' The validity/propriety of the order of the Border area Committee dated 15-12-1977 is called in question in this Constitution petition.
2. a few facts relevant for the disposal of this petition are that the petitioner Javed Iqbal had served as Sepoy in the Pakistan army. After his retirement he was allotted 200 Kanals of land situated in Revenne Estate Chak No,77/1-L, Haroonabad by the allotment Committee on the recommendatation of General Headquarter (GHQ). This happened vide RLII/B, No,31, on 22-11-1971.
Feeling dissatisfied with the quality of land, the petitioner obtained land in Chak No,80/1-L, Tehsil Haroonabad by way of exchange. He paid the price of the land and on 22-11-1975, deed of conveyance was issued in his favour by the Deputy Commissioner, Bahawalnagar District.
3. Thereafter the present dispute commenced. An application was lodged before the Border area Committee (hereinafter referred the Committee) under para. 10 of the West Pakistan Border area Regulation, 1959, alleging therein that the petitioner was not a retired sepoy of Pakistan army and had secured allotment by means of practising fraud and deception on the allotment committee.
By means of impugned order the Committee accepted the information, cancelled the allotment in favour of the petitioner.
4. In disputing the correctness/legality of impugned order the following points were raised on behalf of the petitioner:--
(1) That Col. Muhammad Sadiq who presided the Border area Committee in fact had an interest in the land and was precluded by interest to render the impugned decision. According to the learned counsel, the aforesaid Col. Muhammad Sadiq had secured allotment of 415 Kanals 16 Marlas in various Chaks of Tehsil Haroonabad, on different dates. Later on, he got the disputed land by way of exchange. Sensing that land in dispute was under litigation, he abandoned the same on 3-8- 1977. On the strength of this fact, it was pointed out that Col. Muhammad Sadiq was not qualified to the proceedings of Committee and adjudicate the controversy. Reliance was placed on Muhammad afzal Khan v. Sarkar PLD 1969 Azad J&K 22.
(ii) It was next contended that the Deputy Commissioner had received the total price of the land; had issued deed of conveyance and so the Committee had become functus officio and had no authority to pass the impugned order. Reliance was placed upon rule laid down in unapproved judgments of My Lord abdul Shakurul Salam, J. (as he then was) dated 26-3-1980, in W.P. No,687- R/79 and My Lord Muhammad Sharif, J. (as he then was) dated 19-2-1983 passed in W.P. No,87/82 (BWP).
(iii) It was lastly submitted that the Committee, notwithstanding the request of the petitioner, did not requisition the record from the G.H.Q. For the purpose of seeing that as to whether the recommendation was actually made by the G.H.Q. Or not.
5. The learned counsel appearing on behalf of the respondents, on the other hand, supported the impugned decision. According to the learned counsel the allotment secured by the petitioner was the result of fraud from inception to finish. According to the learned counsel the petitioner obtained allotment on 22-11-1971 and got exhange on 7-12-1972. The speed with which the exchnage was granted to him revealed the true nature of the order. It was added that no sanction whatsoever was obtained from the G.H.Q. In regard of exchange.
6. I have heard the learned counsel for the parties at considerable length and have given my anxious consideration to the arguments advanced by both the parties. I will first take up the objection of the petitioner that Col. Muhammad Sadiq entertained a bias on account of his interest in the land in dispute. On facts it is not denied that the aforesaid Col. Muhammad Sadiq/Chairman of Committee had obtained land in dispute by means of an exchange. When he came to know about the pendency of the dispute with regard to this land, he abandoned the same.
7. The question for decision is whether on these facts he was disqualified on the basis of doctrine of bias. It 'is one of the most well known and highly cherished principles of law that no man can be a Judge in his own cause or in a cause in which he is personally interested, not because that he might decide in his favotir but on the principle that the justice must not only be done but must be seen to be done. The leading case on this principle is the famous Dr. Bonham's case (1610)8 Co.
Rept. 107). In this case a doctor of medicine was summoned before the Board of the College of Physicians and fined and imprisoned for contempt because he had failed to take out a licence of practice from the College. Coke, J. Held that the Board had no power to fine Dr. Bonham, because the Board was a judge in its own cause. It was held that it would be "against common right and reason, repugnant or impossible to be performed, the common law will control it, and adjudge such act to be void."
' This principle was again reiterated in Muhammad Saleem v. Sub-Martial Law administrator, Sargodha and another PLD 1979 Lah. 284 and it was held as under:--st excellent and upright motives and may not in fact allow his.
" The Judge who appears to have or who has a bias may have the judicial discretion to be impaired in any way by the vitiating 'interest', but the Courts will find there has been a breach of natural justice, because it is of fundamental importance that justice should not only he done but should manifestly and undoubtedly seem to be done."
' This principle was further illustrated by Lord Cave, L.C. In case Frome United Breweries Co. v. Bath Justices (1926 aC 586) in the following manner:- "If there is one principle which forms an integral part of the English Law, it is that every member of a body engaged in a judicial proceeding must be held to ad judicially; and it has been held over and over again that, if a member of such a body is subject to a bias, whether financial or other, in favour of or against either party to the dispute or is in such a position that a bias must he assumed he ought not to take part in the decision or even to sit upon the tribunal This rule has been asserted, not only in the case of Court of Justice and other judicial Tribunals, but in the case of authorities which though in no sense to he called Courts, have to act as .Ludges of the rights of others."
' In the case of R.V. Sussex Justice, Ex Parte McCarthy (1924)1, K.B. 256) a summons was taken out by the police against the applicant. At the hearing of the commons the acting clerk to the justices was a member of the firm of solicitors who were acting for a party in a claim for damages against the applicant for injuries received in the collision. At the conclusion of the evidence, the justices retired to consdier their decision, the acting clerk retiring with them in case they should desire to he advised on any point of law. The justices convicted the applicant, and it was stated on affidavit that they came to that conclusion without consulting the acting clerk, who in fact abstained from referring to the case. The conviction was quashed because it was improper for the acting clerk, having regard to his firm's relation to the case, to be present with the justices when they were considering their decision. The same view was followed in the case of R.v. Essex Justices 1927-2 KB
475. Further in the case of Ghulam Ritsul v. Crown PLD 1951 FC 62 the Hon'ble Bench held that:-- "Nothing should be allowed to happen in case which may give rise to reasonable apprehension in the mind of an accused person that he could not or did not have a fair trial. It is essential that justice must not only he done but must manifestly seem to he done."
' In anwar v. Crown PLD 1955 SC 185 it was held that if the Judge i:: functioning under an influence brought about by his own act or by the act of another person, which has the effect to paralysing his judicial faculties, there is no fair , trial. Hafeez-ur-Rehman v. Principal, Government College, Sylhet PLD 1967 Dacca 700 was a case in which the expulsion of a student from college was declared to the illegal and without lawful authority becauue the examination of the record showed that the Deputy Commissioner who was the Chairman of the Governing Body of the College and presided over the crucial meeting of the Body had already made up his mind against the alleged prejudicial activities of the petitioner and he had, therefore, ordered that the petitioner should be expelled from the College. The Court found that in the circumstances it was not unlikely that the Governing Body was influenced by the opinion of the Deputy Commissioner. Kabir ahmad v. S.D.O. Etc. PLD 1968 Dacca 49 is in the same line. Here was a case where a Chairman of a Union Council had forwarded a complaint against the petitioner under section 341, P.P.C. To the controlling authority and recommended strong action pants him. This complaint ultimately came back to the same Chairman for disposal Chairman constituted a Conciliation Court with himself as its Chairman for the trial of the case and convicted the petitioner and ordered him to pay tita :. Iiigfi Court in writ jurisdiction held the order passed by the Conciliation Court to be without lawful authority and of no legal effect. In a recent case of bias filed Rahim Jan v. Institute of Chartered accountant etc. PLD 1977 Lah. 1450 Rahim Jan a Chartered accountants was expelled from the membership reship of the Institute of Chartered accountants. Two members of the Council of the Institute had grievance against the petitioner. It was held that their presence on the Committee was sufficient to vitiate the proceedings on the basis of hi:e accordingly the impugned order was declared to be illegal and without lawful authority.
' Then in Falak Sher v. Board of Revenue 1986 CLC 1214, it was held as under:- "It is well-established that the doctrine of bias is one of the impc principles of natural justice. It postulates that justice should not be done but manifestly seem to be done. Member, Board of Rev( in exercise of his judicial or quasi-judicial function ought to Ito refrained himself from hearing the case as he had previous' got registered criminal case against the petitioners in this behalf."
8. Applying the principles enunciated above, to the facts and circumstances of this case it is quite clear that Col. Muhammad Sadiq/Chairman of the Committee had secured the land in dispute by means of exchange and thus had interest in the disputed property. He was, therefore, disqualified to act as an adjudicator. In view of this, the impugned decision rendered by the Committee is found to have been passed without jurisdiction, without any lawful authority and is declared as such. Having so concluded that I am not inclined to dilate upon other points raised by the parties.
' In the light of foregoing discussion, this petition is accepted. The impugned order is set aside. It is stated that Col. Muhammad Sadiq had retired and is no longer Chairman of the Committee. The case is remitted to the Border area Committee for decision afresh after hearing both the parties in accordance with law. There shall be no order as to costs.