THE PRESIDENT--Referring Authority vs MR. JUSTICE SHAUK ALI

1. REPORT Introduction HAMOODUR RAHMAN (CHAIRMAN).--This reference under Article 128 of the Constitution of 1962 read with the Provisional Constitution Order of the 4th April 1969, was received on the 20th of June 1970, and this report is being submitted in July 1971, after more than one year. The Council, therefore, considers it proper to give a resume of the proceedings, which will incidentally disclose the anxiety of the Council to be as fair to the respondent as it possibly could be, that some time was consumed in the course of the proceedings for reasons which were beyond the control of the Council, and that the conduct of the respondent was not at all conducive to smooth and expeditious disposal. A resume of the proceedings The Chairman of the Supreme Judicial Council was at Dacca with the Supreme Court when the reference was received. In the meantime, as a result of the dissolution of the One Unit, the High Court of West Pakistan had ceased to exist and in its place three new High Courts were set up in West Pakistan by the High Courts (Establishment) Order, 1970, promulgated on the 16th of June 1970. This affected the constitution of the Supreme Judicial Council, for, the Supreme Judicial Council which was originally constituted under Article 128 of the Constitution of 1962 was on the basis of two High Courts, one for the Province of West Pakistan and the other for the Province of East Pakistan. No action could, therefore, be taken on the reference until the Council was reconstituted by the Supreme Judicial Council (Composition) Order, 1970, which was promulgated on the 27th of July 1970.

2. This time was also utilised by requesting the Secretary, Ministry of Law, Government of Pakistan, in anticipation of the reconstitution of the Council, to make necessary arrangements for the representation of the Referring Authority before the Council. Intimation of the appointment of the Attorney-General of Pakistan as the senior counsel appointed to represent the Authority in the proceedings before the Council was received on the 11th of August 1970. The Attorney-General was then out of the country on a short holiday. After his return in September 1970, Mr. Sayeed A. Sheikh was appointed as his junior and Mr. Iftikharuddin Ahmad was appointed the Advocate-on-Record.

3. The Council thereafter, on the 21st of September 1970, served a copy of the reference on the respondent and the Attorney-General, and fixed the 10th October 1970, for a preliminary hearing of the reference and the presentation of charges by the Attorney-General.

4. The Council met on the 10th October 1970 as scheduled. The reference against Mr. Justice Shaukat Ali was registered as Special Reference No, 3 of 1970 and ten articles of charges were presented by the Attorney-General before the Council. The Council decided, without any objection from the learned counsel for the respondent, that the proceedings will, in the interest of the Judges concerned, be held in camera ; granted four weeks' time to the respondent to file his written statement, and directed that the next date of hearing would be fixed after the written statement had been filed.

5. The respondent was granted facility for making detailed inspection of the file of the Supreme Judicial Council as also of the documents disclosed on behalf of the Referring Authority in support of the charges. After such inspection the respondent on the 3rd of November 1970, applied for a further week's time for filing his written statement. This prayer was granted and the written statement was ultimately filed on the 14th of November 1970. The reference was then fixed to come up for hearing on the 14th of December 1970, but on the 9th December 1970, the respondent applied for an adjournment of ten days on the ground of illness of Mr. Manzoor Qadir, the learned counsel representing him. It was then adjourned to 18th of December 1970, as the reference against Mr. Justice Fazle Ghani was to come up for hearing on the 14th of December 1970, and Mr. S. M. Zafar, the learned counsel for Mr. Justice Fazle Ghani had indicated that he might take three/four days for arguing his preliminary objection which was similar to the one taken by the present respondent.

6. This preliminary objection was heard from the 14th to the 17th of December 1970, and was rejected.

7. An earlier date could not be fixed as the Chief Justice of East Pakistan had to undergo an operation for incisional hernia in October 1970, and the Supreme Court had to hold its second session at Dacca, as required by the Constitution, in November 1970.

8. The reference was heard thereafter from day to day until the 23rd of December 1970, and eleven witnesses were examined by the Attorney-General. The cross-examination of the last witness, Mian Abdus Salam, could not, however, he concluded. The reference was then adjourned to the 25th of January 1971. On the latter date, the cross-examination of Mian Abdus Salam was completed. The prosecution recalled another witness (P. W. 6) and examined him. It also amine two more witnesses.

9. On this day, the respondent filed a list cf 42 Pakistani and 11 foreign witnesses whom he wished to examine in his defence. When his learned counsel was asked as to why so many witnesses were required, the learned counsel asked for time to revise the list, as he had not examined the list himself. In the interest of eliminating unnecessary evidence, we accepted the request. He was directed to put in a revised list, and the Attorney-General was also asked to indicate as to which of the documents sought to be put in by the respondent he would be prepared to admit in order to reduce the number of witnesses. The hearing, however, continued from day to day up to the 5th of February 1971, with a gap of two days in between on the 28th and 29th January 1971, to accommodate Mr. Manzoor Qadir, who had another important professional engagement to fulfil.

10. On the 30th of January 1971, the Attorney-General after examining 18 witnesses closed his case.

11. In the meantime, the respondent had filed his revised list of 41 Pakistani and 12 foreign witnesses.

12. There was no reduction in the total number of witnesses. Some of the witnesses with regard to whom there were no objections had already been summoned and four defence witnesses were examined on the 30th of January 1971. The prayer of the respondent for summoning the declarations of assets of some of the other learned Judges of the Lahore and Sind & Baluchistan High Courts was disallowed as also 15 Pakistani witnesses were deleted from his list. On the 3rd of February 1971, the respondent filed a second revised list of 31 Pakistani and 10 foreign witnesses. A number of names were again deleted from this list after hearing his learned counsel, and to obviate the necessity of calling foreign witnesses the respondent was given permission to file the foreign documents after getting the same authenticated by the Embassy of Pakistan in that country along with translations in English. On this date, four more defence witnesses were examined and the hearing continued day to day up to the 5th of February 1971, when the Reference had to be adjourned to the 22nd of February 1971, as the Chief Justice of East Pakistan was anxious to return to Dacca on getting the news of his wife's illness. During this period 15 defence witnesses were examined.

13. On the 9th of February 1971, the respondent again applied for an adjournment on the ground of the marriage of his sister, which was to take place on the 21st of February 1971. One day's adjournment was granted for this purpose. The Council could not, however, meet on the 23rd of February 1971, as the Chief Justice of East Pakistan was unable to attend owing to serious illness of his wife, who was reported to be under oxygen. On the 24th of February 1971, the respondent filed another application for adjournment of the hearing to a date after the 8th of March 1971. No order was passed on this, as the next date of hearing could not be fixed in the absence of any information from the Chief Justice of East Pakistan as to when he would be able to attend.

14. On the 26th of February 1971, the Council sent for the Attorney-General, Mr. Manzoor Qadir, and Mr. S. M. Zafar, to examine the possibility of completing the quorum of the Council by asking the next senior Judge of the Supreme Court to act as a member of the Council in terms of clause (3) of Article 128 of the Constitution of 1962, but both Mr. Zafar and Mr. Manzoor Qadir represented that they would, in that event, be compelled to ask for a de novo hearing. The learned Attorney-General also took the view that this would be a justifiable demand. In these circumstances, the Council thought that the shorter course was to wait till Mr. Justice Sidd iky could rejoin.

15. The law and order situation in East Pakistan thereafter took a turn for the worse. Strikes paralysed the civil administration of that Province and lawlessness prevailed. The Chairman of the Council feeling that the situation in East Pakistan was extremely unpredictable wrote to the Secretary, Ministry of Law and Parliamentary Affairs, on the 3rd of March 1971, pointing out the difficulties in the further conduct of the proceedings of the Supreme Judicial Council, and requested him to move the President for amendment of the President's Order No, 14 of 1970 so as to enable the Council to proceed with the reference with the members available in West Pakistan.

16. As apprehended, the situation in East Pakistan further worsened, and ultimately the law had to be changed and President's Order No, 3 of 1971 was promulgated on the 6th of May 1971. Thereafter the meeting of the Council was summoned for the 17th of May 1971, but on the 14th of May 1971, the respondent asked for a private audience in Chamber saying that he had certain facts to disclose which might go to the root of the reference. This audience was granted to him on the 17th of May 1971, in the presence of all the members of the Council excepting Mr. Justice Siddiky. His learned counsel, Mr. M. Anwar, was also present at this audience and so was the Attorney-General. The respondent filed two applications making scandalous and false allegations against two members of the Council, and asked for the reconstitution of the Council by the exclusion of those members. He also bled copies of three representations, which he said he had made to the President, as also told the Council that another representation was actually being processed through the Governor under the advice of some senior General of the Army. He also made serious allegations against ex-Chief Justice Mr. A. R. Cornelius and the Law Secretary Mr. Justice Muhammad Gul. The attitude adopted by the respondent was clearly one of intimidation and arrogance, but his learned counsel dissociated himself from the step taken by his client and protested that he had not been taken into confidence by his client with regard to these matters.

17. By a written order these applications were rejected and a copy of the order was handed down to the respondent on the 18th of May 1971. The Council took a serious view of the attitude taken up by the respondent and warned him that further action may have to be taken against him in contempt for maligning the members of the Council. On perusing the order, the respondent burst out in temper, stood up and in a loud voice challenged the correctness of the Council's order. He reiterated that what he had stated in his applications was correct and that he would repeat the same a hundred times over the holy Quran, if necessary, and what the Council, had stated was false. He was warned to be careful, but he persisted in his rude and insolent behaviour. He was, thereupon, given notice to show cause as to why he should not be convicted for contempt in the face of the Council. He replied that he was aware of the consequences but would not allow the proceedings to continue. Upon this the Council proposed to take action immediately. At this stage, Mr. M. Anwar, his learned counsel, asked for one day's time to talk to his client. This verbal request was refused. Then he asked the Council to rise for a few minutes the Council rose for 15 minutes.

18. When it re-assembled, better sense prevailed and the respondent tendered unqualified apology.

19. This apology was duly minuted and got signed by him subsequently. The apology was accepted with a warning that such conduct should not be repeated. The conduct of the respondent was so obnoxious that even the learned Attorney-General felt it necessary to point out that it was by itself most unbecoming of a Judge and amounted to gross misconduct on the part of the respondent.

20. Two more defence witnesses were thereafter examined on that day. On the next day Mr. Justice Siddiky also reached Lahore and joined the proceedings. The examination of the defence witnesses continued and up to the 20th of May 1971, 23 defence witnesses had been examined.

21. The respondent's application for the examination of a number of Judges and members of the Bar to prove his good conduct was withdrawn by him, when it was pointed out that this would also entitle the Attorney-General to call evidence of his bad conduct.

22. On the 21st of May 1971, however, he filed a chart detailing a number of allegations against another learned Judge of the Lahore High Court for the purpose of showing alleged similarities between his case and the case of the said learned Judge. This again carried with it the insinuation that the Council had unfairly discriminated against the respondent by not applying the same yard-stick in his case. Nevertheless, the Council decided to place the chart on the record and to permit the respondent to refer to it at the time of arguments for pointing out similarities, if any, but made it clear that the chart could not be allowed to be used for any other purpose. In view of this order, the respondent closed his case and stated that instead of appearing as a witness he will file another written statement. The reference was, accordingly adjourned with the consent of the learned counsel for both sides, to the 1st of June 1971, for cross-examination, if any, of the respondent on the basis of his written statement, and the learned Attorney-General was to commence his arguments from the 2nd of June 1971. Foreign documents which had already been authenticated were also permitted to be filed and the respondent was given permission to file further foreign documents, if any, after they had been authenticated by our Embassy in the foreign country as earlier indicated.

23. On the 24th of May 1971, however, he filed an application saying that he would neither file any written statement nor appear as a witness in self-defence. On this date, he also made an application for the adjournment of the reference till the 28th of June, to accommodate Mr. Manzoor Qadir who had gone away to Nathiagali. This application was rejected, as the date had been fixed with the consent of both sides and arrangements had already been made for the meeting of the Council on the 1st of June 1971. On the 27th of May 1971, and the 28th of May 1971, the respondent filed two more applications for adjournment on the ground of Mr. Manzoor Qadir's inability to attend. Those were also rejected for the same reason, but it was explained to Mr. M. Anwar, who saw the members in Chambers that if after the conclusion of the Attorney-General's arguments, Mr. Manzoor Qadir wanted a few days' time to get ready, his request would be considered. In the meantime, the respondent also filed a number of other documents including several affidavits by his mother, his wife, some tenants of his mother and her rent collector. Learned Attorney-General objected to the affidavits and insisted on his right to have the deponents produced for cross- examination on the 1st of June 1971.

24. On the 1st of June 1971, the respondent's request for examining one more witness was granted and the witness was examined. Thereafter the respondent filed two applications, the first for adjournment of the reference and the second with regard to the documents and affidavit earlier filed by him. His application for adjournment of the reference was refused and he was informed that the learned counsel for the Referring Authority would commence his arguments on the 2nd. He and his second counsel, Mr. M. Anwar, could take notes for the benefit of Mr. Manzoor Qadir. After the Attorney-General had concluded his arguments and Mr. Manzoor Qadir was back in Lahore, the Council would accommodate him by a few days if he still so desired. The objection of the Attorney- General regarding the affidavits was sustained but the respondent's learned counsel stated that the deponents of the affidavits would "on no account" be produced for cross-examination before the Council, and sought permission to withdraw from the proceedings, as, according to him, his "commission" had ended. After he withdrew, the respondent also filed another application, which he had ready with him for permission to withdraw from the case. It was pointed out to him that he would do so at his own risk, for the proceedings, as far as he was concerned, would be treated as closed. The respondent then withdrew from the proceedings. This was evidently a pre-planned move in line with the overbearing attitude adopted by him since the 17th of May 1971.

25. The learned Attorney-General opened his arguments on the 2nd of June and concluded the same on the 8th of June 1971, with respect to the first nine charges. He then sought permission to leave, as he had to proceed to Vienna in connection with the meeting of the Council of Civil Aviation regarding stoppage of P. I. A. flights over Indian territory. The rest of the arguments were made by his learned junior, Mr. Sayeed A. Sheikh, who concluded them on the 9th of June 1971.

26. On this date, Mr. Manzoor Qadir appeared and sought permission on behalf of the respondent to re-join the proceedings. The respondent also by a petition expressed his regrets for his behaviour.

27. The Council granted him permission to rejoin the proceedings and granted time to Mr. Manzoor Qadir to commence his arguments from the 14th of June 1971. He was also supplied a copy of the transcript of the arguments of the Attorney-General. The arguments were concluded on the 19th of June 1971, when the Council set till 6.00 p.m.

28. It will thus be observed that the Council has, as admitted by Mr. Manzoor Qadir himself, throughout shown the respondent the maximum consideration and extended to him every facility so that he should have the fullest opportunity of defending himself. During the course of the proceedings, he has inspected the records and documents thrice and even taken copies of every document which was on the record. He has filed in the course of the proceedings 52 petitions up to the close of the arguments and even after the close of the proceedings he has on the 21st of June 1971, filed two further petitions to supplement the arguments of his learned counsel. Every document relied upon by the Attorney-General and the arguments advanced on the basis thereof were duly pointed out to the respondent's counsel during the course of his arguments so that he might be able to give his explanation thereto. The respondent has also been permitted, during the course of the arguments, to file a number of further account books and documents to remove, as far as he could, the defects which were pointed out by the Attorney-General as existing in the respondent's case.

29. Procedure followed At this stage, it is necessary also to state that although the Council was entitled to lay down its own procedure, it has generally followed the procedure of a trial in a Court of Law and the rules of evidence as laid down in the Evidence Act. Departures, from these rules have been made mostly in favour of the respondent to obviate the necessity of calling a larger number of witnesses for the formal proof of documents. All documents produced by the respondent and admitted by the Advocate-on-Record for the Referrring Authority have been admitted as evidence without their formal proof, and the respondent has been allowed to bring on the record not only official documents but even books of account without proving them formally. Preliminary objections The learned counsel for the respondent did not, in his arguments, press his preliminary objections, although it was pointed out to him that the reasons for rejecting the preliminary objection in the other reference had not been recorded, as that reference had come to an abrupt end by the resignation of Mr. Justice Fazle Ghani. However, for the sake of completeness, we think it necessary to indicate in brief the nature of the preliminary objections raised and our reasons for rejecting them.

30. The objections raised were two-fold, firstly that the reference is bad, for, it is based upon a report which was itself bad and non-existent in the eye of the law, and secondly that the Council, as constituted, was disqualified from hearing the reference, as having earlier scrutinised the declaration of assets of the respondent, it was bound to be biased. First objection The first objection is on the ground that the Council had not followed the procedure indicated in sub-clause (3) of clause 4 of the Judges (Declaration of Assets) Order, 1969 (President's Order No, 4 of 1969), and, therefore, the entire proceedings before the Supreme Judicial Council were coram non judice. This argument is misconceived, because, sub-clause (3) of clause 4 only provides that the procedure for an inquiry under the Judges (Declaration of Assets) Order should, "as far as may be, the same as in the case of an inquiry by the Council into the capacity or conduct of a Judge".

31. Learned counsel, therefore, contended that the procedure for scrutinising declarations being the same as for an inquiry into the capacity or conduct of a Judge, the respondent should have been given the same facilities at the time of the scrutiny of the declaration of his assets as has been given in these proceedings, but no opportunity was given to him to produce evidence at that time.

32. These proceedings being a consequence and even a continuation of the previous proceedings, these as well as the previous proceedings, are vitiated. Learned counsel, in putting forward this extreme contention has unfortunately overlooked the fact that no procedure has been provided even for an inquiry into the conduct or capacity of a Judge, and thus the Supreme Judicial Council has been made the sole judge of its own procedure. It can follow any procedure which is just and equitable. Complete uniformity of the procedure adopted at the time of the scrutiny of declarations and at the time of the trial of charges is not contemplated because the words "as far as may be" are also to be given effect. This differentiation is proper because the character of the mere scrutiny of declarations was different from the character of the present inquiry into charges.

33. Moreover, an inquiry into the conduct of a Judge is neither a criminal indictment nor even a quasi- criminal proceeding but it is, in our opinion, mainly an administrative proceeding conducted by a domestic forum to examine the professional fitness of a Judge. The subject-matter of these proceedings is neither civil rights and duties nor criminal liabilities. It is simply the conduct of a judge which is to be properly reviewed in the interest of the purity and honour of the judiciary. The forum consists of Judges of superior Courts who also belong to the same profession. To be tried by one's peers is a protection because they understand one's difficulties, problems and the situation in which one was. Doctors, architects, accountants and lawyers aim at having and have their domestic tribunals, that is to say, the tribunals which judge their conduct are manned by their own peers. Such tribunals have to observe their own rules of procedure but in matters with respect to which there are no rules, they have to follow the principles of natural justice to ensure utmost fairness by affording every reasonable opportunity to the person concerned of putting forward his point of view and meeting the case sought to be set up against him. This is exactly what was done in this case too both at the time of the scrutiny of the declaration of assets and in these proceedings with the necessary variation arising from the different characters of the two situations.

34. The more liberal treatment for affording the opportunity to meet the charges and to submit any and every explanation has been afforded to the respondent in these proceedings. At the time of the scrutiny of his declaration of assets there were no charges against him. The questions which arose from the declaration were put to him and then further questions were asked which arose from his explanations. This procedure was followed until it became clear that some doubts remained unresolved. Accordingly, we submitted a report to the President. No opportunity of producing documents and submitting explanations was denied to the respondent and every one of them was taken on record without their formal proof. Natural justice was thus fully assured and no grievance can be made on that account. It is unfortunate that his attitude throughout has been that no one ought to question the correctness of the stand which he took even if it was patently unsatisfactory.

35. Apart from this, we see no legal validity in the grievance of the respondent with respect to the charges which have been referred to us for inquiry on the basis of our report. The report was simply in the nature of information receivable by the President under Article 128 of the Constitution of 1962.

36. It was open to him to act on it or even on any other information received by him from any other source provided that he thought fit to do so and to direct this Council to enquire into the matter.

37. The Article is as follows :- "128.--(1) There shall be a Supreme Judicial Council of Pakistan, in this Article referred to as 'the Council'.

(2) The Council shall consist of-- (a)the Chief Justice of the Supreme Court; (b)the two next most senior Judges of the Supreme Court; and

(c) the Chief Justice of each High Court.

(3) If, at any time, the Council is inquiring into the capacity or conduct of a Judge who is a member of the Council, or a member of the Council is absent or is unable to act as a member of the Council due to illness or some other cause, the Judge of the Supreme Court who is next in seniority below the Judges referred to in paragraph (b) of clause (2) of this Article shall act as a member of the Council in his place.

(4) The Council shall issue a code of conduct to be observed by Judges of the Supreme Court and of the High Courts.

(5) If, on information received from the Council or from any other source, the President is of the opinion that a Judge of the Supreme Court or of a High Court-- (a)may be incapable of properly performing the duties of his office by reason of physical or mental incapacity; Or (b)may have been guilty of gross misconduct, the President shall direct the Council to inquire into the matter.

(6) If, after inquiring into the matter, the Council reports to the President that it is of the opinion-- (a)that the Judge is incapable of performing the duties of his office or has been guilty of gross misconduct; and (b)that he should be removed from office, the President may remove the Judge from office.

(7) A Judge of the Supreme Court or of a High Court shall not be removed from Office except as provided by this Article."

38. The President as the Referring Authority under the Article has made this reference in the following terms :- "After having gone through the enclosed reports of the Supreme Judicial Council made on the Judges (Declaration of Assets) Order, 1969, I am of opinion that Judges of the High Court of West Pakistan may have been guilty of gross misconduct. The Supreme Judicial Council will please conduct an inquiry to ascertain whether the said Judges have been guilty of such misconduct."

39. The reference is, therefore, by the President on the basis of his own view of the matter. The report submitted by the Supreme Judicial Council after the scrutiny of the respondent's declaration was nothing more than one of the sources of his information for purposes of the Article. This reference is by no means a continuation of the scrutiny of his declaration nor it can legally be so, because, after the submission of its report under President's Order No, 4 of 1969, the Council became functus officio and that phase was over. The scrutiny of declarations was an entirely different jurisdiction which was conferred upon the Council as a very special measure on the request of the Judges themselves. The respondent has informed us orally and has also written in paras. 10 --12 of his representation dated 26-4-71 made to the President, a copy of which he produced in these proceedings, that he was afraid of the Martial Law Authorities owing to a certain judgment which was given by him. That might have been his reason for joining and supporting the request but now that the President has thought it fit to make a reference to this Council under Article 128 of the Constitution of 1962, it has become the constitutional duty of the Council to enquire into the matter.

40. The Council has no authority now to sit in judgment on its report much less to sit in judgment on the view which the President took of it. It is not for the Council to say whether the reference should or should not have been made, nor has the Council any jurisdiction to return the reference It can only submit its report to the President after holding an inquiry on two points, namely, (i) as to whether the Judge concerned has been guilty of gross misconduct, and (ii) whether he should be removed from office.

41. It has also to be pointed out that time the recommendation of the Council after the scrutiny of the declarations of Judges was merely that a further inquiry should be held, it carefully avoided in its report to record any definite opinion or to give any adverse finding against the Judge concerned, but merely indicated that a prima facie case for a fuller inquiry existed. It cannot, therefore, be said that the Judge concerned has been condemned unheard, although it was open to the Supreme Judicial Council even in its earlier report to make a recommendation as to the punishment to be imposed upon the Judge concerned. It was in the interest of safeguarding the independence of Judges and preventing the possibility of a removal of a Judge of a superior Court save by the procedure provided by the Constitution that it refrained from doing so. It was then thought and it is still the view of the Council that since a Judge can only be removed after an inquiry under Article 128 of the Constitution of 1962, that constitutional protection should be jealously safeguarded and that there should be no impression that a Judge's position could be rendered vulnerable in any other way. Second objection The second objection of the respondent is, in our view, equally untenable. There is no question here of any personal bias in any individual member of the Supreme Judicial Council, and none has been alleged, which could disqualify him from participating in the proceedings under the reference now before it. There is no allegation here that any member of the Council was, in any way, hostile or inimically disposed towards the respondent.

42. The mere assertion of bias can never be sufficient to disqualify a Judge in hearing a cause or matter. In the absence of any pecuniary or proprietary interest in the subject-matter of the proceeding, it is essential that a real likelihood of bias must be shown. The mere fact that the Council had scrutinised the declaration of assets is not sufficient to establish such likelihood of bias, for, if it were so, then no Judge, who issues a rule in a motion or issues a notice to show cause in any other proceeding or frame a charge in a trial, can ever hear that matter or conduct that trial.

43. The reason is that a preliminary inquiry intended to determine whether a prima facie case has been made out or not is a safeguard against the commencement of wholly unwarranted final proceedings against a person. To say that a charge should be framed against a person amounts to saying nothing more than that the person should be tried in respect of it. Anybody who knows the difference between a prima facie case and its final trial would reject the objection as misconceived. We accordingly reject them as misconceived.

44. There is furthermore, in this case, another exception which should not be lost sight of, namely, that "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 even 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 termination of the proceeding" (vide American Jurisprudence, Vol 30, page 770). The Supreme Judicial Council is the only body which can hold an inquiry into the capacity or conduct of a Judge and if this entire body is itself disqualified, there will be no other forum before which the inquiry can be conducted. The procedure of co-option under clause (3) of Article 128 would not resolve the difficulty, if this objection is allowed to prevail, for after three Judges of the Supreme Court are disqualified, there will be only 3 left to constitute the Council which has to consist of 5 persons under Article 128. There is no provision for a quorum therein. The quorum was fixed at 3 only by the amendment of the 6th May 1971. The preliminary objections are, therefore, overruled as being misconceived. The Charges Having disposed of the preliminary objections we now proceed to consider as to how far the charges presented by the learned Attorney-General have been made out, if at all. The first three Charges Both the learned Attorney-General and the learned counsel for the respondent have dealt with the first three charges jointly. These charges are as follows :- "Article of Charge No, 1 That on and before the date of his appointment as a Judge of the High Court of West Pakistan, viz. 25-11-1965, he was a shareholder of Vulcan Company Ltd., Lahore and Ally Brothers & Company (Pakistan) Ltd , Lahore both Private Limited Companies. He was also a Director of Vulcan Company Ltd. Even after his elevation to the Bench he did not sever his connections with the said companies but continued to be the shareholder and Director as before and took part in the affairs and business thereof. In these circumstances he involved himself in activities of industry and trade for the pursuit of wealth, even after he became a Judge. That was in violation of Article VI of the Code of Conduct of Judges. His subsequent severance of connection therefrom in December 1969, after the filing of his declaration under Article 3(1) of Judges (Declaration of Assets) Order, 1969, does not absolve him from the liability already incurred.

45. Article of Charge No, 2 That during the tenure of his office as a Judge, he had business and financial dealings with the said companies. The statement of account of the Vulcan Co. Ltd., shows debit balance against him. He, therefore, incurred financial and other obligations to the said private Company which were likely to embarrass him in the performance of his functions as a Judge. In these circumstances his conduct was in violation of Article VI of the Code of Conduct. Article of Charge No, 3 In the following circumstances, after becoming a Judge, he involved himself in activities of industry and trade for the pursuit of wealth in violation of the Code of Conduct of Judges :-- (a)That on or about 1-10-1966, a private limited company known as Vulcan Ice Factory was incorporated in which the only 3 shareholders were his brother, Akhtar Ali, his sister-in-law, Musarrat Afza and his daughter Samina Ali. In this company he held substantial shares in the name of his minor daughter.

46. (b)That on 5-5-1967, a private limited company known as Metropole Cinema Ltd., was incorporated which had originally 3 and later 4 shareholders viz. (1) Shekih Akhtar Ali, (2) Mian Mushtaq Hussain, (3) Respondent himself, (4) Respondent and his mother jointly. In this company the respondent held shares of very substantial value of about Rs, 6,00,000.00."

47. The gravamen of these charges is that the respondent involved himself in activities of trade and industry in contravention of Article VI of the Code of Conduct frames for Judges of Superior Courts.

48. Furthermore that by entering into financial obligations in the nature of advances and/or loans and maintenance of personal ledger accounts, with some of the said concerns, even during the tenure of his office as a Judge, he exposed himself to the likelihood of serious embarrassment in the performance of his functions as a Judge. Family Pool and Family Ventures Before entering upon an examination of the arguments advanced in support of these charges it is necessary to mention here that the respondent, on his own admission in his written statement, "belongs to a family that has been doing business as a joint family for many years", that he as a member of the joint family deposited his own earnings also into "the family pool" and from time to time drew whatever he required for his "need from the pool". Indeed, so far as the Vulcan Company and Ally Brothers Limited are concerned, the respondent maintained in a reply which he submitted on the 20th of February 1970 (marked Exh. C. 1) in answer to certain written queries made by this Council, that these "organizations were family enterprises and being a member of the family which still believes in the joint family system" he decided "to continue as one of the shareholders." These pleas constitute a fairly clear admission that the respondent was financially interested in the business ventures of the family as one of its members and that the ventures were launched for the benefit of the family with the family resources. The technical form of the ventures is to be appreciated against this background. The Original Family Resources The father of the respondent, according to the information furnished by the respondent himself, was an "entrepreneur" doing extensive business in pre-World War II days in machinery, steel, hard- ware and mill stores, in addition to running an iron foundry, an ice factory and a cold storage firm.

49. He died in 1938 leaving, as far as can be ascertained from the records, two widows, five sons and two daughters. The respondent was at that time 10 years old and his elder brother Akhtar Ali was only 12 years old. The family also became involved in litigation after the father's demise and had to face difficult days. The respondent's mother, Mst. Sardar Begum, however, managed to retrieve the family and to liquidate her deceased husband's movable assets so well that between the 5th of December 1938, and the 20th of March 1957, she was left with even after giving large sums to her sons and one of her daughters and spending Rs, 50,000 on the marriage of another daughter, a sum of Rs, 6,10,000.00 in cash which was distributed in terms of a deed of partition executed on the 20th of March 1957, in the following manner :- Rs.

(1) Sh. Akhtar Ali 1,28,000.00 (2)Sh. Shaukat Ali 1,26,000.00 (3)Sh. Salim Ali 1,12,000.00 (4)Sh. Murtaza Ali 1,09,000.00 (5)Mst. Razia Khanam 70,000.00 (6)Miss Ejaz Ghulam Mustafa 60,000.00 (7)Mst. Sardar Begum 5,000.0 Total6,10,000.00 This does not indicate that anything was received by the other branch of the family but it appears from the deed that all the immovable properties were allocated to Mst. Sardar Begum alone till her death.

50. It is said that all this money was kept with herself in her safe as she did not believe in Banking transactions although, as will be seen later, she was herself a partner in a firm. This `nucleus' was accepted by the Council as a starting point of all The the family business ventures although some members doubted the existence of such a large 'nucleus' in liquid and unproductive Mr. Justice form with a business minded family.

51. It may also be mentioned here that this deed of partition according to its own recitals, was entered into, because, one of the sons had already separated and another wanted to live apart, Chairman the married daughter was pressing hard for her share of the assets left by her deceased father and the other members of the family too "were also equally anxious to determine their share of inheritance and get it apportioned for their respective use". The joint family had thus been already dismembered and indeed Sh. Salim All and Sh. /Maim Ali, two of the brothers of the respondent, were living in separate residences and maintaining separate establishments of their own. Vulcan Co.

52. It appears that Vulcan Company, which was an old joint family firm, was dissolved. The photostat copy of the treasury challan filed along with the written statement shows that Mst. Sariar Begum, the respondent's mother, was assessed to income-tax for the years 1956-57 and 1957-58 as a partner of Messrs Vulcan Company which was, according to her own statement at page 97 of the written statement, "a registered partnership firm till the year 1957".

53. After dissolution the firm was converted into a private limited company on the 9th of March 1957, presumably in anticipation of the dissolution of the joint family itself to facilitate the apportionment of its assets amongst the members of the joint family. The respondent was one of the promoters of this company and although its Memorandum and Articles of Association (Exh. PH/25) were signed on the 16th February 1957, its declaration of registration and its Form XII (Exh. PH/25/1) under section 78 of the Companies Act, 1913, which appear to be dated the 28th of December 1956, show that the respondent had been appointed a director from the 30th of December 1956 in terms of Article 16 of the Articles of Association. He is shown as one of the original directors, even though he did not at that time possess the necessary qualification of a director by holding shares of the nominal value of Rs, 25,000. In the Articles of Association he is shown as having subcribed to only 15 shares but subsequently by 1964 his shares were increased to Rs, 60,000, namely, 60 shares of the face value of Rs, 1,000 each (Exh. DE/14).

54. According to sub-Article (17) of Article 21 of the Articles of Association of this company, the respondent was to be the Attorney of the Company to represent its interests in Courts for a period of ten years. He drew an allowance of Rs, 500 p.m. on this account from the company.

55. Other shareholders of this company were his other three brothers, and one Sh. Mumtaz Ali, who is also a son of Sh. Ghulam Mustafa, the father of the respondent, probably from the other wife, as his name does not figure in the partition deed (vide Exh. C/8). Ally Brothers Soon thereafter another concern, called the Ally Brothers & Company (Pakistan) Ltd. was also incorporated on the 31st of December 1957, with four shareholders, namely, the respondent, his brothers Sh. Salim Ali and Sh. Mumtaz Ali and his sister Miss Ejaz Ghulam Mustafa. The respondent had five shares in this company of the face value of Rs, 10,000 each. He was never a director of this company but under sub-Article (17) of Article 21 of the Articles of Association he was appointed an Attorney to represent the interests of this company too in Courts for a period of ten years (vide Exh.

56. PH-26/15), presumably on the same terms as in the other company. Subsequently one, Parshotam Lal Singha also became a share-holder of this company holding five shares. On the 31st of December 1967, two other persons, namely, one Mr. A. A. Khan, and Mr. Vispi P. Darogha were allotted one share each (vide Exh. PH-26/12) but up to the year ending 23rd December 1969 (vide Exh. PH-26/14), It does not appear that Mr. Daroga ever became a director of the said company.

57. It may also be noted here that Mr. Daroga never became a shareholder of Vulcan Company Ltd. even up to the 10th of December 1969 (vide Exh. DE-12). The respondent becomes a Judge The respondent became an Additional Judge of the High Court of West Pakistan on the 25th of November 1965. Vulcan Ice Factory After this date another private limited company, called the Vulcan Ice Factory Limited, was incorporated on the 1st of October 1966 (Exh. PH-1) with a share capital of Rs, 5 lacs divided into 5000 shares of Rs, 100.00 each. In this company, according to the return of allotment of shares (Exh.

58. PH-2) sent to the Assistant Registrar of Joint Stock Companies on the 1st of October 1966, there are three shareholders, namely, Sh. Akhtar Ali, his wife, Musarrat Afza, and Samina Ali, the respondent's minor daughter from his present wife, aged 3 years. The infant was allotted 800 fully paid-up shares, but as proved by the certificate issued by Messrs Hameed Chowdhury & Co. (Exh. DC-17) only Rs, 45,000 was actually paid for these shares. The company, however, adopted the device of showing in its books of account and its balance-sheets an advance of a sum of Rs, 35,000 to her by the company although under the law a company cannot advance money for the purchase of its own shares and cannot issue partly paid-up shares to a minor. The records of the company conceal this aspect by avoiding to show that she was a minor.

59. We may note here that in Article 21 of the printed Articles of Association of this Company (Exh. PH-1), the original names of permanent directors were Sh. Akhtar Ali, Mrs. Musarrat Afza and Mrs. Farah Begum (Farah was the name adopted by the respondent's present wife at the time of her marriage (vide Nikahnama Exh. PG-92). The name of Farah Begum was, however, struck out under the signature of Sh. Akhtar All presumably for the safety of the family and consistently the shares were shown to belong to her daughter Samina Ali. Metropole Cinema Ltd.

60. Thereafter, on the 5th of May 1967, another private limited company called the Metropole Cinema Ltd., was incorporated with two shareholders, namely, Mr. Akhtar Ali and his wife, Mrs. Musarrat Afza.

61. The extracts of the ledger account of this company furnished by the respondent (marked Exh. C. 2), however, show that he was depositing various sums with the company from the 1st of January 1967, although formally the shares of Mst. Musarrat Afza were transferred to him on the 20th of September 1968, in two lots, 530 shares of the value of Rs, 1,030 each to him personally and 70 shares in the joint names of the respondent and his mother Mst. Sardar Begum. The reverse of the share-scripts are still blank and it seems mat these are not the share-scripts which were originally issued to Mst. Musarrat Afza, out appear to be entirely new scripts issued to the respondent.

62. Unfortunately all that we have, in the case of this company, is the extract of ledger account supplied by the respondent himself at the time of the scrutiny of his declaration of assets and this shows that the payment of Rs, 6 lacs was completed by the 28th of February 1968, several months before the formal transfer of the shares.

63. In order to obtain these shares in the Metropole Cinema Ltd., the respondent has not only sold his library and four squares of land in Qila Rai Singn, District Gujranwala but also collected all his outstandings, taken a loan of Rs, 50,000 from the National Bank of Pakistan as also an advance of Rs, 80,000 from the Vulcan Company Ltd., on the security of his shares, and allegedly a further advance of Rs, 70,000 from his mother Mst. Sardar Begum for the purchase of 70 snares in their joint names, to make up the cost of 60U snares in all.

64. His total investment in these private limited companies is thus Rs, 7,90,000, according to the face value of the fully paid-up shares held in these companies and Rs, 7,55,000 if only the actual payment made in respect of the shares of Vulcan Ice Factory Ltd., is taken into account. As against this, his investments in public companies amount only to the comparatively insignificant amount of its. 11,433. Were these Concerns treated as limited liability Companies ?

65. The above participation by itself, according to the learned Attorney-General, is sufficient to show that the respondent was not making investments for the purpose of making provision for himself and his wife in order to meet the exigencies of life such as his own untimely death or retirement or for the education of his children or for their legitimate other needs, present or future, but was indulging in naked pursuit of wealth for the sake of enriching himself by borrowing heavily from every available source.

66. Learned Attorney-General's further contention is that the continuance of the respondent as a shareholder in Vulcan Company Ltd., and Ally Brothers Company (Pakistan) Ltd., and his acquisition of shares even after his elevation in Vulcan Ice Factory and in Metropole Cinema Ltd., amounted to involvement in the industry and trade of the family. In substance they were nothing more than private partnership firms confined, exclusively, in two cases (Vulcan Company Ltd., and Vulcan Ice Factory Ltd.) to members of the same family, and in the other two cases (Ally Brothers and Metropole Cinema), predominently amongst the members of the same family. It is, according to the learned Attorney-General, permissible in such circumstances to lift the veil of incorporation and look behind it to ascertain the true nature of the association of the respondent with these concerns. He seeks also to point out that the dealings of the respondent with these Companies were not simply those of an ordinary shareholder vis-a-vis the limited companies but were in fact such as might be expected in partnerships or proprietary concerns. He has drawn our attention to the books of account of Messrs Vulcan Company Ltd., and Ally Brothers Company (Pakistan) Ltd., to show that although as private limited companies they were not entitled under the Banking Companies Ordinance, 1962, to do any banking business, yet they maintained personal accounts of the respondent, his brothers and some others from which, on his own admission, he not only withdrew large amounts but into which he also deposited even his personal earnings derived from his profession when he was a practising lawyer and from his salary after he became a judge, so far so that even for the payment of life insurance premia, purchase of lands and shares and even household expenses, such as petrol bills, driver's pay, electric bills, etc., monies were drawn from these concerns, vide Exhs. PH-41, PH-42, PH-43, PH-44, PH-76, DG-20, DG-23, DG-24, DG-25 and DG- 30.

67. Reliance has also been placed, in this connection, on the oral testimony of Ghulam Rasul Malik (P.

68. W. 18), Accountant, Vulcan Company Ltd., to show that even in 1966, when the respondent purchased lands in Ilaqa Nawab Sahib the money was paid by Vulcan Company. The Accountant of the Company admitted that he carried the money to the registration office and was present at the time of registration, although he was not an employee of the respondent. The entry (Exh. DF- 7/2) of the payment of this amount will be found at page 10 of the ledger for the year 1965 (Exh. PH- 41). Similarly, on the 8th of February 1966, another sum of Rs, 9,400 was sent on the respondent's behalf to a clearing agent at Karachi (vide Exh. DF-7/2) for the clearance of personal imports of the respondent and his wife and in 1968, a sum of Rs, 80,000 was advanced to him by book transfer for the purchase of the Metropole Cinema shares. This witness also admitted that the respondent withdrew monies very frequently, sometimes even twice or thrice a day, with the result that on 31- 3-70 when his account was finally adjusted, he owed Vulcan Company Ltd., a sum of Its. 1,17,097.39.

69. The Attorney-General has, of course, characterised the books of account of these companies as fabricated and written at one sitting for the purposes of this inquiry to assist the respondent by introducing fictiticus entries therein, although Shaukat Ali the amounts, which have been shown as advances or loans to the respondent, were really withdrawals by him as a partner from the business profits of the company. The books of account of Vulcan Company for the years 1967-68 and 1968-69 according to him, bear intrinsic evidence of fabrication. The books, are, therefore, not reliable according to him and the deposits shown to have been made therein by the respondent, more or less consistently, at the rate of Rs, 500 per month practically up to September 1969, are nothing but the continuance of payments by the firm of the allowance of Rs, 500 per month which was being paid to the respondent before his elevation to the Bench in the guise of professional fees, although, in fact, those payments were payments out of the profits of the company. He drew our attention to the admitted fact that no company has ever given any dividend to its shareholders, therefore, in the ordinary sense there was no purpose of these investments unless an inference is drawn that the advantage of profit was derived behind the scenes.

70. Vulcan Company Ltd., which was originally a registered partnership firm, it is contended, continued to remain, and functioned in fact, as a partnership firm under the facade of its incorporation which was nothing more than a blind. Similarly, the other concerns were really built up out of the nucleus provided by the parent concern, Vulcan & Co. Ltd., and monies were transferred from one concern to the other by fictitious entries showing advances and/or payments on behalf of one of the common shareholders from one company into another. All these companies thus bore the same character and were nothing more than family concerns in the business of which each member of the family was financially interested. The membership of such firms, whether active participation in their management was indicated on paper or not, was involvement in industrial and trade activities which a Judge was not permitted to carry on.

71. In this connection, reference has also been made to the evidence of D. W. 24, Mr. Abdul Hamid Chaudhury, Chartered Accountant of Messrs Hamid Chaudhary & Co., who are the auditors of these concerns. He bluntly admitted in answer to a question put by the council, that although Vulcan Ice Factory Ltd. was in name a private limited company, but in fact it was not, according to him, in substance a "family concern" and things, which could not strictly speaking be done according to the provisions or the Company Law, were done by this company by way of "family arrangement". Mr. Manzur Qadir's Reply As against this, Mr. Mauzur Nadir appearing on behalf of the respondent, has contended that a company has a separate legal entity, apart from its shareholders whether it is a private or a public limited company. Merely because a person holds shares in a private limited company it cannot be said that he either participates in the management of the affairs of that company or becomes involved in activities of trade and industry. If it is not objectionable to hold shares in public limited companies then it is equally unobjectionable to hold shares in private limited companies because the liability of the shareholders is limited and the nominal value of the shares held by them in both types. So far as the lifting of the veil of incorporation is concerned, it cannot be done in respect of questions relating to the property of the company, the capacity of acts done and the rights acquired or liability assumed by its share-holders. In such matters, the company is always an entity distinct from its corporators and is not a mere alias or an alter ego of them. So far as the liability of a corporator is concerned it being limited to the share capital of a limited liability company, whether private or public, he has no reason to feel embarrassed if his company do pay a loan or do recover money. Therefore, in the absence of positive evidence to show active participation in the management or control of the affairs of a limited liability company, a corporator or a shareholder does not become involved either in trade or industry or business, and far less can the holding of shares in such companies be said to be a hindrance in the proper discharge of his functions in another capacity such as that of a public servant or a judicial dicer.

72. The liability of a shareholder in a private limited company can only be increased if it is shown that he is the sole shareholder or at least the controlling shareholder and the company is in effect a "one man company". The lifting of the veil of incorporation, if permissible at all, is permissible only where fraud is practised or any illegality is shown to have been committed by a person who is in control of a company or if the company is formed for an illegal purpose. Apart from this, the veil of incorporation is pierced only in cases where a special liability is imposed by a special statute or a statute imposing a criminal liability. Sometimes it may have been lifted for the purpose of determining whether a private company should be wound up or not but never for the purpose of disqualifying a shareholder from performing his official functions in another capacity as in the present case.

73. Learned counsel argues that in order to determine whether it is proper or improper for a Judge to be a shareholder in a private limited company the main considerations which should be taken into account by the council are (i) as to whether it embarrasses him in the discharge of his official functions or (ii) whether it imposes upon him a liability in excess of the share capital contributed so as to involve him in litigation or personal embarrassment otherwise resulting from proceedings taken to enforce such excess liability. If the holding of shares does not, in any way, interfere with the discharge of his official function or, in any way, exposes him to any enhanced liability, then no question of either lifting the veil of incorporation or the impropriety of the shareholding can arise.

74. He has been at pains to point out to us that there is, in this case, no positive evidence of any kind whatsoever to show that the respondent took any active part in the affairs of these concerns, even though it is admitted that Vulcan Company and Vulcan Ice Factory were wholly family concerns and the other two were predominantly family concerns. The mere membership of such concerns, however, it is urged, is not sufficient to make a Judge guilty of misconduct or involve him in activities of trade or business. The evidence, which has been brought on the record would, it is said, on the other hand, show that the respondent even before his elevation did not take any active part in the management of either Vulcan Company Ltd., or Ally Brothers & Company (Pakistan) Ltd., even though he was a director in Vulcan Company Ltd. Throughout his period of directorship he attended only one meeting (vide Exh. D. F./2) and according to the evidence of P. W. 18, Ghulam Rasul Malik, he did no other work for the businesses other than that of giving legal advice or appearing in legal proceedings. The Veil of Incorporation should be lifted So far as the question of the lifting of the veil is concerned, it is true, that the learned Attorney- General has only cited decisions relating to the winding up of private companies. Mr. Manzur Qadir has, as against that placed strong reliance on the decision of the House of Lords in the case of Salomon v. Salomon . That was a case in which a trader sold his private solvent business to a private limited company which consisted of the vendor, his wife, a daughter and four sons. The company in part payment of the purchase money of the business issued debentures to the vendor by way of a floating security and in addition the vendor held 20000 shares of one pound each. This made him the controlling shareholder. Subsequently, the company fell into bad days and had to be wound up. In the winding up, after satisfying the debentures issued to the vendor, there was not enough left to pay the other ordinary creditors. The liquidator applied to have the debentures delivered up and cancelled and for a judgment against the vendor, Aron Salomon, for all sums paid by the company to him, on the ground that (i) the arrangement made by the said Aron Salomon for the formation of the company were a fraud upon the creditors of the company and

(ii) that no Board of directors of the company was ever appointed as Aron Salomon alone managed the affairs of the company. The Court of Appeal held that the formation of the company was a mere scheme to enable Aron Salomon to carry on the business in the name of the company with limited liability contrary to the true intent and meaning of the Companies Act. The House of Lords, however, reversed this finding, because, in its view the charge of fraud against the creditors had no foundation in fact and whatever had been done by Aron Salomon was above board and in full' compliance with the provisions of the then Companies Act. The Company was, in no sense of the term, either an agent or trustee for Aron Salomon. The passage from the speech of Lord Macnaghton, on which reliance has been placed, is as follows:-- "The company is at law a different person altogether from the subscribers to the memorandum ; and, though it may be that after incorporation the business is precisely the same as it was before, and the same persons are managers and the same hands receive the profits, the company is not in law the agent of the subscribers or trustees for them. Nor are the subscribers as members liable, in any shape or form, except to the extent and in the manner provided by the Act."

75. The trend of decisions since the above enunciation of the law in Salomon's case appears, however, to show that in a number of important respects both the Courts and the Legislatures have rent the veil which was recognised in the above-mentioned decision to be almost inviolable. The growing tendency appears to be rather to look at the substance and not to allow the vision to be clouded by the shadow of the corporate personality. Thus where the corporate personality is being used merely as a cloak for fraud or improper conduct or where it can be established that the corporate personality is merely acting as an agent or trustee for someone else, be he an individual or another subsidiary company, or where it is necessary to determine the true character of the corporate personality for other purposes such as to determine its tax liability or its quasi-criminal liability or as to whether the corporate body is an enemy concern or not, or a mere trustee for certain purposes, the Courts have not hesitated to look behind the veil of incorporation (vide Gower's Modern Company Law, 2nd Edn., pp. 183-209).

76. In the case of Daimler Company Limited v. Continental Tyre & Rubber Company (Great Britain)

77. Limited , the veil of incorporation of an English company was lifted by the House of Lords itself and it was held that the Daimler Company which though incorporated in England, was an associated body of Germans, because, all its shareholders except one were of German nationality. In these1 2 circumstances, it was said, it became "material to consider what is this thing which is described as a corporation", and the question was answered as follows by the Earl of Halsbury "It is, in fact, a partnership in all that constitutes a partnership except the name, and in some respects the position of those whom I shall call the managing partners. No one can doubt that the names and the incorporation were but the machinery by which the purpose (giving money to the enemy) would be accomplished."

78. Again in the case of Trebanog Working Mens Club and Institute v. Macdonald , where the Institute were prosecuted under the English Licensing (Consolidated) Act, 1910, the question arose as to whether the society which was registered as a corporate body under the Industrial and Provincial Societies Acts had committed any offence. The conviction was quashed, because, it was found that the society had been formed for The merely carrying on the business of the club, which had itself been resident registered in accordance with the requirements of the Licensing (Consolidation) Act, 1910, and the members of the society were also identical with the members of the club, therefore since a club was entitled to sell liquor by retail to its members the society being, in fact, and in substance a club could not be held liable.

79. Along with this case was decided another case in which the club had similarly converted itself into a company limited by guarantee but even so the same principle was applied and the conviction of that company too was quashed.

80. There are also other circumstances in which the veil has been pierced and the separate legal entity theory given the go-by. Thus,/ in the case of The Roberta a parent company was held liable on a bill of lading signed on behalf of its subsidiary. The Court there described the subsidiary as a separate entity in name only and probably for the purposes of taxation alone.

81. The same principle was applied in the case of William Cory & Son Limited v. Dorman Long & Company Limited where judgment was given against the parent company for the negligent navigation of a ship by her Master, even though the ship was owned by a subsidiary company.

82. It appears that even where questions of public policy are involved, the Courts have hot hesitated to lift the veil of incorporation.

83. Whatever might be the position of third parties, vis-a-vis the company and the liabilities of its shareholders, it does appear that there is no bar to the Courts lifting the veil of incorporation to determine the true relationship of the shareholders with regard to their dealings with the company or to ascertain the true nature of the company itself in matters which are governed by other statutes or where other considerations necessitate the taking of such a step. In the present case too, we are not concerned with the liability of the respondent as a member of K the companies but we are concerned, in terms of a Code o Conduct drawn up under the Constitution, with determining as a matter of public policy as to whether the association of a Judge of a Superior Court with such concerns constitutes involvement in activities of trade, business or industry. For this purpose we think we are entitled to go behind the shadow of incorporation in order to ascertain as to what the real nature of the association of the respondent was with these concerns. Was there involvement in Industry & Trade Position re: Vulcan Co.

84. Lifting the veil of incorporation we find that the parent company, namely, Vulcan Company Ltd. was originally a registered partnership firm consisting of the respondent and other members of the family, including the mother, but after incorporation only the brothers continued as shareholders and three of them, including the respondent, were appointed its first directors, even though according to the particulars given in the Articles of Association filed with the Registrar of the Joint Stock Companies (Exh. PH-25/15) the respondent had only subscribed 15 shares, which did not give him the necessary qualification for becoming a director in terms of Article 17 of the Articles of3 4 5 Association. Even at that time the family was no longer joint in the technical sense of a joint family, for, two of the brothers were living at No, 16, The Mall, Lahore, and one was living at No, 42, Multan Road, Lahore, and the other two including the respondent, were living at 64-Brandreth Road, Lahore. We may mention here that "joint family" is an institution which is recognised by Hindu Law and not by Islamic law. The term is used by those Muslim families which have adopted the Hindu conception of joint family interest in income and expenditure. That interest is manifest in this case by the admission of the respondent to which reference has been made above. As an instance we may mention that the respondent became director of Vulcan Co. Ltd. without being legally qualified for it. Only in April 1957, the respondent was shown as owning 40 shares. Subsequently, in 1961 his shares were further increased to 53 and to 60 in 1964 (vide Exhs. PH-25/5 and DE-14). He continued as a director of this concern and drew an allowance of Rs, 500 a month as the attorney of the firm. The books of account of the firm show that the respondent treated the company as almost his private concern, for, he also maintained a personal ledger account with it and made deposits with, and withdrawals from, the funds of the company in the same manner as a partner of a firm would make them. In fact, there were more withdrawals than deposits with the consequence that by the end of 1965 he owed to the company Rs, 31,542.8 (vide Exh. PH-41/1). By the end of 1966 the debit balance was reduced to Rs, 559 by crediting to his account a sum of Rs, 68,700 on account of the sale proceeds of sporting arms and electrical goods imported by him and his wife from Europe and sold to the company and a sum of Rs, 6,500 on account of change of khata (whatever, that may mean) vide Exh. PH-33/l. By March 1968, however, the debit balance again increased to Rs, 17,311.97 (Exh. PH-42/1) and in March 1969, the debit balance went up to Rs, 1,18,214.32 (Exh. PH-43/1).

85. In 1968 it appears the company debited to his account a sum of Rs, 80,000 which, it is said, was utilised on his behalf for the purchase of shares of Metropole Cinema Ltd. The respondent also drew a sum of Rs, 12,366.25 for payment of insurance premia. The drawings and deposits continued even in 1969 and by the beginning of September 1969, the respondent owed to the company Rs, 1,17,097.39 (vide Exh. PH-44/1). This was not consistent with the mere relationship of an ordinary shareholder in a limited company, Moreover, accepting money on deposit and paying it back by cheque or otherwise, falls within the definition of banking business and an ordinary limited company is debarred from undertaking it. It is suggested by Mr. Manzur Qadir that there could be no objection to the respondent utilising the services of the company for keeping his accounts or acting as his cashiers but we find it difficult to see how these dealings can be reconciled with such services, particularly, when it is admitted that the money which was so deposited became mixed up with the assets of the company and was used by the company in consequence. These transactions are, in every sense of the term, the dealings of a proprietor or partner of a firm who did not treat the assets of the firm as separate from his private property. All these indicate that the firm, although incorporated as a company, was still continuing to function as a partnership firm.

86. The examination of these books of account discloses that the respondent was drawing from the firm even for meeting his sundry household expenses, such as servants' salaries, purchase of goods for personal use, purchase of land, payment of insurance premia, payment of petrol bills for his personal car and other incidental matters. By no stretch of imagination can these be regarded as the transactions of an ordinary shareholder with a limited company. Position re: Ally Brothers The position with Ally Brothers is no different. The personal ledger account No, 2 of the respondent for 1965; which was produced in the other reference and marked as Exh. PH-11/2 (Exh. DC-31 in this reference) and has since been treated by the respondent as well as evidence in this case because as the Accountant who was asked to produce them stated that he had already filed it in the other reference; shows that there were two accounts of the respondent with this firm; the first entered at page 50 of the ledger shows a credit balance of Rs, 44,329.82 and the second at page 78 shows a debit balance of Rs, 406,86. Subsequently, during the course of arguments the respondent produced another ledger for the year 1965 which was marked as Exh. DC-20, to show that he had also a suspense account No, 2 with the firm in 1965 showing a credit balance of Rs, 50,000. This suspense account is in the ledger of the company, which does not contain the personal ledger account of any shareholder or director. It is described simply as "suspense account No, 2" and in the index it has been entered as the last item in a different ink. There is no suspense account No, 1 in this ledger book, normally, one would treat this as a suspense account of the company itself. The respondent, however, claims that this amount stood to his credit. For our present purposes we shall assume that this is so, although we shall have occasion to refer to this ledger again in connection with another charge. This suspense account No, 2 in January 1968 at page 324, shows a with- drawal of Rs, 63,000 leaving a debit balance of Rs, 13,000 (vide Exh. DC-30/1) and then this Rs, 13,000 gets written off by a credit entry which wiped out the debit balance by transferring the amount to ledger No, II at page No,

31. This ledger No, II has not been filed, so, it is not possible to follow up the transaction. Be that as it may, it discloses that in this company too he had several accounts, some of which were shown in his own name but one was not shown in anyone's name. We have no evidence as to the necessity of keeping so many accounts in one concern, nor do we have any evidence to show from what source this amount of Rs, 50,000 came or why it was in this secretive manner entered anonymously in the suspense account No, 2 of the company's ledger. The respondent alone could have explained this but he chose not to give evidence in his defence. This discloses that the dealings of the respondent with this company too were not simply those of a shareholder vis-a-vis a company.

87. The respondent was a joint promoter and signatory of the articles of association of both these companies which consisted originally of only the members of his family. Both these companies were started, as has been stated in the written statement itself, by "divertion of family resources from a common pool". They appear to be functioning, more or less, as partnership concerns. The books of account of these companies have been kept in a manner suiting the convenience of the partners, they show that each one of the shareholders had been making drawings from the firm in the same manner as a partner and that they have not been observing the provisions of the Companies Act as will be evident from the reply given by their own auditor, Mr. Abdul Hamid Choudhury (D. W. 24). He was asked to specify the provisions of the Companies Act under which directors could maintain private accounts in private limited companies and his reply was that:-- "They cannot take advances but it is not prohibited to maintain a sort of account. One could deposit surplus funds and one could withdraw."

88. Again in answer to another question which was directed to elicit from him as to what would be the position if a director's account with a company shows both debit and credit balances, he stated that 'then we have to see what is the net balance. If the net balance is credit it is alright. If it shows debit balance then it is a violation of law". Ultimately, when he was asked as to whether it is allowable for a director or a shareholder of a company to draw also his household expenses from the company, he then categorically stated: "No, Sir, that cannot be allowed". Even according to the auditor, therefore, the manner in which the respondent and his other co-shareholders were operating upon the funds of the company was not in accordance with the Companies Act. The incorporation was, therefore, in our view, merely a facade and these companies were treated and in reality run as partnership concerns. Position re: Vulcan Ice Factory Ltd.

89. The position is no better with regard to Vulcan Ice Factory Ltd. which was started after the respondent was elevated to the Bench. Although the respondent is not ostensibly a promoter or a subscriber to the articles of association of this company, it is apparent that this company to) was started as a joint venture in collaboration with the respondent, because, as already pointed out, the original plan was to have the present wife of the respondent as one of the directors, but subsequently the plan was changed and the shares were acquired in the name of the minor daughter Samina Ali. The auditor, Mr. Abdul Hamid Chaudhury (D. W. 24), whenever pressed to reconcile the transactions of this company with the provisions of the Companies Act came out with the answer that this was a family concern and that it was "a private limited company in name only". Otherwise the manner in which 800 shares of the face value of Rs, 100 each had been allotted to Samina Ali, although only Rs, 45,000 were paid, could not have been done. The device of showing the balance amount of Rs, 35,000 as an advance made to Samina Ali has been characterised by the auditor Mr. Abdul Hamid Chaudhary (D. W. 24) as "merely a book entry" in order to cover up the violation of the provisions of the Companies Act which did not permit the allotment of partly paid up shares to minors. The respondent has, throughout, treated these shares, which stood ostensibly in the name of his daughter Samina Ali, as his own and actually shown them in the declaration of his assets as a part of his own assets at least to the extent of the paid-up value of these shares.

90. Even so the company could not have advanced money to the purchaser for purchasing its own shares. Actually no money was advanced because the company had no funds to do so. The transaction was a crude hoax. Position re: Metropole Cinema Ltd.

91. So far as the Metropole Cinema Ltd. is concerned it appears from the endorsement on the back of its Articles of Association (Exh. PH-27/1) that it was incorporated on the 15th of May 1961 but the accounts disclosed by the respondent himself at the time of the scrutiny of his declaration (now marked Exh. C. 2) show that he started contributing towards the share capital of this concern from January 1967, and the last contribution was made on the 15th of June 1968. Shares were, however, allotted to the respondent only on the 20th of September 1968. It is evident, therefore, that there was no anxiety for regularity, observance of any method or strictness in dealings and there is no plausible explanation except that no importance was attached to the corporate character of the company.

92. This was not a case of a shareholder acquiring shares of a company after the same had been floated and registered but was in every sense of the term a participation in the starting of a joint venture by adopting the legal framework of a private limited company as a facade. These companies were, according to us, really and substantially partnership concerns carried on under the veil of incorporation and, as such, the membership of such concerns was, in our view, in every sense of the term, involvement in "activities of trade and industry."

93. To be a partner of a firm is misconduct Mr. Manzur Qadir argued that it would be improper for a Judge to become even a sleeping partner of a firm, because such association exposed him to the danger of being at any time involved in unlimited financial liability which could adversely affect his private property and ruin him without his knowledge and active participation. Therefore, such membership of a firm could at any time adversely affect his position as a Judge.

94. In assessing the propriety of a Judge being connected with concerns of this nature it cannot be said that we must necessarily confine ourselves to merely asking the question as to whether this would embarrass him in the performance of his judicial functions or expose him to unlimited liabilities which might ultimately lead to further embarrassment or even the risk of ruination. In our view, a greater degree of propriety is demanded from a Judge. He should not only avoid any action which is improper, but should also avoid doing anything which might even give the appearance of impropriety. In the conditions under which trade or business is carried on in this country, it would be highly improper for a Judge's name to be associated with a firm, because there is every likelihood of his name being misused for purposes of trade. He himself may, at the behest of his partners, be tempted to allow his position or influence to be used to obtain advantages for his firm. In this case, for instance, the action of the respondent and his wife in bringing valuable sporting arms and electrical goods from abroad and selling them to Vulcan Company Ltd. for Rs, 68,700 brings out the danger of such association. One cannot resist the inference that these goods were really imported for the benefit of the firm which made handsome profits on its purchase price by the resale of these goods. We would have no hesitation, therefore, in holding that a Judge would be guilty of gross misconduct if he joined a partnership firm even as a sleeping partner or continued even after elevation to remain a partner of such a firm. What is misconduct Mr. Manzur Qadir's arguments are based no doubt upon his theory that a Judge can be held guilty of misbehaviour or misconduct only if the conduct complained of is such as might directly affect his proper functioning as a Judge. In other words, misbehaviour must, according to him, be misbehaviour connected with his office or conduct which would at least embarrass him in the discharge of his functions as a Judge or interfere therewith. In support of this contention, he has referred us to Sir Kenneth Roberts-Wray's treatise on the Commonwealth and Colonial Law, 1966 Edition, where the learned author at page 503 states as follows: "At common law, misbehaviour warranting termination of an appointment granted during good behaviour means either misbehaviour in matters concerning the office (improper exercise of its functions, neglect, or refusal to perform them, or unjustifiable absence), or conviction on indictment of an infamous offence which, though not committed in connection with the office is such as to render the holder unfit to exercise the office."

95. He has also drawn our attention to the fact that the inquiry into the conduct of a Judge in England could be held by way of a procedure known as the writ of scire facias. But controversy on this subject, so far as this country is concerned, is now of little more than academic value, for this principle was not accepted by the Supreme Court in the case of Mr. Justice Akhlaque Hussain . The Court there observed that "the argument put forward by the respondent is that in Articles 151 and 169 (of the Constitution of 1956) the word 'misbehaviour' is used in the narrow sense in which it has been used by Anson and Todd as referring to misbehaviour in respect of office and from this a further deduction is sought to be drawn that it is only when a Judge is guilty of misbehaviour while discharging judicial functions, that he may be removed and that no power to remove exists if the Judge be guilty of conduct, however scandalous or infamous, if that conduct has no reference to the performance of his judicial functions . In our Constitution, which is a written Constitution, the only provisions regarding the removal of Judges are Articles 151 and 169 both of which use the word 'misbehaviour' irrespective of any qualification except that in Article 151 it has the pre-fix 'proved', a distinction which, as is conceded by the respondent, even when considered with clause (2) of the Article, cannot have the effect of varying its meaning. In an English statute which has been judicially construed and the State Constitutions of some of the United States the word 'misbehaviour' or 'malfeasance', where the intention is that an officer should be liable to removal only on the ground of misbehaviour relatable to his office, is followed by some such words as 'in his office', 'in respect of his office', or 'therein'. No such words are to be found in our Constitution, and in the absence of any such restricting words the word 'misbehaviour' must be understood in its ordinary sense, viz., as implying misconduct, that is to say, conduct which is unbecoming of a Judge or renders him unfit for the performance of the duties of his office, or is calculated to destroy6 public confidence in him. We cannot therefore accept the respondent's contention that it is only on proof of misconduct in respect of a judicial proceeding or in respect of office or on proof of conviction that a High Court Judge may be removed and that no other conduct, however, infamous or scandalous, or whatever defect of character it might disclose, can ever be a ground for his removal".

96. The position under the Constitution of 1962 is not materially different. In fact, the scheme of this Constitution is that under Article 128 not only a new body, called the Supreme Judicial Council, has been set up but it has been commanded by clause (4) of this Article to issue a Code of Conduct to be observed by Judges of the Supreme Court and of the High Courts and by clause (5) thereof the President has been Oven the power to issue a direction to the Council to enquire into the conduct of a Judge on the basis of information received by him either from the Council or from any other source. This scheme has adopted the principle that impeachment of a Judge by the Legislature is not a satisfactory method but that a body of Judges themselves should be set up to enquire into the conduct of Judges. The position, therefore, now is that we have a Code of Conduct, which, though not exhaustive, has furnished the guide lines for assessing the propriety of the conduct of Judges. In considering whether the conduct of a Judge whose case has been referred to the Council, one has first to see if his conduct is violative of any one of the Articles prescribed in the Code and then to consider whether even otherwise it is so infamous or scandalous as to be conduct unbecoming of a Judge or rendering him unfit for the performance of his duties or calculated to destroy public confidence in him. The Article with which we are concerned, in these charges, is Article VI, which reads as follows:-- "A Judge should endeavour to avoid, as far as possible, being involved in litigation either on his own behalf or on behalf of others. In particular he should not involve himself in activities such as industry, trade, or speculative transactions, for the pursuit of wealth can never be the objective of a Judge.

97. To employ the influence of his position to gain undue advantage, whether immediate or future, is a grave fault.

98. A Judge must avoid incurring financial or other obligations to private institutions or persons such as may embarrass him in the performance of his functions."

99. This Article as originally framed was somewhat different but we are now concerned with it in its amended form as quoted above. It will be observed that the first paragraph of this Article is in two parts, the first part enjoins upon a Judge the avoidance as far as possible, of action which might involve him in litigation either on his own behalf or on behalf of others but the second part clearly prohibits him from involving himself in activities of industry, trade or speculative transactions with the objective of amassing wealth, for, the pursuit of wealth can never be the objective of a Judge.

100. The last paragraph of this Article requires a Judge to avoid incurring financial or other obligations to private institutions or persons such as may embarrass him in the performance of his functions.

101. Our Code of Conduct requires a very high degree of rectitude in a Judge. Read as a whole, it appears, that he is required by Article II to be "God-fearing, law-abiding, abstemious, truthful of tongue, wise in opinion, cautious and forbearing, blameless, untouched by greed", and further more, by Article HI "to be above reproach, and for this purpose to keep his conduct in all things, official and private, free from impropriety". Reading the Articles of the Code of Conduct, therefore, as a whole, we are of the view that in order to judge the propriety or impropriety of the actions of a Judge whose case has been referred to the Council, we have to keep in mind the entire code, because the nature and scope of an Article itself is to be ascertained in the light of the objectives of the code as a whole. What is gross misconduct A violation of any of the articles of the Code of Conduct would be a misconduct, but whether it would be gross misconduct in terms of Article 128 of the Constitution or not, will necessarily depend on the facts and circumstances of each case. In those jurisdictions in which the word has not been used in a statute, the uncertainty of its meaning has been emphasised, but in those of them in which it has been so used, its meaning has been found and must be found. It certainly is capable of yielding to conceptual analysis and is amenable to as specific an appreciation as a conception can be. The relevant dictionary meaning of the word "gross" is coarse, flagrant, palpable, glaring or dense. It indicates the degree as well as the quality of an act or omission. There is a difference between degree and quality. Degree connotes in this concept the attitude of mind and quality connotes here the obviousness or doubtlessness of the nature of an act or omission. If an act or omission is obviously and doubtlessly misconduct, then it is gross in quality. A misconduct which is not gross in quality but is deliberately or negligently repeated, then it is gross in degree. Misconduct is a negative concept like negligence. Therefore, to measure its degree or quality, it should be judged by the care taken to act properly and by its contrast with good conduct. The first test is of degree and the second of quality. The explanations of an act or omission which is misconduct, can be an indication of its degree. An act or omission which is undeniably or un-questionably misconduct and defies explanations is gross in quality. The reverse of it is that if there is a genuine doubt about an act or omission being misconduct or not, then it is not gross in quality. If such an act is deliberately and on several occasions repeated in disregard of the care required for rectitude then it is gross in degree. Gross misconduct of the respondent In this view of the matter we have come to the conclusion that in the circumstances of this case there was grossness both in degree and quality. The respondent knew that the limited companies were family ventures in the prosperity and welfare of which he was deeply interested. He also knew that they were launched and carried on for sheer love of wealth. He was aware that the cloak of incorporation was a mere screen which did neither affect his financial interest in them nor deter any member of the family from using them as their personal trade, industry or business. He himself used the companies like a joint property of the family in which he deposited money and withdrew it to suit his convenience. He did not differentiate between the assets of the companies and his personal assets. He could borrow money and pay it back or not, to suit his convenience. He did not care for dividends because the otheradvantages outweighed that consideration. He continued to act in this manner even after becoming a Judge and further enlarged his interest by participating in the new ventures which were launched after he became a Judge. Directorship We now take up for consideration the second contention of the learned Attorney-General that the respondent was and continued to remain a director of Vulcan Company Ltd. even after his elevation to the Bench. It is an admitted position that up to the 25th of November 1965 (date of appointment as an Additional Judge) the respondent remained a director of this company. Form E for the year ending 31st December 1963 (Exh. PH-35/6) filed on the 6th of May 1964, shows him as a director of the company. The Forms E for the subsequent years, namely, 1964 to 1968, were not filed until the 23rd of June 1969, although under section 87(2) of the Companies Act every change in the composition of the directors had to be notified to the Registrar, Joint Stock Companies, within 14 days of the change. There was, according to the Attorney-General, therefore, no notification of change in the directorship until 1969. Furthermore, the respondent, it is alleged, actually continued to draw travelling allowance as a director during the accounting years 1966-67 (vide Exh. PG-11) and 1967-68 (vide Exh. PG-32, which also was an annexure to the return filed for the said accounting year on 12th of September 1968). It was only when the Form E for the year ending 12th of May 1966, was filed in 1969, that his name was omitted from the particulars of the names and addresses of directors given in the Form E for that year (vide Exh. D. E. 8). This form for the first time disclosed that the respondent was no longer a director of Vulcan Company, but its reliability is obviously doubtful. Upon this evidence the learned Attorney-General contends that he has led sufficient evidence to raise the presumption that the respondent continued as a director up to 1969 when the change was first notified. The onus, therefore, shifts on the respondent to prove the contrary.

102. The respondent, in order to rebut this evidence, relied on a resolution (Exh. DF-2/1) contained in a Minute Book (Exh. DF-2), which is said to be the Minute Book of Vulcan Company, and on a letter No, SSA/V/66, dated the 2nd of January 1966 (Exh. DG-6), which is said to have been delivered at the office of the Deputy Director of Industries and Registrar of Joint Stock Companies, Lahore, on the 7th of January 1966, to show that he ceased to be a director from the day following the day of his appointment as a Judge. The annexures to the income-tax returns relied upon by the Attorney- General have been characterised by the respondent in his written statement to be subsequent interpolations or substitutions made either by the Investigating Officer or the Martial Law Authorities. The latter suggestion was actually put to Mr. S. G. Yazdani (P. W. 1), Income-tax Officer, Companies Circle II, Lahore, by the learned counsel for the respondent. It may be worthwhile quoting this portion of his evidence : "Cross-examination by Mr. M. Anwar.

103. Q.--I put it to you that the statements showing payment of T. A. to the directors of the assessed company for the year 1966-67, to which you have made a reference in your examination-in-chief, were never the parts of those files?

104. A.--I cannot endorse this view.

105. Q.--Are you aware that these files, at the instance of one Abdul Khaliq, a dismissed employee of Ally Brothers & Co., Ltd., which is in your Circle, were summoned by the Martial Law Authorities?

106. A.--I am not aware of this fact."

107. Our attention has also been drawn to the relevant books of account of Vulcan Company for these years to show that no such payment to the respondent has been entered therein. The argument of Mr. Manzur Qadir is that these sheets which have been relied upon by the Attorney-General to show payment of travelling allowances to the respondent as a director, should not be relied upon, as they are not authentic because, they are unsigned sheets which do not represent the correct state of affairs and there is no evidence that anybody saw them at the time they were filed. Mr. Yazdani (P. W. 1) has, it is stated, clearly admitted that he does not recollect to have seen them at the time he assessed the return of Vulcan & Co. They have been produced from the custody of the Investigating Officer and they were at an earlier stage taken away by the Martial Law Authorities for the investigation of a complaint made by a dismissed employee against the company. The possibility, he argues, of their being subsequently introduced into these files cannot, in the circumstances, be excluded.

108. It is true that these are typed sheets which do not bear the signature of any one, but we see no reason to think that these have been introduced subsequently by any one. Mr. Yazdani (P. W. 1) could not recollect as to whether he had seen them before, because he could not be certain of the fact after a lapse of two years. He admitted, however, in answer to a question put by the Council, that such supporting documents are usually filed along with income-tax returns without signing them. It is only the balance-sheet that has to be signed. It is also not without significance that the total amounts given in these unsigned sheets tally with the figures given in the balance-sheets for the years ending 31st of March 1967, and the 31st of March 1968. So far as the unsigned sheet (Exh.

109. PG-32) is concerned it is an annexure to a letter dated the 15th of April 1969, addressed by Mr. Akhtar Ali as director Vulcan Co. to the Income-tax Officer, Companies Circle II. At page 4 of this letter while giving explanations of the profit and loss account the writer states that "details of some of the items appearing in the profit and loss account which require elaboration have been prepared and are enclosed herewith as listed below". The third item in the list given below these words is the statement of the travelling expenses of directors and staff and it is described as Annexure 'C' to the letter and this Annexure 'C' is Exh. PG-32, which has been relied upon by the Attorney-General. This shows that T. A. paid to directors including the respondent was Rs, 7,458.38.

110. The balance-sheet (Exh. PG-24) also discloses that under the head "travelling expenses to directors" the same amount of Rs, 7,458.38 is entered. So far as Exh. PG-32 is concerned we, therefore, see no reason to doubt its authenticity. It is on the letter head of Vulcan Co. Ltd. It has to be mentioned that even in this case several of the other annexures referred to in this letter, namely, Annexures 'A', `r, 'K', `L' and 'N' are on plain sheets of paper and they too have not been signed by any one. Mr. Yazdani in his evidence stated that on some of the annexures filed with the letter of Mr. Akhtar Ali there are notings in his own handwriting and there are also tick marks. This appears to be correct. On this intrinsic evidence we have no reason to doubt the authenticity of the annexures (Exhs. PG-30 to PG-42) to the letter (Exh. PG-16).

111. Similarly in the case of the blank sheet (PG-11) in the file containing the return (Exh. DF-8) for the accounting year 1966-67 Mr. Yazdani has stated that the tick marks on these sheets are his. It is evident, therefore, that these annexures were there before him when he examined the returns, otherwise the tick marks or the writings on the annexures would not be there.

112. So far as the accuracy of these entries is concerned, it is true that they are not be found in the personal ledger of the respondent with Vulcan Co., but in the company's own ledger account under the head 'travelling allowances for directors (Exh. PH-76) the total amount entered in the ledger tallies with the total amount given in Annexure 'C' (Exh. PG-32). The company's ledgers for the years 1966 and 1967 have not been filed. It is, therefore, not possible to say as to whether there were corresponding entries there too. If the amounts were paid in cash then their credit entry in the personal ledger accounts was unnecessary.

113. The contention of Mr. Manzoor Qadir is that the entry in Exh. PG-11 of travelling allowances alleged to have been paid to the respondent for attending meetings at 'Karachi' has not been supported by any other evidence. The only thing that the Attorney-General has been able to show is that Justice Shaukat Ali visited Murree and stayed at Cecil Hotel on the 15th, 16th and 17th of July 1966, and that period corresponded with the period of the stay of his brother Mr. Akhtar Ali also in the same hotel (vide Register of Cecil Hotel Exh. PH-20/1) and that the counterfoil of the hotel bill (Exh. PH-20/1) shows that the bill of the respondent was actually paid by Mr. Akhtar Ali after it was amalgamated with his own bill (Exh. PH-20/3). Mr. Akhtar Ali was given consolidated receipt for it, vide Exh. PH- 20/4. There is, according to Mr. Manzoor Qadir, no evidence to show that Mr. Akhtar Ali charged the hotel bill of the respondent to the account of Vulcan Company. The amount of Rs, 2,788.00 shown in Exh. PG-11 as having been paid on the 19th of July 1966, to Sh. Akhtar All and the respondent as T. A. was paid only to Sh. Akhtar Ali for the items of expenditure mentioned in his voucher dated the 19th of July 1966 (vide Exh. DF-4/3). This was made up as follows:-- R s .

114. ( 1 )Hotel bill of Cecil Hotel (as mentioned in Exh. PH-20/1)2,411.52 ( 2 )Silver Grill for Lunch 70.00 ( 3 )Bearers 100.00 ( 4 )Money Order 100.00 ( 5 )Petrol and other expenses 106.48 TotalRs, 2,788.00 This voucher (Exh. DF-4/3) is on the company's own letter head and purports to be for the tour expenses of Mr. Akhtar All and family and one Mr. Vispi Daroga to Rawalpindi, Murree and Peshawar from the 6th July to 19th July 1966. It bears the signature of Mr. Akhtar Ali and was paid by Vulcan Company.

115. Now Mr. Vispi Daroga was never even a shareholder of Vulcan Company. Form 'E' filed for the year ending the 10th of December 1969 (Exh. DE/11) does not disclose that up to that date Mr. Vispi Daroga became a shareholder of Vulcan Company. It is difficult, therefore, to understand how the tour expenses of Mr. Vispi Daroga could be paid out of the funds of this company. He became a shareholder of only Ally Brothers in December 1967 (vide Exh. PH-26/12) and there too he held only one share which did not qualify him to be a director. There is no evidence also that Mr. Vispi Daroga stayed at the Cecil Hotel. The only evidence that we have is that in the column meant for the 'Signature of visitors' in the hotel register regarding the entry relating to "Mr. and Mrs. Akhtar All and family" the signature of Mr. Vispi Daroga has been given. The correctness of the voucher (Exh. DF- 4/3) is also extremely doubtful. It is on the letter head of the Company, it was prepared by the Accountant of the Company and has been signed by Akhtar Ali. Some of the items entered therein, e g , "money order" could not obviously be included as an item of travelling allowance. It does not inspire the belief that it was brought into existence at the time it purports to have been made. Of course, Mr. Akhtar Ali could have explained the items entered there but he was not examined, although he was once cited as a witness on behalf of the respondent and then ultimately given up.

116. Now let us examine the positive evidence filed on behalf of the respondent to establish that he ceased to be a director of the Company with effect from 26th of November 1965. The Minute Book (Exh. DF/2), which has been filed, is a very old minute book, which was intended to be used, according to the printing on top of each page for some year in the nineteen-forties. Its look, get up and the slip-shod manner in which the minutes are written raise grave doubts about its genuineness. It opens with a first minute on page 3 dated 15-5-64 and before the entry (DF-2/l) dated 26-11-65 there are only 5 entries, 3 of 1964 and 2 of 1965 and the respondent is shown to have attended only the meeting purported to be held on 30-6-65. Although, the pages of this book are serially numbered yet on examination it is obvious that between pages 28 and 29 some sheets have been removed. To check the authenticity of this book the Council asked the respondent to produce the minute books for earlier periods but these were not produced and the Council was ultimately informed by Mr. Manzoor Qadir that they were not available. This raises a presumption against regular maintenance of minute books because it is difficult to believe that one minute book which helps the respondent and which could be hurriedly prepared by writing up a few pages is available but the earlier minute books which related to the formation of the company are not traceable. This is another indication of the concern not being treated as a limited company and the members and directors acting as they liked without even maintaining a record of their acting.

117. As for the letter said to have been sent to the Registrar of Joint Stock Companies on the 7th of January 1966, only an office copy has been produced (Exh. D G/6) to prove two endorsements on it to provide confirmation of the allegation that a letter was sent previously to the Deputy Director of Industries and Assistant Registrar, Joint Stock Companies.

118. The copy reads as follows :- "SSA/V/66 January 2, 1966.

119. The Deputy Director of Industries and Assistant Registrar of Joint Stock Companies, Lahore Region, Lahore Subject: REMOVAL OF DIRECTOR SHAUKAT ALI Dear Sir, Your kind attention is invited to our letter of December 26, 1965, and request you to very kindly to notify removal of Director Shaukat Ali 101, The Mall, Lahore, from the Board of Directors of Vulcan Company Ltd., Lahore, under intimation to us. Yours faithfully, for Vulcan Company Ltd. (Sd.) Shaikh Salim Ali, Chairman and Director.

120. Received. (Sd.)

121. 7-1-66. Entered on No, 406 dated 7-1-1966, of the Dy. Director, Industries & Registrar of Joint Stock Companies, Lahore. (Sd.) 7-1-1966."

122. The word "removal" is significant. It indicates that the respondent was removed as if the company considered him to be disqualified to be a director and not that he resigned because his continuance as a director was improper for himself. His dis- qualification is not borne out by the Articles of Association and no letter from him of his resignation has been produced. The above endorsements which appear in Exh. D G/6, were sought to be proved through Sh.

123. Mushtaq Ahmad D. W. 17, Joint Director of Industries, Lahore. He could not recall having seen the letter before but proved the signature on the left-hand side under the word 'Received' as being that of one Murawwat Hussain, the then Office Superintendent of the Office of Deputy Director of Industries. He was also shown the endorsement on the right side but no question was curiously enough put to him to elicit if he could recognise the signature or initial of the endorser. He, however, readily agreed with the learned counsel's suggestion that in case a person insisted on receiving a receipt, then the officer or official normally conceded to this request by endorsing the diary number on the copy. The Attorney-General, on the other hand, contends that this letter and the endorsements on it are forgeries for it was never sent to the Deputy Director of Industries or the Assistant Registrar of Joint Stock Companies. It merely refers to an earlier letter of the 26th of December 1965, but no attempt has been made to produce a copy of that letter or to show that any letter of that date had at all been sent to the office of the Assistant Registrar, Joint Stock Companies, on or about the 26th of December 1965. The Attorney-General has relied on a report (Exh. PH-24/3) of the Administrative Officer, Deputy Director of Industries, Lahore Region, regarding an inquiry conducted with regard to this very letter (Exh. DG/6). According to this report, the departmental conclusion was that no such letter was ever delivered at the office of the Deputy Director of Industries and Assistant Registrar of Joint Stock Companies, Lahore, and that the diary number given in this case, namely, No, 406, relates to another letter which was received from Messrs Rizwani Foundries Ltd., Gujranwala, forwarding a return regarding the employment of ex- servicemen in the said factory. The diary entry No, 406 (Exh. PH-12/2) in the diary (Exh. PH/12) contains an entry of the receipt of letter No, SSA/V/66 dated 2-1-66, but the entry on which reliance has been placed by the respondent is manifestly an interpolation, for, it is written over a line which was already drawn and a tick mark which already existed. The evidence of Muhammad Buta (P. W.

124. 9) the diarist is to the effect that when several letters were received from the same party on the same day his practice was to enter the name of the party in the case of the first letter and then to place a straight line or a tick mark below instead of writing "ditto" in the case of the other letters although separate diary numbers were given to each letter.

125. According to the Attorney-General, the letter originally entered in entry No, 406 was a letter from Rizwani Foundries Ltd., dated 2-1-66. This letter was, according to the usual practice of the office, proved by Muhammad Buta (P. W. 9) sent to the appropriate section after being entered in a peon book. The peon book produced by him is Exh. PH-13. This shows that letter entered in general dak register as No, 406 was sent to the statistical section. This witness also stated that the entry now appearing at serial No, 406 in the dak general register (Exh. PH-12) is not in his handwriting. The letters of Rizwani Foundries Ltd., which were sent to the statistical section under entry (Exh. PH-13/1) in the peon book (Exh. PH/13) have also now been traced and produced from the Regional Office of the Statistical Section at Gujranwala and proved by P. W.

8. Muhammad Nazir, the Accountant of Rizwani Foundries Ltd., as the letters sent by them on 2-1-66 (Exhs. PG-146, 147, 148 and 149). All these relate to quarterly returns of production workers for the quarter October-December 1965.

126. The report (Exh. PH-24/3) also discloses that returns regarding changes in composition of directors are required to be submitted under section 87 of the Companies Act, in a prescribed form along with a fee of Rs, 3 in each case, which has to be deposited in the treasury and a copy of the treasury challan was to be attached to the form sent to the office of the Assistant Registrar, Joint Stock Companies. In the present case, the learned Attorney-General comments that since no such treasury challan has been produced no such letter could have been sent. In the absence of the proof of a challan, the letter (Exh. DG6) becomes meaningless, for, the Department could not have accepted it or taken any notice of it. We are inclined to agree with the Attorney-General that this letter Exh. DG-6 is a crude form of forgery. It cannot he relied upon at all. The result, therefore, is that no reliable evidence has been produced on behalf of the respondent to show that he had ceased to be a Q director of Vulcan Company. There is a presumption that a state of affairs that existed continued unless it can be rebutted by producing proof to the contrary. That presumption was strengthened by the proof which the Attorney-General has produced. The burden of disproving it was on the respondent which he has not discharged.

127. In this view of the matter, Mr. Manzur Qadir raised an alternative argument that whatever might be the probative value of these documents, it is clear that the respondent automatically ceased to be a director by reason of his failure to attend three consecutive meetings held on 25-11-65, 12-5-66 and 30-6-66. The articles of association of Vulcan Company Ltd., it is said adopt the Regulations contained in Table 'A' of the First Schedule to the Companies Act, and according to Regulation 77 of Table 'A', a director automatically ceases to be a director if he absents himself from three consecutive meetings without leave of absence. Learned counsel has also contended that if it was necessary to fabricate documents then it would have been the easiest thing for the respondent to fabricate a back-dated letter of resignation. It may be so, but we are at a loss to understand why, if the respondent automatically ceased to be a director and had not in fact attended any meeting of the Board of Directors since November 1965, all this effort was made to show that he or the company allegedly sent intimation of his removal from directorship in January 1966. Evidently, this device was adopted to cover the fact that travelling allowances as a director had in fact been drawn by or in the name of the respondent from the company even after his elevation to the Bench, as evidenced by the annexures to the income-tax returns relied upon by the Attorney- General.

128. It appears to us that since the concerns were run only in name as limited companies but were in fact managed as partnership firms, nobody ever bothered about the formalities or the requirements of the Companies Act ; therefore, it did not even occur to anybody to read the articles of association carefully or to think of the requirement that intimation of changes in the composition of the board of directors had to be given under section 87 of the Companies Act within 14 days of any such change until attention was drawn towards these matters when these proceedings were started and it was found that the investigating agency were going to rely on documents which were in the income-tax files. This crude effort to introduce entries at any space that could be pressed into use of the dak register of the office of the Deputy Director of Industries was adopted to cover the withdrawal of travelling allowance from the funds of the company. We cannot help observing that these attempts at interpolation and forgery have not, in any way, advanced the case of the respondent. They have left us with the impression that no change in the relationship of the respondent and the company took place even after his elevation to the Bench.

129. He continued to deal with this company in the same manner as he had done before. If anything, this further confirms us in the view that these were merely companies in name, but in fact they were partnership firms, and the respondent by continuing to remain a partner and dealing with the firm as a partner did involve himself in activities of the trade and industry.

130. The argument of Mr. Manzur Qadir on the basis of the Forms `E' from the years 1964 to 1968, disclosing that the respondent has ceased to be a director from after the year 196), would have been of considerable weight if these forms had been filed in time.

131. These forms were filed on 23-6.69 but were returned on 16-8-69 as they were defective in various respects. One of the defects pointed out by the department was that in the `E' forms made up to 11- 7-68 the names and addresses of the directors had been omitted from column 'C' of the last page of those printed forms. They were re-filed on 19-6-69 but were again returned, as they were still found to be defective in other respects. They were finally corrected and re-filed on 24-2-70. It is not, therefore, correct to say that these forms even on the date they were originally filed, depicted the true state of affairs with regard to the position of the respondent with these companies as they even then did not contain the particulars of the directors.

132. We are, however, in agreement with Mr. Manzur Qadir that we should not give an adverse finding against the respondent on this point merely on the basis of a presumption, even though the respondent has, by trying to put in false and fabricated evidence to prove the contrary, made his own case worse and extremely suspicious. We have, in spite of this, come to the conclusion that it has not been established as a fact that the respondent continued as a director of the company, though we accept that monies were drawn from the company on account of travelling expenses as a director. The possibility, in our view, has not been excluded that these drawings were made improperly by his brothers without his knowledge. But even this, in our view, furnishes us with a further ground for holding that a Judge should not be associated with concerns of this nature. The risk of his being involved in such improper transactions is not only an imaginary risk but as demonstrated in this case a real risk to which a Judge of a superior Court in our view, ought not to expose himself. It cannot but tarnish his reputation and may even involve him in serious embarrassm ent if anyone should take it into his head to start proceedings for the recovery of the T.

133. A. so illegally shown to have been drawn.

134. So far as the question of automatic termination of his directorship is concerned, we are afraid, we cannot place any reliance upon the Minute Book (Exh. DF-2), which has been filed, for holding that the respondent attended only one meeting of the board of directors, and that his directorship stood terminated by reason of his failure to attend three consecutive meetings. Apart from this, we have nothing more than the assertion of the respondent and his learned counsel that the respondent attended only one meeting of the board of directors. This assertion could not be tested by cross-examination, for, the respondent ultimately declined to personally make either an oral or a written statement or to submit himself to cross-examination. It is unfortunate that the respondent took up this attitude, because, there were several matters which could have been clarified by him, if he had submitted himself to examination by the Council and cross-examination by the Attorney-General. The decision not to submit to such examination was his own, although at one stage he had himself offered to make a statement in writing. As a lawyer of some experience and as a judge he must be presumed to have knowledge of the consequence of such refusal and cannot, therefore, now be entitled to complain if any adverse inference is drawn by us against him.

135. He has only himself to blame.

136. It may incidentally be mentioned here that normally directors are not entitled to borrow or accept loans from the company. If they do so, they are, under Regulation 77 of Table 'A' of the Companies Act, liable to be disqualified from continuing as directors but notwithstanding this, as we have already pointed out, the respondent was, without any hesitation, taking heavy advances throughout from this company for almost all conceivable private purposes. This could not have been done by a director much less by a shareholder. Such drawings were only consistent with the position of a partner dealing with partnership assets.

137. The net result, therefore, is that on the first three charges we have, taking into account the circumstances in which the so-called private limited companies came into being, who its shareholders were, how the share-capital was provided by diversion of funds from the common pool, the manner in which they were run in disregard of the provisions of the Companies Act the nature in which the shareholders and directors dealt with their assets and the manner in which their books of account have been maintained, come to the conclusion that they were in substance partnership ventures run under the guise of incorporation.

138. The fourth and fifth charges We now come to charges Nos, 4 and 5. These charges are as follows :- "Article of Charge No, 4.

139. That the amount of foreign exchange involved in the acquisition and import of the sporting arms, car electrical and other house-hold goods shown in the declaration filed by him before the Supreme Judicial Council, was procured by him through unauthorised means in violation of the Foreign Exchange Regulation Act, 1947. In the alternative, he abetted his wife in acquiring the foreign exchange in respect thereof and in importing the same in violation of law.

140. Article of Charge No, 5.

141. That the above-said arms and electrical and other household goods were imported by him in his own name and/or in the name of his wife for the purpose of sale for profit and not for bona fide personal use. In fact, the same were sold through Vulcan Company Ltd., Lahore, soon after their import for about Rs, 63,700.00. His aforesaid conduct was in violation of law and was not proper and befitting a Judge of the High Court."

142. These charges have not been pressed by the Attorney-General on the ground that all these articles were imported before the elevation of the respondent to the Bench and were made over to Vulcan Company also before this date. Most of the payments were also made earlier although credit was given for the entire amount in September 1965, when by payment of the balance of Rs, 15,000 the respondent's personal account with the company was squared. This, of course, is on the basis of the evidence of the Accountant of the Company Gaulam Rasul Malik (P. W. 18) and according to incorrect entries in the ledger for the year 1966-67 (Exh. PH-33/1). Be that as it may, since the Attorney-General has not pressed these charges we do not propose to say anything further about them. The Sixth Charge This brings us to Charge No, 6, which reads as follows:-- "Article of Charge No, 6.

143. In November 1964 a Mercedes Benz Car was imported in the name of his wife, which was sold in March/April 1966.

144. This sale was made within a period of 2 years of the import of the said car and was in violation of the conditions of the import permit thereof. His conduct in respect of the transaction was in violation of law and was not proper and befitting a Judge of the High Court. In the alternative, he abetted his wife in the sale of the said car in violation of law".

145. The Attorney-General has contended that this car was imported in the name of the respondent's wife who, even up to this date, according to the admission of the respondent himself, is still retaining her German nationality. This admission was made by the respondent on the 25th of January 1971, when he was called upon to produce his wife's passport. He then stated that he does not dispute that his wife continues to be a German national with permanent domicile in Pakistan (page 88 of the record of evidence). The Attorney-General points out that if this is so then under paragraph 3.342 of the Import Manual (page 44) a foreign national could not sell a car imported by her or him to a Pakistani national at all.

146. This car, which was imported under a permit granted on the 23rd of March 1965, was disclosed in the declaration of as sets filed by the respondent to have been disposed of in March or April 1966, but this, as now pointed out in paragraph 37 of his written statement, was a typographical error. It should have been March or April 1967.

147. Again since the charge relating to the illegal acquisition of foreign exchange has been given up and we have no evidence to show that the car was not acquired by the respondent's wife out of her own assets in Germany we are now only concerned with the question as to whether the car was illegall y disposed of. Mr. Manzur Qadir has relied strongly on the conditions set out in the Permit itself (Exh. PG-126). According to Mr. Manzur Qadir, the rules contained in the Import Manual do not have the force of law. They are merely administrative instructions and it is possible for the departmental authorities to waive one or the other of the said conditions. Thus if the prohibition against transfer is not repeated in the permit itself then it must be taken that it has been waived.

148. There is no evidence, apart from his own admission in the declaration of assets, that the car has been sold to a resident of Abbottabad in March/April 1966 (subsequently corrected as 1967). The only evidence we have is an intimation of the payment of the road tax in respect of this car in a district other than the one in which the vehicle was registered. Exh. PG-111 only shows that one, Haji Lal Khan, paid the road tax is respect of this car for the last quarter of the year 1966-67 in Hazara district. Exhs. PG-112 and PG-113 also are similar documents showing payment of tax by Haji Lal Khan for the first quarter 1969-70 and the 4th quarter 1968-69 in Hazara district. This by itself does not establish that the car was sold to Haji Lal Khan, for, it does not exclude the possibility of the tax having been paid on behalf of the recorded owner by some one else. It may well be that the car is still registered in the name The of the foreign importer, namely, the respondent's wife, though being used by someone else for a consideration.

149. Be that as it may, the involvement of the respondent in this transaction is that he, on his own admission, paid the duty for this car and has treated the "sale-proceeds" of this car as his own assets as also at one stage attested the application of his wife Chairman for a permit. The attestation has now been proved to be the same as was then accepted by the customs authorities as the standard trade import price. For this purpose a specific charge was separa-tely framed, namely, charge No, 7, but this charge has now been dropped.

150. It may be that since he paid the taxes, he also retained the sale-proceeds or he might have appropriated the same with the consent of his wife. These facts do not, however, establish abetment of the transfer. No evidence has been led to show that respondent took any active part in negotiating this transfer.

151. We are in agreement, therefore, with Mr. Manzur Qadir that this charge has not been brought home to the respondent. We. accordingly, give the respondent the benefit of the doubt, so far R as this charge is concerned but would like to make it clear that we do not accept the contention that the rules in the Import Manual do not have the force of law.

152. Charge No, 7 is to the following effect :-- "Article of Charge No, 7.

153. That on or about 21-12-1966, he knowingly attested, as a Judge of the High Court, an incorrect declaration by his wife that the price of Mercedes Benz Car, Type 200, Sedan Model, 1966, with accessories, imported from West Germany was Rs, 10,132 although value thereof was in excess of Rs, 12,000,00. The said declaration and the attestation by him enabled the release of the car in violation of law. His aforesaid conduct was not proper and befitting a Judge of the High Court."

154. This charge too has not been pressed by the Attorney-General on the ground that the evidence now on the record seems to indicate that the customs department accepted that the import price for the purposes of assessm ent of customs duty on a Mercedes Benz Car, Type 190/200, was between Rs, 10,500 and Rs, 11,000 as certified by Messrs Shahnawaz Ltd., vide Exh. DG-8. The evidence of Mr. Waliullah (D. W. 18), Secretary of Messrs Shahnawaz Ltd., Karachi, discloses that for purposes of import duty the assessable value of a Mercedes Benz Car of this type was always taken at the amount certified as the net distributors' price by Messrs Shahnawaz Ltd., and this was below Rs, 11,000. In this view of the matter, this charge too could not be proved and the learned Attorney-General acted rightly in giving it up. The Eighth Charge We now come to Charge No,

8. This charge is as follows:-- "`That his first wife, Mst. Zahida Sultana had filed Suit No, 36/68, against him. The said litigation was coming in his way in his confirmation as a judge and with a view to overcome this hurdle on or about 29.1-1968, he entered into compromise with the said Mst. Zahida Sultana, whereafter he was confirmed on 13-5-1968. The terms of compromise, inter alia were as follows:-- (i)A sum of Rs, 1,00,000.00 was to be deposited in a Bank by the respondent in the name of his children.

155. (ii)The respondent undertook to deposit within 6 months a further sum of Rs, 1,10,000.00 and to pay Rs, 22,000.00 on account of arrears of maintenance for his children from 1-5-1964 to 31-12-1967.

156. In default of making the deposit he was to pay maintenance for the children at the rate of Rs, 400.00 per month.

157. He did not, however, honour the said compromise solemnly entered into by him and failed to fulfil the undertakings mentioned in (ii) above, which led to exchange of legal notices and would have caused further litigation. It seems, that the said compromise was merely a ruse to secure confirmation and that he attaches no sanctity to his pledged words. That his conduct in not honouring the commitments under the said compromise was not befitting a Judge."

158. The gravamen of this charge is that the compromise (Exh. PG-75) entered into between the respondent and his first wife Zahida Sultana on 29-1-1968 to put an end to the litigation pending between them at that time was merely a ruse to secure his confirmation as a Judge of the High Court of West Pakistan for, he had no intention to honour the commitments under the said compromise.

159. It is charged that he attaches no sanctity to his pledged words and the manner in which he has failed to honour his commitments s under the said compromise is not in keeping with the degree of propriety required of a Judge under Articles II and III of the Code of Conduct.

160. He married his first wife on the 5th of April 1959. Soon after this a house on The Mall, No, 101, which was an evacuee property was transferred to the father-in-law of the respondent, Mian Abdus Salam (P. W. 11) by a provisional transfer order, dated the 29th of October 1959. The house was valued by the Settlement Authorities at Rs, 96,000. This amount was not covered by the verified claim of Mian Abdus Salam under his compensation book No, 7 /22-LH R-1-139. The balance was therefore, made up by payment in cash of Rs, 19,218.12 on the 15th of February 1960 (vide Exh. DE- 14) and by purchase of the deferred claim of one Lt.-Col. Aftab Ahmad up to the extent of Rs, 50,510 for Rs, 31,821. After the transfer of the house the respondent and his first wife took up their residence there and the respondent claims that on the 9th of May 1960, his father-in-law actually leased out the entire premises jointly to him and his wife at a rental of Rs, 250 per month for a term of 99 years (vide photostat copy Exh. DE-1) The father-in-law, Mian Abdus Salam, however, maintains that this document was never got registered or given effect to as it was cancelled. In any event it had no legal effect as it was never got registered. The latter version appears to be more consistent with the subsequent dealings of the parties with this property, for, we find that on the 10th of February 1962, Mian Abdus Salam (P. W. 11) executed two deeds (Exhs. DE-2 and DE-4). By the first he gifted half of the property, 101, The Mall, Lahore, to his daughter, Zahida Sultana and by the other he conveyed the other half to the respondent for the price of Rs, 48,000. There is no mention of the lease of the 9th of May 1960, in either of these documents. If there had been such a lease subsisting the gift to the daughter, at any rate, would have been subject to the lease. It further appears that Mst. Zahida Sultana in her turn again sold the half share gifted to her by her father to one Ch. Manzoor Ilahi, a brother of Ch. Zahoor Ilahi, for Rs, 5,14,739 in June 1965 (vide Exh. DE-6). In this document too there is no mention of the lease deed and the property has been sold free from all encumbrances. If there was such a lease subsisting then it is unlikely that a legally trained person like the respondent would have kept quiet. There is no evidence that he ever sought to assert his alleged lease-hold right on the other portion. We are inclined, therefore, to accept the version of Mian Abdus Salam that the lease deed (Exh. DE-1) was never given effect to.

161. The transference of the half share of this valuable property to the respondent for the insignificant amount of Rs, 48,000 evidently was in consideration of his marriage with the transferor's daughter and to improve his marital relations with Mst. Zahida Sultana, for, even from before that time the respondent was, as pointed out by the learned Attorney-General, already exploring possibilities of marriage with a European lady as will appear from letters (Exhs. PG-79, PG-80 and PG-81), which indicate that he had actually proposed marriage to a lady, called Ursula, The latter, however, by her letter of the 20th of October 1960 (Exh. PG-81), finally turned down the offer and even asked the respondent not to write to her. It is unnecessary to go into the other letters which have been brought on the record. We are not concerned with his amorous escapades except in so far as they reflect upon his moral character but it seems that the respondent is not a person who is above marital infidelity or is deterred by the fact that he is already lawfully married to one person from pursuing his quest for others or even having affairs with others.

162. In March 1961, he started correspondence with his present wife (vide Exh. PG-89) and before the 9th of May 1961, actually proposed marriage to her. She accepted this proposal and asked him to send the marriage deed for her signature to Germany by her letter of the 9th of May 1961 (vide Exh. PG- 91). His infidelity, however, came to the knowledge of his wife but he managed to assuage her by executing a document, dated the 28th of December 1963 (Exh. PH-75/1), whereby he assured and undertook not to divorce her and promised further that in case he remarried, the half share given to him in premises No, 101, The Mall, Lahore, would go to his children out of her womb and the agricultural lands purchased at Qila Rai Singh, district Gujranwala, would be given back to her in settlement of her dower claim of Rs, 40,000.

163. The case of the respondent is that this document was torn up immediately after it was signed. This evidence has been brought on the record through the mouth of one, Khan Bashir Perwaiz (D. W. 8).

164. This witness stated that this was torn up at the spur of the moment and when asked to describe the manner in which it was torn up, he said that it was first folded four/five times and then it was torn into two /three pieces and also gave a physical demonstration. It was then put to him by the Council that if that was so, then the document would have been torn into fifteen or more pieces.

165. Realising that the falsity of his assertion had been exposed he immediately modified his answer and stated that "it was folded, re-opened and then torn". This again is clearly false, for, the document (Exh. PH-75/1) appears to be pasted only in two places, in the middle and just below the signatures of the parties. It looks as if this pasting was done just to keep the document together at places where it was getting worn-out at the creases caused possibly by repeated folding. This document does not appear to have been torn at all, nor torn in a manner that it would be destroyed, for, then the line of tear would have been irregular and uneven. We cannot, therefore, accept the evidence of Khan Bashir Perwaiz who admitteldy worked as a junior of the respondent from 4th September 1958 till his elevation to the Bench.

166. This witness's story that The Mall house was procured out of the personal funds of the respondent at the payment of Rs, 19,700 under challan (Exh. DF-14) and the payment for purchasing the deferred claim of Rs, 50,510 for Rs, 31,821 were all made out of the personal funds of the respondent, cannot also be accepted as true. All that he said is that the money was handed over to him by the respondent but he was unable to say from where the respondent himself procured the money. It was not drawn from any bank. The respondent also did not adduce any evidence to establish the source from which these large sums were drawn. It is quite possible, as maintained by Mian Abdus Salam (P. W. 11), that the money was made over by him to the respondent for payment to the appropriate department or party, as the respondent, who was then a lawyer, was attending to these things on behalf of his father-in-law.

167. It is in this background that we were asked by the Attorney-General to judge the sincerity of the intentions of the respondent to fulfil the terms of the compromise which is the subject-matter of this charge. It is suggested that as soon as he got the half share of the house in 1962, he started looking for a European wife and actually divorced his first wife on the 28th of August 1964, and lost no time in marrying his present wife, with whom the negotiations had already been finalised, at Lahore on the 10th of October 1964. It is not surprising; therefore, that the former wife should have, in these circumstances, filed a suit against the respondent on the 8th of February 1965, in the Court of the Senior Civil Judge, Lahore, for a declaration that she was the owner-in-possession of the half portion of the premises No, 101, The Mall, Lahore, which was in February 1962, conveyed by her father to her husband, the respondent, practically a song in order to bring about cordial relationship and prevent the marriage being wrecked. This suit, which was later transferred to the High Court, was pending at the time the respondent's name was recommended by the High Court for appointment as an Additional Judge, but the then Chief Justice of the Supreme Court did not support the recommendation on the ground that he was then involved in litigation which might well lead to a scandal. In his letter of the 2nd of October 1965 (Exh. C. 3), to the Secretary, Ministry of Law and Parliamentary Affairs, the learned Chief Justice pointed out that, "he (the respondent) is known to be involved in contentious and it seems, unpleasant litigation in the Courts at Lahore, with the family of his divorced wife; then followed it up by a brief mention of the types of litigation pending against him and ended with the conclusion that "it is most undesirable that a person who is involved in litigation should be elevated to a superior judgeship". Notwithstanding this the respondent was appointed as an Additional Judge of the High Court on the 25th of November 1965 but Chief Justice A. R. Cornelius on the 31st of May 1967, still felt the necessity of drawing the attention of the Government to the fact that the suit filed by the respondent's former wife, which had since been transferred to the High Court for trial, was likely to create a scandal, as the former wife had, in her possession a large number of the respondent's love letters which she intended to produce in Court. This, he opined, would "create a most invidious position" if another Judge of the High Court were to sit to try allegations against a brother Judge with regard to the latter's "marital infidelity, general looseness of behaviour with foreign women, breach of promises made in writing and otherwise and the denial of an agreement purported to be signed by him." Such litigation was bound, the Chief Justice thought, to bring up the whole moral character of the respondent for judicial scrutiny. Then again on the 5th of October 1967, when the matter of the respondent's confirmation came up, the learned Chief Justice still felt that he could not "conscientiously recommend the further retention of Mr. Justice Shaukat Ali on the Bench", because of the matters to which he had already alluded in his previous letters. He also felt compelled to record that it was not possible for him "to entertain the slightest confidence in the integrity of Mr. Justice Shaukat Ali.

168. As a consequence of his strong objection the then Government had to defer the respondent's confirmation by a period of six months and it was only after this that ultimately, through the intervention of several other learned Judges of the High Court and some senior lawyers the compromise (Exh. PG-75) of the 29th of January 1968, was arrived at. By this compromise the ex- wife agreed to retransfer the three killas of agricultural land situated at Qila Rai Singh which had been given to her on the 28th of December 1963, under Exh. No, PH-75/1, which Khan Bashir Par waiz Khan (D. W. 8) said had been torn to pieces, in settlement of her dower claim of Rs, 40,000. She also agreed to transfer the 4th square of this land on payment of Rs, 15,000 in cash and gave up her claim to the half share of premises No, 101, The Mall Lahore, at present valued at more than Rs, 5,00,000.

169. The respondent, in consideration of this, agreed to deposit in the Bank of America a total sum of Rs, 2,10,000 by way of fixed deposits in the names of his three children from his former wife. Out of this amount, Rs, 1,03,000 had to be paid immediately and the balance amount of Rs, 1,10,000 was made payable within six months. During this period of six months allowed for the deposit of the sum of Rs, 1,10,000, the respondent agreed to pay Rs, 400 per month towards the maintenance of the children, and also to pay a sum of Rs, 22,000 as arrears of maintenance from 1-5-1964 to 31-12-1967 at the rate of Rs, 500 per month. The interest accruing on these fixed deposits of Rs, 2,10,000 was to be paid by the end of each month to the respondent's former wife to meet the maintenance and education expenses of the children whose custody during minority was also given to the mother.

170. This settlement was without prejudice to the rights of the children to inherit from the respondent.

171. The fixed deposit receipts, after the deposits had been made, were, according to this agreement, to be filed in the Court and were to remain on the file of the suit until the children attained majority when they were to be made over to them by the Court.

172. In pursuance to this agreement the respondent deposited a sum of Rs, 1,00,000 in three fixed deposit accounts in the names of his three children with the Bank of America (vide Exh. DF-11), paid the sums of Rs, 40,000 and Rs, 15,000 for the four squares of land in Qila Rai Singh, as also paid the arrears of maintenance amounting to Rs, 22,000. The period during which he was required to pay the balance was to expire on the 29th of June 1963, but his confirmation fell due on the 25th of May 1968. The Chief Justice of the High Court recommended his confirmation pointing out that the objection raised by the Chief Justice of the Supreme Court to the confirmation, on the ground of the respondent's involvement in contentious litigation in the Courts in Lahore with the family of his divorced wife, no longer existed, as the litigation had since been compromised.

173. Mr. Justice S. A. Rehman who had, in the meantime, taken over as the Chief Justice of the Supreme Court, in his letter of the 17th of April 1968, agreed with the High Court that the "hurdle", which hithertofore stood in the way of the confirmation of the respondent, namely, the litigation, "may be said to have been removed from the way", yet he felt the necessity of drawing the attention of the Government to another matter which badly reflected on the respondent's "calibre and character".

174. This concerned an allegation against the respondent that he had been a party to marshalling false and perjured evidence in support of a case in which he was appearing as an Advocate for the Deputy Commissioner and Superintendent of Police, Jhang, in the High Court. The Chief Justice was of the opinion that the evidence so alleged to have been led "bore the stamp of falsity".

175. In this case, Mr. Manzur Qadir, who now appears for the respondent, appeared for the opposite- party and the learned Chief Justice recorded in his letter :-- "The impression gained by Mr. Manzur Qadir whom I have consulted was that Mr. Shaukat Ali, if not involved in the suborning of that evidence, had, at least, connived at it and an application was actually going to be moved against Mr. Shaukat Ali for professional misconduct in that behalf."

176. The affair was dropped due to the intervention of some persons in view of the "impehding appointment of Mr. Shaukat Ali as a Judge". His own conclusion with regard to this matter was that "it is highly unlikely that a counsel of the experience and standing of Mr. Shaukat Ali could have remained ignorant of the real nature of the evidence adduced on behalf of his clients and his failure to dissociate himself from such a questionable case, betokens a trait of character such as could raise disquieting doubts about his suitability for the high and responsible office of a superior Court Judge". The respondent was, nevertheless, confirmed with effect from the 25th of May 1968.

177. But after his confirmation, it is alleged, he treated the compromise with his wife as of no consequence and did not comply with the remaining portions of it which he had to fulfil, as earlier pointed out, in June 1968.

178. The contention of the learned Attorney-General is that; as manifested by the recommendation of the High Court itself; it was well known in the High Court that it was the litigation with his former wife which had become a hurdle in the way of his confirmation and it was for this reason that several learned Judges of the High Court intervened in the matter and a settlement was brought about through the good offices of Mr. Justice Muhammad Akram at his house, for removing the "hurdle' in the way of a brother judge. As soon, however, as the hurdle was removed and the respondent was confirmed he felt that his objective had been achieved and that he need not comply with the rest of the compromise. This, according to the Attorney-General, was the real intention of the respondent and, therefore, this was nothing but a ruse to secure the confirmation in keeping with his past conduct, so far as his dealings with his ex-wife were concerned. He attached, it is charged, not the slightest sanctity to his pledged words. After he got the half share of the house from his father-in-law he did not hesitate to divorce his wife, even, though he had given an assurance that he would not divorce her, and as soon as the compromise was effected and he got his confirmation he chose to disregard the terms of the compromise, even though by doing so he was acting unfairly towards his own children, for, it is they alone who were going to be deprived of the interest which would have accrued on this amount.

179. On behalf of the respondent Mr. Manzur Qadir studiously avoided referring to the past history and the correspondence relating to the respondent's confirmation which had been produced by the Attorney-General on the respondent's own request and copies of which had been supplied to him but made an attempt to show that the compromise was not of his seeking. In support of this contention he referred to the evidence of Ch. Ijaz Ahmad (D. W. 21), a club friend of the respondent.

180. The latter claimed that he knew Mst. Zahida Sultana since his childhood days as she was a frequent visitor to his parent's house. He is the son of Ch. Niaz Ahmad, who was in 1964 the Home Secretary to the West Pakistan Government and Mst. Zahida Sultana, according to him, often approached his father for assistance, as she was then complaining of being harassed by the respondent, who allegedly in collusion with the local Police was getting false criminal cases registered against her. His father then used to help her in these matters. By 1968 he claims that he had also come to know the respondent very well through the Punjab Club and it was in the winter of 1968 that, according to this witness, Mst. Zahida Sultana came to their house and told his mother that she had come to pursue her case in the High Court. His mother advised Mst. Zahida Sultana to settle the dispute by negotiation and asked the witness if he could help in that behalf. He then took his mother to the residence of the respondent and asked him to settle the dispute. The latter readily agreed, because having become a Judge he did not want to enter into any sort of litigation either with his former wife or anybody else. Later it was decided that he should ring up the respondent and ask him to go to Justice Muhammad Akram's house the next day.

181. 'The evidence of Ch. Ijaz Ahmad appears to us to be wholly unconvincing. It seems hardly likely that of all persons he should be selected to approach the respondent for the compromise, and yet be left out of the actual negotiations altogether. In 1968 Mst. Zahida Sultana was, according to this witness, residing at Karachi where she had started some kind of business of her own and there was no question, at this stage, of her being harassed in any manner by the respondent. Her suit had nothing to do with her divorce. She was actually claiming a declaration in the suit on the basis of a written undertaking given by the respondent. Why then should she have been anxious to settle the dispute. The anxiety, if any, would have been on the part of the respondent, as his confirmation had been deferred on account of this litigation. This fact must have been known to Mst. Zahida Sultana also. In these circumstances Mst. Zahida Sultana had the whip-hand over the respondent and we find it difficult to accept the evidence of this witness that it was she who was anxious to have the matter compromised. This witness was obviously not telling the truth when he said that it was at the suggestion of his mother that talks of compromise were started. We have formed a very poor impression of the veracity of this witness. His story not only with regard to this compromise but also with regard to the subsequent extension of time said to have been granted by Zahida Sultana to the respondent for meeting his outstanding obligations under the compromise, is, to say the least, far from the truth. The inherent evidence of the contents of the deed of compromise itself (Exh. PG- 75) seems to indicate that Mst. Zahida Sultana was the party who was being induced to withdraw the suit and to remove the hurdle standing in the way of the confirmation of the respondent.

182. Mr. Manzur Qadir has, however, suggested that, in any event, this matter cannot be reopened by the appointing authority nor can the respondent be charged on this account, because, the appointing authority is now estopped from raising these questions after his attention had been pointedly drawn to them by two successive Chief Justices of the Supreme Court. The appointing authority acted with full knowledge of these facts and, therefore, after he confirmed the respondent, he was estopped from challenging the propriety of the appointment and/or confirmation or raising these past matters against the respondent at this stage as a ground for his removal.

183. It has to be pointed out, that no question of estoppel arises here, for, the respondent is not being charged for his past misbehaviours. The charge here is that he entered into this compromise with a dishonest motive in order to delude the authorities into confirming him and then as soon as he was confirmed, he resiled from his solemn undertakings and failed to honour them. The charge here, therefore, relates to the subsequent conduct of the respondent in dishonouring his commitments after securing his confirmation. It cannot be said that the appointing authority was even at that time aware of his intentions or of the fact that after he had been confirmed, he would resile from his solemn undertakings. It cannot, therefore be said that any question of estoppel arises here.

184. The next contention of Mr. Manzur Qadir is that there has been no intentional failure on the part of the respondent to honour his commitments, but it was rather a case of mere postponement of his commitments due to his inability to perform the same within the time stipulated. In support of this contention, strong reliance has been placed upon the fact that subsequently when the gravity of this matter was pointed out to him by the then Chief Justice of the High Court of West Pakistan in May 1970, he immediately complied with it by depositing a further amount of Rs, 1,10,000 with the Bank of America on the 6th of May 1970, vide Exh. DF-11/2.

185. It may here be worth mentioning that the respondent's own case, as set out in his written statement (paragraphs 48 to 52), was that this was not a case of a ruse at all on his part but actually a case of pressure tactics on the part of his ex-wife, Mst. Zahida Sultana. On his part he was so anxious to discharge his obligations that even though he had "already drawn as much as was possible on his available cash resources", he actually advertised for the sale of his half share of premises No, 101, The Mall, Lahore. But he found that the sale could not go through, as on physical verification it transpired that his wife had unlawfully taken about 2 kanals and 15 marlas of land in excess of what she was entitled to in her half share. He was, therefore, entitled to claim that bis liability to pay the balance of Rs, 1,10,000 could "be set of against the area unlawfully taken by Mst.

186. Zahida Sultana." He claims that he was also misled into thinking that she had extended the time for payment, as she did not take any steps until the expiry of nearly 15 months after the date of payment which was provided in the agreement. She served upon him a notice, dated the 9th of April 1969, demanding fulfilment of the remaining conditions.

187. He has suggested that this delay in meeting the demand was indicative of her willingness to postpone the implementation of the agreement, but we find that in his reply to this notice he, by his letter of the 14th of April 1969 (Exh. PH-18), asked for a further period of two years to enable him to make the deposit but, in the same breath, threatened that "in case she still insisted on going to Court then the only course left to him would be to ask for easy instalments".

188. It will be noticed that there is nothing in this letter about any alleged encroachment of excess lands although the advertisements for the sale of the property were issued in Fabruary 1968, and the alleged encroachment must have been discovered soon thereafter, for, he actually got the lands surveyed by a Qanungo, Muhammad Rafiq (D. W. 11) in July 1968 (vide Exh. DF-15/3). Mst. Zahida Sultana did not reply to his letter asking for extension of time, yet he maintains that he was verbally informed by other persons "who had negotiated the compromise on her behalf that she had granted the extension". This was also the case that was put to Mian Abdus Salam (P. W. 11) in cross- examination and it was further sought to be suggested that the entire property, namely, 101, The Mall, Lahore, had been acquired, repaired and reconstructed out of the moneys of the respondent.

189. The witness, of course, denied this suggestion and stated that he actually paid the entire amount.

190. The respondent only acted as his agent and did whatever was necessary to be done. With regard to the allegation regarding the taking of larger share of the land in the portion given to Mst. Zahida Sultana the witness stated that "the actual fact is that the main bungalow was divided into two equal portions but when the lawn was divided one portion became smaller and the other larger".

191. The smaller portion was transferred, according to him, to the respondent. He denied the suggestion that the agreement was that the house and the lands would be divided into two equal portions and one will be transferred to the respondent. He also denied the suggestion that the respondent had carried out extensive structural alterations and additions at his own expense to make the bungalow a modern bungalow. According to him it was even now not a modern bungalow except for the fact that the front walls had been slightly modernised. Th.; alterations were, according to this witness, made partly out c his own funds and partly by the respondent's funds.

192. The deed of conveyance in favour of the respondent describes the property conveyed in the following terms :- "The vendor has agreed with the purchaser for the absolute sale to him of one half of the main building and the lawns adjacent to it of the value of Rs, 48,000 only."

193. This was shown in the plan annexed to the deed as marked in red colour. The plan annexed to the deed has not been filed but the description above given does not show that the half of the compound was also to be transferred. Actually it appears that the main bungalow was first divided by a dividing wall into two equal portions but subsequently after May 1964, when disputes and differences aro3e between the respondent and his wife the wall dividing the Bungalow was extended in a straight line on both sides to divide the compound. This was actually done under the supervision of the Police who were summoned by the respondent himself and the respondent was also present in the house at that time (vide evidence of Mian Abdus Salam at page 76), If this be so, then the allegation about encroachment or inclusion of a larger portion of the compound in the share of Mst. Zahida Sultana falls to the ground. There is no dispute that the superstructure of the bungalow has been divided into two equal portions and the same wall has been continued in a straight line for dividing the compound.

194. The deed of conveyance in favour of the respondent does not bear out his contention that the compound too was to be divided into two equal portions. The plan annexed to the conveyance has not been filed but another plan (Exh. DE-3) has been filed which shows the position of the boundary wall so far as the bungalow is concerned. The plan also shows that the walls are projecting a little beyond the bungalow. It is not unlikely, therefore, that, as stated by Mian Abdus Salam (P. W. 11), the walls were extended in the same straight line to divide the compound as well. If so, then the position would be as it is now. If the plan annexed to the deed had been filed, then perhaps it could have been ascertained with greater certainty as to the area that was actually transferred to the respondent. The document has come from the custody of the respondent and it is not understood why the plan, which was annexed as a schedule thereto, has been withheld. We can, in the circumstances, only presume that the plan, if produced, would not have supported the respondent's contention.

195. As regards the allegation that the entire funds for the acquisition of this bungalow were financed by the respondent, the only evidence that we have before us is that of Mr. Nazir Ahmad (D. W. 5) and Mr. Bashir Perwaiz, (D. W. 8). Mr. Nazir Ahmad's only basis for saying that the house was repaired at the expense of the respondent is that the respondent invariably consulted him with regard to the repairs and decorations but he had to admit that he never saw any money passing.

196. The basis upon which he draws the inference that it was the respondent who paid for these alterations and decorations out of his own monies, is purely conjectural. It cannot be accepted in the absence of any proof that the monies in fact came out of the assets of the respondent. Since the respondent was living in the premises as the son-in-law, it is not unlikely that he looked after the repairs and the alterations and consulted his friends with regard to them. This by no means establishes that the expenditure for these alternations and decorations was also met out of the funds of the respondent.

197. So far as Mr. Bashir Perwaiz (D. W. 8) is concerned, we have already had occasion to comment upon the unsatisfactory nature of his evidence but apart from this he too admits that the basis for his assertion that the monies were paid by the respondent was that they were handed over to him by the respondent in cash at the bungalo v. He could not say whether the money was actually drawn by the respondent from any Bank or whether the respondent had the amount of cash at his residence. It will be noticed that even in the document (Exh. DE/5) drafted by him, for the purchase of the verified claim of one Lt.-Col. Aftab Ahmad Khan, it had been stated that the payment was being made through the agency of justice Shaukat Ali. This document shows that the purchaser was Mian Abdus Salam and it recites that the "amount of sale price has been received by me in cash through Sh. Shaukat Ali, Advocate, 101, The Mall, Lahore".

198. Similarly, the treasury challan (Exh. DF/14) shows that the payee of the amount is Mian Abdus Salatn "througi" the respondent, although the amount was actually tendered by the witness himself. In this case, too, he was not in a position to say as to from where the respondent took out the money, which he handed over to the witness.

199. In neither of these cases, therefore, has it been established that it was the respondent who paid the money out of his own funds. These documents do not belie the evidence of Mian Abdus Sulam that he paid these monies out of his own funds through his the then son-in-law, because the latter used to look after his affairs with regard to this bungalow.

200. So far as the extension of the date of deposit under the compromise deed (Exh. PG/75) is concerned, the only evidence that has been produced is that of D. W. 21, Ch. Ijaz Ahmad. On his own admission he never went to the house of Justice Akram, where the compromise was entered into, nor participated in the negotiations that took place there, Ad that he states is that he talked over the telephone from Lahore with Mst. Zahida Sultana, who was then at Karachi, and she told him that he could tell the respondent that she had extended the time. Mian Abdus Salam (P. W. 11) denied that either this witness or his mother, Begum Niaz Ahmad, had anything to do with regard to the compromise or that any extension was ever granted by his daughter for the fulfilment of the agreement. The witness, of course, never met Mian Abdus Salam, nor is there any other evidence oral or documentary to support his assertion. The documentary evidence is actually to the contrary. When he was asked as to whether he did not consider it necessary in such an important matter to get a confirmation in writing from Begum Zahida Sultana, he stated that he did not consider this necessary. Again when he was asked if he could get that confirmation now, he had to admit that he would not be able to get it, since he had given evidence in favour of the respondent in this inquiry. It is inconceivable that in such an important matter after Begum Zahida Sultana Ali had actually issued a lawyer's notice to the respondent she would have agreed to the extension merely on the asking of this witness over the telephone or that the respondent would have been content with such a telephonic extension. If there was any truth in the statement of the witness Jjaz Ahmad that an extension had been granted by Mst. Zahida Sultana, the respondent would have at least recorded this fact in a letter to the lawyer and asked him to confirm the same. It will be recalled that his written request for extention of time contained in his reply (Exh. P. H/18) to the lawyer's notice had not even been replied to by Mst. Zahida Sultana.

201. We are unable, in the circumstances, to rely upon the oral assertion of this witness (D. W. 21) that such an extension of time was given.

202. The story about the respondent lacking means at the relevant time to honour his commitments is also clearly untenable and Mr. Manzur Qadir has made no attempt to support it. He has frankly conceded that he cannot maintain that the respondent did not have the means to meet his obligations if he was minded to do so. He had between January 1967, and February 1968, invested a sum of Rs, 6 lacs in the Metropole Cinema Ltd., and at or about the time he had to deposit this sum of Rs, 1,10,000 sold his four squares of land at Qila Rai Singh on the 11th of June 1968, for Rs, 1,20,000 and in May 1968, realized an income of Rs, 20,000 from those very agricultural lands. We cannot, therefore, accept that he was not in a position to honour his commitment under the compromise (Exh. PG/75) if he was minded to do so.

203. We cannot also ignore the fact that the necessity of honouring his commitments to his wife and children dawned upon him only after the declarations had been scrutinised and he received a hint to that effect from his own Chief Justice. Even then he did not fully comply with the terms of the compromise. It appears from the evidence of Mr. Gordan Shaunker (D. W. 2), the Assistant Manager of the Bank of America, that the respondent wrote to the Bank on the 6th of May 1970 (vide Exh. DF- 11/2) to open three T. C. Ds. for ten years in the names of his children aggregating to Rs, 1,10,000 but with regard to the arrears of maintenance, the instructions were given only on the 21st of September 1970 (vide Exh. DF11/7). The letter (Exh. DF-11/4) dated the 24th September 1970, from the Bank to the respondent, however, discloses that some revised instructions were subsequently sent and according to this the periods of maturity were changed and the deposit certificates were sent to the respondent instead of being deposited in the Court as agreed upon in the compromise deed. It was only when this was pointed out to the respondent, during the course of arguments, that he offered to do so on the following Monday, the 21st of June 1971.

204. From this evidence and the nature of the defence put up by the respondent it is clear that after the confirmation was granted the respondent totally disregarded his obligations under the compromise, although he was in a position to meet his obligations at the relevant time. It was only when this fact was brought to his notice by the Chief Justice that he made an attempt to fulfil his obligations towards his own children and that too in a rather reluctant manner. If his intention was, as he maintains, throughout honest, then one would have expected him to honour his solemn undertakings towards his own children before launching upon a scheme for the enrichment of himself, his second wife and her children. It is also clear from the attitude taken up by him even in his written statement that he planned to claim to set off this amount against the alleged encroachment of an excess area in premises No, 101, The Mall, Lahore and that but for the hint given to him by his Chief Justice he would never have honoured his commitments.

205. These circumstances, in our opinion, lead only to the inference that be would not have entered into the compromise, by which as he alleges, very liberal terms were given to his ex-wife, unless the litigation had not become a hurdle in the way of his confirmation. The compromise was entered into to remove this hurdle and once the hurdle was removed, the respondent took no notice of his further commitments thereunder, even though a lawyer's notice had been served upon him in April 1969. These facts do, in our opinion, support the contention of the learned Attorney-General that the compromise was merely a ruse for obtaining the confirmation. This charge, therefore, is also established.

206. As far the liberality of the terms it need only be pointed out that he bad got a property worth over Rs, 5 lacs for the payment of only Rs, 2,10,C00 and that the persons who have suffered in the bargain are his own children by his first wife. The last two charges We come now to the last two charges. These are inter-linked and we propose, therefore, to deal with them together. They are as follows:-- Charge No, 9 "That he submitted to the Supreme Judicial Council of Pakistan a statement and/or declaration of his properties and assets and made explanatory statements during the enquiry. He wilfully made incorrect and misleading statements therein to conceal the true state of his assets and real source thereof. In particular, the following statements and/or assertions made by him are incorrect: --

(i) That he had received Rs, 70,000.00 in cash from his mother on 25-11-65, for acquisition of shares in the Metropole Cinema.

(ii) That he had received a sum of Rs, 1,00,000.00 from his brother Sheikh Akhtar Ali on 4-11-67 in payment of the amounts allegedly due from him on two pronotes one dated 5-12-64 for Rs, 60,000 00 and the other dated 15-11-65 for Rs, 40,000.00.

(iii) That his shares in Messrs Vulcan Ice Factory Ltd., were of Rs, 45,000.00 only."

207. Charge No, 10 "That the assets held and acquired by him during the tenure of his office as a Judge up to 22-4- 1969 are not commensurate Hamoodur with the legitimate sources of his income and propriety of acquisition thereof by him is open to question."

208. In charge No, 9 it is alleged that the respondent wilfully made incorrect and misleading statements with regard to the three items specified therein and in charge No, 10 it is generally alleged that the assets held and acquired by him during his tenure of office as a Judge up to 22-4-69 are not commensurate with his legitimate sources of income. According to a balance-sheet, which has been prepared b1 the learned counsel appearing for the Referring Authority, there is a short fall of Rs, 2,70,305. According to this balance-sheet, the total value of assets acquired between 26-11-65 and 22-4.69 has been worked out at Rs, 10,23,406.00 and the total receipts during the same period have been shown at Rs, 7,35,101.00 leaving a deficit of Rs, 2,70,305. From the receipt side the following items are sought to be excluded altogether, namely:-- (1)Rs, 1,00,000 shown to have been received in repayment of advances made on pronotes to his brother Akhtar Ali; (2)Rs, 70,000 said to have been received by way of loan from mother; (3)Rs, 68,700 said to have been received from Vulcan Company as sale proceeds of his sporting arms and electrical goods imported by the respondent and his wife.

209. The learned counsel for the Referring Authority also maintains that the respondent cannot take credit for the entire debit balance of Rs, 1,17,714.32 shown in the books of account of Vulcan Company as advances to the respondent up to 22-4-69, because out of these advances admittedly a considerable portion was spent in household expenses and was not productive of any corresponding asset.

210. On the acquisition side it is charged that the respondent has incorrectly disclosed that he invested only Rs, 45,000 in Vulcan ice Factory Ltd. The actual amount should be Rs, 80,000 which is the face value of 800 fully paid up shares of Rs, 10,000 each acquired in the name of the minor daughter Samina Ali. We shall deal with these items separately.

211. So far as the loan of Rs, 70,000 from the mother is concerned, the case of the respondent was that on 10-1-67, he received Rs, 50,000 from his mother for the purchase of shares, in their Joint names, of the Metropole Cinema Ltd., and again on 28-2-68 he received a further sum of Rs, 20,000 from her for the same purpose. The extract of the personal ledger account of the respondent with Metropole Cinema does not, however, corroborate this for, on the 1st of January 1967, only Rs, 30,000 was credited to his account by transfer. Then on the 10th of January 1967, another amount of only Rs, 15,000 was credited by transfer. On the 20th of May 1947, a further sum of Rs, 20,000 was credited bringing the total to Rs, 65,000. It is of course, the case of the respondent that his mother never maintained any Bank account but paid the amounts out of monies kept by her in her safe.

212. Even after making these advances up to February 1968, the respondent's mother had, according to the declaration filed by the respondent, a cash balance left with her on 22-4-69 of Rs, 22,000. The question is whether she could have had this amount of money with her?

213. At the time of the family settlement in March 1957, she was given only Rs, 5,000 in cash and a life- interest in the following properties:-- (1)House No, 75, Brandreth Road, Lahore.

214. (2)House No, 7-E-IV, Isa Street, Main Bazar, Faiz Bagh, Lahore.

215. (3)House located in Muhammadi Kucha, Tezab Ihata, Lahore.

216. (4)Agricultural land measuring 52 kanals in Jia Musa, District, Lahore.

217. (5)House property in Jalalpur Jattan comprising of a garden and 3 kothas.

218. In the declaration filed by the respondent, the area of 52 kanals of agricultural land in Jia Musa, District Lahore, has been omitted from her assets and it is not known as to what has happened to this item of property. Another item which was not included in the deed namely, a 4-storied building situated on about 4 marlas of land in Ronti Mohaliah, Jalalpur Jattan, has been included and shown as being in the occupation of the mother. The rental value of this property is accordingly shown as nil.

219. Apart from the cash given to her the only other source of income she had left after the family partition were the rents received from these properties. The net income from these properties was calculated, by the respondent, in his Form No, 1V at a flat rate of Rs, 9,500 a year. This was made up of Rs, 8,000 per annum from urban property and Rs, 1,500 per annum from agricultural property.

220. Calculating on this basis the respondent claimed that from April 1957 to April 1968, i,e,, 11 years, she acquired an income of Rs, 1,04,500 in addition to Rs, 5,000 given to her in cash under the deed of settlement. This made a total of Rs, 1,09,500 out of which she could easily have given Rs, 70,000 to the respondent. On the other hand, it is pointed out to us that so far as the Lahore properties are concerned, they were assessed to house property tax and municipal tax and according to the assessm ent orders filed by the respondent himself along with his written statement (pp. 98-100) the gross rental value of these properties was only Rs, 8,340 per annum. If from this amount property tax at the rate of ten per cent. and the Lahore Corporation tax at the same rate, amounting respectively to Rs, 834 per annum is deducted, then the net income from the Lahore properties comes only to Rs, 6,672 per annum and if to this the income from Jalalpur Jattan and Jia Musa properties is added at the rates shown by the respondent himself in his declaration, without making any deduction of any kind, the annual income of the lady would come to Rs, 6,672+ Rs, 1,50)+Rs, 120+ Rs, 960=Rs 9,252. In eleven years she would thus have received Rs, 1,01,772, If from this amount a sum of Rs, 34,466 shown in the balance-sheet prepared by Eva Hornby & Company, Chartered Accountants (Exh. D. W. 16/2) as the total amount spent in repairs, is deducted, then the balance left with the lady would be only Rs, 67,305 and adding thereto a sum of Rs, 5,000, received by her in cash at the time of the settlement, the total available funds, with her up to March 1968, would be only Rs, 72,306, assuming that she spent nothing on herself in the meantime. It is obvious that from this she could not possibly have paid Rs, 70,000 to the respondent and still be left with Rs, 22,000 as she says was left with her. This contention of the learned counsel for the Referring Authority thus appears to be of substance.

221. It is admitted that the lady has not paid any Income-tax after 1957-58 when she ceased to be a partner in the firm of Vulcan Company. If her net income was really Rs, 9,'00 per annum, or even Rs, 8,000, after excluding her agricultural income, then she would have been assessable to income-tax and it would have been the easiest thing to produce her income-tax returns for the subsequent years to show what her net income was.

222. We are not also prepared to accept that the lady never spent any amount out of this sum for her own personal needs. On reference to her ledger account with Ally Brothers & Company (Pakistan)

223. Ltd., at page 49 of Exh. P. H. 11/3, it appears that in May 1965, she took an advance from this company of Rs, 1,000 in addition to the rental at the rate of Rs, 150 per mensem which she was receiving in respect of the premises occupied by Ally Brothers & Company Ltd. If she had, as sought to be contended by the respondent, such a huge amount of money lying with her in her own safe, what was the necessity of taking this advance. This was pointed out to the learned counsel for the respondent during the course of his arguments, but no reply could be given as to why this amount was drawn for which a debit had to be raised against her in the ledger. Unfortunately, the ledger account books of Ally Brothers & Company for subsequent years have not been filed. We are not in a position, therefore, to say as to what were her subsequent transactions, if any. But on the basis of the calculations we have made it does appear to us that the doubt originally expressed by the Council with regard to this item has been confirmed.

224. In this connection, it has also to be pointed out that in order to support his case of having received a loan from his mother the respondent had filed some affidavits of his mother, her rent collector and some of her tenants, but he declined to produce the deponents of the said affidavits for cross- examination when the learned Attorney-General insisted on his right to cross-examine them. The Attorney-General has, therefore, contended that these affidavits are of no value at all and should not be taken into consideration. He also placed reliance upon a decision of the Lahore High Court in the case of Abdul Hamid v. Karam Dad for resisting the admission of these affidavits. Learned7 counsel for the respondent does not challenge the correctness of the principles enunciated in this case, but relies upon another decision of the Karachi Bench of the West Pakistan High Court in the case of Iftikhar Ahmad v. University of Karachi to show that the affidavits cannot be excluded from the record. This decision does not help the learned counsel. It does not lay down that the deponent of an affidavit can refuse to be cross-examined when the other party bona fide desires to cross-examine the witness. The proviso to Order XIX, rule 1 of the Code of Civil Procedure, clearly provides that when any party bona fide desires the production of a witness, who has given evidence by affidavit, for cross-examination, the Court may direct the production of such a witness. In the Karachi case all that was held was that where the production is not sought bona fide, as in that case, the Court may refuse to summon the witness. The principle of law, however, has, in our view, been correctly laid down in the Lahore decision that in proceedings which are not of an interlocutory nature the admission of affidavit evidence "is subject to the proviso (which is an important safeguard for the truth) that in case the opposite-party controverts the allegations by filing a counter-affidavit or demands the attendance of the deponent for his cross-examination, the party relying on the affidavit must produce him in the witness-box and if the deponent fails to submit to the cross-examination, the affidavit shall lose all its force as a probative piece of evidence in the case and cannot be acted upon". We fully endorse this view and rule that in the present case too by withholding these deponents the respondent has rendered these affidavits unworthy of any credence. In the absence of this evidence we have nothing left, apart from the declaration of the respondent, that his mother had the income disclosed by the respondent and was in a position to advance him Rs, 70,000 in 1968.

225. The balance-sheets prepared by Eva Hornby & Company arc of no value at all, for, they were prepared only on the basis of the statements of the respondent. Mrs. Eva Sayed (D. W. 16), who had prepared this balance-sheet of the respondent's mother, admitted that no accounts were maintained by the lady nor were any account books produced before her. She was only shown the declaration filed by the respondent and ;relying upon his statements she prepared the balance- sheet without bothering to check either the counterfoils of rent receipts or the assessment orders with regard to the assessm ent of house property tax or the municipal tax. Indeed, she did not even meet the lady whose balance-sheet she was preparing nor ask to see her rent counterfoil, assessm ent orders or tax receipts. Such a balance-sheet prepared on the basis only of oral statements of the party concerned cannot be accepted as depicting the true picture. In the absence of any reliable evidence, therefore, to support the claim of the respondent that his mother had the income shown by him from her properties, we not only find it difficult to accept them at their face value, but, as we have Rahman, already shown, we find that even if we assume the improvable Chairman that the lady saved every penny she got she could not have had an income sufficient to provide her with the means of making an advance of Rs, 70,000 to the respondent for the purchase of the shares of the Metropole Cinema Ltd., and still be left with Rs, 22,000 in her hands. She could, in no event, have advanced more than Rs, 50,000. Again although the respondent says that he has after selling the shares on the 10th December 1969, repaid Rs, 70,000 to his mother. It is difficult to appreciate from where he got this amount after depositing Rs, 6,50,000 out of the total sale proceeds of Rs, 6,52,903 in the Bank of America on the 13th December 1969. (Vide Exh. C-4).

226. The next item of receipt that has been challenged is the amount of Rs, 1,00,000 which the respondent claims that he lent to his brother Akhtar Ali. The only evidence produced in support of this consists of two documents typed on the letter head of Vulcan Company Ltd., one dated the 5th December 1964, and the other dated the 15th November 1965; which have been described by the respondent as promissory notes, even though the documents bear no revenue stamps. If they are promissory notes, then they cannot be admitted in evidence on this ground. But they are, in our8 opinion, nothing more than mere acknowledgements. These have not been exhibited formally, but they were filed in support of the declaration submitted by the respondent and have been referred to in the course of arguments. They are now marked as Exhs. C-5 and C-6. They appear to be on fresh paper and the signatures on both these documents appear to have been made at one and the same time in the same ink. Indeed, the ink of the signatures on these two documents is so fresh that we cannot but suspect their genuineness. The learned Attorney-General has characterised these transactions as fictitious loans which were neither advanced nor received back. The endorsement relating to the repayment of the amounts of these documents appears on the first document of 5-12-64. There is no date under the signature of either the payer or the payee but the endorsement, which has been typed differently, recites that the entire amount of the loans have been paid back on the 4th of November 1967 and both the promissory notes accordingly "stand cancelled". But curiously enough, the so called promissory note of the 15th of November 1965, purports to have been cancelled on the 4th of December 1967.

227. Reliance has, in addition to this, been placed on the wealth statement filed by Mr. Akhtar Ali (Exh.

228. DF-19) in which this amount of Rs, 1,00,000 has been shown as a liability payable to the respondent.

229. Similarly, in Exh. DF-18, another wealth statement for the period ending 30-6-67, a sum of Rs, 60,000 only has been shown as payable to the respondent by Sh. Akhtar Ali.

230. In the wealth statement, for the period ending 30-6-68, of the respondent, however, no corresponding disclosure has been made of any loan having been made to his brother Sh. Akhtar Ali. An explanation was sought to be given for this omission by saying that this amount was included in the "cash in hand and Banks" heading. But this is obviously incorrect, for, the cash in hand and in Banks is only shown at Rs, 42,429 for this year and for the year 1964-65 it was shown as Rs, 52,267.

231. According to our calculation in 1964 and 1965 the respondent could not have had so much cash as to be able to lend Rs, 1,00,000 to his brother as also make a deposit of Rs, 50,000 with Ally Brothers (Pakistan) Ltd. Our calculation is as given hereunder Professional income as per statement of income-tax returns up to year ending 30-6-653,56,200.00 Cash received under family settlement1,28,000.00 Agricultural income up to 30- 6-6524,000.00 Sale proceeds of lands up to 30-6-6556,000.00 5,64,200.00 During this period he incurred the following outgoings:--

(1) Purchased shares of Vulcan Co. & Allay Brothers1,10,000.00 (2)Purchased shares of State Bank and National Bank of Pakistan1,500.00 (3)Purchased -2- share 101, The Mall, Lahore in 196248,000.00 (4)Purchase of land in Wandat Colony in 196313,000.00 (5)Purchase of agricultural lands 3 squares in Qila Ray Singh in 196224,000.00 (6)Purchased lands in Ilaqa Nawab Sahib and Juliani village20,936.00 (7)Cost of tube-well installed in 196512,000.00 (8)Insurance Premia paid up to 30-6-6438,334.00 (9)Library 20,000 00 (10)Deposit with Ally Brothers up to March 1965 according to Ledgers of the Company94,322.96 (11)Income-tax paid up to assessment year 1962-63 (Income-tax returns for 1963-64 to 1966-67 were filed in 1969 and demand notice issued on 30-6-69)26,130.00 (12)Household and personal expenses up to 30-6-65 calculated at his own estimate at Rs, 1,000 per month for 8 years96,000.00 (13)Cash in hand in Banks as per his own dec laration and balance-sheet prepared by Eva Hornby up to 26-11-6511,439.00 Total5,15,661.96 Deducting this from his receipts of Rs, 5,64,200.00 we get the available balance with him of only Rs, 48,538.04. It is clear, therefore, that he could not have lent a sum of Rs, one lac to his brother Akhtar Ali during 1964-65.

232. The above figures have been taken from the particulars furnished by him along with his own declaration, the certified copy of income assessed to income-tax and tax paid for the assessment years 1958-59 to 1969-70 which was given by the Income-tax Officer, Salary Circle II, Lahore, on the 8th of December 1969 (marked C-7), and the particulars furnished by the respondent along with his letter of the 13th of December 1969, sent to the Supreme Judicial Council (marked C-4).

233. This does not, in our view, establish that any such loan was given to Sh. Akhtar Ali or he re-paid this amount to the respondent in November 1967.

234. In this respect too, we cannot help observing that Mr. Akhtar All has been withheld, although he was3 once cited as a witness. Many of these questions could have been clarified if Mr. Akhtar Ali and the respondent had come into the box to support their assertion that these loans were, in fact, made and has been subsequently paid back to the respondent in November 1967. We cannot, therefore, accept that this was a genuine receipt of the respondent in the year 1967 or that it was available to him for the purchase of the shares of Metropole Cinema Ltd.

235. With regard to the third item of Rs, 63,700 on the receipts side, said to have been received from Vulcan Company as sale-proceeds of sporting arms and electrical goods imported by the respondent and his wife, learned counsel for the Referring Authority has relied on the evidence of Ghulam Rasul Malik (D. W. 18) at page 113, which is to the following effect:- "Q.--How was the sum of Rs, 68,700 on account of the purchase of articles paid to Justice Shaukat Ali?

236. Ans.--These amounts were paid to Judge Sahib from time to time and finally a cheque for Rs, 15,000 was paid in full settlement of the whole accounts.

237. Q.--Is there any entry of the payment of Rs, 15,000?

238. Ans.--Yes, Sir. It is at page 6 of the ledger for the year 1966-67.

239. Q.--Do I take it that on 23-9-66 this account was fully settled?

240. Ans.--Yes, Sir. It was fully settled and there was no payment after this date,"

241. It is, therefore, urged that it is wrong for the respondent to claim credit for the entire amount in the year 1966-67. Actually, these were book entries in adjustment of his ledger account which, even after such credit, still showed a debit balance of Rs, 1,399.47 at the end of March 1967.

242. The personal ledger account of the respondent with Vulcan Company for the year 1966-67 (Exh.

243. PH-33/1) shows at page 6 that on the 23rd of September, he was given credit for Rs, 68,700 and a sum of Rs, 15,000 was debited to his account (vide Exh. PH-33/1). No particulars of how the amount of Rs, 68,700 was paid from time to time, are available from these books. The actual position, therefore, is that he received, as the witness stated, only Rs, 15,000 in September 1966, after adjustment of his debit balance against the price of those goods. In this sense, of course, it is not correct to say that he had the entire amount of Rs, 68,700 available with him to set off against his acquisitions after his appointment as an Additional Judge. On the other hand, it may well be argued that during the course of the year if his debit balance with Vulcan Co. was adjusted, he was benefited to that extent of the price of the goods and, therefore, the price formed an asset, and it is for this reason that the actual amount of Rs, 15,000 paid to respondent has been shown as a debit in the books of account. In this view of the matter, we are unable to agree with the learned counsel for the Referring Authority that the respondent is not entitled to claim credit for the entire amount of Rs, 68,700, particularly, since it is not now challenged that the sporting arms and the electrical goods imported by the respondent and his wife were sold to Vulcan Company for this amount.

244. The result is that we find that the respondent's declaration was false in so far as two items of assets claim by him were not and could not have been available to him at any material time. The last charge Charge No, 10.--This brings us to the last charge, namely, as to whether the respondent's assets acquired during his tenure of office as a Judge up to 22-4-69 were commensurate with his legitimate and known sources of income. After the disallowance of the two items mentioned above it follows that this charge must also be held to be proved, for, the surplus of Rs, 99,626 left even according to the balance-sheet prepared by Eva Hornby & Co., for household expenses will have disappeared.

245. But apart from this the correctness of certain other items has also been challenged. The first relates to the credit balance with Ally Brothers & Co. Ltd. The respondent has claimed credit for Rs, 94,322.96 as funds lying in deposit with Ally Brothers Ltd. up to March 1965. The personal ledger account book No, II of Ally Brothers and Company for the year 1965 (Exh. PH-11/2 in the other Reference and Exh. DG/31 in this case) contains at page 50 the personal ledger account of respondent showing a credit balance on 31-1-65 of Rs, 43,529.82 and at page 78 another personal account No, 2 showing a credit balance on 20-3-65 of Rs, 793.14.This, according to this ledger account, his credit balance with Ally Brothers & Company stood at Ks. 44,322.96 at the end of March 1965. When this was pointed out to the respondent, he produced the Company's own Ledger No, 1 for the year 1955 which was marked as Exh. DG-20. (This was permitted without formal proof even though it was produced in the course of arguments). This ledger contains entries of the firm's own transactions such as goodwill godown, insurance, medical aid, municipal bills, purchase of goods, office equipment, etc. At page 304 of this book, is entered an account, called "Suspense Account No, 2". It does not mention whose suspense account it is, but it shows a credit balance of Rs, 50,000 on 8-5-65. Normally, according to ordinary accounting practice, this should have been the company's own suspense account but the respondent claims that this is his account. The respondent has now also filed two certificates (Exhs. DO-21 and DG-22) from the Habib Bank Ltd., and the United Bank Ltd., respectively, to show that a cheque issued by him on the 7th of May 1965, for Rs, 50,000 in favour of Messrs Ally Brothers was cashed through clearing by the United Bank Ltd., on the lOch of May 1965. Similarly, the United Bank Ltd., certifies that the same cheque bearing No, 325380 was cashed by them through clearance on 10-5-65 and credited to the account of Ally Bros. with it. (Vide Exh. DG-22). The credit entry in the ledger, however, is dated the 8th of May 1965.

246. The certificates (Exhs. DG-21 and DG-22) were, of course, obtained during the course of arguments on the 17th of June 1971, but we have since verified from the statement of account of the respondent with Habib Bank Ltd., Commercial Building Branch, Lahore, for the months of April and May 1965 (since called for by us) that the respondent did have that amount to his credit with the Habib Bulk and he issued a cheque bearing the No, 325380 for Rs, 50,0)0 in favour of Ally Brothers & Company, and it was encashed on 10-6-65.

247. Even so why was it not entered in his personal ledger account but kept in such a concealed manner in an anonymous suspense account in the ledger of the company itself?--The normal procedure should have been to enter it into the credit balance of the respondent in either of his personal ledger accounts in Ledger Book No, II for the year 1965 (Exh. PH-11/3). Again why was the amount credited before the cheque was encashed ?-- These are questions which only the respondent could have clarified particularly, since there have been so many transactions between the respondent, these companies and his brothers that one cannot, with certainty, say to what particular transaction a particular entry is relatable. We would, however, in view of the evidence now produced, give him the benefit of doubt with regard to this item of credit.

248. At this stage we would also like to mention that it is difficult for us to place much reliance on the books of account of these companies, because, on the admission of their own auditor, Mr. Hamid Chaudhary (D. W. 24) these companies are not above making fictitious entries in their books of account (vide entry relating to advance of Rs, 35,000 to Samina Ali by Vulcan Ice Factory which the witness admitted at page 227) of his evidence, was "merely a book entry made for showing the capital as fully paid up". Similarly, the ledgers of Vulcan Company produced before us for the years 1967-68 and 1968-69 (Exhs. PH-76 and PH-43, respectively) appear to be new books which have been rewritten at the same sitting by the same hand and in the same ink, although some very crude attempts appear to have been made to dirty some of its pages. The pages of these books are actually thicker and newer than the books for the subsequent year 1969.

249. These books also bear inherent evidence of rewriting. Thus, in the ledger books for the year 1968- 69, at page 27, the ledger account of one, Salim Rashid, is shown as commencing from the 2nd of April 1969, with a credit balance of Rs, 100 but at the bottom of the page the last entry is for January 1969 and it is carried over to the next page, i,e, page 28, up to March 1969. It is obvious that the rewriter of this ledger when rewriting got mixed up and opened the account with April 1969, when it should have been 1968. Similar mistakes appear at pages 68 and 69, where the account of one Matlub Shah commences from April 1969, when it should have commenced from April 1968. The same mistake also occurs at page 101.

250. Another curious thing about this book is that the account of Matlub Shah driver, which is entered at page 69, is carried over to page 68, although it should normally have gone over to page 70 and at the bottom of page 68 is brought forward the account of one Mukhtar Ahmad, which commences at page 67. Mr. Manzur Qadir attempted to explain this abnormality by saying that since page 70 was already occupied by the account of one Anwar Khan, the account of Matlub Shah was carried to page 68 which was then vacant. But this is obviously incorrect, because, if the entries in the account book had been made contemporaneously then the account of Mukhtar Ahmad should have come first to page 68, because, the last entry in his account at page 67 is of the 1st January 1969 and the first item at page 68 in the account of Matlub Shah is of the 30th of September 1969.

251. The necessity for going to page 68, therefore, should have arisen first in the case of Mukhtar Ahmad and if the account books had been kept in a regular manner, his account should have been carried over first to page 68, and then if any space was left over the account of Matlub Shah could have been brought on to this page. The account of Matlub Shah has also been wrongly commenced from April 1969, when it should have commenced from April 1968. These account books do not, therefore, inspire any confidence at all.

252. When these defects were pointed out to the auditor, Mr. Abdul Hamid Chaudhary (D. W. 24) he agreed that such a mistake could occur if in the year 1969 somebody sets about writing or rewriting a ledger for the year 1968. In re-examination, Mr. M. Anwar, the second learned counsel for the respondent, tried to extract from him that such mistakes could equally well have been the result of a genuine error. The witness, however found it difficult to accept this having regard to the fact that the error was found not only in one place but in several places in the same ledger book.

253. The possibility, therefore, of the error having been made as a result of the sub-conscious working of the mind of the person who was rewriting the ledger in a subsequent year cannot be excluded. In this state of affairs we are unable to accept the entries in any of the ledgers of these companies at their face value. These accounts appear neither to have been kept regularly nor in any systematic manner but merely to suit the convenience of the partners.

254. We may also point out that these ledgers, more or less consistently, apart from a few exceptions, show that the respondent was depositing Rs, 500 a month with Vulcan Company Ltd. up to September 1969. These entries according to the learned Attorney-General, were fictitious entries to show in a concealed form that the allowance, which the respondent received as a legal adviser before his elevation to the Bench, continued to be paid to him even after his elevation to the Bench by these fictitious entries. We have already dealt with these entries when considering charges 1, 2 and 3 and all that need be said here is that the entries are extremely suspicious, particularly, since, they occur in account books (Exhs. PH-76 and PH-43) which themselves appear to have been fabricated at a subsequent date.

255. There is yet one other entry on the acquisition side which has been challenged by the learned counsel for the Referring Authority. This relates to the correctness of the declaration that only Rs, 45,000 was invested in Vulcan Ice Factory Ltd. Mr. Abdul Hamid Chaudhary, (D. W. 24) admitted that actually 800 fully paid-up shares of the face value of Rs, 1,000 each were issued in the name of Samina Ali and, therefore, the share capital contributed by her was treated in the books of company as Rs, 80,000 but since only Rs, 45,000 was actually paid, the balance amount of Rs, 35,000 was shown by a mere book entry as an advance to Samina Ali. Strictly speaking, if proper accounting had been done, the amount of actual investment in this company should have been shown at Rs, 45,000. But since the result would have been the same, namely; that the net investment would have come to Rs, 45,000 we do not think that the respondent deliberately made a false declaration with regard to this item although strictly speaking the correct method would have been to show the face value of the shares and then show a liability of Rs, 35,000.

256. In view of our finding disallowing the entire amount of Rs, 1,00,000 shown by the respondent as the proceeds of promissory-notes received from his brother and the sum of Rs, 70,000 said to have been received as loans from the mother the receipts of the respondent would be reduced by Rs, 1,70,000 and would result in a great disparity between his receipts and acquisitions. The acquisitions would clearly be in excess of his known sources of income.

257. In this connection it may also be pointed out that even Messrs Eva Syed (D. W. 16) Chartered Accountant, who has prepared the balance-sheets of the respondent and his mother, could really discover only four mistakes in the balance-sheet prepared by the Council at the time of the scrutiny of the respondent's declaration. The first relates to a sum of Rs, 16,000 said to have accrued as agricultural income. The second was said to be a miscalculation in the net salary of the respondent. The third was that the Council had taken into account a sum of Rs, 15,000 as the value of land at Qila Rai Singh amongst the assets existing on 26-11-65, but actually this property was acquired in January 1968. Therefore, this amount should not have been treated as a part of the opening sheets. The fourth was that in the final calculation, credit had not been given for the import duty paid by the respondent in respect of two cars. The procedure, according to this witness, of calculating the wife's assets, was also not strictly in accordance with the accounting procedure. It is not without significance, ho 'ever, that she admitted that the net result of the discrepancies was an error in favour of the respondent, for, according to the Council, a sum of Rs, 1,04,461 was available to the respondent for his household expenses but according to her, the actual sum available should have been only Rs, 99,626. The Council had, therefore, given him credit for an excess amount of Rs, 4,835. If, as we have now found, an amount of Rs, 1,70,000 has to be deducted from the receipt side, then the position will be that the respondent will not only have nothing left for his household expenses but even the assets acquired by him since his elevation would be beyond his income.

258. So far as the net salary is concerned, in his Form IV the respondent has himself declared the net salary received by him up to 22-4.69 as Rs, 1,25,788 and in a note appended thereto has stated "that the salary shown above is not after excluding G. P. Fund contribution". The G. P. Fund contribution was, according to the directions furnished with the forms, to be excluded in computing net salary. Therefore, if from the amount of Rs, 1,25,788 the provident fund contribution of Rs, 23,878 is excluded, then the net salary will come to Rs, 1,01,916 and not Rs, 1,10,823.00 as calculated by Messrs Eva Syed (D. W. 16). It is not known upon what basis this figure of net salary has been arrived, because, the break up of the deductions from salary have not been furnished. In any event the figures, upon the basis of which she has arrived at this amount were not before the Council and the Council could only have proceeded on the basis of the particulars given by the respondent himself in his verified declaration. If this error of about Rs, 9,107 00 in the calculation of net salary made by Messrs Eva Syed (D. W. 16) is deducted, then the respondent according to her, would have only Rs, 90,519.00 left for his household expenses. But it is unnecessary to pursue this point any further since we have now found ourselves unable to give credit to the respondent for Rs, 1,70,000 on the receipt side. On this finding alone, it must be held, that charges Nos, 9' and 10 have been proved.

259. Our calculation of his receipts and acquisition from the 26th Income from the 26 th of November 1965 to 22nd of April 1969, after such disallowance is as follows :-- Rs.

(1) Income from agricultural land 56,000.00

(2) Net salary 1,01,961.00

(3) Arrears of professional fees 1,28,561.00

(4) Dividend on shares 5,102.00

(5) Sale proceeds of agricultural land at Qilla Ray Singh1,20,000.00

(6) Sale proceeds of agricultural land in Ilaqa Nawab Sahib42,000.00

(7) Sale proceeds of village lands at Juliani5,000.00

(8) Sale proceeds of library 15,000.00

(9) Matured insurance policy 13,615.00 (10)Loan from National Bank of Pakistan 50,000.00

(11) Loan from Vulcan Co. 17,17,714.00 (12)Reduction of bank balances and cash in hand6,387.00 (13)Reduction of credit balance with Ally Brothers63,028.00 (14)Sale proceeds of goods to Vulcan 68,700.00 (15)Sale proceeds of Mercedes Benz Car imported by wife31,500.00 (16)Insurance compensation on total loss of another Mercedes Benz Car35,000.00 Total8,59,523.00 During the corresponding period his out-goings were as follows :-- Rs.

(1) Price, 65-Brandreth Road acquired on 4-11-664,320.00

(2) Price, agricultural lands in Ilaqa Nawab Sahib, acquired on 2-3-6615,000.00

(3) Shares, Vulcan Ice Factory 45,000.00

(4) Shares, National Shipping Corporation6,930.00

(5) Shares, Metropole Cinema Ltd. 6,00,000.00

(6) N. I. T. Units 3,003.00

(7) Increase in household effects 3,000.00

(8) Bank balance in name of minor daughter Samina Ali3,125.00

(9) Capital gains of wife between 27-11.65 and 22-4-69 as per declaration in.

260. Form IV32,500.00 (10)Customs duty paid on 2 cars 24,000.00

(11) Payments made under deed of compromise to his first wife55,000.00 (12)Deposit in name of children from first wife1,00,000.00 (13)Arrears of maintenance of children paid at the time of compromise22,000.00 (14)Life insurance premium paid out of personal funds during 26-11-65 to 22-4-69 as per particulars given in Form IV54,718.00 Total9,68,596.00 The excess expenditure is thus Rs, 1,09,073.00, which is not accounted for by his known sources of income. In addition to this, if we add to this excess his household expenses, calculated even at the rate given by the respondent of Rs, 2,000 per month for 41 months, the excess will come to Rs, 1,91,073.00. Even if we accept that his mother gave him Rs, 50,000.00, the shortfall will still be Rs, 1,41,073.00.

261. The conclusions to which we have, therefore, arrived at, may be summarised as follows :- (1)Charges Nos, 1, 2 and 3.--The so-called companies, in which the respondent invested, were really partnership concerns running under the veil of incorporation. Association in such concerns was not merely holding shares in a private limited company but actively participating in activities of trade, industry and business.

262. (2)Charge No, 8.--The respondent entered into the com-promise only when his confirmation was postponed by six months in order to get over the hurdle in the way of his confirmation but as soon as the confirmation was made, he totally disregarded his obligations under the compromise entered into with his first wife by the intervention of his brother Judges in the High Court. He, therefore, not only obtained his confirmation by this ruse but also thought nothing of disregarding his solemn undertakings, even though he was thereby denying justice to his own children from his first wife.

263. (3)Charges Nos, 9 and 10.--The claim of the respondent that he lent Rs, 1 lakh to his brother Akhtar Ali and subsequently recouped the same, has not been established. Similarly, his claim to have received an advance of Rs, 70,000 from his mother has not been established, as according to the Council, she could not have had that amount of cash with her at the relevant time having regard to her income from her properties. She could in no event have lent him more than Rs, 50,000 00.

264. The assets acquired by the respondent between 27-11-65 and 22-4-69 were thus clearly bayond his known sources of income to the extent, at least, of Rs, 1,41,073.00. The declaration of assets filed by the respondent was, therefore, to that extent clearly false.

265. The net result, therefore, is that we find charges Nos, 1, 2, 3, 8, 9 and 10 to have been proved against the respondent, and on the basis of this finding he must, in our view, be held to have violated Article II (1st Part), III and VI (2nd Part of 1st Part) of the Code of Conduct for Judges of Superior Courts. Effect of leaving the concerns Learned counsel appearing on his behalf has pleaded that as far as charges 1, 2 and 3 are concerned, the Council should take into account the fact that he has, in May 1970, disengaged himself from these concerns by selling all his shares in all these companies. This was after the scrutiny of his declaration was completed but before the report was submitted to the President and certainly before the Reference was received and the charges were formulated. Learned counsel contends that on the date the Reference was received, he was no longer even a shareholder of these companies and, therefore he could not be penalised for his acts ex post facto.

266. The charge, it has to be pointed out, relates to his conduct during the period he functioned as a Judge from 26-11-65 to 22-4-69. Disengagement subsequent to this period cannot, therefore, be an answer to the charge, although it may be a factor to be taken into account when deciding as to what recommendation should be made in the case of the respondent in view of the findings arrived at by the Council. Subsequent disengagement cannot exculpate him for his previous acts of misconduct but can only be taken into account as a mitigating circumstances in awarding the punishment. We shall, therefore, deal with this matter when considering the question as to what recommendation should be made. Declarations of other Judges Before we come to that we must also deal with another argument of the learned counsel for the respondent which relates to a matter over which the respondent had earlier, while Mr. Manzoor Qadir was away, adopted rather an objectionable attitude. He had at one stage, as earlier stated, filed an application for giving him inspection of the declarations filed by some other learned Judges of the West Pakistan High Court in order to enable him to show what he alleged to be discriminatory treatment meted out by the Council to him. These documents could not be supplied to the respondents as they were confidential documents, and the Attorney-General has since also claimed privilege for these documents. It was, however, pointed out to the respondent that he was treading on dangerous ground by casting aspersions on the Council itself but he took no heed, and persisted in his demand. When the application was rejected, he even threatened to walk out, but did not do so at that stage, as it was made clear to him that if he walked out, the Council would treat his case as closed and submit its report on the basis of the evidence already on the [record.

267. Thereafter, he tried to make capital out of an observation of one of the members of the Council that in order to show that in similar circumstances another Judge had been treated differently, he can produce aliunde evidence. He was not ultimately allowed to do so but on 21-5-71 he filed a Chart cataloguing what he considered to be the similarities between his case and the case of another learned Judge of the same High Court. It was again pointed out to him that it was no defence for him to say that another learned Judge had been guilty of similar misconduct but the Chart was kept on the record and he was given liberty to refer to it at the time of arguments. The Chart was placed before us by Mr. Manzoor Qadir presumably at the insistence of his client, but he made it quite clear that he was not doing so as a defence but merely as a reference to a precedent for the consideration of the Council and if the Council finds that the allegations which were made against another Judge bear any similarity to the allegations now made against the respondent, then the Council, he hoped, would take the same view with regard to the respondent's culpability.

268. The learned counsel for the respondent made no attempt to point out any similarities. On the contrary, he said that he could not say with any amount of certainty as to what facts were before the Council when it drew up its report about the other learned Judges. Since the Chart has not been produced to call attention to any provision of law or any principle deducible from our previous findings, and since we are merely called upon to compare the facts subjectively, we feel that we are indirectly required to compare our two previous reports and to comment on them. We think consistently with what we have stated above, that it is not for us to do so. In this case we have before us detailed evidence explanations and elucidations from which we have to draw our conclusions. Many new facts are mentioned in the chart about the other learned Judge which were not before us when we wrote our report about him, and we do not know whether they would bear the test of proper scrutiny or not. Therefore, we cannot take them into consideration. Excluding those facts from consideration and taking the plentiful evidence which has been produced before us in these proceedings, all we can say is that our present conclusions appear to us to be amply justified. Recommendation This brings us now to the question as to what recommendation we should make under Article 128 of the Constitution of 1962. The only recommendation that we can make under this Article is as to whether a Judge should be removed from his office or not. Having regard to the gravity of the findings on not only one charge but on several charges, we have come to the conclusion that the misconduct found on the part of the respondent was of a "gross" character. Therefore, even taking into account the fact of his disengagement from the family concerns in May 1970, we find ourselves unable to say that they constitute a mitigating circumstance for these are not the only charges against the respondent. There are three other charges as well which have been found against him.

269. The cumulative effect of these charges is that the respondent has acted in a manner wholly unbecoming a Judge. They, in fact depict the respondent's character in a very lurid manner. He not only managed to procure his confirmation by entering into the compromise with his ex-wife which he had no intention to fully honour but also treated her and his own children in an extremely shabby and unjust manner. As a Judge his first anxiety should have been to honour his pledged word and to do justice to his children before he launched upon any scheme for accumulation of wealth for himself. It has been conceded that if the respondent was so minded, he was in possession of adequate means to meet the commitments given to his ex-wife and children but still he disregarded his solemn undertakings and went on to acquire shares worth Rs, 6 lakhs in the Metropole Cinema Ltd., in the hope that it would fetch him very good income.

270. The inaccuracies found in the respondent's declaration cannot be overlooked, particularly, since he knew full well that even in its report the Council had mentioned that the transactions between him and his brothers in connection with the family concerns and/or companies appeared to be "shrouded in mystery". One would have expected that as an experienced lawyer and as a Judge he would take good care to bring before the Council reliable evidence in these proceedings to remove its doubts. We regret, however, to say that the type of evidence which he has produced has left the Council with a very unfavourable impression of the character of the respondent. He has not hesitated to produce forged, fabricated and false evidence. We have already commented on the nature of the evidence at several places earlier. It is not necessary to repeat them here. He has also suborned false evidence which, we might incidentally point out, has more than justified the misgiving entertained by one of the ex-Chief Justices of this Court at the time of his confirmation.

271. These proceedings establish that what the learned Chief Justice then apprehended has come true in the course of these proceedings. He did not even hesitate to dupe the Registrar (P. W. 3) of the High Court into giving certificates to the effect that the respondent did not know of the contents of the Code of Conduct (Exhs. D/D. 3 and D/ D. 4) until 1968, although it was sent to the High Court in August 1965, and was published in the journal part of the Pakistan Legal Decisions in 1967. The Registrar, however, realized his mistake and requested to be recalled. He was recalled and examined as C. W. 1 on the 5th February 1971. On this occasion, he admitted that he had been grievously misled ; as the file relating to the Code of Conduct had somehow been divided into two parts in 1968 before he joined as Registrar and the file containing the duplicate copy of the Code signed by the respondent earlier along with that of some four other Judges was missing. A careful search had nevertheless revealed that a copy of the Code was sent to the respondent on the 8th December 1965 through the Confidential Office Movement Register (Exh. PH-31). Even so, it was suggested in cross-examination that no copy of the Code was sent to the respondent in December 1965, because the entry in the confidential register was in shorthand and it was not signed by the respondent. The witness explained that at that time there was no practice of getting the entry signed by the learned Judge. There was no suggestion, however that the entry was subsequently made or that it has now been fabricated. We see no reason, therefore, to doubt the entry and take a serious view of the conduct of the respondent in denying that he had received a copy of the Code in 1965. We cannot also help feeling that the disappearance of the file is not purely accidental.

272. Taking into account all the above facts and circumstanceswe are constrained to come to the conclusion that the respondent has, in violation of the Code of Conduct, which now exists in black and white, shown no regard to the standard of conduct expected from any Judge, much less from a Judge of a superior Court. He has involved himself in trade, industry and business, and has identified his personal monetary interests with the financial interest of his family in the latter's pursuit of wealth ; intentionally placed himself in positions which were undoubtedly likely to embarrass him in the performance of his functions as a Judge ; did continue to remain involved in objectionable litigation and undertook at the time of his confirmation as a Judge of the High Court of West Pakistan to disentangle himself from those complications but did not honour that undertaking, and lastly submitted his declaration of assets in which he made incorrect and misleading statements in order to conceal the true state of his assets and resources. We are, therefore, led to the final conclusion that his further retention in office is undesirable. This Council has, accordingly decided, with much regret, to recommend to the President that the respondent should be removed from his office. Before we part with this report we would like to place on record that although the respondent behaved in a most objectionable manner throughout, we have not allowed this act to influence our decision. This proceeding has been an extremely unpleasant and taxing experience for the Council.

273. The respondent forgot that he was appearing before five of the most experienced Judges in the Country, and from the very beginning, either by design or from force of habit, took up an arrogant and insolent attitude. At one stage he even insulted the Council in its face when the Council with great reluctance had to issue a notice for his committal for contempt. It was only through the timely intervention of Mr. Anwar, his counsel that a very ugly situation was avoided, for, otherwise the Council would not have hesitated to punish the respondent suitably. He also did not hesitate to falsely and maliciously malign the Council before other Authorities and even attempted at one stage to intimidate the Council by threats. Finally, he staged a walk-out even after the evidence was closed. Even so, the Council did not deny Mr. Manzoor Qadir the opportunity to address the Council on the respondent's behalf. Indeed, the Council has throughout, as admitted by Mr. Manzoor Qadir himself, not only shown the maximum amount of consideration but even treated the tantrums of the respondent with the indulgence they did not deserve. 1897 A C 22 (1916) 2 A C 367 (1941) 1 K B 576 (1937) 58 LLR 159 (1936) 2 All E R 386 PLD 1960 SC 26 PLD 1966 Lab. 16 PLD 1957 Kar. 635 revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.