2000 C L C 606

[Karachi]

Before Rana Bhagwan Das and Sabihuddin Ahmed, JJ

ARDESHIR COWASJEE and others---Petitioners

versus

K.B.C.A. and others--Respondents

Constitution Petition No.D-103 of 1999, decided on 10th April, 1999.

(a) Bias---

----Concept---Bias is a device with an ulterior motive to prevent a Judge

from sitting on a Bench---Where a Judge might not normally like to hear
the case on account of an apprehension of bias, such Judge may continue to
do so, where any of the parties was resorting to such device with an ulterior
motive to prevent that Judge from sitting on the Bench for example, by
engaging a counsel who was barred from appearing before him.

Federation of Pakistan v. Muhammad Akram Shaikh PLp 1989 SC 689 rel.

(b) Administration of justice---

---- Right to be heard by a particular Bench of High Court---Tentative

observations of Judges with respect to question of law involved in the
case--Nature---Effect---Judges do make such observations while hearing
cases but the same could never be treated as observations expressing their
final opinion---No principle of law available upon which a litigant could
claim a right to be heard by a particular Bench of High Court or a right to
seek retention or transfer of his cases on the basis of such tentative
observations.

(c) Code of Conduct framed by the Supreme Judicial. Council-

---- Art. IV(i)---Hearing of case by Judge, involving interest of his near

relatives or close friends---Effect---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 that Judge regards and
treats as near relatives or close-friends.
Federation of Pakistan v. Muhammad Akram Shaikh PLD 1989 SC 689
rel.

(d) Administration of justice-

---- Hearing of case by a Judge where one of the parties had remained his
client at the time of his law practice---Propriety---Rule of law, or even
propriety requires a Judge to disqualify himself from hearing such a case.

Islamic Republic of Pakistan v. Abdul Wali Khan PLD 1976 SC 57 ref.

(e) Constitution of Pakistan (1973)---

----Arts. 2A, 3, 4, 37 & 199---Civil Procedure Code (V of 1908), S.151---

Constitutional petition---Allegation of partiality of the Bench of High
Court---Petitioner raised objection to the hearing of. the case by a High
Court Bench on the basis of certain articles published in newspapers by one
of the parties in the case commenting and complimenting one of the Judges
constituting the Bench---Validity of effect---Judges who had taken an oath
to act strictly according to law and the Constitution were not so fragile as
to be swayed by newspaper comments, such comments when made by a
litigant himself, could cause apprehension in the maid of adversary
parties---Without going into the questions as to whether such comments
constituted contempt or whether the petitioner as a journalist had a right to
comment on issues of public concern, High Court strongly disapproved the
same---High Court observed that even when such petitioner .vas to
approach the Court in the interest of public-at-large, such petitioner should
have exercised restraint and refrained from creating impressions about
proclivities of individual Judge--Must be ensured that faith of people in
institutions of dispensation of justice was of the utmost importance,
irrespective of the individuals occupying such offices, was not
impaired---Any hope or apprehension as to likelihood of a particular
verdict emanating from a particular Bench of High Court must be dispelled
and it must be known that justice according to law could be delivered by
any Bench of High Court---High Court, in the larger interest of justice
maintaining public confidence in the system of administration of justice,
decided that Bench would not hear the case.

Multilines' case 1995 SCMR 362; Benazeer Bhutto v. Federation of

Pakistan PLD 1998 SC 416: M.H. Khundkar v. State PLD 1966 SC 140;
President of Pakistan v. Justice Shoukat Ali PLD 1971 SC 585; Islamic
Republic of Pakista.t v. Abdul Wali Khan PLD 1976 SC 57 and Asad Ali
v. Federation of Pakistan PLI) 1998 SC 161 ref.

Naimur RcLiman for Petitioner.

Muhammad Ali Sayeed, Advocate.
Muhammad Salcem, Addl. A.-G.
 Farough Nasim, Advocate.
Muhammad lqbal Memon, Advocate.
Mubarak H. Siddiqui, Advocate.
Ziaul Haq Makhdoom, Advocate.
ORDER

Civil Miscell uneous 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 opened 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 td

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 SCMR 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. l
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 be 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 he 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. l 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 observations with respect to question of law
involved, but as has been consistently observed by the Honourable
Supreme 8 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 trained 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 ill-will against Mr. Justice Muhammad Gul nor
has it been shown that he has any personal interest in the matter of any
k:nd 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 SCMR 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 matter
we 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:---

(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 toclear
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 llonourab!e iuprem:- were
al-nored and only an extract was reproduced is, to say the least unfair A
careful reading of the opinion of Aslam Riai 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 Aslam Riaz Hussain, 1. 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. Nioreover,`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 Wall 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 riot 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 roust 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.

Q. M. H. /M. A. K./A-1/K Order

accordingly.