 9, Faisalabad, and sentenced to 6 months' rigorous imprisonment and a fine of Rs. 4,000 (four thousand) each and in default of payment of fine they were ordered to undergo rigorous imprisonment for a further period of 2 months each. The said Summary Military Court was presided by Major Shahzad Hussain.
Sentence of fine imposed upon Muhammad Saleem was remitted by an order dated 29th November, 1978 of the Deputy Martial Law Administrator.
2. The petitioners have assailed their conviction and sentence by means of these Writ Petitions. This judgment will dispose of these two Writ Petitions mentioned above.
3. The allegation against Muhammad Saleem petitioner is that on 24th August, 1978, while posted as a Head Constable in Police Station, Kotwali, Faisalabad, he abused his official position and demanded Rs. 500 and accepted Rs. 400 through Ghulam Hussain Constable co-accused/ petitioner from Mst. Allah Rakhi as illegal gratification for the release of Nazir Ahmad P. W. And thus committed the offences punishable under section 5(2) of Prevention of Corruption Act, 1947 ; 161, P.
P. C., and Martial Law Order No. 7 read with Martial Law Regulation No. 14. He was further charged under section 342, P. P. C. For having wrongfully confined Nazir Ahmad P. W.
Gbulam Hussain petitioner was accused of having received Rs. 400 as illegal gratification from Mst.
Allah Rakhi P. W. For the release of Nazir Ahmad P. W. It was alleged that this offence was committed by him as a public servant by using., his official position.
4. Prosecution produced four witnesses namely Mst. Allah Rakhi P. W. 1 ; Nazir Ahmad P. W. 2 ; Basbir Ahmad Farooqi, Magistrate Ist Class P. W. 3, and Ghaus Muhammad Sub-Inspector P. W. 4 in support of its case.
5. The petitioners denied the allegations against them. Muhammad Saleem submitted that he was innocent and that he never caught hold of Nazir Ahmad P. W. Nor did he confine him at Police Station, Kotwali, Faisalabad. He denied the demand or receipt of illegal gratification.
He further stated that he had an unblemished record of 15 years of public service to his credit. He further added that he was not named in the F. I. R. And that according to Nazir Ahmad P. W. The person who caught him was an Havaldar. He stated that he was never identified by Mst. Allah Rakhi and Nazir Ahmad P. Ws. In any Identification Parade.
6. Ghulam Hussain accused also pleaded innocence. He stated that at the time of the alleged occurrence he was posted as a process server and that he had nothing to do with the recovery or search of the criminals. He added that the tainted money was never recovered from his possession and that even according to the Raiding Magistrate the tainted money was recovered from the floor of the office.
7. Record of the case was produced by Mr. M. Asif Jan, learned Assistant Advocate-General, and the same has been perused with the help of the learned counsel for the parties.
8. Mst. Allah Rakhi P. W. 1 stated that on 23rd August, 1978 she was accompanying her nephew Nazir Ahmad P. W. 2 and they were coming to the city when they were stopped by Muhammad Saleem accused. He slapped Nazir Ahmad and took him to Police Station, Kotwali where he was confined illegally. In the evening after a long search she discovered that Nazir Ahmad was confined in Police Station, Kotwali. She took his lunch at the said Police Station next day where Ghulam Hussain accused demanded Rs. 50) as illegal gratification for Muhammad Saleem for the release of Nazir Ahmad. The bargain, however, was struck at Rs. 400. She reported the matter to the Martial Law Authorities on 24th August, 1978. Raiding party was arranged and prior to this raid the tainted money was passed by her to Ghulam Hussain accused. On her signalling, the raiding party approached the accused Ghulam Hussain and recovered the tainted money from the "Dabb"
(crease of the cloth worn around the waist) of Ghulam Hussain accused. Nazir Ahmad was recovered by the Magistrate Incharge from one of the rooms of the Police Station where he was kept in illegal confinement.
In cross-examination she admitted that she never knew the name of accused Muhammad Saleem and that it was Nazir Ahmad P. W. Who told her the accused's name and that she had given this name in her complaint, Exh. N, to Martial Law Authorities. But the name of the accused was not mentioned in the complaint. The story about the slapping of Nazir Ahmad by Muhammad Saleem was also not given in the said complaint. Similarly her version about the demand of Rs. 500 by Ghulam Hussain for Muhammad Saleem was not mentioned in the complaint. She also admitted that Muhammad Saleem was not present at the time of the raid. Name of Ghulam Hussain accused was not given by her during her statement before the Raiding Magistrate. She admitted that Major Shahzad Hussain Khan was with them at the time of the raid.
9. Nazir Ahmad P. W. 2 supported the statement of Mst. Allah Rakhi. He stated that in his statement before the Magistrate Exh.0 he had categorically stated that Ghulam Hussain and Muhammad Saleem accused had demanded Rs. 500 from his mother as illegal gratification. He was duly confronted with this statement in which the names of Ghulam Hussain and Muhammad Saleem petitioners were not mentioned. The circumlstance and the fact of the settlement of Rs. 400 was not mentioned either. This witness also admitted during cross-examination that there were many Police Officers and Constables at Police Station, Kotwah when he was taken there.
10. Bashir Ahmad Farooqi Magistrate P. W. 3 bad supervised the raid conducted by Ghaus Muhammad P. W.
4. This witness stated during cross-examination that Ghulam Hussain told him that the complainant had forcibly thruster money in his hands. He also admitted that the tainted money was picked up by him from the floor of the Police Station. This witness did not contradict the suggestion that Major Shahzad Hussain was with them at the time of raid of Police Station, Kotwali.
11. Ghaus Muhammad Sub-Inspector P. W. 4 stated that the tainted money was recovered from Ghulam Hussain accused. He also admitted in the cross-examination that during this transaction accused Ghulam Hussain and Mst. Allah Rakhi were at a distance of 10 to 15 yards and that he did not hear the conversation at the time the tainted money was passed to the accused.
12. Learned counsel for the petitioner has submitted that the Presiding Officer of Summary Military Court, who convicted the petitioners, was a Member of the Raiding Party. He could not be a Judge in his own cause and that the impugned conviction and sentence is liable to be set aside on this ground alone. Secondly it was submitted that both the petitioners were Government servants. They could only be tried by Special Judge, Anti --Corruption, under the Criminal Law Amendment Act and that too with the prior sanction of the Government. Thus the trial of the petitioners under M. L.
O. 7 read with M. L. R. 14 and section 161, P. P. C. Read with section 5(2) of the Prevention of Corruption Act by Summary Military Court was clearly illegal. It was further submitted that the so-called recovery of tainted money is belied by the evidence of the prosecution. It was submitted that it was in the evidence that the tainted money was recovered by the Raiding Magistrate from the floor of the premises and that the petitioners were not named by Mst Allah Rakhi or Nazir Ahmad in the complaint or in their statements before the Raiding Magistrate. Lastly it was contended that it was a case of no evidence and that the conviction and the sentence of the petitioners could not be sustained on the present record.
13. The petitioners in this case were tried and convicted by Summary Military Court No. 8, Faisalabad, which was presided by Major Shahzad Hussain Khan. It is borne out by the testimony of Mst. Allah Rakhi, P. W. 1., and Mr. Bashir Ahmad Farooqi Magistrate Ist Class, Faisalabad P. W. 3 that Major Shahzad Hussain Khan was with them at the time o the raid. Thus the petitioners were tried and convicted by a Court, which was presided over by an Officer, who was accompanying the raiding party and was in fact instrumental in the raid and arrest of the petitioners in the case. It is one of the cardinal principles of natural justice that no man shall be a Judge in his own cause (Nemo debet esse judex am propria causa).
14. One of the earliest decisions recognising this principle is the famous Dr. Bonham's case ((1610) 8 Co. Rep. 107). Here a doctor of medicine was summoned before a Board of the College of Physicians, and fined and imprisoned for contempt because he had failed to take out a licence to practice from the College. Coke, J. When the case came before him on an action for false imprisonment, held that the Board had no power to fine Dr. Bonham, because the Board was a judge in its own cause (as half the fine would be payable to the Board) and this would be: "against common right and reason, repugnant or impossible to be performed ; the common law will control it, and adjudge such act to be void."
As Professor de SmithJudicial Review of Administrative Action, 3 , at pp. 215-218) has shown the rule that a Judge must be free from bias was developed in our legal system through the supervisory jurisdiction of the High Court over inferior Judges. By the present century it had become clear that an administrative tribunal or other authority (for example a Ministry Inspector at an inquiry) acting judicially must be free from bias and must not be a judge in his own cause.
15. In Dickson v. Edwards and others ((1910) 10 C L R 243) a case from Australian jurisdiction related to the disqualification of a member of a Society, Rules for the Society provided that the District Chief Ranger, who was the head of the society, "shall preside at" certain meetings, including those of a certain judicial tribunal constituted by the rules. It was held that this rule did not require orrd permit the District Chief Ranger to preside, even formally on the tribunal on the hearing of a charge against a member in which the District Chief Ranger was in the position of a person complaining of an offence against himself personally.
A member of the society was charged for misconduct. The conduct complained of consisted of personal abuse of District Chief Ranger and other officers of the society. The District Chief Ranger presided at the tribunal which heard the charge, but took no part in the proceedings. The member was found guilty, and was expelled from the society. The Court held that the whole proceedings were invalid by reason of the presence of the District Chief Ranger on the tribunal, that the expulsion was ineffectual, and that the member was entitled to a declaration.
16. This principle was further illustrated by Lord Cave, L. C. In case Frome United Breweries Co. v. Bath Justices (1926 A C 586), in the following manner:- "if there is one prinziple which forms an integral part of the English Law, it is that every member of a body engaged in a judicial proceeding must be held to act judicially; and it has been held over and over again that, if a member of such a body is subject to a bias, whether financial or other, in favour of or against either party to the dispute or is in such a position that a bias must be assumed he ought not to take part in the decision or even to sit upon the tribunal.
This rule has been asserted, not only in the case of Court of Justice and other judicial tribunals, but in the case of authorities which, though in no sense to be called Courts, have to act as Judges of the rights of others."
17. In R. v. Sussex Justice, ex parte McCarthy ((;1924) 1 K B 256), a summons was taken out by the police against the applicant for having driven his motor vehicle in a manner dangerous to the public. At the hearing of the summons the acting clerk to the justices was a member of the firm of solicitors who were acting for a party, W., in a claim for damages against the applicant for injuries received in the collision. At the conclusion of the evidence justices retired to consider their decision, the acting clerk retiring with them in case they should desire to be advised on any point of law. The justices convicted the applicant, and it was stated on affidavit that they came to that conclusion without consulting the acting clerk, who in fact abstained from referring to the case. The conviction was quashed because it was improper for the acting clerk, having regard to his firm's relation to the case, to be present with the justices when they were considering their decision.
18. An even stronger case was R. v. Essex Justices (1) (1927) 2 K B 475). The justices' clerk had formerly been the solicitor for a party in a dispute arising out of the same subject-matter as that before the Court, but the party in question had consulted the solicitors clerk at a branch office where the clerk was left almost entirely on his own. No mention of the matter was made to the Solicitor himself, except one very short reference to it in a weekly report from his clerk. It was held that the applicant had a right to take objection to the presence of the solicitor as clerk to the justice, which would create in his mind the reasonable impression that justice was not being done.
19. A person acting as a Judge must not take part in the "prosecution" of the case. Therefore, when an officer's conduct was being investigated by a Watch Committee, he was entitled to a declaration that the decision was arrived at in a manner contrary to natural justice when it was established that the Chief Constable of the Force (who had preferred complaint against the plaintiff) was sitting with members of the Watch Committee throughout the hearing. In Cooper v.
Wilson (21937) 2 All E R 726, it was observed : "I ask myself what would anyone have thought who came into the room where the committee were sitting, after the plaintiff had gone out while they were considering their decision, and found, sitting on the bench with the committee, on-. Of the respondents to the appeal, who had opened the case, though he had left the calling of the witnesses to Superintendent Hughes. Such a person, if responsible, would have been likely to say to himself, "There has been an opportunity here for one of the parties to influence the judgment of the committee, and it looks as if justice may seem not to have been done."
A Writ of Certiorari was accordingly issued in favour of the petitioner and the impugned order was declared to be illegal.
20. A Judge's Deputy is disqualified if a Judge is disqualified and similarly a man cannot sue either before himself or before his own deputy. But there would be no disqualification where the so-called deputy is in fact an independent Judge. See
(2) Wood v. Commonalty of London (1701) 1 Salk 397.
21. In Regina v. Rent Police Authority and others, Ex parte (3) (1971)2QB662), this doctrine of bias was further enlarged when it was held that a medical practitioner giving a decision as to whether a person was permanently disabled under Police Pensions Regulations was performing a quasi judicialfunction and under a duty to act fairly. Lord Denning M. R. Observed: "When a medical practitioner is making a decision which may lead to a man being compulsorily retired, he must act fairly. He is not acting simply as doctor to patient. He is not diagonismg illness or prescribing treatment. He is not saying merely whether a man is fit or unfit for duty. He is doing something which affects the man's whole future. He must beyond doubt act fairly. Take this very case. A man's mental state is at issue. It affects not only his pension rights and payments to him. It affects his standing in the community, his ability to get other work and the like. It is quite plain to me that the person concerned is entitled to have a fair opportunity of correcting or contradicting any statement made to his prejudice, and a fair opportunity of calling in his own medical consultant and getting him to give his opinion to the deciding person. His own medical consultant should be entitled to have before him all material which the other doctors have."
It was held that since the chief medical officer had already expressed a view adverse to the applicant an order of prohibition should go to prohibit him from determining whether the applicant was permanently disabled under the regulations.
22. This said principle of natural justice has been followed in this Sub-Continent. Some of the early cases may be noted below: The Queen v. Bholanath Sen (1)ILR2Ca1.23) relates to the year 1876.
The facts of the case may be summed up in the following manner: "The jailor of a District Jail being accused by one of the jail clerks of falsifying his accounts and defrauding the Government, the matter was enquired into by the District Magistrate, and the jailor was, by the Magistrate's order, placed on trial before a Bench of Magistrates, consisting of the District Magistrate himself, L, the Officiating Superintendent of the Jail, and three other Honorary Magistrates. The prisoner and his pleaders were alleged to have stated before the commencement of the trial on being questioned that they had no objection to the composition of the Bench, but after the charges had been framed, the petitioner's counsel objected to the Bench as formed. The District Magistrate directed the Government pleader to prosecute, and both the District Magistrate and L gave evidence for the prosecution. After the case for the prosecution was closed, two formal charges were drawn up, namely, that the prisoner had debited Government with the price of more oil-seed than he actually purchased, and that he had received payment for certain oil at a higher rate than he credited to Government. The moneys, the receipt of which were the subject of the first charge, were obtained by the prisoner on the strength of certain vouchers which he had induced L to sign as correct, and L had sanctioned the sale at the rates credited to Government. Upon the prisoner's giving the names of the witnesses he intended to call in his defence, L was deputed by his brother Magistrates to examine some of them who were connected with the jail, in order "to guard against deviation", and the depositions so taken were placed on the record, `to be used by her party, though not themselves as evidence.The prisoner was convicted. Can a motion to quash the conviction . . . . "
It was held that although a Magistrate is not disqualified from dealing with a case judicially merely because in his character of Magistrate it may have been his duty to initiate the proceedings, yet a Magistrate ought not to act judicially in a case where there is no necessity for his doing so, and where he himself discovered the offence and initiated the prosecution, and where he is one of the principal witnesses for the prosecution. It was held that this was a most serious error in the procedure which has greatly acted to the prejudice of the petitioner. The conviction and sentence was set aside.
23. Another important case in this regard is Girish Chunder Ghose and another v. Queen-Empress I L R 20 Cal. 857.
This was a case where the District Magistrate, as prosecutor, initiated and directed the proceedings against certain accused persons who were charged by him with having committed offences punishable under sections 143 and 150 of the Penal Code, and who had himself taken an active part in causing the dispersion of the unlawful assembly, and had pursued and directed the pursuit of the members thereof, and that he subsequently took pains to collect the evidence showing the connection of the accused with the unlawful assembly and the keeping of armed men, on which evidence he subsequently convicted them himself, it also appearing that the Magistrate imported his own knowledge into the judgment, which showed that he should have got himself examined as a witness in the case, but all the same he tried the accused himself, the Court held that the District Magistrate was disqualified from trying the case himself.
In the circumstances the Court held that the District Magistrate was disqualified from trying the case himself. The concluding portion of the judgment may be quoted with advantage : "We would add that in passing this order we wish to cast no reflections on the District Magistrate, who appears to have been actuated by a zealous desire to preserve the peace of his District. But, as pointed out by Mellor and Lush, J1., in the case of Serjeant v. Dale L R 2 R B D 558 when laying down the rule that if a Magistrate has any legal interest in the decision of a case, he is disqualified from trying it, no matter how small that interest may be :-"The law in laying down this strict rule had regard not so much perhaps to the motive which might be supposed to bias the Judge, as to the susceptibilities of the litigant parties. One important object at all events is to clear away every thing which might engender suspicion and distrust of the tribunal, and to promote the feeling of confidence in the administration of justice which is so essential to social order and security."
24. In Ghulam Rasul v. Crown (1)PLD1951FC62 ) it was laid down "nothing should be allowed to happen in a case which may give rise to reasonable apprehension in the mind of an accused person that he could not or did not have a fair trial. It is essential that justice must riot only be done but must manifestly seem to be done."
25. In Anwar v. Crown (1) PLD 1955 FC 185) it was held that if the Judge is functioning under an influence brought about by his own act or by the act of another person, which has the effect to paralysing his judicial faculties, there is no fair trial."
26. Hafeez-ur-Rahman v. Principal Government College, Sylhet (2) PLD 1967 Dacca 700) was a case in which the expulsion of a student from college was declared to be illegal and without lawful authority because the examination of the record showed that the Deputy Commissioner who was the Chairman of the Governing Body of the College and presided over the crucial meeting of the Body had .Already made up his mind against the alleged prejudicial activities of the petitioner and he had, therefore, ordered that the petitioner should be expelled from the College. The Court found that in the circumstances it was not unlikely that the Governing Body was influenced by the opinion of the deputy Commissioner.
27. Kabir Ahmad v. S. D. O. Etc. (3) PLD 1968 Dacca 49) was a case were a Chairman of a Union Council had forwarded a complaint against the petitioner under section 341, P. P. C. To the controlling authority and recommended strong action against him. This complaint ultimately came back to the same Chairman for disposal. Chairman constituted a Conciliation Court with himself as its Chairman for the trial of the case and convicted the petitioner and ordered him to pay fine. High Court in a petition under Article 98 of the Constitution held the order passed by such Conciliation Court to be without lawful authority and of no legal effect.
27-A. In a recent case of bias Rahim Jan v. Institute of Chartered Accountants etc. (4) PLD 1977 Lah. 1450) Rahim Jan a Chartered Accountant was expelled from the membership of the Institute of Chartered Accountants. Two members of the Council of the Institute had grievance against the petitioner. It was held that their presence on the Committee was sufficient to vitiate the proceedings on the basis of bias. The impugned order of the Council was declared to be illegal and without lawful authority.
28. Halsbury's Laws of- England, Vol. I, Fourth Edn., p. 81 sums up the position as follows : "It is a fundamental principle that, in the absence of statutory authority or consensual agreement or the operation of necessity, no man can be a judge in his own cause. Hence, where persons having a direct interest in the subject-matter of an inquiry before an inferior tribunal take part in adjudicating upon it, the tribunal is improperly constituted and the Court will grant an order of prohibition to prevent it from adjudicating, or an order of certiorari to quash a determination arrived at by it, or such other remedy (for instance, an injunction or a declaration) as may be appropriate. The principle extends not only to courts and tribunals, but also to other bodies, including public authorities, determining questions affecting the civil rights of individuals In a wide range of other situations the impression may be received that an adjudicator is likely to be biased.
A person ought not to participate or appear to participate in an appeal against his own decision, or act or appear to act as both prosecutor and Judge ; the general rule is that in such circumstances the decision will be set aside. Normally it will also be inappropriate for a member of a tribunal to act as witness. Likelihood of bias may also arise because an adjudicator has already indicated partisanship by express--ing opinions antagonistic or favourable to the parties before him, or has made known his views about the merits of the very issue or issues of a similar nature in such a way as to suggest prejudgment because he is so actively associated with the institution or conduct of proceedings before him, either in his personal capacity or by virtue of his membership of an interested organisation, as to make himself in substance, both Judge and party, or because of his personal relationship with a party or for other reasons ...............
It is unnecessary to establish the presence of actual bias, although the Courts are not precluded from entertaining such an allegation. It is enough to establish a real likelihood that in the circumstances of the case an adjudicator will be biased. Alternatively, it may be sufficient to establish that a reasonable person acquainted with the outward appearance of the situation would have reasonable grounds for suspecting bias."
29. It will be noticed that the appearance of bias is regarded as seriously by the supervising Court as is actual bias ; the Judge who appears to have or who has a bias may have the most excellent and upright motives and may not in fact allow his judicial discretion to be impaired in any way b B the vitiating "interest", but the Courts will find there has been a breach of natural justice, because it is of fundamental importance that justice should not only be done but should manifestly and undoubtedly seem to be done.
30. In view of the above discussion and following the long line of judicial precedents spread over centuries, I hold that there has been a serious and material error in the proceedings in this case in so far as the petitioners were tried and convicted by a Court which was presided over by an Officer, who was accompanying the raiding party and was in fact instrumental in C the raid and arrest of the petitioners in this case. Without entering into other objections which the petitioners' counsel take to the conviction, I, hereby set aside the conviction and sentence and order that the petitioners be set at liberty forthwith if not wanted in any other criminal case.