1. ABDUL HAYEE KURESHI, ACTG. C. J.-The present petition under Article 199 of the Constitution and section 491, Cr. P. C. Has been filed by Asim Iqbal whereby he has challenged the conviction of his father Mohammad Iqbal recorded by Summary Military Court at Quetta on a charge under section 411, P. P. C. The detenu Mohammad Iqbal has been sentenced to R. I. For two months and to pay a fine of Rs. 5,000. While the petitioner has been represented before us by Mr. Mohammad Alsam Chishti and Mr. I. H. B. Hanafi, Advocate the respondents were represented by Mr. Mohammad Ahmed Mirza, Advocate-General.
2. The brief facts of the case are that detenu Mohammad Iqbal is the proprietor of a Jewellery shop known as Ruby Jewellers and carrying on business at Liaquat Bazar, Quetta. Two thefts had taken place at Quetta in which one Ghulam Abbas and another Abdul Hussain were tried by Major Munir Ahmed Farrukh, President of the Summary Military Court No. 1 at Quetta. They were found guilty under section 454/380, P. P. C., and sentenced. During the trial it had transpired that ornaments consisting of one necklace, two pairs of ear-rings and one ring, totally weighing 5 -- tolas, which were the subject-matter of the theft case, had been purchased by the detenu Mohammad Iqbal for a sum of Rs. 700. On the conclusion of that case on 5th March, 1978 Major Munir Ahmed Farrukh passed the following order :--- "It has been revealed during trial of case State v. Ghulam Abbas and another under section 454/380/34, P. P. C. That Mohammad Iqbal proprietor Ruby Jewellers, Shar-e-Liaquat, Quetta purchased gold ornaments viz., one necklace, two pairs of ear rings, one ring (comprising of 51 tolas) for consideration of Rs. 700. The witnesses Mohammad Saeed and Mumtaz deposed before this Court that accused Ghulam Abbas had not mortgaged those ornaments but sold to Mohammad Iqbal in the sum of Rs. 700. As Mohammad Iqbal dishonestly purchased/received stolen property i.e. 5 -- tolas gold for Rs. 700 only, police be supplied with the copies of these statements and let them investigate into this matter."
3. The respondent Haibat Khan, who is the Station House Officer of City Police Station, Quetta then registered a case and arrested the detenu Mohammad Iqbal. The gold ornaments had also been recovered from the detenu. A case under section 411, P. P. C. Was submitted by S. H. O. Haibat Khan b-fare the Martial Law Administrator of Zone `D', who by an order dated 6th March, 1978 approved the trial of the detenu by the Summary Military Court.
4. The petition was filed in this Court on 6th March, 1978 alleging that the detenu was in unlawful custody and seeking a direction and relief in the nature of habeas corpus. By an order dated 7th March, 1978 we had directed the production of the detenu in Court but on the following day Mr. Mohammad Aslam Chishti, Advocate informed us that the detenu had in the meantime been removed to jail custody. On 13-3-78 we were informed that the detenu is being tried before the Summary Military Court and on the following day Mr: Aslam Chishti, Advocate made a statement before us that the judgment in the case was likely to be announced on the same day by the Summary Military Court. Mr. Aslam Chishti requested for an adjourn--ment on such ground and on 20th March, 1978 an amended petition was filed challenging the conviction and sentence imposed on the detenu by the Summary Military Court. We had asked the Advocate-General to produce the record of the Summary Military Court for examination before admitting the petition and when the same was examined by us on 27th March, 1978 a point was raised by the Advocates of the petitioner that trial of the detenu by the Summary .Military Court was bad in law because Major Mohammad Munir Farrukh having passed the earlier order dated the 5th March, 1978 (reproduced above) could not or should not have tried the detenu. Without admitting the petition we called upon the Advocate-General to appear before us and to make his submissions in regard to the contention that the judgment of the Military Court was vitiated on ground of bias, operating as dis- -qualification.
5. At the time of hearing Mr. Adam Chishti, Advocate has mainly addressed us on the point of bias.
6. The learned Advocate faintly argued that even on merits no case had been made out.
7. On merits of the case we find both from the record of the evidence before the Summary Military Court as well as the precis of evidence sub--mitted before the said Court that the stolen property was in fact disposed of by Ghulam Abbas and the same was purchased by the detenu Mohammad Iqbal. The property consists of gold ornaments weighing 5 -- tolas and the ruling price of gold in the market being about Rs. 700 per tola the extremely low price at which the detenu had obtained the ornaments, indicated a guilty mind. In any case the question of intention or knowledge being a question of fact, the Military Court could justifiably deduce an inference of guilt against detenu on such facts as appear to have been established before the Military Court. We have therefore not been impressed by the arguments related to merits of the case.
8. The next point which has been raised before us is in regard to dis--qualification of Major Mohammad Munir Farrukh from proceeding with the trial of the detenu on the ground that he had directed investigation into this case. The concept of bias operating as a disqualification has been the subject-matter of numerous judicial pronouncements of a vast body of Courts in various countries. In common parlance imputations of bias in a Judge is an indication of a party making allegations in regard try fairness of a Judge. In law however the word is used as a term of art and a plethora of case-law has come to occupy the field to succinctly point out under what circumstances would a Court, on bias being alleged, be disqualified from trying a person. As the law has developed the concept of bias has adopted a widening tendency so that it is not merely financial interest of the Judge in the matter under dispute which would disqualify him but even'' such circumstances as tend to show that judicial faculties of a Tribunal or Court have been paralysed or impaired, for reasons of the creation of the Judge or Tribunal would also disqualify the Judge or Tribunal, as the case may be. Such widening of the concept of bias proceeds on the dictums that no person shall be a Judge in his own cause; and that justice should not only be done but should manifestly and undoubtedly appear to be done. Such being the history underlying the growth of doctrine of bias operating as dis-- qualification, even a jurist of the eminence of Mohammad Munir, the former Chief Justice of Pakistan, has found it impossible to give an exact definition of the said concept: "The rule being one of natural justice must depend on the circumstances of each case. Viz., the nature of enquiry, the role in which the Tribunal is acting, the subject-matter that is being dealt with, etc. (quota--petition is from the Constitution of the Islamic Republic of Pakistan by Mohammad Munir, 1975 Edition at page 431). Garner on Administrative Law, 4th Edition at page 122 has also attempted to define bias as a dis--qualification and in such context has said as follows :----- "Not only is a person affected by an administrative decision entitled to have his case heard by the agency seized with its determination, but he may also insist on his case being heard by a fair Judge, one free from bias. Bias in this context has usually meant that the adjudicator must have no financial interest in the matter under dispute, but it is not necessarily so limited, and allegations of bias have been upheld in circumstances where there was no question of any financial interest."
9. Since the present case poses questions on the ground of bias in a Judge or a person sitting in a judicial capacity it would be profitable to reproduce the words of Lord Denning M. R. Who expressed as follows :- "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 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." (1968) 3 All E R 310 per Lord Denning, M. R.).
10. The concept of bias in a Judge came up for consideration before the Federal Court of Pakistan in the case of Anwar and another v. The Crown (PLD 1955 FC 185). In that case the Federal Court reconsidered the earlier case of Khairdi Khan (PLD 1953 FC 223) in which an appeal had been allowed because the High Court in its revisional jurisdiction had arrived at definite findings of fact while ordering retrial after setting aside an acquittal. Abdul Rashid, C. J., in that case inferred that the Sessions Judge who would try the case would not be able to deliver an unbiased judgment for the reason of observations made by the High Court. Mohammad Munir, C. J., in such regard expressed his disagreement with the judgment in Khairdi's case in the following words :----- "We are, therefore, perfectly entitled to hold, as we do in this case after a fall argument that the rule laid down in Khairdi Khan's case that bias vitiated all judgments and all orders made by a Judge are void is incorrect and should no longer form part of the law of Pakistan."
11. The learned Chief Justice however summed up his conclusions at pages 210 and 211 of the report. It is not necessary to reproduce all the conclusions reached by the learned Chief Justice but a fair summary is that accused has a right to a fair trial, by a judicial minded person, not functioning under an influence which might paralyse his judicial faculties as to result in absence of a fair trial.
12. The learned Chief Justice also held that bias may be caused by a judgment, order or observation of a superior Court or it may spring from personal, political, religious, cammunical, racial, commercial or economic considerations. The other conclusion recorded by the Chief Justice is that bias would vitiate judicial proceedings if such circumstances are created or brought about by the Judge as would rob him of the confidence that a litigant may have in the Judge. In that regard the learned Chief Justice has expressed as follows :---- "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 seem 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."
13. Mr. Mohammad Aslam Chishti, Advocate has also drawn out attention to the case of Ghulam Rasul and others v. The Crown (PLD 1951 FC 62) in which a Legal Remembrancer having advised the filing of an appeal against acquittal was held to be disqualified from hearing the case as a Judge.
14. The other case to which reference was made by the learned Advocate is of Abdul Wasee v.
15. Pakistan (PLD 1957 SC (Pak.) 363). This case is not of much significance in the scope of the present enquiry. The learned Advocate-General has mainly based his arguments on the Federal Court Judgment in the case of Anwar and has attempted to expound the doctrine of complete or partial paralysis of judicial functions. He submits that bias cannot be easily imputed to a Judge especially in those cases in which the inference is sought to be drawn on account of the action of a Judge in relation to performance of his judicial functions. It seems a distinction is sought to be drawn between such cases in which inference is sought to be based on facts and matters extraneous to the performance of judicial functions as distinct from facts arising out 6f the performance of functions in relation to a particular case. The argument is indeed very sound although no general rule could be laid down that all actions of judicial officers while conducting proceedings, however deplorable, would not raise an inference of bias. Let it be put very clearly that such inferences may not be readily drawn save in exceptional circumstances in which the conclusion is inescapable that the Judge for reason of prejudice or ill-will is conducting or has conducted himself in a manner that makes it apparent that his judicial functions have been paralysed, and there is no hope of justice resulting in the case. Mere suspicion of bias even though reasonable would never render a decision void.
16. On the other hand there may be cases when at a premature stage a Judge may express himself in a manner as indicates that he had prejudged all or most material of the issues. From such a circumstance bias is inferable because it indicates extraneous influence. However if a Judge on account of a desire to do justice asks a party about the availability or otherwise of a particular piece of evidence, it would be most unreasonable to infer bias. The distinction is not illusory but substantial. Several factors have to be taken into consideration and one of them is whether expression of the Judge tends to advance the cause of justice or to defeat the same and if it is found that the expression of the Judge aims at furthering the interest of justice, it would be idle to infer bias therefrom.
17. Applying the test laid down in the case of Anwar, it would appear that the litigant is under a duty to establish that paralysis of judicial function has been brought about by the acts of the Judge or Tribunal. In the present case all that Major Munir Farrukh did was to advance the cause of justice.
18. He had in the case of Ghulam Abbas come to know that the stolen property had been transferred to the present detenu and for such reason he directed investigation. To investigate means to find out facts, so as to reach a conclu--sion whether the case was fit for trial. The words used by Major Farrukh do not even indicate prejudging of any of the issues involved. He has not said that detenu Mohammad Iqbal should be sent up for trial but he on the contrary allowed a fair amount of latitude to the Investigating Officer.
19. At this stage one may even refer to sections 190 and 351 of the Code of Criminal Procedure. Under section 190 a Magistrate has the power of taking suo motu cognizance of a crime and under section 351 he has the power to detain any person who is present in Court for the purpose of any enquiry or trial. These powers normally vest in the Courts established under the Code of Criminal Procedure and even in such cases the accused has the option of demanding a trial before another Court. In the present case the detenu did not protest before the Military Court in regard to Major Farrukh trying him. No doubt he had filed an application before this Court on 8th March, 1978 (Miscellaneous Application 364 of 1978) under section 561-A, Cr. P. C. Praying for stay of proceedings before the Military Court but since the Military Court is not subordinate to the High Court such application was rejected with the observation that such an application could be made in the Court concerned. The petition was then amended after the detenu was convicted. It would thus seem that petitioner did not challenge the jurisdiction of the Military Court. This would operate as waiver.
20. For the foregoing reasons this petition is dismissed in limine.