' The petitioner has been arrested in connection with a case registered on the 11th of November 1974 on a report lodged with the police by Ahmed Raaz & kasuri the complainant.
2. According to the prosecution on the night between the 10th and 11th of November 1974, the complainant was way-laid while he was returning to his house in a car accompanied by his father and other relatives. An attempt was made on his life but be survived the assault. Ells father, however, received fatal injuries and died.
3. The allegation against the petitioner is that he abetted the commis-lion of this crime. The investigating agency has collected evidence in this case, but the investigation does not appear to have been concluded as yet and an incomplete challan has been filed in the Court.
4. From the material placed before me it appears that there is considerable circumstantial evidence indicating possible involvement of the petitioner in this case. But it as to be noted that most of the evidence so far collected is only circumstantial. As to the direct evidence of abetment, it consists of the statements of Masood Mahmood, co-accused supported to a certain extent by the statements of Saeed Ahmed Khan, a witness, and Mien Abbas, another co-accused.
5. Mr. M. Anwar, the learned Special Public Prosecutor has stated today that Masood Mebmood co- accused has been made an approver in this case and he is going to appear as a witness against the petitioner and the other accused. But again, it should be borne in mind that the testimony of an accomplice has a weak probative value in law although it is not illegal to base a conviction solely on such testimony. The Court has also been informed that further evidence is being collected, presumably documentary in nature.
6. In these circumstances, I am of the opinion that at least for the time being the petitioner is entitled to bail. Ho Never, if any other piece of evidence cores to light which warrants cancellation of bail, it shall be open to the prosecution to move this Court in that behalf.
7. The petitioner is, therefore, directed to be released in this case on furnishing bail bonds in the sum of Re. 50,000 (fifty thousand only) with two sureties each in the like amount to the satisfaction of the Registrar of this Court.
Petition allowed.
1978 P Cr. L .1 332 [Lahore] Before MUSHTAK Hussain, Actg. C. J., Zakluddin Pal, M. S. H.
Qureshi, Aftab Hussain and Gulbaz Khan, JJ ZULFIQAR ALI BHUTTO-Petitioner versus Tea STATE-Respondent Criminal Miscellaneous Nos. 932/M and 933/M of 1977, decided on 9th October 1977.
(a) Constltation of Pakistan (1973)- - Arta. 192 & 196-Chief Justice, vacancy in office of-Distinguishable from absence of Chief Justice or inability of C fief Justice to perform his functions-Appointment of Chief Justice as Acting Governor of Province-Does not amount to vacating of bis office by Chief Justice-Contention that Chief Justice having vacated his office and there being no Chief Justice in High Court, High Court ceased to be a High Court under Art. 192, held, misconceived. [P. 3304
(h) Coastitation of MIMI) (1973)- -- Art. 196 read with High Courts (Appointment of Acting Chief Justices) Order (President's Post Proclamation) Order 2 of 1977], el. (2)-Acting Chief Justice, appointment of-No contradiction in language of cl. (2) of Order and Art. 196 of Constitution-?Are fact of reference in order of appointment having been made to powers conferred by President's Order 2 of 1977, held, would not make order of appointment at an order beyond ambit of Art. 196-Argument that appointment not having been made under Art. 196 but under President's Order was of no consequence in any case, held further, hardly arises when question of legitimacy of Martial Law sub judical before Supreme Court. (p. 337)3
(c) Constitution of Pakistan (1973)- -- Art. 194-High Court Judges (Oath of Office) Order [President's (Post Proclamation) Order 1 of 19771-Supreme Court Judges (Oath of Office) Order [President's (Post Proclamation) Order 9 of 1977)- Oath-Acting Chief Justice and other Judges subscribing to oath prescribed under President's Order 1 of 1977, argument that Acting Chief Justice having not taken oath as required under Art., 194 of Constitution, if allowed to prevail, held, will be chastic for administration of justice and will lead to result of there being no superior Court in Pakistan-Unreasonable, artificial, or anomalous construction of law-To be avoided. (p. 337)C
(d) Constitotion of Pakistan (1973)- --- Arts. 196, 195, 177, 207, 209. 213 & 216-Appointment of Judge as Chief Election Commissioner-Art. 216-Not to be construed in isolation but to be interpreted subject to qualifications and disqualifications contained in Arts. 207 & 213 and provisions about Judge's right to hold office till retirement under Art 195-Disqualification of a Judge to hold another office contained in Att. 207- Held, does not extend to his appointment as Chief Election Commissioner.- Tnterpretation of Constitution) [pp. 338, 341]D, E & F Rao Muhammad 4shfaq Khas v. Mr. Justice Mushtaq Hussain etc. Writ Petition No, 2141 of 1964 and Malik Ghulam Mani v. Mr. Justice Muhammad Gut Petition for Sprcial Leave to Appeal No, 16/P of 1974.
(e) Al simnel Procedure ode (V of 189o)- -- S. 526-Transfer of criminal cases-Bias -Case under consideration, like several other cases, transferred to High Court for trial on original side on ground, inter alit: of personalities having held high offices being involved and a Bench of five Judges constituted by Acting Chief Justice for trial of case-Transfer of case being ordered in interest of justice and there being nothing singular or strange in order of transfer in view of importance of trial, constitution of a Bench of five Judges, held, should inspire more confidence rather than create any apprehension in mind of any party and petitioner's application about partiality and prejudice of Acting Chief Justice not at all reasonable on such ground.--[Bias). [p. 341)G ( f ) Crinisal Procedure Cole (V of 18911)- -- S. 526 read with Ss. 173 & 160-Transfer of criminal cases-Police challan though incomplete yet revealing facts constituting an offence, naming large number of prosecution witnesses and disclosing names of accused-Such challan a report under S. 173-Magistrate competent to take cognizance of offence on basis of such report and to transfer same to Sessions Court for trial and actually transferring case to Sessions Court-No hurdle in circumstances for transfer of case from Sessions Court to High Court, and transfer in circumstances not hasty. [p. 34211 Zaffar Samar v. State 1969 SCMR 59 ; Water v. State PLD 1962 Lab. 405 ; Ata Muhammad v.
Inspector-General of Pollee PLD 1905 Lab. 734 and Muhammad Akbar v. The State 1970 SCMR 335 ref.
(8) Criminal Procedure Code (V of 1898)- -- S. 526-Transfer of criminal cases-Bias-Allegation of bias levelled on account of a resolution passed against Chief Election Commissioner by Central Executive of accused petitioner's political party-Chief Election Commissioner's feeling prejudiced against accused on passing of such resolution,-Not conceivable--Chief Election Commissioner admitted in accused's petition to have denied allegations of partisanship and bias in a press report in respect of observations leading to passing of resolution and observations of Chief Election Commissioner clarified to have been supported by record of Election Commission-Election Commission deciding to ignore allegations and not taking action under Contempt of Courts Act-Commission further clarifying to be always prepared to act upon constructive suggestions from all quarters-Conduct of Election Commission, held, sufficient to allay any apprehension on part of accused and his party-Insinuation in resolution of accused's party that bias may have resulted from supersession of Acting Chief Justice (then a mere justice) at time of appointment of Chief Justice -Such insinuation though not made before Supreme Court in transfer application, yet would not furnish any reason for apprehension due to a number of Judges having been superseded and Acting Chief Justice not alone singled out for purpose-Accused expressing his fullest confidence in Bench when challan case put for hearing, accused held could not have entertained any apprehension about possibility of not getting a fair trial.--[Hiss). [p. 343j1
(h) CrIminal Procedure code V of 1895)- --- S 526(1), (3) & (61-Transfer of criminal case i-Notice -High Court, held, authorised to transfer a criminal case in interest of justice to its own file either suo motu or on application of a party and no notice required to be given to accused under law. [p. 343J1 (0 Criminal Procedure Code (V ct 1898)- --- S. 526-Transfer of criminal oases-Bias-Principle of bias appli cable either on basis of maxim "nemo debet esse judex in propria causa" (n3 man can be a judge in his own cause) or where Judge has slightest pecuniary or proprietary interest in subject-matter of proceedings-Reed likelihood of bias-Held, must be established in all other cases for challenge to succeed.-- (Maxims- Bias), (p. 3401 President v. Mr. Justice Shaukat Al! PLD 1971 SC 585 re. Ghulam Ali Memon and .Boat Muhammad Awan for Petitioner.
M. Anwar (now late), M. A, Rehman and Ijaz Hussain Batalvi!, Special Public Prosecutors for the State.
' A PTAS HueslIN, J.-This order will give reasons for disposal of Criminal Milo. Nos. 932/Mt and 93304 of 1977 which have already been dismissed by a short order.
2. During the hearing of petition for cancellation of the bail granted to accused No, 1 (Criminal Misc.
No, 3854/8 of 1977). Mr. Ghulam Ali Memon stated at the bar that an objection about the constitution of this Court was taken on behalf of the accused petitioner before the Supreme Court of Pakistan in a petition for special leave to appeal on which their Lordships of the Supreme Court were pleased to direct that these points be taken before the Full Bench constituted to try the challan case. He drew the attention of the Bench to the order dated the 24th of September, 1977, passed by the Supreme Court to this effect. Mr. Memon was directed to take these objections in writing by a duly drafted petition. The above-mentioned two petitions were submitted in pursuance of the above direction on the 4th of October 1977. In the first petition the following objections have been raised:
(1) After his appointment as Governor, Mr. Justice Aslam Riaz Hussain continued to hold the office of Chief Justice to the 13th of July, 1977, when the "President on the advice of Chief of the Army Staff (for which there is no sanction in the Constitution, and contrary to the provisions of Article 48 of the Constitution) appointed an Acting Chief Justice. From that date Mr. Justice Aslam xiaz Hussain ceased to hold the office of the Chief Justice of the Lahore High Court, since there is no Chief Justice in this Court it ceases to be a High Court under Article 192 of the Constitution.
(2) That the Acting Chief Justice did not take oath as required by Article 194 of the Constitution.
(3) That after his appointment as Election Commissioner on the 16th of July, 1977, and in any case on assumption of that office by him with effect from the 17th of July 1977, he ceased to hold the office of Acting Chief Justice in view of Article 216 of the Constitution.
3. In the second petition allegations of bias have been levelled against the Acting Chief Justice on the ground that the Central Executive of the Pakistan People's Party in its meetings held under the chairmanship of the accused petitioner expressed the opinion that the Chief Election Commissioner was prejudiced and partial against the Pakistan People's Party and that combining the o ce of the Chief Election Commissioner with that of Chief Justice of the largest High Court in the country "is a travesty of Justice." Some portion of this resolution is reproduced in which there is an insinuation that the Chief Election Commissioner entertained bias on account of his supersession by the People's Party Government.
4. It is further stated that the apprehension about partiality and prejudice is enhat cad by his order transferring the challan case (Criminal Original No, 60 of 1977) from the lower Court to the High Court on the same day when the order of bail of the petitioner was passed. There is a further complaint that despite the fact that a private complaint on the same facts was being heard by a Division Bench, the Acting Chief Justice considered it necessary to constitute a Bench of five judges for trial of the challan cue.
5. Another ground of apprehension is that the order of transfer was made without hearing the petitioner.
6. It may be stated at this stage that the only point on which bias of the Acting Chid Justice was alleged before the Supreme Court pertaining to criticism about his appointment as the Chief Election Commissioner and not to the supersession of any judge by the Peoples Party Government at the time of appointment of Chief Justice which was rendered necessary by the retirement of presumably Mr. Justice Sardar Mohammad Iqbal.
7. Mr. Ghulam All demon, addressed arguments on an additional point about the illegitimacy of the present Martial Law in view of Miss Asma v. The Government of the Punjab and another (1).
According to the learned counsel this is the basic point which requires consideration since a decision on it, in favour of the petitioner, would render ultra vlres of the Constitution, the imposition of Martial Law in the country, the suspend sion of the Constitution and the governance of the country by the Laws (Continuance in Force) Order, President's Orders, or the Martial Law Regulations and Orders.
8. It will not be apt to give a judgment on this particular question. The Supreme Court judgment, referred to above directing the petitioner to raise the points of constitution of the Court before this Court does not include this point, nor has it been agitated in any of the two petitions Cr. M. 932/M.
And Cr. 933/M of 1977. It appears that the Supreme Court which is seized of this matter in a petition filed by the petitioner's wife directly in that Ccuit, did not consider it fit to let it be the subject-matter of controversy simultaneously in any parallel forum. In these circumstatces, any decision of this controversy raised by the accused will not only amount to pre-empting the decision of the highest Court of the country but will be against the spirit of its order.
9. The other point is based on the assumption that by his appointment as Acting Governor Mr. Justice Aslam Riaz Hussain ceased to hold the office of the Chief Justice. Nothing is farther from the truth. According to Article 196 of the Constitution an Action Chief Justice can be appointed either when the office of Chief Justice is vacant or when the Chief Justice of a High Court is absent or is unable to perform the functions of his office due to any other cause. It is not essential for the appointment of Acting Chief Justice that the office of the Chief Justice must be vacant. An Acting Chief Justice can be appointed even when the Chief Justice holds office provided he is rendered unable to perform the functions of his office. The holding of the office of Chief Justice and ability to perform functions of the office flows and is a necessary corollary to the holding of the office of the Chief Justice, the converse is not true. The holder of an office may be rendered unable to perform his functions by a variety of reasons which need not be enumerated or even illustrated but there is no legal justification for holding that by this inability he ceases to hold his office or that the office becomes vacant. It is for this reason that Article 196 distinguishes between vacancy in the office of the Chief Justice on the one hand and his absence or inability to perform his functions on the other.
It does not treat "inability to perform functions" as synonymous with vacancy in the office.
10. It appears that appointment of an Acting Chief Justice has been considered necessary in this Court (as also other High Courts) on account of the appointment of Chief Justice as an Acting Governor of the province and his consequential liability to perform .The functions of the office of Chief Justice. This appointment of the Chief Justice as Acting Governor does not, therefore, amount to his vacating the office of the Chief Justice. The argument in regard to the constitution of the Court is clearly untenable.
11. No objection was taken to the appointment of the Chief Justice {{FOOT NOTE}} (1)PLD 1972 SC 139 {{FOOT NOTE}} as Acting Governor. Even if there had been any such objection that would hardly refloot on the Chief Justice continuing to hold his office as Chief Justice. The quo warran!o could he claimed only in regard to the o subsequently entrusted to him. It will therefore, be preposterous to hold that there is no High Court in the Punjab.
12. Nor can any valid objection be taken to the appointment of the Acting Chief Justice in these circumstances. The Acting Chief Justices in ali the High Courts have been appointed by the President of Pakistan in exercise of the powers conferred upon him by Article 2 of the High Court (Appointment of Acting Chief Justice) Order, 1977 (Post Proclamation Order No, 2 of 1977). It is under this Order that the Acting Chief Justice was appointed as such with effect from the 13th of July, 1977.
This Order confers powers on th President by its Clause (2) to appoint an Acting Chief Justice when the Chief Justice of a High Court is acting as a Governor of a Province. There does B not appear to be any contradiction in the language of clause (2) of this Order and Article 196 of the Constitution since under that Article the appointment of an Acting Chief Justice may be necessary on account of inability of the Chief Justice to perform the functions as such. The mere fact that the reference in the order of appointment has been made to the powers conferred by the President's (Post- Proclamation) Order No, 2 of 1977 does not make the order of appointment as an order beyond the ambit of Article 196 of the. Constitution. In any case the argument that the appointment is of no consequence for reason of its having been passed under Order 2 rather than under the Constitution hardly arises during the period that the question of legitimacy of Martial Law is subJucdie before the Supreme Court of Pakistan.
13. It was urged that the High Court (Appointment of Acting Chief Justice) Order. 1977, was not retrospective in character. This argument is not relevant since the above Order was enforced on the 13th of July, 1977, on which date my Lord tte Acting Chief Justice was appointed. The appointment synchronises with the date of enforcement of the above Order.
14. The next challenge is to the oath subscribed to by the Acting Chief Justice at the time of assumption of his office. The only objection is that the Acting Chief Justice did not subscribe to the oath as required under Article 194 of the Constitution. This objection cannot be sustained in view of the High Court Judges (Oath of Office) Order, 1977 President's (Post-Proclamation) Order No, 1 of 1977. The oath of oli cc prescribed therein is administrable to the Acting Chief Justice under clause
(5) of the High Court (Appointment of Acting Chief Justices) Order, 1977. A similar oath is required to be administered to all the Judges of the Supreme Court by virtue of Supreme Court Judges (Oath of Office) Order, 1977 enforced o the 22nd September 1977- All the Judges of the Supreme Court including his Lordship the Chief Justice have already subscribed to such an oath. The argument of the learned counsel, if allowed to prevail, will be chaotic for the C administration of justice in the country since it will lead to the result that there is no superior Court in Pakistan. Any construction of law which unreasonable or artificial or anamolous should be avoided. In view of the rule I cannot conceive of a construction which may result in anarchy and complete absence of forum for administration of law and justice.
15. The learned counsel finally argued on Criminal :Mac. No, 932/M of 1977 that by the appointment of the Actirg Chief _Justice as the Chief ' Election Commissioner he has ceased to hold the office of the Acting Chief Justice in view of Article 216 of the Constitution which is as follows:-
(1) The Commissioner shall not-
(a) hold any other office of profit in the service of Pakistani or
(b) occupy any other position carrying the right to remuneration for the rendering of service.
(2) A person who has held office as Commissioner shall not hold any office of profit in the service of Pakistan before the expiration of two years after he has ceased to hold that office: ' Provided that:
(a) This clause shall not be construed as preventing a person who was a Judge of the Supreme Court or of a High Court immediately before his appointment as Commissioner from resuming his duties as such Judge on the expiration of his term as Commissioner ; and
16. It was argued that since the Chief Eiection Commissioner is debarred from holding any other office of profit in the service of Pakistan or from occupying any other position carrying a right to remuneration for rendering of services, the result of assumpti3n of this office is that the Chief Election Commissioner ceases to hold the office of the Acting Chief Justice.
17. Article 213 provides that no person shall be appointed to be a Chief Election. Commissioner unless he is or has been, a Judge of the Supreme Court or is, or has been, a Judge of a High Court and is qualified under paragraph (a) of clause (2) of Article 177 to be appointed a Judge of the Supreme Court. Clearly, therefore. Person holding office as a Judge of the High Court can be appointed as a Chief Election Commissioner. The manner in which a Judge of a High Court ceases to hold office is provided in Article 195 which says that he shall hold office "until he attains the age of 62 years, unless he sooner resigns or is removed from office in accordance with the Constitution." A Judge, therefore, retains his office till the date of his superannuation, resignation or removal.
18. The mode of removal of a Judge of a High Court from his office is provided in Article 209 of the Constitution which deals with the constitution and powers of the Supreme Judicial Council of Pakistan. In sub-Article (7) it is specifically provided that "a Judge of the Supreme Court or a High D Court shall not be removed from office except as provided by the Article". Attainment of age of superannuation, resignation or removal from office being the only method by which a person ceases to hold office as a Judge, it cannot be urged with any amount of success that the appointment of a Judge as a Chief Election Commissioner creates automatically a vacancy in the High Court.
19. The disqualification to hold any other office of profit is not confined to the case of the Chief Election Commissioner. By Article 207 a Judge of the High Court also is disqualified from holding any other office of profit in the service of Pakistan if his remuneration is thereby increased or from occupying any other position carrying the right to remuneration for the rendering of services. An exception is, however, made inter din in regard to the office of the Chief Election Commissioner.
Sub-Article (2) of this Article provides that a person who had held office as a Judge is competent to hold the office of the Chief Election Commissioner despite his disqualification to hold any office of profit in the service of Pakistan before the expiration of two years after he has ceased to hold that office. Thus despite the b provided in sub-Article (1) a serving Judge can be appointed as Chief Election Commissioner.
20. The question is whether he ceases to be a Judge by his appointment as Chief Election Commissioner. This leads to further query When the Judge ceases to hold office ? The answer is furnished by two cases, decided by the High Court of West Pakistan and the other decided by the Supreme Court. A writ petition Rao Muhammad Ashfaq Khan v. Mr. Justice Musht Hussain etc. (Writ Petition No, 2141 of 1964) was filed in the High Court of West Pakistan to question the continuance of Mushtaq Hussain, J. (as, his Lordship then was) as a Judge of the High Court after his appointras Secretary, Ministry of Law and Parliamentary Affairs in the Government of Pakistan. It was urged on behalf of the petitioner that by assumption of the office of the Law Secretary, his Lordship ceased to be a Judge of the High Court. It was held on the language of Article 94 of the Constitution of 1962 which corresponds to Article 195 of the present Constitution that as Law Secretary his Lordship continued to hold an office of a Judge since he had neither reached the age of superannuation nor had resigned nor had been removed. It was also held that a Judge who accepts an office in violation of the constitutional provisions does not thereby cease to be a Judge.
21. This judgment was approved by the Supreme Court of Pakistan in Malik Ghulam Mani v. Mr. Justice Muhammad Gul (Petition for Special Leave to Appeal No, 16/P of 1974). The petitioner in that case filed a writ petition against Mr. Justice Muhammad Gul after his appointment as a Judge of the Supreme Court cba'lenging that appointment on the ground that he did not fulfil the requirement of Article 178(2) of the Interim Constitution which required him to have been a Judge of a High Court for a period aggregating not less than five years. It was averred that the period of judgeship of Mr. Justice Muhammad Gul in the aggregate was short of the period of five years as required by the above Article since the period of his service as Secretary, Ministry of Law and Parliamentary Affairs could not be computed to the period during which be held the office of a Judge. The Supreme Court, relying upon the case of Rao Muhammad Ashfaq Khan, took the view that Mr. Justice Muhammad Gui remained a Judge of the High Court even while holding the office of the Secretary, Law and Parliamentary Affairs, in view of the provision laid in Article 195 of the present Constitution.
22. It is clear from these authorities that a Judge vacates office only in the contingencies provided in Article 195 of the Constitution.
23. By his appointment to the office of the Chief Election Commissioner, a Judge of the High Court cannot cease to hold the office of Judge even though his appointment as Chief Election Commissioner be violative of the. Constitutional provisions. He ceases to be a Judge only in case of attainment of age of superannuation, or in case of resignation or removal.
24. It will be doing violence to the language of Article 216 to infer any bar from it against holding of the dual offices of the Judge of the High Court and the Chief Election Commissioner by the same person. This Article should not be construed in isolation, it should be interpreted in the light of one subject to the qualifications and disqualifications in Articles 207 and 213 read with the provisions about right of a Judge to hold office till the point of time specifically expressed in Article 195. The disqualification to hold any office of profit in the service of Pakistan if the remuneration is thereby increased and to occupy any other position carrying the right to remuneration for the rendering of services is a disqualification applicable both to a Judge of the High Court (Article 207) and to the Chief Election Commissioner (Article 216). And yet a serving Judge is qualified for appointment to the office of the Chief Election Commissioner (Article 213), the disqualification of Judge to hold another office in Article 207 does not consequently extend to his appointment as Chief Election Commissioner. In these circumstances and particularly in view of the similaiity of language of Articles 207 and 216 it will be anomalous to hold that after appointment as Chief Election Commissioner a Judge cannot continue to be a Judge of the High Court.
25 One of the principles of interpretation as stated in Maxwell (12th Edn.), at page 232 is that there is a general presumption that the same expression is presumed to have been used in the same sense throughout an Act or a series of Acts. The similarity of the language disqualifying the holding cf office of profit, ete., in Articles 207 and 216 should be construed in the same sense and subject to the same quali. Fication. If the constitutional provision in Article 207 (1) does not extend to the appointment of a Judge of the High Court to the office of the Chief Election Commissioner there is no reason why similar provision in Article 216 (1) should not be interpreted as allowing the Chief Election Commissioner to continue to hold office of a Judge of the High Court. There is nothing in Article 216 justifying the conclusion that by his appointment as Chief Election Commissioner a person ceases to hold the office of a Judge of the High Court.
26. The learned counsel for the ac :used petitioner placed reliance on proviso (a) to sub-Article (2) of Article 216 which provides that sub-Article (2) of Article 216 "shall not be construed as preventing a person who was a Judge of High Court immediately before his appointment as Commissioner from resuming his duties as such Judge on the expiration of his term as Commissioner''. From this provision he interred that after his appointment as Chief Election Commissioner the person so appointed ceases to be a Judge but he has a right to resume office as such after vacating the office of the Chief Election Commissioner. This argument is untenable in view of what has been stated above. The proviso clearly provides only for those cases where a Judge ceases to perform his duties as a Judge for any reason on his appointment as Chief Election Commissioner. Only in such case the question of resumption of his office as a Judge will arise after the expiry of the term of his office as the Chief Election Commissioner.
27. This objection is not valid for another reason also. A Chief Election Commissioner is appointed under the Constitution for a fixed tenure of three years which is likely to be extended under Article
215. The Election Commission constituted under Article 218 consists of the Chief Election Commissioner and two other members each of whom shall be a Judge of High Court appointed by the President after consultation with the Chief Justice of the High Court concerned and with the Chief Election Commissioner. He is also required to take oath of his office in the form set out in the Third Schedule as is evident from Article 214.
28. The Acting Chief Justice cannot be said to have been appointed as a Chief Election Commissioner under the Constitution. His appointment is regulated by Election Commission Order, 1977 (President's Post Proclamation Order 4 of 1977). This Order provides for appointment of a Chief Election Commissioner only for the forthcoming general election and not for the tenure fixed by Article 215 of the Constitution. Contrary to the provisions of Article 218 it provides for four members instead of two each of whom shall be a Judge of the Supreme Court or of a High Court appointed by the President after consultation. The powers of the Election Commission and the duties of the Chief Election Commissioner are also provided in that Order. The Chief Election Commissioner appointed under this Order is required to take an oath of office but the provision for this oath and the form of oath are given in the Chief Election Commissioner (Oath of Office) Order, 1977.
29. The Acting Chief Justice was appointed as a Chief Election Commissioner not for a period of tenure fixed in the Constitution but only for the forthcoming general elections. The Election Commission presided over by him is a Commission consisting of four members and not two, and the oath of office is separately provided for. He is also not receiving any salary for the additional charge. He cannot, therefore, be held to be a Chief Election Commissioner appointed under the Constitution whose term of office is regulated by Article 216. As3uming that Article 216 has the effect of creating a vacancy of a Judge of the High Court if he once assumes charge of the office of the Chief Election Commissioner, that bar cannot apply to the present Acting Chief Justice. This objecion is absolutely without merit.
30. Before dealing with the arguments about apprehension of partiality and prejudice of the Acting Chief Justice it will be necessary to give certain facts.
31. A complaint against Mr. Z. A. Bhutto and 19 other accused persons under sections 120-A, 199, 193, 201, 202, 201' 323, 342, 345, 368, 365, 504 and 506 read with section 109, P. P. C. Was filed before a Magistrate at Lahore by Mian 1ftikhar Ahmad Tani. The complainant applied to this Court by Criminal Misr, No, 93-T/1977 for transfer of this matter to this Court for triai on its original side. This petition was allowed on the 30th of July, 1977 and the above case was transferred on the ground 'inter did, that personalities who bad held high offices were involved in the case. A reference was made to the Acting Chief Justice to constitute a larger Bench to hear this matter. Similarly a complaint case filed by Ahmad Raza Kasuri in regard to the murder of his father Nawab Muhammad Ahmad Khan was transferred to this Court by order dated the 15th of August. 1977 passed in Criminal Misc. No, 100-T/1977. Another complaint case, Syed Zafar Ali Shah v. Zuflkar All Bhutto and 10 other) under sections 202, 207, 342, 365, 395, 396, 397, 398, 440, 148, 149, 109 and 114, P.
P. C. Was transfers red by an order dated the 20th of August, 1977 passed in Criminal Misc. No, 113- T/1977.
32. The complaint of Ahmad Raza Kasuri was referred to a Division Bench consisting of K. M. A.
Samadani, J. And Mazharul Hach J.
33. During the pendency of this complaint case the police filed an incomplete challan before a Magistrate on the 11th of September, 1977. The Magistrate acting under section 193 of the Code of Criminal Procedure sent the challan the same day to the Court of Session. The State filed an application for transfer of this case to the original side of the High Court, which came up for hearing on the morning of the 13th of September, 1977. The Acting Chief Justice passed an order of transfer and to constitution of a larger Bench of five Judges for hearing this matter obviously on the same ground on which a number of other cases against Mr. Bhutto and others had been transferred to the High Court.
34. There is some innuendo in the petition suggesting that the transfet order was passed after the order of grant of bail in the same case passed by K. M. A. Samadani, J. This is based on incorrect assumption. The order of transfer and constitution of a Bench was passed in the early hours of th morning, while the order of bail was passed by K. M A. Samadani, J., a few minutes before the recess which started at 10-30 a. m. There is nothing singular or strange in the order of transfer which was considered expedient in the interest of justice as Mr. Bhutto who had held some highest offices in the country was an accused. In view of the importance of trial the constitution of a larger Bench of five Judges was considered necessary. The consti tution of such a Bench should inspire more confidence rather than create any apprehension in the mind of any party. The apprehension of the petitioner about "partiality and prejudice" of the Acting Chief Justice on this ground is not at all reasonable.
35. Another ground of apprehension is the constitution of a special Bench of five Judges when the private complaint with regard to the same occurrence was being enquired into by a Division Bench of the High Court. But K. M. A, Samadani, J., though a member of the Division Bench, had himself treated the challan case as a case separate from the complaint case. It is for this reason that first he hesitated in entertaining the accused petitioner's bail application directly in the High Court. After he agreed to entertain it, he did not consider it necessary to refer it to the Division Bench constituted to hear the complaint case. This aspect of the matter has clearly been dealt with in the judgment given by this Court on the State's application for cancellation of bail of the accused petitioner. It will, therefore, be clear that the Acting Chief Justice was not the only Judge who treated the challan case as a separate case. Moreover, it looks rather strange that the accused petitioner should prefer to be tried by a Bench of two Judges and not a large Bench of five Judges bound by their oath of office to impart justice without fear or favour. This ground is also not reasonable.
36. The third ground is that the High Court had transferred the challan case at a stage when the complete challan had not been submitted. ' ' This argument raises question of legality of the transfer order and not a question of apprehension of partiality. This argument is without force.
37. As observed in Zaffar Sarwar v. State (1) and Wazir v. State (2) a trial can be started even on an incomplete challan. It was held in Ala Mohammad v. Inspector-General of Police (3) that there is no statutory prohibition for the police not to embark on a fresh investigation of the case after submission of the general report. If any defects in the first investigation or any flaws in the final report are subsequently detected the police can exercise this power even after the submission of a final report under section 172 of the Criminal Procedure Code and start of trial. The same vie v was taken in Mohammad Akbar v. The State ',4).
38. The incomplete challan succinctly revealed facts which con situte an offence. It also disclosed the names of accused and the names of a large number of witnesses. It was, therefore, a report within the meaning of section 173 on which the cognisance could be taken by the Magistrate. The action of the Magistrate in sending the case to the Sessions Court as required by section 190(3), Cr.
P. C. Establishes that the Magistrate had taken congnizacce of the matter on receipt of the report.
In these circumstances these was no hurdle in the transfer of the {{FOOT NOTE}}
(1) 1969 SCMR 59 (2) PLD 1962 Lab. 4C5
(3) PLD 1965 1 ah. 734 (4) 1970 St MR 335 {{FOOT NOTE}} case from the Court of Session to this Court nor it could be said to be al hasty action.
39. An allegation of bias is levelled on account of a resolution passed against the Chief Election Commissioner by the Central Executive of the Pakistan People's Party of which the accused petitioner is the Chairman. But it is not conceivable that the Chief Election Commissioner might feel prejudiced on the passing of such resolution even against the Chief Executive of the Pakistan People's Party much less its Chairman. Moreover it is admitted in para. 2 of the petition that the Chief Election Commissioner was only a member of the Election Commission which issued a Press note denying the allegation of partisanship and bias in respect of the observations on which the above resolution was passed and clarified that the observations of the Chief Election Commissioned were supported by the record of Commission. Although the Commissior could take action under the Contempt of Courts Act, it "decided to ignore the allegations", as it "had no intention to start a dialogue". The Commission further clarified that "it would always welcome acd act upon constructive suggestions from whichever quarter they emanate", This conduct on the part of the Election Commission is sufficient to allay any apprehensions on the part of the Chief Executive of the People's Party or its Chairman.
40. There is an insinuation in this resolution that bias may have resulted from supersession of Mushtaq Hussain. J. (as his Lordship then was) at the time of appointment of Chief Justice presumably in October, 1976. It is worthnoting that this insinuation does not appear to have been made before the Supreme Court. However, even this would not furnish any reason for apprehension since a number of Judges were so superseded and Mnshtaq Hussain, J. Was not the only person singled out.
41. It is clear from the conduct of the accused petitioner in this Court that the petitioner could not have entertained any apprehension about the possibility of not getting a fair trial. When the challan case came up for hearing before this Court on the 24th September, 1977, the accused petitioner expressed his fullest confidence in the Bench as is clear from the following paragraph of the order of that day.
"At this stage Mr. Aftab Gui, Advocate, appeared and stated that 'even after' Mr. Bhutto had made a request for adjournment of the cue for three weeks, this Court had granted a shorter adjournment.
When he was asked what he meant by 'even after', Mr. Bhutto arose and put the learned counsel aside and stated that ''I have the tallest confidence in your Lordships."
' This was the end of the matter. Later on Mr. Bhutto, while complaining against a newspaper report tried to explain that he had expressed confidence only in matters of adjournment of the challan case. The explanation is not worthy of any credence.
42. Another ground is that the order of transfer has been passed without notice to the accused petitioner. No such notice was required in the present case. Section 526 (6) provides for a notice to the Public Prosecutor on the application of an accused person for transfer of so criminal case. This provision is not applicable. Subsection (3) of section 526j read with clause (e) of section 526 (1) asthorises the High Court to transferl to it a case either on the application of s party or on its own initiative whenever it is expedient in the interest of justice. These provisions authorise! The High Court to pass an order without notice.
43. The principle of bias is applicable either on the basis of maxim nemo debet: esse judex in propria cau-a (no man can be a Judge in his ow cause) or where the Judge has the slightest pecuniary or proprietary interest in the subject-matter of the proceedings. In other cases it is essential that a real likelihood of bias must be established for the challenge to succeed. This was the view taken by the Supreme Judicial Council in the President v. Mr. Justice Shaukat All (1) This condition is not fulfilled in the present case
44. In view of what has been stated shove, there is no scope for entertaining any reasonable apprehension against the Acting Chief Justice In regard to the fair trial of this case. Even the remotest possibility of bias if such a possibility could even be countenanced in relation to a Judge of the superior Court, is completely ruled out by the nomination of Bench of no less than five Judges.
45. While Ghulam Ali Memon, Advocate was arguing Criminal Misc. No, 932-M/1917 the accused petitioner rose to intervene and made an attempt to address the Court. Though it is not the practice of this Court to allow a party to address argument where it is represented by a counsel unless the law requires it, the Bench agreed to give him an opportunity to make submissions after the close of arguments by his counsel. After the arguments were concluded the accused petitioner was asked to give his submissions in writing. He was further informed that in order to enable him to reduce his submissions in writing the services of a stenographer/typist would be made available to him. It was clarified to him that the judgment on the petitions would be announced the next day after taking into consideration the written submissions of the accused petitioner.
46. The accused petitioner did not submit his written submissions. On the other hand he sent a writing in which he stated that the Bench had promised to give him time to mate submissions 'for hours and hours" in order to supplement the arguments of his counsel. He also stated that the Court had refused to issue notice to the other side in those petitions in order to dispose them of summarily. He ended by saying that he is not gettirg a fair trial.
47. These allegations are not correct. At no stage the Bench gave any indication that he would be heard for "hours and hours" or that he would he heard to supplement the arguments of his counsel.
In the same manner no indication was given whether the judgment would be summary.
48. These petitions are without force and were for this reason dismissed.