Ms. BENAZIR BHUTTO vs THE PRESIDENT OF PAKISTAN and another

ORDER

' AJMAL MIAN, J.---This is an application under Article 6 of the President's Order 17 of 1977, hereinafter referred to as the Order, for the transfer of the References filed by the Referring Authority against the petitioner pending in the Special Court comprising of Mr. Justice Rashid Aziz Khan, a Judge of the Lahore High Court, hereinafter referred to as the learned Judge.

2. The brief facts are that the petitioner is a member of the National Assembly of Pakistan, hereinafter referred to as the Assembly, representing district of Larkana. She is also a former Prime Minister of Pakistan and at present the Leader of the Opposition in the Assembly. The Referring Authority had filed seven References in three Special Courts under the Order; two of them have been filed in the Special Court comprising a Judge of the Sindh High Court, whereas remaining five References have been filed before the Special Courts comprising the Judges of the Lahore High Court. Out of the above five References, three References, namely, References Nos. 4, 5 and 13 of 1990 relating to Lake View Hotel Project in Islamabad, allocation of L.P.G. (Liquid Petroleum Gas) and alleged irregular appointments, respectively, are pending before the learned Judge. References Nos. 4 and 5 of 1990 were filed in September, 1990, whereas Reference No,13 of 1990 was instituted on 22-10-1990. It seems that the petitioner filed C. M. No,1 of 1990 dated 3-11-1990 for getting exempted from personal appearance in Reference No,5 of 1990, which was granted by an order dated 18-11-1990. The petitioner filed C.M. No,7 of 1990 dated 16-10-1990 in above Reference No,4 of 1990, challenging the jurisdiction of the Special Court. Similar applications were filed in the other two References. The above applications were rejected by a common order dated 14-11-1990.

3. That it appears that thereafter in the first week of December, 1990, the petitioner filed C.M.P.

No,574 of 1990 before this Court under Article 6-A of the Order for the transfer of inter alia above References from Lahore to the Special Courts functioning at Karachi inter alia on the grounds, that the President himself initially selected the available forum at Karachi by filing the first two References, the petitioner had been elected from a Constituency in Sindh and that for attending the proceedings at Lahore, she had to incur an expenditure of about Rs,20,000 on each visit etc. However, the above C.M.P. Was dismissed by an order dated 9-2-1991, in which inter alia it was held that the References filed at Lahore were on account of genuine nexus of the subjects with the forums in territorial sense and that the selection in this behalf was due to considerations providing tangible connection between the subject matters and the forums. As regards the convenience of the parties or witnesses as a ground of transfer, it was observed that all such points having been met by the amendment introduced in Article 3 (3) of the Order, there was no justification left for transfer of cases from Lahore to Karachi. At this juncture, it may be observed that proviso to sub- Article (3) of Article 3 of the Order was added by an amendment gazetted on 15-1-1991 providing as follows:-- "Provided that a Special Court may, either of its own motion or at the request of any party, sit at such other place as it may decide in the interest of justice, having regard to the general convenience of the parties and the production of evidence."

' In the above order on the question of bias, the following observation was recorded on the basis of the statement of the learned counsel for the petitioner:- "He also candidly stated that there is no question of any grounds of bias, being involved."

4. It appears that after the above dismissal of the miscellaneous petition for the transfer of the References from Lahore to Karachi, the petitioner filed C.M. No,19 of 1991 dated 23-2-1991 under above Article 3 (3) of the Order in Reference No,4 of 1990 for hearing of the Reference at Karachi.

Identical applications were filed in the other two References. But the above applications did not find favour with the learned Judge, who after hearing the parties by a detailed common order dated 3-3-1991, dismissed the same. After that, the matter proceeded before the learned Judge.

Various miscellaneous applications were filed, which were heard and disposed of. The evidence of the prosecution was concluded in Reference No,5 of 1990 on 30-7-1991 and the case was fixed for 13-8-1991 for recording of the statement of the petitioner. It seems that while the References were proceeded with, upon the request of the learned counsel for the petitioner and with the consent of the learned counsel for the Referring Authority, the petitioner's counsel were given inspection of the official record relating to the References, which generated controversy about tampering of the record, withholding of the relevant record by the Department etc. As observed hereinabove, Reference No,5 of 1990 was fixed for 13-8-1991 for recording of the petitioner's statement. However, on the latter date, the learned counsel for the petitioner submitted that some files were not made available for inspection and that in a file, pages from 127 to 310 were missing. Thereupon, the learned Judge adjourned the case to 18-8-1991 for recording of the petitioner's statement and also ordered that the inspection of the record would be made on 15-8-1991 in the office of the Registrar of the Court. After that, a number of miscellaneous applications were filed in the above Reference referred to hereinbelow. When the above case came up for hearing on 18-8-1991, the petitioner's counsel filed C.M. No, 19 of 1991 pointing out that the pages referred to in the above application were missing from the file mentioned shown to him by the Referring Authority. It was also pointed out that the Referring Authority withheld the documents/records referred to in the above application. It was prayed that the files already inspected be sealed, while those to be inspected be retained in the custody of the Registrar of the Court. It was further prayed that further proceedings including the recording of the statement of the petitioner be deferred until a reasonable time after:--

(a) an inquiry has been held into the reasons and motives for withholding/omission to supply the entire record furnished for inspection despite an undertaking to that effect made by the learned counsel for the Referring Authority,

(b) Counsel for the petitioner have been allowed the opportunity to fully inspect the entire record as ordered including all the material documents.

' On the above application, the learned Judge inter alia ordered on 18-8-1991 as follows:-

(i) That the petitioner's counsel shall give on 21-8-1991 a list of files containing details of the files which he wish to examine;

(ii) The petitioner's counsel shall file any other application which he wish to move by 21-8-1991;

(iii) No further adjournments shall be allowed on the above ground.

5. It appears that on or before 21-8-1991, the petitioner filed C.M. No,20 of 1991 dated 20-8-1991 for the inspection of the record mentioned therein which inter alia included the following record:- "(a) All the files relating to the appointment of retired or retiring Senior Officers of the Armed Forces in various Wings of the State machinery.

(b) All allotments of lands and plots.

(c) All contracts or loans granted to them or through such officers to their children, relatives and friends."

' It was also prayed that the above files may be summoned from the Establishment and Cabinet Divisions, Ministry of Finance, Defence, Production, Prime Minister's Secretariat and Wapda relating to the period of July, 1977 to December, 1988. It seems that at the time of filing of above C.M. No,20 of 1991 or immediately thereafter, the petitioner's counsel filed C.M. Nos. 21 and 22 of 1991; by the former application, the petitioner's counsel sought summoning of the following persons as the Court's witnesses with the record mentioned therein:-

(i) The President of Pakistan;

(ii) The Prime Minister of Pakistan;

(iii) Roedad Khan, Chief of the Accountability Cell;

(iv) Mr. Fazalur Rehman, Principal Secretary to the President;

(v) Secretaries of the then Chief Minister of Punjab (presently the Prime Minister);

(vi) Secretaries of Lahore Development Authority and the Public Service Commission;

(vii) Secretaries of the Federal Ministries of Finance, Industries, Production and Commerce; ' whereas through C.M. No, 22 of 1991, it was prayed that the petitioner be allowed to make her statement at an appropriate stage of her choosing.

6. Reference No,5 of 1990 came up for hearing on 21-8-1991 when the learned Judge disposed of the above C.M. Nos. 19 and 20 of 1991, by an order dated 21-8-1991 allowing the inspection of the following record:-

(i) 18 files relating to allotment/allocation of L.P.G. Which were already shown;

(ii) The files mentioned in the list annexed to C.M. No,20 of 1991;

(iii) Files relating to Wak Gas, Cap Gas, Sun Line and Lub Gas.

' The inspection was to be completed by 26-8-1991. However, the learned Judge declined the petitioner's counsel's request for the following records:- "(a) All the files relating to the appointments of retired or retiring Senior Officers of the Armed Forces in various Wings of the State machinery.

(b) All contracts or loans granted to them or through such officers to their children, relatives and friends.

(c) All allotments of lands and plots."

' While declining the above request, the learned Judge observed that "It is apparent that this request has been made only with a view to drag the proceedings". It was also ordered that the learned counsel for the petitioner shall move application on 27-8-1991, if any, to point out that any of the files allowed to be examined was not made available.

7. After that, the petitioner's counsel filed following miscellaneous applications:-

(i) C.M. No, 23 of 1991: ' Through this application, the petitioner prayed that if the Court was not going to postpone the hearing for recording of her statement on account of the two applications referred to therein, 15-9- 1991 be fixed in place of 17-9-1991 for recording of her statement.

(ii) C.M. No, 24 of 1991: ' In this application, again request for production of the record mentioned therein and holding of an inquiry was made.

(iii) C.M.No, 25 of 1991: ' By this application, it was prayed that no further proceedings in the Reference be held during the vacation of the Lahore High Court.

(iv) C.M. No,26 of 1991: ' Through this application, it was prayed that no further proceedings in the Reference be held during such period of vacation of the Lahore High Court in which the learned Judge was not sitting and working as a Judge of the High Court at the principal seat of the Court.

8. It may be stated that C.M. No,25 of 1991 was dismissed by an order dated 28-8-1991, whereas C.M.

Nos. 21, 22,23, 24 and 26 were taken up by the learned Judge on 1-9-1991. Upon C.M. No, 23 of 1991, 15-9-1991 in place of 17-9-1991 was substituted as was prayed for, whereas pursuant to C.M. No,26 of 1991, the Reference was adjourned to 14-9-1991. Hearing of C.M. Nos. 21,22 and 24 of 1991 was adjourned to 14-9-1991.

9. It may be observed that C.M. No,24 of 1991 referred to hereinabove was dismissed by a detailed order dated 14-9-1991 inter alia on the ground that similar request was made through C.M. No,19 of 1991, which was disposed of by an order dated 21-8-1991. The question of withholding of certain record and mala fide was also touched upon in the above order.

10. After that, the petitioner's counsel filed C.M. No,27 of 1991 on 14-9-1991, praying therein that Mr. Munir Ahmed and Mr. Sherwani, who were earlier examined as P.Ws. 1 and 3 and who filed their affidavits in support of the Referring Authority's reply to the petitioner's C.M. No,24 of 1991, be allowed to be cross-examined by the petitioner's counsel as to the contents of the affidavits. It seems that after hearing the learned counsel for the Referring Authority, the learned counsel for the petitioner did not press the same as per order dated 14-9-1991 at page 106 of the above C.M.P. No, 138 of 1991 (Also at page 97 of Vol. II).

11. Thereafter, C.M. No, 28 of 1991 dated 14-9-1991 was filed by the petitioner's counsel on 15-9-1991 praying therein that further proceedings in the Reference No,5 of 1990 be postponed as the petitioner wanted to file an appeal against the order passed upon C.M. No,24 of 1991, which was declined by an order dated 15-9-1991. Aforesaid C.M. No,21 of 1991 for summoning of the above personnel including the President and the Prime Minister, was dismissed by a separate order dated 15-9-1991. By the same order, it was held that above C.M. No, 21 of 1991 had become infructuous and was accordingly disposed of.

12. As regards the recording of the petitioner's statement, it seems that on 15-9-1991 a medical certificate was produced before the learned Judge stating therein, that the petitioner was not well.

It was prayed by the learned counsel for the petitioner that the Reference be adjourned and her statement be recorded when the petitioner would return from America, which request was opposed by the learned counsel for the Referring Authority. The learned Judge, after hearing the parties, adjourned the case to 21-9-1991 with the direction that the learned counsel for the petitioner after obtaining answers to the questions which were handed over to him on 14-9-1991 in typed form at his request be obtained and be filed on 21-9-1991. It was observed that the above special procedure had been adopted by the Court to avoid delay which would occasion otherwise.

It was also observed that earlier Reference was adjourned four times for recording of the petitioner's statement and the case was fixed for 15-9-1991 at her request for the above purpose. It was also ordered that in case the petitioner choses to produce defence evidence, a list of the witnesses should be given on the same date i.e, 21-9-1991. However, subsequently it transpired that on the above date early in the morning, the petitioner had already left Pakistan for U.SA. Which was not known even to her counsel, when they appeared in the Court on the above date. The petitioner, who was present in this Court on 12-10-1991, informed the Court through her counsel Raja Muhammad Anwar that she had kept the date of departure secret as she apprehended that she might not be allowed to leave the country as an Ordinance was being issued.

13. After that, the petitioner's counsel filed above C.M.P. No, 138 of 1991 for the transfer of the above three References from the files of the learned Judge and Civil Appeal No,190 of 1991 with the leave of this Court against the above order dated 15-9-1991 on the ground that the order of directing the petitioner to file replies to the questions instead of allowing her to make statement was illegal.

14, In support of the above C.M.P. And Civil Appeal, we heard M/s. Raja Muhammad Anwar and Aitzaz Ahsan for the petitioner, and Mr. Aziz A. Munshi, learned Attorney-General for the respondents. When we enquired from Raja Muhammad Anwar, learned counsel for the petitioner, whether the petitioner would like to make a statement orally before the Special Court or would she like to file a written reply to the questions already furnished to her counsel, he submitted that the petitioner would not like to press her aforesaid Civil Appeal No, 190 of 1991 and would like to withdraw the same, which request was granted. However, we may observe that the learned Attorney-General submitted that the Referring Authority had no objection, if the petitioner would appear in person in the Court for giving replies to the Court's questions.

' In this view of the matter, the only question for consideration before us was, as to whether the above C.M.P. Was to be allowed on the grounds urged. Upon conclusion of the arguments of the learned counsel for the parties on 16-10-1991, we passed the following short order:- "Subject to the observations and clarifications made in our detailed order, which is being recorded separately, this petition stands dismissed."

' These are the reasons with the observations and clarifications pursuant to the above short order.

15. In support of the above Civil Miscellaneous Petition, Raja Muhammad Anwar, has urged as follows:-

(i) That from the manner in which the proceedings of the above References have been conducted by the learned Judge, the petitioner can have a reasonable apprehension that he is biased;

(ii) That the above apprehension becomes more settled when the above manner of conducting proceedings is seen in the context of the fact that the learned Judge was confirmed without the advice of the Prime Minister by the Referring Authority/President about six months before due date;

(iii) That the learned Judge was one of the Judges, who were affected by the Press Note dated 10- 3-1989 issued by the petitioner's Government, when she was the Prime Minister, resulting in discontinuation of judicial work for a week;

(iv) That even otherwise, the interest of justice demanded that the References should have been heard at Karachi.

' On the other hand, Mr. Aziz A. Munshi, learned Attorney General, has submitted as under:-

(i) That no prejudice or bias can be attributed to the learned Judge on the basis of the manner of conducting the proceedings as he has been fair to both the parties;

(ii) That the learned counsel for the petitioner's contentions Nos.(ii) and (iii) are untenable/unfounded and in fact stand settled by the judgment of this Court in the case of Federation of Pakistan v. Muhammad Akram Shaikh (PLD 1989 SC 689);

(iii) That the petitioner's application for hearing of the case at Karachi was dismissed by the learned Judge by his order dated 3-3-1991 and since no appeal was filed, the above ground cannot be agitated.

16. Adverting to the above first submission of Raja Muhammad Anwar, it may be observed that in support of the same, he has referred to the contents of the Memo of Petition in extenso and the various orders passed by the learned Judge upon the miscellaneous applications, particularly he has referred to para XXV of the memo of petition which summarises the grounds of bias and winch reads as follows:- "XXV. That it is the most elementary principle of justice that it must not only be done, but must be seen to have been done. It is submitted with profound respect that all the several instances submitted above, including:

(a) the rejection, on presumed grounds, of the petitioner's application that proceedings be held at Karachi;

(b) permitting counsel for the Referring Authority to introduce new witnesses, and material, and recording statements of such witnesses despite objection by the petitioner's counsel and before an application had been moved in that behalf;

(c) presuming, against the record, that the petitioner absented herself `four times', and on that presumption adopting, admittedly, a 'special procedure';

(d) requiring the petitioner to make a statement in her defence at a stage of the proceedings not of her choice, having himself first decided that the proceedings were not a formal 'trial', but merely an 'inquiry';

(e) directing her to make her statement before even hearing arguments on the application filed by her 'seeking permission of the learned Court to allow her (the respondent) to make her statement at a time and stage of the proceedings that she considers most suitable to her defence' (CM 22 of 1991);

(f) adopting two different criteria and procedures for the inquiry at two different stages of the trial;

(g) allowing the prosecution to 'restructure' the Reference originally sent by the Referring Authority, during the course of the evidence on the basis of witnesses and material not originally referred and against the provisions of Article 4 of P.O. 17;

(h) converting the Reference into an 'appeal' against what is alleged to be an order by the petitioner;

(i) denying inspection of such record that had been made relevant to the issue involved in the trial by the prosecution itself when it introduced the witnesses, and material, not previously on the list or the record;

(j) denying full inspection by not himself examining at least a sampling of the record or at least the sealed files in which grave and serious tampering had been found, and in relation to which the department had submitted contradictory and false affidavits;

(k) not allowing the petitioner's counsel to cross-examine the two deponents who had submitted affidavits asserting the correctness and genuineness of the record shown despite insistence on a formal application was moved for the cross-examination;

(l) relying upon the mere statements of the learned counsel for the Referring Authority who was not even present during even a minute of the inspection time, in preference to the detailed and written application by the petitioner's counsel based on the notes taken contemporaneously with the inspection (assuming that the aforesaid affidavits were not taken into consideration);

(m) thereby failing to take notice of the allegation of severe and criminal tampering of the record, and doctoring of the files, despite repeated requests both in writing and orally;

(a) permitting the prosecution adjournments on the same grounds on which the counsel for the petitioner were disallowed adjournments;

(o) making such observations against the petitioner and her counsel as are not warranted by the record;

(p) unlike any other Court constituted under P.O. 17, continuing to proceed with the case during the summer vacations despite information of non-availability by the counsel, and separate requests to that effect by the petitioner;

(q) taking no notice of agencies caught in the process of bugging the proceedings of the Court, including the submissions of the counsel, and observations of the learned Court by means of instruments of recording; ' create a reasonable and settled apprehension in her mind that she will not get a fair, unbiased and impartial trial in the Court of Mr. Justice Rashid Aziz Khan, learned Judge, Special Court, Lahore."

17. On the other hand, Mr. Aziz A. Munshi, learned Attorney-General, has submitted that the period of the proceedings commencing from 16-9-1990 and expiring on 21-9-1991 can be divided into the following four sub-periods:--

(A) The first sub-period covers the period between 16-9-1990 to 9-2-1991 ' when the Transfer Application was dismissed by the Supreme Court.

(B) The second sub-period relates to the period from 9-2-1991 to 30-7-1991.

(C) The third sub-period pertains to the period from 31-7-1991 to 15-9-1991; and

(D) The fourth sub-period covers the period between 15-9-1991 to 21-9-1991, when the present Transfer Application was moved.

18. According to him, the above first period stood merged into the order dated 9-2-1991 passed by this Court upon petitioner's C.M.P. No, 574 of 1990 for the transfer of the case from the file of the learned Judge to the file of any Special Court functioning at Karachi particularly when it was expressly stated by the learned counsel for the petitioner that no question of bias was involved. His further submission was that during the above two sub-periods expiring on 15-9-1991, no bias was alleged and, therefore, it is not open to the petitioner to urge the same as no appeal against any order was filed. As regards the last sub-period, his submission was that from the proceedings and the orders passed during the above period, no bias can be inferred.

19. It may be convenient to take up the above quoted summarized grounds in seriatim.

(a) Adverting to the grounds mentioned in sub-para. (a) of para. XXV which is also mentioned in sub-para (iv) of para 15 hereinabove, it may be observed that the learned Judge had dismissed the petitioner's application for taking up the References at Karachi instead of at Lahore by his order dated 3-3-1991 at the stage when the prosecution evidence was not concluded and the witnesses and the record were to come from Islamabad. However, since the prosecution evidence has been concluded in Reference No,5 of 1990 and is about to be concluded in Reference No,4 of 1990, it will be still open to the petitioner after filing her statement to the questions put by the learned Judge and after filing the list of witnesses to file a fresh application, which will be disposed of in accordance with law. In view of the above clarification, it is not necessary to deal with the above ground in detail.

(b) (i) As regards the ground mentioned in sub-para (b) that "permitting counsel for the Referring Authority to introduce new witnesses, and material, and recording statements of such witnesses despite objection by the petitioner's counsel and before an application had been moved in that behalf', it may be stated that it is true that the learned Judge had recorded examination-in-chief of additional witness, P.W. Idris Khan, a Section Officer from the Ministry of Foreign Affairs, on 20-4-1991 before the Referring Authority's application for examining him was granted. In this behalf, it may be observed that from the record, it appears that the case was fixed on 20-4-1991 inter alia for recording evidence in Reference No,4 of 1990, It seems that when the above Reference was taken up by the learned Judge, the learned counsel for the petitioner did not have his file in respect of the above case with him. Thereupon, the learned counsel for the Referring Authority submitted that he would like to file an application in Reference No,5 of 1990 for examining additional witness P.W. Idris Khan who was present in the Court. It appears that as the learned Judge could not proceed with Reference No,4 of 1990 on account of the fact that the learned counsel for the petitioner did not have the file of the same, he recorded the examination-in-chief of the above witness and adjourned the case to 21-4-1991 for hearing of the application which was to be filed, which was in fact filed by the Referring Authority on the same day i.e, on 20-4-1991, which was numbered as C.M.

No,11 of 1991. The same was allowed by an order, dated 27-4-1991. The cross-examination of the above witness was partly conducted on 12-5-1991 but for further cross-examination, it was adjourned at the request of the learned counsel for the petitioner to 18-5-1991, which was concluded on the latter date. Mr. Najam, one of the learned counsel appearing for the petitioner, admitted before us the above factum that the file of Reference No,4 of 1990 was not available with the learned counsel for the petitioner, Mr. Riaz, when the above Reference was taken up by the learned Judge on 20-4-1991, but his submission was, that the file would have been available after 10 or 15 minutes, whereas according to Mr. M.B. Zaman, learned counsel for the Referring Authority, the same would not have been available on that day. Be that as it may, it appears that there was some reason for recording the examination-in-chief of the above witness without the application for his production being filed and granted. The question, whether the above order was legal or not, is not an issue before us. The application for examining the additional witness Abdul Qadeer Siddiqui was granted by the Court by an order, dated 6-7-1991 and by consent of the learned counsel for the parties, 7-7-1991 was fixed for recording of his statement. His examination-in-chief was recorded on 7-7-1991, but at the request of the learned counsel for the petitioner, his cross- examination was adjourned; first to 13-7-1991, then to 27-7-1991 and thereafter to 30-7-1991, on each date some cross-examination was conducted. It is, therefore, evident that while allowing the examination-in-chief of the above two witnesses, the petitioner's counsel was given sufficient time to prepare for the cross-examination. However, Raja Muhammad Anwar has vehemently contended that in contrast to the above indulgence shown to the Referring Authority, the petitioner's C.M. No,21 of 1991 for summoning certain officials as Court witnesses was dismissed. We may observe that a request or an application by a party to examine a witness not mentioned in the list of witnesses cannot be equated with an application by a party to examine certain persons as Court witnesses. In this behalf, reference may be made to Section 540, Cr.P.C. Which provides that "Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or re-call and re-examine any person already examined; and Court shall summon and examine or re-call and re-examine any such person if his evidence appears to it essential to the just decision of the case. "Under the above Section of Cr.P.C., once the Court forms its opinion that the evidence of any person is essential to the just decision, it becomes obligatory for it to summon such person.

But in the absence of formation of any such opinion, the Court is not obliged to summon any person as a Court witness. In this behalf, reference may be made to the case of Muhammad Azam v. Muhammad Iqbal and others (PLD 1984 SC 95) and a recent judgment of this Court in the case of Mehrzad Khan v. The State (PLD 1991 SC 430).

' The learned Judge declined the petitioner's above request through a speaking order, dated 15-9- 1991. He did not consider it appropriate to press into service the above section at the above stage.

We may also observe that under sub-Article 4 of Article 6 of the Order, the Special Court has been empowered notwithstanding anything contained in any other law for the time being in force to conduct its proceedings and regulate its procedure in all respects as it deems fit including, in particular, the power to refuse to examine any witness or summon any document. No doubt that while adopting any procedure under the above provision, the Special Court is to act fairly and justly. It does not enjoy unfettered or unbridled power to adopt any arbitrary or capricious procedure, which may result into denial of a fair opportunity to a party to plead his case before the Court. Of course, it enjoys power to control and regulate proceedings before it fairly and justly. In the instant case, it cannot be urged that no unbiased Judge could deny the above request, keeping in view the factum that even the evidence of the parties was not concluded.

(ii) Adverting to the second limb of the above ground that the learned Judge has allowed the Referring Authority to introduce new material, it may be observed that in this regard Raja Muhammad Anwar has referred to the factum that in Reference No,4 of 1990, the learned Judge on 16-9-1991 allowed Mr. M.B. Zaman, learned counsel for the Referring Authority's oral request to submit documents. It has been urged by him that instead of returning the Reference to the Referring Authority on the ground of want of a prima facie case against the petitioner, the learned Judge permitted the Referring Authority to supplement the Reference to the detriment of the petitioner. Whereas the learned Attorney-General submitted that the Court could grant above request even after issuance of the notice in view of sub-Article (4) of Article 6 of the Order, but it was granted before issuance of notice and, therefore, the petitioner cannot have any justifiable grievance. We would not like to pre-empt the decision on the above controversy as it may be an issue at a subsequent stage of proceedings. Suffice to observe that no bias can be attributed to learned Judge because of the fact that he granted the learned counsel for the Referring Authority's above request.

(c) Referring to the ground mentioned in ground (c) that "presuming, against the record, that the petitioner absented herself 'four times', and on that presumption adopting, admittedly a 'special procedure';", it may again be stated that the evidence of the prosecution was concluded on 30-7- 1991 in Reference No,5 of 1990 and the learned Judge was inclined to fix 31-7-1991 for recording of the statement of the petitioner but at the request of her counsel, the case was fixed for 13-8-1991 for the above purpose. However, on the above date, when the case came up for hearing, the learned counsel for the petitioner submitted that some files were not made available to him for inspection by the Referring Authority and that in a file, pages 127 to 310 were missing. The case was adjourned to 18-8-1991 for recording of statement of the petitioner with the direction that the petitioner's counsel would inspect the file on 15-8-1991. On the latter date, the learned counsel for the petitioner moved above C.M. No,19 of 1991, upon which the aforesaid three directions referred to in para. 4 were issued by the learned Judge and the case was adjourned to 21-8-1991 for further proceedings.

After that, the learned Judge passed the aforesaid detailed order, dated 21-8-1991 disposing of C.M.

Nos. 19 and 20 of 1991. By another order of even date, he fixed 17-9-1991 for recording of the statement of the petitioner. The above date was ante-dated and 15-9-1991 was fixed upon petitioner counsel's C.M. No,23 of 1991. On the latter date, since the petitioner had not appeared on account of illness, the case was fixed for 21-9-1991 for filing statement and reply to the questions framed by the Court. It is evident that Reference No,5 of 1990 was fixed for recording of statement of the petitioner on 13-8-1991, 18-8-1991 and 17-9-1991 which was ante-dated as 15-9-1991. Factually the case was fixed for recording of her statement for three times prior to the passing of the order, dated 15-9-1991 and not four times though four dates were fixed. It is the case of the petitioner that her statement could not be recorded on the dates fixed by the Court on account of default on the part of the Referring Authority not to make the relevant record available for inspection, whereas, the case of the Referring Authority is, that the petitioner on one pretext or the other got the case adjourned. It is not necessary for us to go into the above factual controversy. It will suffice to observe that there is incorrect observation in the aforesaid order, dated 15-9-1991 to the effect that eariler Reference was adjourned four times for recording the statement of the petitioner, but in our view, the above error cannot be attributed to the learned Judge on account of bias.

(d) The grounds mentioned in sub-paras. (d), (e), (i) (j) and (m) are inter-linked and, therefore, the same can be conveniently dealt with. One of the main grievances of the petitioner is that she was directed to make a statement before having full inspection of the record and her request to make a statement at a time at the stage of the proceedings that she considers most suitable to her defence was unjustifiably denied, it may be observed that the inspection of the record in Reference No,4 of 1990 was allowed by an order dated 17-11-1990 upon the petitioner counsel's application with the consent of the learned counsel for the Referring Authority, who submitted that the petitioner could inspect the files which were available with him pertaining to the Reference. After that, petitioner's counsel moved C.M. No,14 of 1990 in the above Reference for inspection of the file, which led to the filing of the Reference, which was followed by another application containing the list of documents of which photostat copies were sought. The petitioner's counsel was allowed to inspect the files by an order dated 21-11-1990 but the request for the photostat copies was declined.

When the case came up for hearing on 27-11-1990, the Advocate for the petitioner stated that he was unable to examine some of the files, the case was adjourned to 2-12-1990 and it was also ordered that the petitioner's counsel may examine the files on 1-12-1990. On the latter date, learned counsel for the petitioner submitted that he did not examine some files and some files were not made available. The learned counsel also requested that the Court should examine the files itself to see them. The cross-examination of P.W.1 was partly recorded and thereafter the case was adjourned to 5-12-1990. On the above date, the learned counsel for the petitioner submitted that an application had been moved by the petitioner for the transfer of the References from Lahore to Karachi. A request was made for the grant of adjournment, which request was opposed by the learned counsel for the Referring Authority on the ground that the, witnesses were in attendance, who had come from Islamabad. However, the case was adjourned to 8-12-1990 with the direction that the learned counsel for the petitioner should inspect the record available with the learned counsel for the Referring Authority. It was also ordered that in case they fail to inspect the record today, they shall have to move an application for inspection of the record, which would be taken up and decided on merits. After that, the case was adjourned from time to time upto 10-2-1991 on the ground that the Transfer Application was pending in the Supreme Court and stay was granted. On the latter date, the learned Judge was informed that the Transfer Application was dismissed.

Thereupon, the case was adjourned to 19-2-1991 for recording of evidence. However, between 19-2- 1991 to 9-3-1991, certain miscellaneous applications including the application for hearing of the References at Karachi filed by the petitioner's counsel were disposed of. On 9-3-1991 when the case came up for hearing, petitioner's counsel inter alia filed an application for examining certain files and for re-cross-examination of P.W.1, which was dismissed by an order dated 30-3-1991.

' It may further be observed that in Reference No,5 of 1990 by an order dated 27-11-1990, the petitioner's counsel was allowed to examine the record of the Referring Authority, which was followed by orders dated 5-12-1990 and 30-3-1991. After that, the petitioner's counsel's C.M. No,10 of 1991 for permission to inspect the entire record of privileges, assignments/ emoluments/benefits allowed to all former Air Chief Marshals (retired) was dismissed by an order dated 27-4-1991. The above application was followed by the aforesaid miscellaneous applications referred to hereinabove in paras. 4 to 9.

' It was vehemently urged by Raja Muhammad Anwar that unless the petitioner has full inspection of the record, it would not be possible for her to make a statement under section 342, Cr.P.C. Or under sub-Article (2) of Article 6 of the Order and that the Referring Authority has tampered with the record, inasmuch as a number of pages have been removed from the files and important documents have been withheld. In this regard, we may observe that sub-Article (1) of Article 6 of the Order provides that a Special Court shall have the power of Civil Court trying a suit under the Code of Civil Procedure, 1908, in respect of the matters mentioned in Clauses (a) to (e) which include the power to require the discovery and production of any document. In the present case, no application for the discovery or production of documents in terms of above Article 6 or Order 11, Rule 12 or 14, C.P.C. Was filed by the learned counsel for the petitioner. Instead of that, aforesaid miscellaneous applications were filed, which created confusion and complication. We may state that from the above resume, about the orders allowing inspection of the record, it is evident that the learned Judge did what he considered just and proper. He cannot be blamed for the alleged tampering or withholding of the record by the Referring Authority.

(e) We may observe that the defence of the petitioner in Reference No,5 of 1990 is that while she was the Prime Minister, the allocations of L.P.G. Were made by the Department concerned as per practice obtaining in the department even after the framing of the Rules of 1971 and, therefore, the allocation orders made during, the period from 1971 to 2-12-1988 by the former Governments were relevant to prove her defence. In this regard, reference may be made to Article 10 of the Order, which reads as follows:- "10. Saving.--No proceeding under this Order shall lie against any person who holds or has held an office mentioned in Article 4 for anything which has been in good faith done or intended to be done in pursuance of or in exercise of powers vested, or in good faith believed to be vested, in him at the material time by virtue of that office."

A perusal of the above Article indicates that no proceeding under the Order shall lie against any person, who holds or has held an office mentioned in Article 4 for anything which has been in good faith done or intended to be done in pursuance of or in exercise of powers vested or in good faith believed to be vested in him at the material time by virtue of that office. It seems that prima facie the question, what was the practice obtaining prior to the assumption of the office of Prime Ministership by the petitioner during the period commencing from the enforcement of 1971 Allocation Rules upto 2-12-1988 may be relevant and, therefore, prima facie she was entitled to have inspection of the L.P.G. Allocation Orders with the relevant documents. Mr. Aziz A. Munshi, learned Attorney General, has filed a statement containing the details of L.P.G. Allocations during the period commencing from 10-8-1971 upto 10-4-1989 and submitted that the files of the same were available with the learned counsel for the Referring Authority, which were shown to the petitioner's counsel and which can even now be examined by him either in this Court or in the Court of the learned Judge of the Special Court. In our view, it will be proper that the learned counsel for the petitioner may have inspection of the above record and in case he finds any relevant document missing, he can press into service the provisions of Order 11, Rules 13 to 21, C.P.C.

We are also inclined to hold that it would be proper that the petitioner may file her statement in reply to the questions framed by the learned Judge in Reference No,5 of 1990 after having the inspection of the above allocations of the L.P.G. Record.

The question, whether the Referring Authority has tampered with the record or has withheld any record, could not have been adjudicated upon by the learned Judge at the stage of recording of the evidence. However, it will be open to the petitioner to urge the above point and its effect, if any, at the appropriate stage or to seek the discovery of the documents in terms of Order 11, C.P.C. Read with Article 6 of the Order.

' We may again observe that since the defence of the petitioner is founded on the official record, she is entitled to claim production of the relevant record. The Government functionaries cannot equate themselves with a private litigant as to the obligation to preserve and maintain the official record or production thereof, if relevant, to the controversy in a case. The Government functionaries hold public record in trust and, therefore, they are under a legal obligation to ensure their preservation and maintenance in accordance with the Rules. We may mention that the Referring Authority has filed affidavits of two officials concerned explaining the reasons of missing of pages of certain files and non-availability of certain documents. We would not like to comment on the question, whether factually the Referring Authority has withheld or tampered with the record as contended by the learned counsel for the petitioner as it is not necessary to dilate upon the above question for the purpose of disposal of the Transfer Application.

(f) Reverting to ground (g) that "allowing the prosecution to "restructure" the Reference originally sent by the Referring Authority, during the course of the evidence on the basis of witnesses and material not originally referred and against the provisions of Article 4 of P.O. 17;", it may be stated that in support of the above ground, Raja Muhammad Anwar has pointed out that the learned Judge has amended the charge in Reference No,4 of 1990 by substituting the allegation of allotment of land by the allegation of an attempt, which according to him, was not warranted by law. On the other hand, Mr. Aziz A. Munshi, learned Attorney-General, has invited our attention to sub-para (b) of para. 4 of the memo. Of above Reference No,4 of 1990, which reads as follows:-- "(b). The above facts disclose that in disregard of CDA Ordinance/Regulations/Rules thereunder, in violation of CDA Master Plan and by ignoring the available expert advice of CDA officials, the Respondent had the letter of intent issued to M/s IGTC for their proposal at extremely low rates and then made an attempt to issue letter of allotment which action was eventually frustrated by order of status quo by the Lahore High Court dated 5-6-1990. The Respondent thereby committed act of misconduct within the meaning of P.P.O. 17/77."

' On the basis of the above quoted sub-para, it has been urged by the learned Attorney-General that since the averment relating to an attempt to issue allotment letter was made in the memo of the Reference, the learned Judge was justified in amending the charge and, therefore, there was no restructuring of the Reference as contended by the learned counsel for the petitioner. We would not like to pre-empt the decision on the above question as the same may arise at a subsequent stage. Suffice to observe that we are unable to infer any bias on the part of the learned Judge from the factum that the charge was amended by him.

(g) As regards the ground mentioned in (k) that "not allowing the petitioner's counsel to cross- examine the two deponents who had submitted affidavits asserting the correctness and genuineness of the record shown despite insistence on a formal application was moved for the cross-examination;", it may be observed that the petitioner's counsel moved C.M. No,27 of 1991 in Reference No,5 of 1990 for cross-examining the deponents of the two affidavits. However, as per order, dated 14-9-1991, the above application was not pressed and, therefore, it was disposed of as such. According to Mr. Aitzaz Ahsan, one of the learned counsel for the petitioner, he had not withdrawn the above application, whereas according to Mr. M.B. Zaman, one of the learned counsel for the Referring Authority, factually the above application was withdrawn by Mr. Aitzaz Ahsan after he (Mr. Zaman) made submission in this regard. Mr. Aitzaz Ahsan has candidly submitted that the petitioner has not filed any application before the learned Judge pointing out the alleged incorrectness of the above order, dated 14-9-1991 nor any ground in the memo of the above C.M.P.

Has been taken in this regard. In this view of the matter, it is not necessary to examine the above question any further.

(h) Adverting to the ground mentioned in sub-para (n) that "permitting the prosecution adjournments on the same grounds on which the counsel for the petitioner were disallowed adjournments;", it may be observed that in order to appreciate the above contention, it may be pertinent to mention that Rule 7 of the Parliament and Provincial Assemblies (Disqualification for Membership) Rules, 1990, hereinafter referred to as the Rules, lays down that "The Special Court shall proceed with the inquiry from day to day and shall not adjourn any proceedings for any purpose -unless such adjournment is, in its opinion, necessary in the interest of justice; and no adjournment shall be granted for more than two days".

' However, sub-Article (4) of Article 6 of the Order referred to hereinabove, empowers the Special Court to conduct its proceedings and regulate its procedure in all respects as it deems fit. It may be observed that from the orders, dated 19-2-1991 and 20-2-1991 passed in References Nos. 4 and 5 of 1990, respectively, it seems that it was agreed by the learned counsel for the petitioner that he shall be available for two days in a week for the purpose of the References pending in the Special Court in question. According to the learned counsel for the parties, the two agreed days in a week were Saturday and Sunday. It is, therefore, evident that if the case was taken up on a Saturday, it was to be taken up again on the following day as per above arrangement. However, Raja Muhammad Anwar, has invited our attention to the orders, dated 9-12-1990 passed in References Nos. 4 and 5 of 1990, adjourning the case for re-examination of the prosecution witness to 18-12- 1990 and 19-12-1990 in the above two References, respectively, on the ground that Mr. Zaman was not well and thereby granting adjournment for about 10 days. It has been further urged by him that contrary to this, the petitioners counsel were denied even reasonable request for adjournment. We have gone through the various orders and we find that the learned Judge has also granted adjournments to the petitioner's counsel on numerous occasions and some of them were even for more than a week, for example, by orders dated 2-6-1991 passed upon the petitioner's counsel's application, the above References were adjourned for 13 days i.e, to 15-6-1991 on the ground that the petitioner's Advocate was to take plane for Karachi. It is true that on some occasions, the learned Judge was not inclined to grant the learned counsel for the petitioner's request for adjournment but nevertheless, he never proceeded ex parte and granted short adjournments.

(i) As regard the grounds mentioned in sub-para (o) that "making such observations against the petitioner and her counsel as are not warranted by the record;", it may be stated that the above References were keenly contested in which about 20 applications were filed by the petitioner and a number of detailed orders were passed. Keeping in view the above factual background, observations are bound to be made. Raja Muhammad Anwar has invited our attention to learned Judge's observations contained in para 2 of order, dated 15-9-1991 passed by him upon the petitioner's C.M. No,21 of 1991 referred to hereinabove in para 5 whereby, the petitioner's counsel sought to summon the President of Pakistan, the Prime Minister and the other officials mentioned therein to the effect that: "Learned counsel for the applicant has alleged mala fides but has not pointed out any incident which she wishes to prove from the mouth of the Court witnesses. It is well-settled principle of law that when a party moves application for examination of a Court-witness, its relevancy with regard to the case pending before the Court, has to be shown. If a Secretary of the Punjab Public Service Commission or an official of Lahore Development Authority is allowed to appear, what possibly can they state about the allocation of LPG which is Central subject. Similarly, what can possibly be said by the representatives of public-sector Banks and financial institutions regarding the charge of misconduct against the respondent. The argument that the other persons had been committing gross irregularities in violation of law and rules, but were not proceeded against could not advance the case of the respondent in any manner. Even if some other persons had acted in that manner, this Court cannot take note of the same for the simple reason that it would not have any bearing with the Reference in question being dealt with by this Court."

' He has also referred to some other orders to demonstrate that the learned Judge has expressed his views on controversial matters in strong words while disposing of miscellaneous applications. It will suffice to observe that if any of the propositions of law propounded by the learned Judge in the above quoted portion of the order or in any other order passed by him is not correct, the petitioner has remedy to re-agitate the question at the appropriate stage. Additionally, generally observations made by a Court while disposing of an interlocutory application are of tentative nature.

(j) Reverting to the ground mentioned in sub-para (p) that "unlike any other Court constituted under P.0.17, continuing to proceed with the case during the summer vacation despite information of non-availability by the counsel, and separate requests to that effect by the petitioner;", it may be mentioned that there was nothing illegal if the learned Judge held the proceedings during the summer vacation. However, the case was adjourned on 21-8-1991 to 17-9-1991 i.e, for about 26 days after the Court's vacation for recording of the petitioner's statement but since certain applications were filed by the petitioner's counsel during the above period, the same were attended to and heard by the learned Judge.

(k) Referring to the ground mentioned in sub-para (q) that "taking no notice of agencies caught in the process of bugging the proceedings of the Court, including the submissions of the counsel, and observations of the learned Court by means of instruments of recording;", it may be stated that the learned Attorney General in his written arguments has made the following averments as to the discovery of the tape-recorder:--- "TAPE RECORDER: ' That as to the allegation of tape-recorder being kept in the Court premises on 15-9-1991, this matter was brought to the notice of the Judge in his Chamber in the presence of both the parties and the Hon'ble Judge told them that he had ordered for the tape-recorder to be fixed in order to ensure that in case the Respondent chooses to come to make a statement the same may be recorded to ensure proper reproduction by Stenographer. This fact was disclosed by the Judge in his Chamber to the counsel of both the parties on 15-9-1991 but has not been disclosed in the Transfer Application now before the Supreme Court during submissions by the Petitioner's counsel.

This is an attempt to scandalise the Court."

' The above factual position is denied by Mr. Aitzaz Ahsan. We would not like to enter into the above factual controversy. However, it will suffice to observe that the above matter can be sorted out by the learned counsel for the parties with the learned Judge in chamber.

20. We may observe that the question, whether any of the orders passed by the learned Judge suffers from any legal infirmity as to entitle the petitioner to impugn the same in an appropriate proceeding, is not an issue before us. We had asked the learned counsel for the parties not to dilate upon the same as a wrong order passed by a Judge in good faith will not furnish a ground of bias.

' However, it was vehemently urged by Raja Muhammad Anwar, learned counsel for the petitioner, that if the various grounds urged by him are to be viewed in conjunction with each other, it becomes evident that the petitioner can reasonably apprehend that she would not get justice from the learned Judge. He was at pain to emphasise that in order to succeed the ground of bias, it is not necessary for the petitioner to prove bias as a fact but what is to be proved, is, that the petitioner reasonably apprehends on the basis of the record that she would not get justice. On the other hand, Mr. Aziz A. Munshi, learned Attorney-General, has submitted that a Judge of a Superior Court cannot be equated with a Magistrate or a Sessions Judge for the purpose of deciding the question, whether a case is to be transferred from his file or not but it is for the Judge concerned to decide, whether he will be in a position to do justice.

(a) Raja Muhammad Anwar, learned counsel for the petitioner, has referred to a number of judgments of the Pakistani Courts and the Courts of foreign jurisdiction in support of his above submission. Suffice to refer to the cases of the Federal Court of Pakistan, of this Court and of the Court of Appeal, England:---

(i) Ghulam Rasul and others v. Crown PLD 1951 FC 62; ' In this case; the facts were that a Legal Remembrancer gave advice to the Crown to file an appeal against the acquittal in a murder case. He was subsequently appointed as a Judge of the High Court. When the above appeal came up for hearing before a Division Bench, it happened that the aforesaid Legal Remembrancer was a Member of the said Division Bench which decided the appeal. The above judgment of the Division Bench was impugned before the Federal Court of Pakistan in an appeal which was allowed. It may be pertinent to quote the following passage from the above judgment:--- "It unequivocally indicates that an officer would be disqualified from trying a case if he has either directed the prosecution after consideration of the information furnished to him, or, in the case of an appeal or revision, after the consideration of evidence adduced in the case and on which the judgment of the first Court was based. The consideration of evidence and coming to a decision, even for a purpose of an opinion whether any appeal or a revision should be filed, is, in our judgment, a more serious matter than the consideration of the information referred to in the illustration. The observation in Pohpi's case ILR 13 All. 171 that 'human beings are after all human beings and with all honour due to the honesty and integrity of the Judges,' they are not to hear cases in which they have been themselves concerned appears to us to be apposite and has to be taken note of."

(ii) Anwar and another v. The Crown (PLD 1955 FC 185).

' In the above case, an appeal was filed by the accused persons before the Federal Court who were acquitted by the Sessions Judge in a murder case. It was urged that the High Court had expressed itself so strongly against them that the trial Judge would merely be content to record findings in conformity with the implied conclusion of the order for re-trial made by the High Court. The above appeal was dismissed but while dismissing the above appeal, following weighty observations were made by Muhammad Munir, C.J. Who rendered the leading judgment:-- "(1) Every accused person has the right to a fair trial, namely, the right to be tried on the evidence by a judicially minded person.

(2) If the Judge is functioning under an influence brought about by his own act or by the act of another person, which has the effect of paralysing his judicial faculties, there is no fair trial.

(3) The fact that there was a paralysis of judicial faculties in a Judge cannot be proved by independent evidence but must appear from the manner in which he held the proceedings or arrived at his conclusions. Unless, therefore, it be shown that the proceedings held were not fair or impartial or that his conclusions were wrong, an allegation of paralysis of judicial faculties would be as much out of place as the allegation that the Judge was deaf when it appears from the record that he heard the evidence and prepared a true and faithful record of it.

(4) Bias in a Judge is the paralysis, complete or partial, of judicial faculties and therefore the allegation of bias against a Judge would be wholly unfounded unless it be shown that the proceedings held by him were irregular and one-sided or the conclusions reached by him were wrong and reasons given in support thereof erroneous. In Khairdi Khan's case there being no finding that the judgment of MrAhmad Khan who held the second trial was wrong, it could not be held that he was a biased Judge. This Court's judgment in that case was restricted to showing that Mr. Ahmad Khan's findings were in conformity with the observations of Mr. Justice Kiyani in the order of retrial, and the judgments of the learned Chief Justice and of Shahabuddin and Cornelius, JJ. Expressly proceeded on the assumption that Mr. Ahmad Khan was influenced in his decision by the order of retrial and not on the finding that his judgment was in fact wrong. The learned Judges did make some observations to the effect that the view of evidence taken by Mr. Inayatullah Khan was not unreasonable but this cannot be said to amount to a finding that the judgment of Mr. Ahmad Khan which had been affirmed by a Division Bench of the High Court was wrong on the evidence adduced at the retrial. In the absence of any such findings no bias could have been attributed to Mr. Ahmad Khan.

(5) Bias in judicial matters may be caused by the judgment, order or observations of a Superior Court or it may spring from personal, political, religious, communal, racial, commercial or economic considerations. But whatever may be the cause of it, it can..Never be held to be proved in the case of a Judge whose judgment is right because the fact that his decision was correct is a complete refutation of the allegation that his judicial faculties were paralysed. A biased Judge producing a correct result is a contradiction in terms.

(6) The conclusions stated above must be read subject to one important exception, and that is that there is a species of bias which vitiates judicial procedings irrespective of the correctness or otherwise of the result, but that is not because bias, whatever form it may assume, avoids the result of judicial proceedings, but because the Judge with that kind of bias is, on grounds of public policy, disqualified to be a Judge. Thus, no Judge can be a Judge in his own cause, or in a case in which he is personally interested, not because his decision must invariably be in his own favour but on the principle that justice must not only be done but seen to be done, and however, right the Judge deciding a cause in his own favour may be, neither the public nor the aggrieved party will be satisfied with the adjudication, and its result will be vacated by the Court of Appeal at the instance of the dissatisfied party. Instances of such bias are recognised in our law in section 556 of the Code of Criminal Procedure, and will also be found in Dimes v. The Grand Junction Canal (No,1) and others (1852) H.L.C. 759-794) and Rex v. Sussex Justices (1924) 1 K B 256)."

(iii) Muhammad Ismail Chowdhury v. Abdul Khaleque Dowdagar and another (PLD 1960 SC (Pak.)

301); in which the suit was tried by a Munsif. When the matter came up for hearing before this Court in appeal, the same was allowed on the ground that the learned Munsif conducted the case in such a manner that throughout the proceedings it was affected by strong bias against the defendants and in favour of the plaintiff. The following observations were also made:-- "The effect of bias in the mind of a trying Judge extends to every part of the proceedings conducted and recorded by him. It is impossible for any superior Court of correction to estimate the value to be placed upon the record of evidence prepared by such a Judge. Being in control of the entire proceedings he is in a position to influence the course of the examination and cross- examination of witnesses in such a way that the result towards which his bias leads him is produced, but the processes are completely concealed and consequently it becomes impossible for a superior Court to distinguish that portion of the proceedings which is affected by bias in the trial Judge. The mere attitude of a biased Judge is often sufficient to determine the nature of the evidence given by witnesses appearing before him. They cannot be expected to speak their minds freely with single-minded adherence to the truth, if they are aware of the direction in which the Court desires to guide the case."

(iv) Islamic Republic of Pakistan through Secretary, Ministry of Interior and Kashmir Affairs, Islamabad v. Abdul Wali Khan, M.N.A. Former President of Defunct National Awami Party (PLD 1976 SC 57); ' This is a case in which the then President of Pakistan made a Reference to this Court against the National Awami Party under Article 17(2) of the Constitution of Islamic Republic of Pakistan, 1973, read with Section 6(2) of the Political Parties Act, 1962. Objection was taken by Mr. Abdul Wali Khan to the inclusion of the two learned Judges, namely, Mr. Justice Muhammad Afzal Cheema and Mr. Justice Muhammad Gul, as the Members of the Bench, they had held offices of the Secretary, Ministry of Law and the Chairman of the Advisory Board relating to Detention Matters, respectively.

The above objection was overruled. It was observed that the above learned Judges did not have any interest or relationship as to render them incapable or disqualified as a Judge nor there was any allegation of any personal animosity or ill-will. Reference was also made to section 56 of the Cr.P.C. And it was observed that the above provision debarred a Judge or Magistrate from trying any case in which he is a party or his personal interest is. It may further be stated that after referring certain case law and American Jurisprudence, the following observations were also made:-- "The basis of the disqualification, therefore, is "personal bias or prejudice of such a nature as would necessarily render a Judge unable to exercise his functions impartially in a particular case, and this must be shown as a matter of fact and not merely as a matter of opinion. In the absence of any Constitutional or statutory bar a Judge is not disqualified from sitting at a trial of a person merely because previously be had participated in other legal proceedings against the same person, whether in the capacity of a Judge or of an Administrative Tribunal or official, it makes no difference. There is abundant authority from the American Jurisdiction to support the view that the mere fact that a Judge has dealt with another matter concerning the same Person in another capacity does not necessarily disqualify him from sitting as a Judge at the trial of that Person..

' In these circumstances we would reaffirm our order of the 19th June, 1975, rejecting the objection to the constitution of the Bench as being wholly unwarranted and misconceived. To accede to such a plea of bias would lead to very fantastic results, for, then even a Judge who may have refused to grant ad interim bail or injunction in a pending cause or appeal would find himself disqualified from hearing the appeal. Similarly a Judge who may have given a decision in one matter against a particular person in one capacity would be disqualified from being a Judge in any other matter in which the same person is a party for ever. This is clearly not the law and it could never have been the intention of the law to impute such universal bias to Judges."

(v) Chairman, Federal Land Commission and another v. Sardar Ashiq Muhammad Khan Mazari and 37 others (1985 SCM R 317); ' in which the facts were that the Chairman, Federal Land Commission, as the Federal Minister and the Provincial Chairman of the Ruling Party, delivered a number of speeches containing hatred against a particular .Class of persons including the respondents, who filed declarations under M.L.R.

115. When the matter came up for hearing before the aforesaid Chairman of the Federal Land Commission under the above M.L.R., they raised objection to the hearing of the case by him on the ground of bias but the above objection was overruled. Thereupon, they filed Constitution Petitions in the Lahore High Court, which were allowed. The Chairman, Federal Land Commission, filed appeal with the leave of this Court which was dismissed. The question of bias with reference to the case law of Pakistani Jurisdiction as well as of Foreign jurisdiction was referred to in detail.

(vi) Federation of Pakistan v. Muhammad Akram Shaikh (PLD 1989 SC-689).

' In the above case, the facts were that Government of Pakistan issued a Press Note on 10-3-1989 in respect of the orders passed or appointments made after 29-5-1988 upto 2-12-1988 when there was no Prime Minister in terms of the Constitution. By the above Press Note, the incumbents who were appointed during the above period, were asked not to function till the regularisation of their appointments. The effect of the above Press Note was that as many as 46 Judges of the Superior Courts which included 3 Judge of this Court, could not discharge their functions for about a week till the matter was clarified by this Court in the case of Muhammad Akram Sheikh v. Federation of Pakistan and others (PLD 1989 SC 229). The Federation of Pakistan filed a review petition against the above order, which was to be heard by the Full Bench. However, at the hearing of the review petition, objection was raised by the then learned Attorney-General as to the participation in the above proceedings by the above three learned Judges, which objection was overruled by the majority judgment. In this regard, inter alia the following observations were made in the above majority judgment:--- "25. These are but only a few of the cases illustrative of the point and more can be found and cited.

Where the whole legal order is being challenged and the Judges functioning within the frame-work of the legal order under challenge are called upon to render judgment, the question of there being a personal bias, of being a Judge in his own abuse, of having a legal or pecuniary interest in the matter does not arise. The same happened in the appeal of Haji Muhammad Saifullah and other connected matters. The vires of the legal Order after 29-5-1988 was questioned and also the legality of appointments made after 29-5-1988, in the absence of the Acting Prime Minister was pointedly raised in the proceedings and considered by the Court and finally dealt with in a decision inter parties. Now one of the parties to that decision the Federation, while seeking review of another matter arising thereunder by reference to that decision, wants some of the Judges who decided that case, to be declared as Judges in their own cause having a pecuniary interest. This does not happen. Those Judges do not become Judges in their own cause simply because the respondent has become the petitioner."

(vii) Metropolitan Properties Co. (F.G.C.), Ltd. v. Lannon and Others (1968 All England Law Reports Vol. 3, page 304); ' In the above case, the facts were that one Mr. Lannon was the Chairman of the Committee of the London Rent Assessm ent Panel. He was residing with his father in a flat in Regency Lodge which was owned by a group of companies. The dispute between his father and the landlord of the Regency Lodge as to the rent was going on. While the above dispute was pending, he (Mr. Lannon) sat as the Chairman of the Committee to hear a case involving question as to the reasonable amount of rent in respect of another building, namely, Oakwood Court, which was owned by the same group of companies. The matter came up for hearing before the Court of appeal and the question for consideration was, as to whether Mr. Lannon should have acted as the Chairman of the Committee in a matter, the decision of which might have affected his father's interest. The Court of Appeal quashed the order of the Committee and while doing so, Lord Denning M.R. Inter alia observed as follows:- "It brings home this point; in considering whether there was a real likelihood of bias, the Court does not look at the mind of the Justice himself or at the mind of the Chairman of the tribunal, or whoever it may be, who sits in a judicial capacity. It does not look to see if there was a real likelihood that the he would, or did, in fact favour one side at the expense of the other. The Court looks at the impression which would be given to other people. Even if he was as impartial as could be, nevertheless, if right-minded persons would think that, in the circumstances, there was a real likelihood of bias on his part, then he should not sit. And if he does sit, his decision cannot stand."

(b) On the other hand, Mr. Aziz A. Munshi has referred to the following cases:-

(i) Mr. Zulfikar Ali Bhutto v. The State and another (1977 SCMR 514); ' In the above case, the transfer of the case from the file of the Magistrate to the file of the Lahore High Court and the constitution of Full Bench was challenged. The bias on the part of Acting Chief Justice of the High Court was also attributed. The Full Bench of this Court comprising of Mr. Justice Anwarul Haq, CJ., Mr. Justice Waheeduddin Ahmad, Mr. Justice Muhammad Afzal Cheema, Mr. Justice Muhammad Akram, Mr. Justice Dorab Patel, Mr. Justice Qaisar Khan, Mr. Justice Muhammad Haleem, and Mr. Justice Nasim Hasan Shah, held as follows on the question of bias:- "Finally, as to the question of bias, it is well-established that any objections in this behalf must be raised before the Judge concerned, and ordinarily the matter must be left to him to decide according to his conscience and the circumstances of the case. The Supreme Court does not have any power of ordering transier of a case from the file of a Judge of the High Court."

(ii) Mr. Zulfiqar Ali Bhutto v. The State (PLD 1978 SC 125); ' In the above case, objection to the then Hon'ble Chief Justice being a member of the Bench and its constitution by his Lordship was raised inter alia on the ground of bias by the appellant through a miscellaneous application filed in a criminal appeal. The above application was dismissed and the view found favour with the Full Bench of this Court in the above cited case was reiterated in the following terms:- "13. One other important aspect may also be mentioned. The appellant not only wants me not to sit on this Bench, but also wants me to refrain from nominating the Judges for hearing this case.

Under the Constitution and the law regulating the practice of the Supreme Court, it is not only the privilege but the duty and obligation of the Chief Justice to personally preside over all important cases, and to nominate for hearing cases which come up before the Court.

' No person has the right to ask me to abdicate this responsibility, nor has he the right to demand a Bench of his own choice. This would be contrary to the well-settled norms regulating the functioning of the superior Courts of this country. Any objection, if raised, must be left to be decided according to my conscience and sense of duty in the light of all the surrounding circumstances of the case, including any possible repercussions on the capacity of my other colleagues to continue on the Bench if similar objections are raised against some of them as the appeal proceeds."

(iii) Mr. Zulfikar Ali Bhutto and 3 others v. The State (PLD 1979 SC 38); ' In the above case, while hearing a criminal appeal against the conviction under section 302, P.P.C., the question of bias also cropped up. In the majority judgment in respect of which the following observations were made in this regard:- "913. It has been authoritatively laid down in a number of decided cases by this Court that 'mere suspicion of bias, even if it is not unreasonable, is not sufficient to render a decision void. A real likelihood of bias must be established'. A mere apprehension in the mind of a litigant that he may not get justice, such as is based or, inferences from circumstances is not sufficient. This, indeed, is the true test to be applied in sifting the evidence in arriving at a conclusion in such cases. In this connection in Syed Ikhlaque Hussain v. Pakistan (PLD 1969 SC 201) it was laid down that mere suspicion of bias even if it is not unreasonable is not sufficient to render a decision void. A real likelihood of bias must be established. But this, however, is subject to the exception where bias is based on pecuniary or proprietary interest the position is different and interest however, small may be is operative as a disqualification in the Judge. Similarly, in the President v. Mr. Justice Shaukat Ali L D 1971 SC 585 this Court observed that a mere assertion of a 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 proceedings it is essential that a real likelihood of bias must be shown. Also in Islamic Republic of Pakistan v. Abdul Wali Khan PLD 1976 SC 57 this Court observed that no Judge can possibly be disqualified on the basis of vague and nebulous suggestion and mere suspicion of bias, even if it is not unreasonable, is not sufficient to disqualify him in the disposal of a case brought before him."

(c) Reference may also be made to the judgment of this Court in the case of Syed Ikhlaque Hussain v. Pakistan (PLD 1969 SC 201), in which Syed Akhlaque Hussain, who was removed from the Judgeship of the erstwhile High Court of West Pakistan upon the report of this Court on the question of misconduct, submitted to the president of Pakistan, had impugned the report inter alia on the ground of bias. This Court, while dilating upon the same, observed as follows:- "It is true that this proposition has been generally acknowledged and given effect to not only in England and U.S.A. But in This subcontinent too. The question that remains, however, to be considered is what interest in a judicial or quasi-judicial proceeding does the law require as sufficient to incapacitate a person from adjudicating on the ground of bias or appearance of bias.

According to Mr. Akhlaque Hussain mere suspicion or reasonable suspicion of bias is sufficient to vitiate a decision. In the case of Reg. v. Rand (LR) 1 QB 230, 233 Blackburn, J. Said that there must be 'a real likelihood' of bias. In the recent case of Regina v. Camborne Justices and another, Ex parte: Pearce (1955) 1 Q B 41, Slade, J. Has said:- 'In the judgment of this Court the right test is that prescribed by Blackburn. J.. Namely, that to disqualify a person from acting in a judicial or quasi-judicial capacity upon the ground of interest (other than pecuniary or proprietary) in the subject-matter of the proceeding, a real likelihood of bias must be shown.'

' The learned Judge then observed:- "Whilst indorsing and fully maintaining the integrity of the principle reasserted by Lord Hewart, this Court feels that the continued citation of it in cases to which it is not applicable may lead to the erroneous impression that it is more important that justice should appear to be done than that it should in fact be done.'

' In a case where bias is based on pecuniary or proprietary interest the position is different. There, however small the interest may be, it operates as a disqualification as was the position in the case of Dimes v. Grand Junctional Canal (Properties) (1852) 3 HLC 759). We are, therefore, of the view that mere suspicion of bias even if it is not unreasonable is not sufficient to render a decision void.

A real likelihood of bias must be established."

21. From the above cited cases, following principles of law can be deduced:

(i) That a Judge would be disqualified from trying a case if he has either directed the prosecution after consideration of the information furnished to him or caused institution of an appeal or revision upon formation of opinion on the basis of the evidence. (Ghulam Rasul and others v.

Crown - Supra).

(ii) That in the case of Anwar and another v. The Crown (Supra), the Federal Court of Pakistan inter alia has held that "bias in a Judge is the paralysis, complete or partial of judicial faculties and, therefore, the allegation of bias against a Judge would be wholly unfounded unless, it be shown that the proceedings held by him were irregular and one-sided or the conclusions reached by him were wrong and reasons given in support thereof erroneous". However, the above view seems to have been modified in subsequent cases by this Court as a wrong or erroneous view simpliciter will not establish the factum that there is real likelihood of the Judge being biased.

(iii) That "effect of bias in the mind of a trying Judge extends to every part of proceedings conducted and recorded by him. It is impossible for any superior Court to estimate the value to be placed upon the record of evidence by such a Judge". (Muhammad Ismail Chowdhury v. Abdul Khaleque Dowdagar and another - Supra).

(iv) That "the basis of the disqualification, therefore, is "personal bias or prejudice of such a nature as would necessary render a Judge unable to exercise his functions impartially in a particular case and this must be shown as a matter of fact and not merely as a matter of opinion". (Islamic Republic of Pakistan v. Abdul Wali Khan, M.NA. - Supra).

(v) That mere fact that a Judge has dealt with another matter earlier in respect of a party to the legal proceedings before him or has given certain decisions against such a party upon interlocutory applications in the proceedings before him will not render him disqualified from hearing the case. (Islamic Republic of Pakistan v. Abdul Wali Khan, M.NA. - Supra).

(vi) That if a person exhibits/demonstrates hatred to a particular class of persons in public speeches and projects views to the detriment of the said class of persons publicly, he would be disqualified to act as an arbiter in a judicial or quasi-judicial proceedings relating to them on the ground of bias (Chairman, Federal Land Commission and another v. Sardar Ashiq Muhammad Khan Mazari and 37 others - Supra).

(vii) That "where the whole legal order is being challenged and the Judges functioning within the framework of the legal order under challenge are called upon to render judgment, the question of there being a personal bias, of being a Judge in his own cause does not arise." (Muhammad Akram Shaikh v. Federation of Pakistan and others Supra).

(viii)That the view of the Court of Appeal of England seems to be somewhat different from the view of this Court on the question as to the quantum of proof for an allegation of bias. The consistent view of this Court appears to be that the bias in a Judge is to be shown as a matter of fact and not merely as a matter of opinion. A real likelihood of bias must be established, whereas in the case of Metropolitan Properties Company (F.G.C.) Ltd. v. Lannon and Others (Supra), the Court of Appeal of England has held that the Court "does not look to see if there was a real likelihood that he would or did, in fact favour one side at the expense of the other. The Court looks at the impression which would be given to other people".

(ix) That the Supreme Court does not have power to order transfer of a case from the file of a Judge of the High Court to another Judge of the High Court on the ground of bias and that the objection in this regard is to be raised before the Judge concerned who is to decide according to his conscience and the circumstances of the case. (Mr. Zulfikar Ali Bhutto v. The State - Supra).

(x) That "mere suspicion of bias even if it is not unreasonable is not sufficient to render a decision void. A real likelihood of bias must be established". A mere apprehension in the mind of a litigant that he may not get justice, such as based on influence from circumstances is not sufficient. (Syed Ikhlaque Hussain v. Pakistan - PLD 1969 SC 201 and Mr. Zulfiqar Ali Bhutto v. The State - PLD 1979 SC 38).

22. That it may be pertinent to point out that Anwar's case and Muhammad Ismail's case (Supra) relate to the Judges of the subordinate Courts and the case of the Chairman, Federal Land Commission, does not pertain to a Judicial Officer; whereas the other judgments of this Court referred to hereinabove relate to the Judges of the Superior Courts. There seems to be judicial consensus that a Judge having pecuniary or proprietary interest or any other personal interest in the subject-matter of a case before him cannot hear the same. However, there appears to be a marked distinction in the approach on the question of bias between a se of a Judge of a Subordinate Court and a case pertaining to a Judge of a Superior Court: inasmuch as in the former case, the Superior Courts do grant transfer applications on the above ground in view of express provisions contained in Cr.P.C. And C.P.C. Empowering transfer of cases, whereas in the latter case, the Supreme Court does not grant transfer application on the above ground for want of power as has been held by this Court in the above case referred to hereinabove in sub-para (viii).

However, in the present case, Article 6-A of the Order expressly empowers this Court to transfer a case from a Special Court to another Special Court. It may be advantageous to reproduce the above Article, which reads as follows:- "6-A. Transfer of cases, etc.-- (1) Where two or more Special Courts have been established and the Supreme Court is satisfied that, for the general convenience of the parties or witnesses or for the ends of justice, it is expedient to do so, the Supreme Court may direct that a case specified by it shall stand transferred from one Special Court to another.

(2) In respect of a case transferred to a Special Court under clause (1), such Special Court shall not, by reason of the said transfer, be bound to recall and re-hear any witness who has given evidence in the case before the transfer and may act on the evidence already recorded by or produced before the Special Court from which the case is transferred."

A perusal of the above Article indicates that the Supreme Court can order transfer of any case from the file of a Special Court to the file of another Special Court on any of the following two grounds:-

(i) Convenience of the parties or witnesses;

(ii) For the ends of justice.

We may observe that one view can be that the above second ground is to be construed by applying ejusdem generic rule and that in order to bring a case under the above second ground, the reason urged in a transfer application should be of the species of the above first ground. The other possible view can be that the above second ground itself is an independent ground and is intended to cater for the matters not covered by the first ground. We are inclined to prefer the latter view. However, this Court will be very slow to attribute bias to a Special Court comprising of a Judge of a Superior Court. The bias is to be established as a matter of fact by showing that there is real likelihood of the Judge being biased.

In the present case, we are unable to conclude that the learned Judge is biased or there is real likelihood of his being biased. The factum that he has decided a number of interlocutory applications against the petitioner simpliciter is not sufficient to establish that there is real likelihood of his being biased.

22. As regards Raja Muhammad Anwar's contention referred to in subpara (ii) of para 15 hereinabove, namely, that the learned Judge was confirmed by Referring Authority, namely, the President of Pakistan about six months prior to the due date just before the petitioner was to assume the office of the Prime Minister it may be observed that Raja Muhammad Anwar has invited our attention to the fact that the learned Judge was elevated on 11-3-1987 as an Additional Judge for a period of two years and, therefore, his confirmation was due on or about 10-3-1989, but factually he was confirmed before 2-12-1988 though with effect from 10-3-1989 by the President.

Suffice to observe that the learned Judge was not the only Judge in the Lahore High Court who was confirmed but there were a number of other Judges of the Superior Courts including of the Lahore High Court, who were confirmed in advance simultaneously but confirmation in each case was made from the due date. In our view, the above factum has no nexus with the question of bias.

23. Reverting to the third submission of Raja Muhammad Anwar referred to in sub-para (iii) of para. 15 namely, that the learned Judge was one of the affected Judges by the Press Note issued by the Government on 10-3-1989, it may be mentioned that there were as many as about 46 Judges of the Superior Courts, who were affected by the above Press Note and not the learned Judge alone.

The above question stands settled by the judgment of this Court in the case of Federation of Pakistan v. Muhammad Akram Sheikh (Supra), in which it has been held by the majority view that even the three Judges of this Court who were said to be affected by the above Press Note, could hear the Review Petition filed by the Federation. In the present case, the learned Judge has no personal involvement of the nature referred to in the above judgment in the References pending before him.

24. The upshot of the above discussion is that the above Transfer Application is dismissed with the above observations and clarifications with no order as to costs.