' Civil Miscellaneous Application 1293 of 1999 is an application made under section 151, C.P.C., read with Articles 199, 2A, 3, 4, 37 and 194 of the Constitution, praying that this matter may not be heard by a Bench of which I am a member. It was presented by Mr. Muhammad Ali Sayeed, Advocate on behalf of the respondent No,2 who was not earlier representing any of the respondents and was apparently retained for the purpose of presenting and arguing this application, filing his power on 24-3-1999. After briefly hearing the counsel and perusing the contents of the application we decided that we will not hear this matter and directed, for reasons to be recorded, to be placed before another Bench. Though I am conscious that reasons may not always be recorded when a Judge declines to hear the case, keeping in view the fact that this petition was heard earlier for 'several days by a Bench of which I happened to be a member, the order passed by this Bench on 12-3-1999 and the overall circumstances of the case I have decided to record my reasons to put the record straight and clarify the legal position.
2. Before adverting to the terms of the application, it may be pertinent to mention that this petition filed by nine individuals and the petitioner No,10 which is a society registered under the Societies Registration Act known as Shehri C.B.E. (Citizens for a Betterment Environment) alleging that a building known as Fortune Centre was being constituted by the respondents Nos.12 to 15 in P.E,C.H.S. Karachi in violation of law and public authorities including the respondent No,1 (Karachi Building Control Authority) were not performing their duties ordained by law. Apparently litigation on the original civil side of this Court was already pending as between the builders (respondents Nos.12 to 15) and the (K.B.C.A. Respondent No,1) to which the petitioners were not parties. The petitioners chose to invoke the Constitutional jurisdiction of this Court under Article 199 claiming that as concerned citizens they could seek relief under Article 199 as the matter fell within this affair of public interest litigation as held by the Honourable Supreme Court in Multilines case 1995 SCM R 362 notwithstanding pendency of the Civil suit. The matter initially came up before this Bench on 29-1- 1999 when we considering the legal question to be of substantial public importance, issued notices to the Attorney-General as well as the Advocate-General, Sindh for 19-2-1999.
3. On 19-2-1999 when the matter came up before another Bench comprising my learned brother Sayed Sayeed Ashhad and myself. Mr. S.H. Kizalbash undertook to file power of attorney on behalf of respondent No,1 and Dr. Farough Nasim, Advocate on behalf of respondents Nos.2 to 15. By consent of counsel it was adjourned to 25-2-1999 when Mr. Naimur Rehman, Advocate for petitioner commenced his arguments and was heard on four dates till 4-3-1999 by which Mr. Naimur Rehman had concluded his arguments and Mr. K.M. Nadeem. Advocate for petitioner, in some petitions involving similar question had started arguing his cause. The hearing was adjourned to 9-3-1999. Dr. Farough Nasim and Mr. Mubarak Hussain Siddiqui (who filed power on behalf of respondent No,14 in his private capacity) remained present during most of these hearings.
4. According to fresh Roster of sittings, the Bench comprising Mr. Justice Sayed Sayeed Ashhad and myself had been broken and apparently upon a request by Mr. Naimur Rehman, Advocate for - petitioner it was ordered that the matter may not be treated as part heard. As is evident from the order-sheet the aforesaid order was passed in the presence of Mr. Mamnoonul Hassan, Dy. A.-G.
And Mr. Muhammad Arif Lateef holding brief for Dr. Farough Nasim. It may he observed that since both Mr. Justice Sayed Sayeed Ashhad and myself were required to sit on different Benches and the former was also required to sit in a D.B. On Mondays, it would not have been otherwise convenient if the matter was to be heard afresh by another Bench.
5. Apparently according to the Roster this matter was to be fixed before the present Bench and on 12-3-1999 Mr. Naimur Rehman made a request in Court that he had filed urgent application and the case file be called for. When the file was brought before us we were informed that Mr. Ziaul Haq Makhdoom, Advocate had also filed power on behalf of the respondents Nos.12 and 15. Such power was filed on 11-3-1999. This fact was brought to our notice because Mr. Ziaul Haq Makhdoom has been associated with me during my practice at the Bar for several years and I had issued standing instructions to the office, in the interest of propriety, not to place his cases before me or before a Bench of which I was a Member. Mr. Naimur Rehman, apparently aware of what was happening promptly cited certain observations of Aslam Riaz Hussain, J. (as his Lordship then was) in the case of Federation of Pakistan v. Muhammad Akram Shaikh (PLD 1989 SC 689), wherein his Lordship had observed that even where a Judge might not normally like to hear on account of an apprehension of bias, he may continue to do so, when any of the parties is A resorting to a device with an ulterior motive to prevent him from sitting on the Bench for example, by engaging a counsel, who is barred from appearing before him.
6. It may be pertinent to observe that when the respondents Nos.11 to 15 already being represented by senior and eminent counsel including Mr. Mubarak Hussain Siddiqui, Dy.A.-G. Of Pakistan and Dr. Farough Nasim, who were present throughout the hearing before the earlier Bench, had meticulously heard the arguments of the counsel for the petitioner and had not withdrawn from the case, the engagement of a relatively junior counsel (without meaning any disrespect) did not appear altogether bona fide. In any event moving of the present application on the part of the respondents only fortifies my view. In the circumstances I explained to my learned brother that I would not be embarrassed in hearing Mr. Ziaul Haq Makhdoom and after mutual consultation the order, dated 12-3-1999 was passed.
7. Coming to the merits of the above application, in the details in support thereof, the following reasons appear to have been given:---
(i) During the course of the hearing before the earlier Bench the learned Senior Judge repeatedly expressed his doubts about the maintainability of the petition and the counsel for the petitioner obtained the order of treating the case as not part heard behind the back of respondents Nos.12 to 15 without intimation to them;
(ii) That the engagement of Mr. Ziaul Haq Makhdoom was brought about to assist the other counsel and not to disqualify me from hearing the case;
(iii) That the petitioner blackmails builders by filing frivolous petitions and writing newspaper articles, and in a number of articles he has described this Bench as "environmental friendly Judges" or as "green Bench",
(iv) That the petitioners Nos.1, 5 and 10 file selected petitions against certain builders and not others to mislead the Court with mala fide objects.
(v) That I had appeared for some of the petitioners in certain case prior to my elevation to the Bench and the petitioner No,1 had singled me out by praising me in an article published in Dawn on 21-3-1999. Therefore, I was disqualified from sitting on the Bench.
(vi) That though I had relied upon certain observations of the Honourable Supreme Court in Federation of Pakistan v. Muhammad Akram Shaikh, "surprisingly" I had not followed the principles of law laid down therein which required me not to sit on the Bench.
8. In the first place it is indeed well-known that Judges do, while hearing cases make tentative observation's with respect to question of law involved, but as has been consistently observed by the Honourable Supreme Court that such observations can never be treated as expression of their final opinion. In any event there is no principle of law upon which a litigant can claim a right to be heard by a particular Bench of the Court or a right to seek retention or transfer of his case on the basis of such tentative observations.
9. With respect to the engagement of Mr. Ziaul Haq Makhdoom, the facts have already been narrated above and the assertion that such engagement was not brought about with the object of disqualifying me from the Bench is ex-facie incorrect. Any benefit of doubt which the respondent could claim stands negated by the fact that immediately after the order, dated 12-3-1999, declining to disqualify myself from the Bench was passed, the first step taken by the respondents was to move the instant application. I am constrained to observed that such tactics were patently mala fide and it is a matter of anguish and grief that members of the Bar, particularly senior members and its leaders have not been able to maintain the rectitude expected of them.
10. The main contention of Mr. Muhammad Ali Sayeed, however, was that since I had appeared as counsel for the petitioners in some other cases prior to my elevation to the Bench I should have declined to hear this case. Indeed the Code of Conduct framed by the Supreme Judicial Council requires that a Judge must decline to act in a case involving the interest of those persons whom he regards and treats as near relatives or close friends. It is also true that as a matter of propriety we decline to sit in cases, where some of our erstwhile clients, with whom we have developed long association during our practice at the Bar, are arrayed as parties. Nevertheless there seems to be no rule of law or even propriety which requires a Judge to disqualify himself from hearing a case where one of the parties has remained his clients. By that token every Judge, who has remained a Law Officer of the Government, would be debarred from hearing Constitutional petitions questioning orders of such Government.
11. In Islamic Republic' of Pakistan v. Abdul Wali Khan PLD 1976 SC 57 objections as to the sitting of Muhammad Gul, J. (as his Lordship then was) was raised on the ground that his Lordship had been the Chairman of the Advisory Board which had approved the detention of Mr. Abdul Wali Khan.
Repelling the objection Hamoodur Rehman, C.J. (as his Lordship then was) speaking for the Full Court observed:--- - "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 he 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 the present case, however, even this analogy is not apt, because, before the Advisory Board, of which Mr. Justice Muhammad Gul is the Chairman, the question was as to whether the detention of Mr. Abdul Wali Khan and of some other members of the Party should be continued or not. There was no question there at all of the banning of the Party. To say, therefore, that because the detention of some of the person concerned has been extended a decision has already been taken with regard to the banning of the Party is neither factually nor legally correct. There is no allegation of any personal animosity or against Mr. Justice Muhammad Gul nor has it been shown that he has any personal interest in the matter of any kind at all, nor can it be said that the personal attitude of Mr. Justice Muhammad Gul is likely to be affected in this case because of any opinion that he may have formed as the Chairman of the Advisory Board.
' The decision of the questions now before us will have to be made on the basis of the evidence adduced in this Court and not on the basis of any material which might have been produced before the Advisory Board. Such an improper allegation of bias is, in my view, opposed to all cannons of decency and was least to be expected from a person who started his peroration before the Court by professing his constant endeavour to preserve the rule of law and the highest respect for law."
12. Admittedly the petitioners have not claimed any personal interest: in the subject of the controversy and this type of litigation has been classified by the Honourable Supreme Court, inter alia, in Multiline International v. Ardeshir Cowasjee 1995 SCM R 362 as public interest litigation. Such litigation being essentially non-adversarial in nature as held by the Honourable Supreme Court in Benazeer Bhutto v. Federation of Pakistan PLD 1998 SC 416 it is doubtful whether the ordinary rules of bias applicable to adversary litigation could be extended to such cases. Nevertheless since we did not hear arguments on this aspect of the "matterwe would refrain from expressing any final opinion.
13. Finally Mr. Muhammad Ali Sayeed contended that justice should not only be done but should also be seen to be done and, therefore, this Bench should not have decided to proceed with the matter. In this context he read out para.9 of the affidavit in support of the application which is reproduced as under:--- "9. That surprisingly, though PLD 1989 SC 689 was relied upon in the order, dated 12-3-1999, it was not noticed that the Honourable Supreme Court therein had categorically laid down the following principles:principles:---
(a) ' no one should be a Judge in his own cause',
(b) 'justice should not only be done but should manifestly and undoubtedly appear to have been done',
(c) 'judges not only must not be biased, but that even though it be demonstrated that they would not be biased, they ought not to-act as Judges in a matter where the circumstances are such that people, not necessarily reasonable people, but many people, would suspect them of being biased';
(d) 'Strict rule about bias regards, not so much perhaps to the motives which might be supposed to bias the Judge, as to the susceptibilities of the litigant parties---One important object, at all events, is to clear away everything which might engender suspicion and distrust of the Tribunal and so to promote the feeling of confidence in the administration of justice which is so essential to social order and security";
(e) 'Judges of superior Courts are to refrain from sitting on the Bench deciding cases in which there is even the slightest apprehension that they may be considered to be biased not to speak of being financially interested) in the matter'."
' With profound respects. I am constrained to observe that the expression "surprisingly" suggesting that the main principles laid down in the judgment of the Honourable Supreme were ignored and only an extract was reproduced is, to say the least unfair. A careful reading of the opinion of Aslam Riaz Hussain, (as his Lordship then was) would show that after laying down the above quoted principle, his Lordship observed, by way of an exception to the above rule that when engagement of counsel disqualifying to appear before a Judge is brought about with an ulterior motive, a Judge may continue to hear the case irrespective of the above principle.
14. What is more important, however, is that learned counsel omitted to notices that the above principles were laid down only in a minority opinion recorded by Asian) Riaz Hussain, J. In the case of Federation of Pakistan v. Muhammad Akram Shaikh (PLD 1989 SC 689), wherein his Lordship dissented from part of the majority judgment authored by Shafiur Rehman, J., and concurred to by eight other Honourable Judges. Moreover,'while there can be no cavil with formulations appearing at numbers (a) and (b) are concerned those appearing at (c) to (e) cannot be treated, without qualification as the law declared in Pakistan in view of the majority opinion in the above case as well as the authoritative pronouncement of the Honourable Supreme Court in M.H. Khundkar v.
State PLD 1966 SC 14, President of Pakistan v. Justice Shoukat Ali PLD 1971 SC 585, Islamic Republic of Pakistan v. Abdul Wali Khan PLD 1976 SC 57 and the latest pronouncement of a 10 members Bench of the Honourable Supreme Court in Asad Ali v. Federation of Pakistan PLD 1998 SC 161.
15. In view of the above, in my humble opinion, the application is, both mala fide and groundless.
Nevertheless one aspect of the matter has seriously disturbed and persuaded us to order that the matter be heard by another Bench. The petitioner No,1, in his column appearing in the daily "Dawn" of March 21, 1999, has commented upon our order, dated 12.3-1999 and has chosen to single us out for compliments. No doubt Judges who have taken an oath to act strictly according to law and the Constitution are not so fragile as to be swayed by newspaper comments, such comments, when made by a litigant himself, can cause apprehensions in the mind of adversary parties. Without going into the question as to whether these comments constitute contempt or whether the petitioner as a journalist has a right to comment on issues of public concern, we must strongly disapprove of the same. Even when he approaches the Court in the interest of public-at-large, he must exercise restraint and refrain from creating impressions about proclivities of individual Judge. What is of the utmost importance that the faith of the people in institutions of dispensation of justice, irrespective of the individuals occupying such offices is not impaired. Any hope or apprehension as to likelihood of a particular verdict emanating from a particular Bench must be dispelled and it must be known that justice according to law can be delivered by any Bench of this Court. Therefore, in the larger interest of maintaining public confidence in the system of administration of justice, we decided that this Bench will not hear this case.
' The above are my reasons for the order announced on 25-3-1999. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.