Tag Archives: TRIAL

Whether the unregistered sale deed sought to be produced by the plaintiff in evidence in a suit for permanent injunction could be marked for a “collateral purposes”?

A Collateral transaction means, a transaction other than the transaction affecting the immovable property but which is in some way connected with it.

Before adverting to the case law, I would like to give a brief prelude to the issue. The plain dictionary meaning of the phrase “collateral” is “additional but subordinate, secondary” (Oxford Dictionary, Thesaurus & Word Power Guide, Indian Edition 2007). An area which often creates a doubt is whether the word “collateral” should be applied qua the transaction or the relief claimed in the suit? The proviso to Section 49 of the Registration Act makes it evident that it is only with reference to the transaction affecting the immovable property. For example, in a suit for injunction, the main purpose is to prove possession. The possession in a sale deed is collateral to the transaction. The case law discussed below would show that the phrase ‘collateral purpose’ is qua the transaction and not with reference to the relief claimed in the suit. Equally important area where the Courts often face the problem is in understanding the purport of the phrases ‘collateral transaction’ and ‘collateral purpose’.

Section 17 of the Registration Act specified the documents, whose registration is compulsory. Under clause (b) of sub-section (1) thereof, other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish whether in present or in future, any right, title or interest whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property, are included. A sale deed purporting to convey right and title in the property undoubtedly falls in this category of instruments. Section 49 of the Registration Act laid down the effect of non- registration of documents required to be registered. For proper and better appreciation, this provision is reproduced hereunder: “No document required by Section 17 or by any provisions of the Transfer of Property Act, 1882 to be registered shall,

(a) affect any immovable property comprised therein; or

(b) confer any power to adopt; or

(c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered.

Provided that an unregistered document affecting immovable property and required by this Act, or the Transfer of Property Act, 1882 to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877 or as evidence of any collateral transaction not required to be effected by registered instrument.” (Emphasis is mine) The proviso to Section 49 of the Registration Act, which is relevant for the present purpose, carved out an exception to the rule contained in the main provision as regards the effect of an unregistered document requiring registration and receiving of such document as evidence of any transaction. The proviso permits such document to be received as evidence under two contingencies, namely (1) as a piece of evidence of a contract in a suit for specific performance in Chapter II of the Specific Relief Act, 1877 and (2) as evidence of any collateral transaction not required to be effected by registered document.

In K.B.Saha & Sons Pvt. Ltd. v Development Consultant Ltd. the Supreme Court has considered the true meaning and purport of “collateral fact/collateral purpose” with reference to the decided case law. The question that arose before the Supreme Court was, whether the memorandum of agreement whereunder the suit property was leased out was admissible in evidence, as the same was not registered. The further question considered by the Supreme Court was, whether Clause 9 of the lease agreement which constituted an important term of the lease agreement could be used as evidence of any collateral transaction not required to be affected by registered instrument.

After considering the judgments in Haran Chandra Chakrvarti v Kaliprasanna Sarkar, Ratan Lai & others v Harisankar & others10, Bajaj Auto Limited v Behari Lal Kohli and Rana Vidya Bhushan Singh v Ratiram, in paragraph 34 the Supreme Court deduced the following principles:

“From the principles laid down in the various decisions of this Court and the High Courts, as referred to hereinabove, it is evident that:-

1. A document required to be registered is not admissible into evidence under Section 49 of the Registration Act.

2. Such unregistered document can however be used as an evidence of collateral purpose as provided in the Proviso to Section 49 of the Registration Act.

3. A collateral transaction must be independent of, or divisible from, the transaction to effect which the law required registration.

4. A collateral transaction must be a transaction not itself required to be effected by a registered document, that is, a transaction creating, etc. any right, title or interest in immoveable property of the value of one hundred rupees and upwards.

5. If a document is inadmissible in evidence for want of registration, none of its terms can be admitted in evidence and that to use a document for the purpose of providing an important clause would not be using it as a collateral purpose.”

On the above legal principles the Supreme Court held that Clause 9 cannot be looked into for collateral purpose as it constitutes an important term of the agreement.

On a compendious reference of the case law discussed above, the followings conclusions emerge:

i) A document, which is compulsorily registrable, but not registered, cannot be received as evidence of any transaction affecting such property or conferring such power. The phrase “affecting the immovable property” needs to be understood in the light of the provisions of Section 17(b) of the Registration Act, which would mean that any instrument which creates, declares, assigns, limits or extinguishes a right to immovable property, affects the immovable property.

ii) The restriction imposed under Section 49 of the Registration Act is confined to the use of the document to affect the immovable property and to use the document as evidence of a transaction affecting the immovable property.

iii) If the object in putting the document in evidence does not fall within the two purposes mentioned in (ii) supra, the document cannot be excluded from evidence altogether.

iv) A collateral transaction must be independent of or divisible from a transaction to affect the property i.e., a transaction creating any right, title or interest in the immovable property of the value of rupees hundred and upwards.

v) The phrase “collateral purpose” is with reference to the transaction and not to the relief claimed in the suit.

vi) The proviso to Section 49 of the Registration Act does not speak of collateral purpose but of collateral transaction i.e., one collateral to the transaction affecting immovable property by reason of which registration is necessary, rather than one collateral to the document.

vii) Whether a transaction is collateral or not needs to be decided on the nature, purpose and recitals of the document.

Having culled out the legal propositions, the discussion on this issue will be incomplete if a few illustrations as to what constitutes collateral transaction are not enumerated as given out in Radhomal Alumal (2 supra) and other Judgments. They are as under:

a) If a lessor sues his lessee for rent on an unregistered lease which has expired at the date of the suit, he cannot succeed for two reasons, namely, that the lease which is registrable is unregistered and that the period of lease has expired on the date of filing of the suit. However, such a lease deed can be relied upon by the plaintiff in a suit for possession filed after expiry of the lease to prove the nature of the defendant’s possession.

b) An unregistered mortgage deed requiring registration may be received as evidence to prove the money debt, provided, the mortgage deed contains a personal covenant by the mortgagor to pay .

c) In an unregistered agreement dealing with the right to share in certain lands and also to a share in a cash allowance, the party is entitled to sue on the document in respect of movable property .

d) An unregistered deed of gift requiring registration under Section 17 of the Registration Act is admissible in evidence not to prove the gift, but to explain by reference to it the character of the possession of the person who held the land and who claimed it, not by virtue of deed of gift but by setting up the plea of adverse possession .

(e) A sale deed of immovable property requiring registration but not registered can be used to show nature of possession.

The above instances are only illustrative and not exhaustive.

Atcom Technologies Ltd. Vs. Y.A. Chunawala and Company & Ors [ALL SC 2018 MAY]

KEYWORDS:- Condonation of Inordinate Delay-

DATE:- MAY 07, 2018

ACTS:- Order VIII Rule 1 of the Code of Civil Procedure, 1908

HELD:- “We fail to persuade ourselves with this kind of reasoning given by the High Court in condoning the delay, thereby disregarding the provisions of Order VIII Rule 1 of the Code of Civil Procedure, 1908 and the spirit behind it. This reason of the High Court that delay was condoned ‘by balancing the rights and equities’ is farfetched and, in the process, abnormal delay in filing the written statement is condoned without addressing the relevant factor, viz. whether the respondents had furnished proper and satisfactory explanation for such a delay. The approach of the High Court is clearly erroneous in law and cannot be countenanced. No doubt, the provisions of Order VIII Rule 1 of the Code of Civil Procedure, 1908 are procedural in nature and, therefore, hand maid of justice. However, that would not mean that the defendant has right to take as much time as he wants in filing the written statement, without giving convincing and cogent reasons for delay and the High Court has to condone it mechanically”

SUPREME COURT OF INDIA

Atcom Technologies Ltd. Vs. Y.A. Chunawala and Company & Ors.

[Civil Appeal No(S). 4266-4267 of 2018]

A.K. SIKRI, J.

1. The present appeal is filed impugning the final judgment and order dated November 21, 2016 passed by the High Court of Judicature at Bombay in Commercial Appeal No. 33 of 2016 in Notice of Motion No. 1211 of 2015 in Suit No. 3813 of 2000 with Notice of Motion No. 1706 of 2016 in Appeal No. 420 of 2016 in Notice of Motion No. 1211 of 2015 in Suit No. 3813 of 2000, whereby the High Court has dismissed the appeal filed by the appellant challenging the order dated March 15, 2016 passed by the learned Single Judge in Notice of Motion No. 1211 of 2015 in Suit No. 3813 of 2000.

2. The Notice of Motion filed by the respondents was for condonation of delay in filing the written statement. Delay was of Civil Appeal Nos. 4266-4267 of 2018 Page 1 of 15 15 years and 54 days (though according to the appellant it is 14 years and 166 days). The learned Single Judge condoned the delay vide order dated March 15, 2016 with a cost of Rs.5 lakhs which was ordered to be paid by the respondents to the appellant. Aggrieved by the said order condoning such an inordinate delay, the appellant preferred appeal before the Division Bench which has affirmed the order passed by the Single Judge and dismissed the appeal of the appellant.

3. The dispute between the parties is with regard to the dues allegedly payable by the respondents to the appellant of about Rs.11.9 crores with additional interest as per the particulars of claim annexed to the suit. According to the appellant and as per the arrangement between the parties, the respondents have failed and neglected deliberately with ulterior motives and mala fide intentions to refund the money or handover possession of certain flats in a building named ‘Emerald Court’ situated at Andheri (E) in Mumbai in respect of which Agreements for Sale have been executed.

4. The case set up by the appellant is somewhat like this:

(a) It may be mentioned that respondent Nos. 1, 3 and 4 are the owners of a parcel of land admeasuring 30,262 sq. mtrs. Civil Appeal Nos. 4266-4267 of 2018 Page 2 of 15 situated at Village Kondivita, Ramkrishna Mandir Marg, Andheri (E), Mumbai (hereinafter referred to as the ‘Kondivita Plot’). Respondent No. 1 and respondent No. 2 (partner of M/s. Shree Siddhivinayak Developers Ltd.) entered into an agreement whereby respondent No. 2 was permitted to develop the Kondivita Plot by constructing buildings and sell the premises on ownership basis.

Memorandum of Understanding was executed between M/s. Shree Siddhivinayak Developers Ltd. and ATCO Securities and Finance Ltd. (sister concern of the appellant – now known as Kimaya Wellness Ltd.) (hereinafter referred to as the ‘appellant’s sister concern’) pursuant to which appellant’s sister concern was granted development and marketing rights of 2,00,000 sq. ft. FSI in a property to be constructed on the piece and parcel of land bearing S. No. 3(P) and 4(P) CST No. 5P and 6 admeasuring 26,033 sq. mtrs. and further S. No. 3(P) CST No. 5(P), 6(P) and 7(P) admeasuring 7,341 sq. mtrs. of the Revenue Village Kopri, Powai Road, Taluka Kurla within Greater Bombay (hereinafter referred to as the ‘Kopri Plot’) for a consideration of Rs.44,00,00,000/- (Rupees Forty Four Crores) only. Earlier Kimaya Wellness Ltd. name was ATCO Securities and Finance Ltd. The name was subsequently changed to Saral Civil Appeal Nos. 4266-4267 of 2018 Page 3 of 15 Disha Investments Ltd. and again the said name changed to Kimaya Wellness Ltd.

(b) Pursuant to the MOU dated December 20, 1995, appellant’s sister concern advanced a sum of Rs.14,23,50,000/- (Rupees Fourteen Crore Twenty Three Lakhs Fifty Thousand) only to M/s. Shree Siddhivinayak Developers Ltd. All the payments are made through proper banking channels. Thereafter, a Tripartite Agreement dated April 1, 1996 was executed between the appellant, appellant’s sister concern and M/s. Shree Siddhivinayak Developers Ltd. whereby it was agreed that the development and marketing rights under the MOU dated December 20, 1995 would be shared equally between the appellant’s sister concern and the appellant.

It was further agreed that out of the sum of Rs.14,23,50,000/- already advanced by appellant’s sister concern to M/s. Shree Siddhivinayak Developers Ltd., 50% would be treated as having been advanced by the appellant and the remaining 50% would be treated as having been advanced by the appellant’s sister concern. It was followed by MOU dated May 30, 1996 between the appellant and M/s. Shree Siddhivinayak Developers Ltd. regarding the terms of the aforesaid Tripartite Agreement dated April 1, 1996.

(c) As per the appellant, in December 1996, by mutual consent, parties cancelled the said Tripartite Agreement dated April 1, 1996.

(d) Various further documents were executed between the parties and it is not necessary to give detailed narration thereof. Suffice is to state that as per the version of the appellant, it was agreed that out of Rs.7,11,75,000/- advanced by the appellant to M/s. Shree Siddhivinayak Developers Ltd., Rs.3,77,30,000/- would be adjusted towards purchased consideration for 11 flats that would be purchased by the appellant in a building known as ‘Emerald Court’ at the Kondivita Plot. The balance amount of Rs.3,34,45,000/- was agreed to be refunded by M/s. Shree Siddhivinayak Developers Ltd. to the appellant.

This arrangement was on account of M/s. Shree Siddhivinayak Developers Ltd. expressing their inability to repay the appellant entirely. However, even when some additional amounts were paid towards the aforesaid flats, the respondent No. 2 failed to deliver the 11 flats in respect of which agreement was entered into. The appellant and respondent No. 2 has also entered into 12 separate registered Agreements for purchase of 12 more flats. According to the appellant, these flats were also not delivered.

(e) To cut the long story short, it is suffice to note that when the possession of the flats was not delivered, the appellant demanded back the amount paid to respondent No. 2. According to the appellant, the amount paid was not refunded. It led to filing of the following three cases:

(i) Summary Suit No. 4870 of 1999 by the sister concern of the appellant in the High Court of Judicature at Bombay seeking decree of Rs.4,91,60,000/- along with interest @18% p.a.

(ii) Suit No. 3813 of 2000 by the appellant in the High Court of Judicature at Bombay for decree in the sum of Rs.7,88,90,000/- along with interest @18% p.a.

(iii) M/s. Shree Siddhivinayak Developers Ltd. (respondent No. 2) and its all partners also filed suit No. 305/2001 against Saral Disha Investment Limited (sister concern of the appellant).

5. Various developments which took place in these three suits need not be noted except that in Notice of Motion taken out by the appellant in its suit, Court Receiver was appointed to take physical possession of 23 flats in ‘Emerald Court’. Further, unconditional leave to defend was granted to the respondents in Suit No. 4870 of 1999 vide order dated March 16, 2002 and the Court also directed that all the three suits shall be tried together.

When these suits were listed for hearing before the Single Judge on January 29, 2015, it was noticed that no written statement was filed in Suit Nos. 4870 of 1999 and 3813 of 2000 filed by the appellant’s sister concern and appellant respectively. The Court adjourned the case to February 12, 2015 for ex-parte decree. These cases were again adjourned and came up for hearing on May 06, 2015 on which date order was passed recording that written statement in these two suits was yet to be filed. Cases were adjourned to June 22, 2015.

When the things rested at that stage, respondent No. 2 filed Notice of Motion No. 1212 of 2015 in Suit No. 4870 of 1999 on July 24, 2015 seeking setting aside of order dated January 29, 2015 and further sought condonation of delay of 13 years and 41 days in filing the written statement. Likewise, Notice of Motion No. 1211 of 2015 was also filed in Suit No. 3813 of 2000 seeking condonation of delay of 5 years and 54 days in filing the written statement (though as per the appellant, delay was 14 years and 166 days).

6. Notice of Motion No. 1212 of 2015 in Suit No. 4870 of 1999 was taken up for hearing and vide order dated October 28, 2015, it was dismissed by the learned Single Judge who refused to condone the delay with, inter alia, following observations:

“4. It is obvious from the affidavit in support of Notice of Motion that the defendants had completely and knowingly neglected the proceedings. …………. The facts of the case on hand disclose patent inordinate delay on the part of the defendants and as such attracts the doctrine of prejudice. The delay is to the extent of completely ignoring the proceedings. Taking a liberal view of such gross facts would amount doing injustice to the plaintiff and allowing premium on the negligence of the defendants.”

7. Intra-Court appeal was filed by the respondents against the said order before the Division Bench of the High Court which was also dismissed by the Division Bench on January 6, 2016 holding that ‘the Defendants had completely and knowingly neglected the proceedings’.

It would be pertinent to mention at this stage that Special Leave Petition was filed challenging the order of the Division Bench dated January 6, 2016 (SLP No. 28775 of 2016) has been dismissed by this Court on September 4, 2017.

8. Insofar as Notice of Motion No. 1211 of 2015 in Suit No. 3813 of 2000 is concerned, it resulted in altogether opposite outcome. The learned Single Judge passed the order dated March 15, 2016 allowing the same thereby condoning the delay in filing the written statement with the imposition of cost of 5 lakhs upon the respondents. The reason given by the learned Single Judge was that till the year 2009, Writ of Summons had not been served upon the respondents and, therefore, the delay was of 5 years and 54 days and was condoned on the ground that the appellant also took number of years in serving the summons upon the respondent.

Appeal against this order filed by the appellant has been dismissed vide impugned order dated April 18, 2016 affirming the order of the learned Single Judge. The entire reasoning in support of this order is contained in para 5 of the judgment of the High Court which reads as under: ” In the impugned order, the learned Judge has assigned reasons. He has found from the record and the affidavits placed, that even the Appellant / Plaintiff did not take any concrete steps. In a suit filed in the year 2000, the writ of summons was not prepared and served till 2009. In paragraph 6 of the impugned order, the explanation that the writ of summons was served promptly has not been accepted.

The learned Judge has found that the writ of summons was not served for a period of nine years after institution or filing of the suit. In such circumstances an overall view of the matter was taken and by balancing the rights and equities, the learned Judge has granted the request of the Respondents to allow them to file the Written Statement and defend the suit / claim on merits. In the process, the learned Judge has relied upon well settled principle that all procedural rules are handmaids of justice.

So long as there is no irreparable loss or prejudice or a case made out of malafides ordinarily a party should be allowed to defend legal proceedings is the rule invoked and applied, then, we do not think that in the facts and circumstances of the present case, the application of such rule can be faulted. Once the rights and equities have been balanced, then, we do not think that in further appellate jurisdiction such an order deserves interference. The Appeal is devoid of merits and is dismissed. By consent of parties, the time to take inspection of the documents and complete pretrial formalities is extended by eight weeks.”

9. As is clear from the above, the circumstance which weighed with the High Court in condoning the delay was that though the suit was filed in the year 2000, summons were served only in the year 2009. Plea of the appellant that summons were actually served in the year 2000 itself was not accepted. On this basis, the High Court came to the conclusion that since appellant itself took time of 9 years after institution or following of the suit, to serve the summons upon the respondents herein, equities were balanced by allowing the respondents to file the written statement, more so, when no irreparable loss or prejudice was caused to the appellant and no case of mala fides was made out against the respondents.

10. Notice in the Special Leave Petition was issued on July 18, 2017 which was duly served upon all the five respondents. However, none of the respondents have entered appearance. Accordingly, the Registry processed the matter for listing before the Court and it was listed for hearing on March 26, 2018. On that day also, nobody appeared on behalf of the respondents. Still in order to give one more opportunity, the matter was directed to be listed after three weeks. It again came up for hearing on April 20, 2018. Since respondents failed to appear in spite of all the aforesaid chances given to them, this Court is left with no option but to proceed ex-parte against the respondents and heard the matter in their absence.

11. Mr. Amar Dave, learned counsel appearing for the appellant submitted that the reason given by the High Court in condoning the delay was totally erroneous inasmuch as Writ of Summons were served upon the respondents immediately after the filing of the suit and not in the year 2009 as mentioned. It was further argued that, in any case, even if when the summons were served in the year 2009, there was no satisfactory explanation submitted by the respondents seeking condonation of delay which was more than 5 years 54 days even on counting the period from the year 2009.

He also submitted that the High Court failed to notice that, on identical grounds, Notice of Motion No. 1212 of 2015 in Suit No. 4780 of 1999 for condonation of delay in filing the written statement was filed by the respondents which was dismissed by the learned Single Judge and that order was affirmed by the Division Bench (and now even by this Court). While dealing with the instant matter, the High Court failed to consider those orders passed by the co-ordinate Benches.

12. We find force and due merit in the aforesaid submissions of the learned counsel for the appellant.

13. We shall proceed on the basis that summons in Suit No. 4870 of 1999 were served only in the year 2009. In this behalf, it may be stated that in this suit, unconditional leave to defend was granted by the learned Single Judge on March 16, 2002. By the same order, all three suits were directed to be tried together. Therefore, Vakalatnama in the suit was also filed and on the dates fixed before the Court, respondents were appearing having knowledge about the Suit No. 4870 of 1999 as well. Obviously, this leave to defend was granted after the respondents had put in appearance and filed application for grant of leave to defend.

Thus, summons in the suit were served upon the respondents, albeit, in Form 4 of Appendix B, as stipulated in Rule 2 of Order XXXVII of the Code of Civil Procedure, 1908. May be, thereafter, Writ of Summons were not served again upon the respondents. However, in any case, these summons were served in the year 2009. Therefore, it was incumbent upon the respondents to show as to in what manner they were prevented from filing the written statement.

14. It has to be borne in mind that as per the provisions of Order VIII Rule 1 of the Code of Civil Procedure, 1908, the defendant is obligated to present a written statement of his defence within thirty days from the date of service of summons. Proviso thereto enables the Court to extend the period upto ninety days from the date of service of summons for sufficient reasons. Order VIII Rule 1 of the Code of Civil Procedure, 1908 reads as under:

“1. Written statement.- The defendant shall, within thirty days from the date of service of summons on him, present a written statement of his defence: Provided that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the same on such other day, as may be specified by the Court, for reasons to be recorded in writing, but which shall not be later than ninety days from the date of service of summons.”

15. This provision has come up for interpretation before this Court in number of cases. No doubt, the words ‘shall not be later than ninety days’ do not take away the power of the Court to accept written statement beyond that time and it is also held that the nature of the provision is procedural and it is not a part of substantive law. At the same time, this Court has also mandated that time can be extended only in exceptionally hard cases. We would like to reproduce the following discussion from the case of Salem Advocate Bar Association, Tamil Nadu v. Union of India, (2005) 6 SCC 344:

“21. …There is no restriction in Order 8 Rule 10 that after expiry of ninety days, further time cannot be granted. The court has wide power to “make such order in relation to the suit as it thinks fit”. Clearly, therefore, the provision of Order 8 Rule 1 providing for the upper limit of 90 days to file written statement is directory. Having said so, we wish to make it clear that the order extending time to file written statement cannot be made in routine. The time can be extended only in exceptionally hard cases. While extending time, it has to be borne in mind that the legislature has fixed the upper time-limit of 90 days. The discretion of the court to extend the time shall not be so frequently and routinely exercised so as to nullify the period fixed by Order 8 Rule 1.”

16. In such a situation, onus upon the defendant is of a higher degree to plead and satisfactorily demonstrate a valid reason for not filing the written statement within thirty days. When that is a requirement, could it be a ground to condone delay of more than 5 years even when it is calculated from the year 2009, only because of the reason that Writ of Summons were not served till 2009?

17. We fail to persuade ourselves with this kind of reasoning given by the High Court in condoning the delay, thereby disregarding the provisions of Order VIII Rule 1 of the Code of Civil Procedure, 1908 and the spirit behind it. This reason of the High Court that delay was condoned ‘by balancing the rights and equities’ is farfetched and, in the process, abnormal delay in filing the written statement is condoned without addressing the relevant factor, viz. whether the respondents had furnished proper and satisfactory explanation for such a delay. The approach of the High Court is clearly erroneous in law and cannot be countenanced. No doubt, the provisions of Order VIII Rule 1 of the Code of Civil Procedure, 1908 are procedural in nature and, therefore, hand maid of justice. However, that would not mean that the defendant has right to take as much time as he wants in filing the written statement, without giving convincing and cogent reasons for delay and the High Court has to condone it mechanically.

It is also to be borne in mind that when the matter was listed on January 29, 2015, it was specifically recorded that no written statement was filed and the two suits were adjourned for ex-parte decree. In other suit i.e. Suit No. 3813 of 2000, similar Notice of Motion seeking condonation of delay was rejected though it contained same kind of explanation and that order has been upheld till this Court. On this ground also, there was no reason to take a contrary view in the instant matter when both the suits were taken up together and proceed simultaneously.

18. We accordingly allow these appeals, set aside the impugned order and dismiss Notice of Motion No. 1212 of 2015.

No cost.

J. (A.K. SIKRI)

J. (ASHOK BHUSHAN)

NEW DELHI;

MAY 07, 2018.

National Sports University Ordinance, 2018 promulgates

After the Union Cabinet on May 23 approved an ordinance to set up the country’s first national sports university in Imphal, President Ram Nath Kovind gave his assent to the ordinance on Friday.

Object

To establish and incorporate a National Sports University in the State of Manipur, a specialised University first of its kind, to promote sports education in the areas of sports sciences, sports technology, sports management and sports coaching besides functioning as the national training centre for select sports disciplines by adopting best international practices and for matters connected therewith or incidental thereto.

The original ordinance[ click]National Sports University Ordinance, 2018

Mercy Petition to the President of India

Law Library

STATISTIC 

  • Rajendra Prasad accepted 180 mercy pleas and rejected just one.
  • Sarvapalli Radhakrishnan allowed 57 mercy petitions while rejecting none.
  • Zakir Hussain did not send a single man to the gallow, accepting 22 mercy pleas.
  • VV Giri too did not reject a mercy petition, and accepted three pleas.
  • Fakrudhin Ali Ahmed and N Sanjeeva Reddy did not deal with any mercy petitions in their tenures.
  • Zail Singh rejected 30 mercy petitions, allowing just two.
  • R Venkatraman holds the record of rejecting the highest number of mercy pleas – 45. He allowed five petitions.
  • SD Sharma did not hand out a single commutation, rejecting 18 pleas for mercy.
  • KR Narayanan kept all mercy petitions pending.
  • APJ Kalam ruled on just two pleas, rejecting one and accepting the other.
  • Pratibha Patil commuted 34 mercy petitions and rejected five.

[ Law Commission of India Data]

Ram Nath Kobind

 Jagat Rai – 23.04.2018- The mercy petition was rejected by the President.

Judgment in General (R) Parvez Musharraf’s Case [30.01.2014]

LAW OF PAKISTAN

IN THE SUPREME COURT OF PAKISTAN

(REVIEW JURISDICTION)

PRESENT:

MR. JUSTICE TASSADUQ HUSSAIN JILLANI, HCJ , MR. JUSTICE NASIR-UL-MULK ,MR. JUSTICE JAWWAD S. KHAWAJA ,MR. JUSTICE ANWAR ZAHEER JAMALI ,MR. JUSTICE KHILJI ARIF HUSSAIN ,MR. JUSTICE MIAN SAQIB NISAR ,MR. JUSTICE ASIF SAEED KHAN KHOSA ,MR. JUSTICE SARMAD JALAL OSMANY ,MR. JUSTICE AMIR HANI MUSLIM ,MR. JUSTICE IJAZ AHMED CHAUDHRY ,MR. JUSTICE GULZAR AHMED ,MR. JUSTICE SH. AZMAT SAEED ,MR. JUSTICE IQBAL HAMEEDUR RAHMAN ,MR. JUSTICE MUSHIR ALAM

CIVIL REVIEW PETITION NOs. 328 & 329 OF 2013 IN
CONSTITUTION PETITION NOs. 8 & 9 OF 2009

Dated: 30-JANUARY-2014

General (R) Parvez Musharraf                                         (In both cases)

                                                                                              … Petitioner

VERSUS

1.  Nadeem Ahmed (Advocate) and another                   (In CRP 328/2013)

2.  Sindh High Court Bar Association through

its Secretary and others                                                       (In CRP 329/2013)

                                                                                                … Respondents

 For the Petitioner:                        Syed Sharif ud Din Pirzada, Sr. ASC

Assisted by Ch. Faisal Hussain, Advocate

Raja Muhammad Ibrahim Satti, Sr. ASC

Assisted by Shazia Yasin, Advocate and

Mr. Osman Ibrahim, Advocate

Dr. Khalid Ranjha, Sr. ASC

Mr. Ahmed Raza Kasuri, Sr. ASC

Barrister Muhammad Ali Saif, ASC

Syed Zafar Abbas Naqvi, AOR

For the Respondent (1):              Mr. Rasheed A. Rizwi, ASC/Caveator

Mr.  Asim  Iqbal,  President  Sindh  High

Court Bar Association

(In CRP 329/2013)

Date of Hearing:              28, 29 & 30.01.2014

DATE OF DECISION : 16 th March, 2016.

JUDGMENT

TASSADUQ  HUSSAIN  JILLANI,  CJ.-  Through  these review  petitions,  petitioner  has  sought  review  of  this  Court’s judgment  dated  31.7.2009  (short  order  and  detailed  reasons reported  in Sindh  High  Court  Bar  Association  vs.  Federation  of Pakistan (PLD  2009  SC  789). Although  these  petitions  are  barred by  1576  days,  yet  in  the  interest  of  justice,  we  have  heard petitioner’s  learned  counsel  at  some  length  and  have considered the submissions made even on merit.

2.  The  facts  giving  rise  to  the  instant review petitions briefly stated are that on 12.10.1999, petitioner General (R) Pervez Musharraf  who  was  then  the  Chairman  Joint  Chiefs  of  Staff Committee and Chief of the Army Staff seized power by dismissing the  government  of  the  then  Prime  Minister  Mian  Muhammad Nawaz  Sharif.  He  proclaimed a  State  of  Emergency throughout Pakistan  and  assumed  the  office  of  Chief  Executive  of the Islamic Republic  of  Pakistan,  issued  the  Provisional  Constitutional  Order No. I  of  1999  as  also  the  Oath  of  Office (Judges) Order No.  10  of 1999. On 25.1.2000 yet another Oath of Office (Judges) Order No. I of 2000 was promulgated wherein it was provided that the Judges of Superior Courts who were holding office immediately before the commencement of the said Order would not continue to hold office if the said Judges were not given or did not take Oath in the form as  set  out  in  the  Schedule  as  a  result  of  which  certain  Judges ceased  to  hold  office. These  orders  were  challenged  before  this Court through several  petitions  which  were  dismissed.  However, the  actions  of  General  Pervez  Musharraf  were  validated  with certain conditions and limitations (Syed Zafar Ali Shah v. General Pervez Musharraf, Chief Executive of Pakistan (PLD 2000 SC 869) which inter alia were:

(ii)  That  constitutional  amendments  by  Chief  Executive can  be  resorted  to  only  if  the  Constitution  fails  to provide  solution  for  the  attainment  of its  declared objectives;

(iii)  That  no  amendment  shall  be  made  in  the  salient features  of  the  Constitution  i.e.  independence  of judiciary,  federalism,  parliamentary  form  of government blended with Islamic provisions;

(iv)  That  the  Fundamental  Rights  provided  in  Part  II, Chapter I of the Constitution shall continue to hold the field but the State will be authorized to make any law or take any executive action in deviation of Articles 15, 16,  17,  18,  19  and  24  as  contemplated  by  Article 233(1)  of  the  Constitution,  keeping  in  view  the language of Articles 10, 23 and 25 thereof;

(v)  That  the  three  years  period  is  allowed  to  the  Chief Executive  with  effect  from  the  date  of  Army  Takeover i.e.  12th of  October  1999  for  achieving  his  declared objectives;

(vi)  That the Chief Executive shall appoint a date, not later than 90 days before the expiry of the aforesaid period of  three  years,  for  holding  of  a  general  election  to  the National  Assembly  and  the  Provincial  Assemblies  and the Senate of Pakistan; and

(vii)  That  this  Court  has  jurisdiction  to  review/re-examine the  continuation  of  the  Proclamation  of  Emergency, dated  12th October,  1999  at  any  stage  if  the circumstances so warrant as held by this Court in the case  of  Sardar  Farooq  Ahmed  Khan  Leghari  v. Federation of Pakistan PLD 1999 SC 57.

3.  Mr.  Justice  Iftikhar  Muhammad  Chaudhry, former  Chief Justice  of  Pakistan who  headed  the  Bench  which  delivered  the judgment  review  of  which  is  sought  (Sindh  High  Court  Bar Association  PLD 2009 SC 879 Supra) was Chief Justice of the High Court  of  Balochistan when  Oath  of  Office  (Judges)  No.1  of  2000 was  promulgated and  State  of  Emergency  was proclaimed. Since six  Judges  of  the  Supreme  Court  ceased  to  hold  office  for  not taking fresh oath and vacancies occurred, he was elevated to this Court and subsequently he became the Chief Justice of Pakistan.

4.  On 9th of March, 2007, the petitioner filed a Reference before the  Supreme  Judicial  Council  under  Article  209  of  the Constitution against  Mr.  Justice  Iftikhar  Muhammad  Chaudhry, Chief  Justice  of  Pakistan and  that was  challenged  by  the  latter through Constitution  Petition  No.  21  of 2007 which  was  accepted on  20.7.2007 by  a  9-Member  Bench  of  this  Court as  a  result  of which he was restored (Mr. Justice Iftikhar Muhammad Chaudhry, Chief Justice of Pakistan v. The President of Pakistan, short order PLD 2007 SC 578 and detailed judgment of which is at PLD 2010 SC 61).

5.  After the restoration of the Chief Justice on account of the aforesaid judgment of this Court (PLD 2007 SC 578), a Bench of this Court was hearing a petition wherein the issue mooted was whether General Pervez Musharraf  (who  then  was  President  and Chief  of  Army  Staff)  was  qualified  to  contest an election to  the office  of  the President or  not.  Petitioner  apprehending an  adverse verdict decided  to  take  a  drastic  action  against the  Judiciary.

Sensing  this the  Chief  Justice  of  Pakistan constituted  a Bench of available 7 Judges of the Supreme Court, which, passed a restraint order [in the case of Wajihuddin Ahmed {C.M.A. No. 2869 of 2007 in  Constitution  Petition  No.  73  of  2007)] against  the apprehended instruments  and  measures  and  directed,  inter  alia, the  Judges  of Supreme  Court  and  High  Courts  not  to take  oath  under  PCO  or take any other extra-constitutional step.

6.  The  petitioner  proclaimed a State  of  Emergency  on 3.11.2007  and  prescribed  a  fresh  Oath  of  office  for  all  Judges  of the  Supreme  Court  and  High  Courts  and  it  was  provided  therein (Oath of Office (Judges) Order, 2007) that a Judge who did not take Oath of office under the said Order shall cease to hold office. About 15 Judges of the Supreme Court including Chief Justice of Pakistan Mr.  Justice Iftikhar  Muhammad  Chaudhry  and  56 Judges  of  the  High  Courts  were prevented  from  performing  the duties of their constitutional office as they did not take such oath.

7.  Certain Judges of the Supreme Court and High Courts including  the  Chief  Justice  of  Pakistan  were  put  under  house arrest. Immediately thereafter, General Pervez Musharraf made the appointment  of  Abdul  Hameed  Dogar,  J,  as  the  Chief  Justice  of Pakistan, who was at serial No. 4 of the seniority list of the Judges of  the  Supreme  Court,  i.e.  Chief  Justice  of  Pakistan,  Rana Bhagwandas, J, (as he then was) and Javed Iqbal, J were senior to Abdul Hameed Dogar, J.

8.  Through a suspectedly prompted  petition,  the  afore-referred proclamation  of  emergency was  challenged  in the  case  of Tika  Iqbal  Muhammad  Khan  v. General  Pervez  Musharaf  and others (PLD  2008  SC  178)  and  this  Court  headed  by  Mr.  Justice  Abdul  Hameed  Dogar  validated  all  the  afore-mentioned  acts  of petitioner General Pervez Musharraf and the review petitions were dismissed  (Tika  Iqbal  Muhammad  Khan  v.  General  Pervez Musharraf,  Chief  of  Army  Staff,  Rawalpindi  and  2  others  (PLD 2008 SC 615). Meanwhile, elections were held in the country as a result of which Syed Yousaf Raza Gillani became Prime Minister of Pakistan who  in  his  first  speech  before  the  Parliament before taking Oath of office announced the release of all the Judges who had  been  detained.  After a  few  days,  petitioner  General Pervez Musharraf  resigned.  On  account  of the persistent  demand  of  Bar Associations and general public, Judges who were prevented from working,  on  account  of Oath  of  Office  (Judges)  Order,  2007 including  the  then  Chief  Justice  of  Pakistan  Mr.  Justice  Iftikhar Muhammad  Chaudhry  had  to  be  restored.  After  restoration  of Chief Justice of Pakistan and other Judges, the actions of General Pervez  Musharraf and the  appointment  of  Judges  after  3rd  of November, 2007 came under challenge and this Court pronounced the judgment in Sindh High Court Bar Association v. Federation of Pakistan (Short order at PLD 2009 SC 789 and detailed reasons at PLD  2009  SC  879)  which  is sought  to  be  reviewed through these review petitions.

9.  Learned counsel for the petitioner in support of these petitions made the following submissions:-

Raja Muhammad Ibrahim Satti, ASC

10.  The judgment  dated  31.7.2009  passed  in  Const. Petition Nos. 9 and 8/2009 is void, per-incurium and not binding as  far  as  the  petitioner  namely  General  (Retd)  Pervez  Musharaf is concerned inter alia for the following reasons:

a.  Admittedly General  (Retd)  Pervez  Musharaf  was  not a party in either of the Constitution Petitions and no relief had been sought against him.

b.  Right to  “access  to  justice  to  all”  is  a  well  recognized inviolable  right  under  Article  9  of  Constitution  and  this includes right to an impartial Court or Tribunal and this fundamental right has not been adhered to.

c.  There was  no  proper  lis  before  this  Court  while  passing judgment  of  31.7.2009  as  the  events  and  actions  of  3rd November 2007 and Proclamation of Emergency etc were not directly under challenge.

d.  The Constitution  Petitions  under  Article  184(3)  were  not competent  and  even  otherwise  this  jurisdiction  does  not extend to set aside a judgment of the Supreme Court.

e.  This Court  has  wrongly  assumed  the  jurisdiction to adjudicate the events and acts of 3rd November, 2007 as the  same  stood  validated  by  7  Members  Bench  of Supreme Court in Tikka Iqbal Khan’s case (PLD 2008 SC 178)  and  subsequent  review  of  Tikka  Iqbal  Khan’s  case was dismissed by 14 Members Bench (PLD2008 SC 615).

f.  The basic  and  fundamental  principle  of  audi  alteram partem  (that  no  one  shall  be  condemned  unheard)  had totally  been  violated  and  all  the  persons  including petitioner  General  (Retd)  Pervez  Musharaf  were condemned unheard.

g.  The judgment of 31.7.2009 is void on the sole ground of bias as admittedly the petitioner and Mr. Justice Iftikhar Muhammad Chaudhry, HCJP were in fact earlier having very  good  relations but later  on  turned into  adversaries and  both  were at  daggers drawn.  They were litigating against  each  other  and  the  petitioner  also  filed a Reference  against  Mr.  Justice  Iftikhar  Muhammad Chaudhry,  HCJP  and  on  3rd  November  2007  the Emergency was imposed for the second time to get rid of Mr.  Justice  Iftikhar  Muhammad  Chaudhry  and  some members  of  Judiciary.  As such  the  bias  and  enmity between Mr.  Justice Iftikhar  Muhammad  Chaudhry  and General  (Retd)  Pervez  Musharaf  was  obvious  and therefore,  Mr.  Justice  Iftikhar  Muhammad  Chaudhry, CJP  was  disqualified  to  hear  and  decide  the  matter concerning him.  More  so  when  earlier  on he  had  also recused  himself  to  hear  cases  of  General  (Retd)  Pervez Musharaf  on  18.10.2007  and  thereafter  he  himself entertained, constituted the Bench and presided over the Bench  and  decided  the  matter  through the judgment  of 31.7.2009  against  General  (Retd)  Pervez  Musharaf against  whom  he  was  totally  biased  and  inimical  and thus the judgment is a nullity on the basis of bias.

h.  It is a recognized principle of law and jurisprudence that justice  is  not  only  to  be  done  but  the  same  should manifestly  be  seen  to  be  done. In the  judgment  under review, this basic principle of administration of justice is not reflected.

i  Very important questions of Constitutional interpretation were  involved  and  both  the  Attorney  General  and Federation  had  failed  in  their  duty  to  assist  the  Court and defend the case for which they were under legal and lawful  obligation  but  they  avoided  the  same  for  political reasons  and  even  so  this  Court  was  bound  to  correctly interpret  the  Constitution  and  apply  the  law  on  the subject which has not been done in the instant case and the  entire  case  has  been  decided  before  obtaining  the view points of the persons who were to be affected by the judgment.

j.  At one stage this Court had considered to issue a notice to the petitioner without adding him as a party or getting amended  Constitution  Petitions  and  just  as  a  formality sent  a  Notice  to  the  petitioner  at  his  residence  at  Chak Shahzad, Islamabad whereas it was known to everybody that General (Retd) Pervez Musharaf was abroad and was being  subjected  to  life  threats  and  could  not  come  to Pakistan. The  servant  at  petitioner’s  residence at Chak Shahzad  refused  to  receive the notice  and  he  informed the  Process  Server  that  General  (Retd)  Pervez  Musharaf was  abroad  and  thereafter  no  step  had  been  taken  for proper  service  of  the  petitioner  and  the  judgment  was announced  even  without  declaring  ex-parte  proceedings and thus the judgment is per incurium, void and coram non  judice  as  there  was  no  view  point  of  the  other  side and the entire judgment was based on the arguments of the petitioners.

k.  The  judgment  passed  and  the  findings  recorded  qua General  (Retd)  Pervez  Musharaf  are  not  sustainable in the  eyes  of  law  as  the  factual  controversies  have  been decided  in  Constitutional  jurisdiction  which  are  against law  and  that  too  without  any  opportunity  of  rebuttal afforded to the petitioner.

l.  The judgment is also to some extent self-contradictory as the  binding  and  operative  judgment  is  contained  in  a Short  Order  reported  as  Sindh  High  Court  Bar Association v. Federation of Pakistan (PLD 2009 SC 789).

The Short Order does not speak of any act of abrogation or  subversion  of  the  Constitution  or  prosecution  of General (Retd) Pervez Musharaf for acts and events of 3rd November  2007  rather  this  Hon’ble  Court  simply declared those actions as unconstitutional and rightly so.

Because  every  violation  of  the  Constitution  is  neither High  Treason  nor  subversion  or  abrogation  of the Constitution  as  held  in  Sharaf  Faridi’s  case  and  also  as reflected under Article 45 of the Constitution.

m.  On the basis of the short order passed in the Sindh High Court  Bar  Supra,  C.P.  No.  454/2009  was  filed  in  Sindh High  Court  and  a  Division  Bench  of  the  said  Court comprising  of  two  Hon’ble  Judges  including  the  Hon’ble Chief Justice of High Court of Sindh who was a member of the 14-member Bench in Sindh High Court Bar Supra disposed  of  the  said  constitution  petition  with  following observations:-

“However  we  are  also  conscious  of  the  fact  that the  Hon’ble  Supreme  Court  of  Pakistan  in  the judgment dated 31.7.2009 in Constitution Petition No.8 and 9/2009 has not issued any direction for prosecution  of  General  (Retd)  Pervez  Musharaf hence  we  restrained  ourselves  from  doing. Therefore,  it  should  be  appropriate  for  the petitioner  to  approach  and  make  such  prayer before  the  Supreme  Court  of  Pakistan  and  seek direction in this respect”.

n.  Even  otherwise  it  was  earlier  held  by  a  five  Members  Bench of the Supreme Court that the Supreme Court had not issued any direction for prosecution of the petitioner for  High  Treason  because  it  is  within  the  domain  of  the Federal Government (Moulvi Iqbal Haider v. Federation of Pakistan 2013 SCMR 1683).

o.  It  is  also  not  out  of  place  to  mention  that  though  the judgment  in  Sindh  High  Court  Bar  Supra  was announced  on  31.7.2009  but  even  the  petitioner  in Constitution Petition Nos. 8 and 9/2009 did not file any review  petition  for  prosecution  of  General  (Retd)  Pervez Musharaf for High Treason. Another petition was filed by the  Communist  Party  of  Pakistan  against  about  627 respondents  including  Generals,  Corps  Commanders, Chief  of  Air  Force,  Prime  Minister,  Cabinet, Parliamentarians and others in this respect but the same was  not  entertained  by  the  office  of  Supreme  Court. Moulvi  Iqbal  Haider  filed  CP.  No.  2255/2010  which remained  pending  for  about two  and  half  years  but  no order  was  passed,  however  on  return  of  General  (Retd) Pervez Musharaf the petition of Moulvi  Iqbal Haider was heard.  It  was  initially  fixed  before  a  two  Member  Bench but subsequently another Hon’ble Judge was included in the  Bench  whereas  the  application  was  made  for constitution  of  Full  Court  or  a  Larger  Bench  of  14 Members (as the judgment of 31st  July was passed by 14 Members)  but  Hon’ble  Chief  Justice  did  not  agree  to constitute  Larger  Bench  or  Full  Court  and  ultimately culminated  in  the  order  dated  3.7.2013 and  reported  as (2013 SCMR 1683).

p.  The judgment needs to be reviewed if not set aside in toto as  it  also  violates  the  doctrine  of  past  and  closed transaction and also the principle that the judgments of Supreme  court  operate  prospectively  and  not retrospectively.

11.  During  the  course  of  arguments,  Raja  Muhammad Ibrahim Satti admitted, on Court query, that petitioner General (R) Pervez Musharraf had a notice of the petition filed by Moulvi Iqbal Haider before the Sindh High Court through citation published in Daily Dawn and further that after dismissal of the said petition by the said Court Moulvi Iqbal Haider challenged the order before the Supreme  Court  in  which  General  Musharraf  was  represented  by him  (Raja  Muhammad  Ibrahim Satti).  The  case  is  reported  as Moulvi Iqbal Haider Vs. Federation of Pakistan through Ministry of Law & Justice (2013 SCMR 1683).

12.  The  petitioner  had  proclaimed  State  of  Emergency pursuant  to  a  letter  received  from  the  then  Prime  Minister  of Pakistan  (letter  reproduced  in  PLD  2009  SC  879  supra  at  page 1035  para  58).  At  this  stage,  the  Court  asked  him  as  to  whether the Prime Minister advised the President to act in violation of the Constitution to which the answer was no. The Court further asked him  whether the  Prime  Minister  had  given  any  advice  to  impose State of Emergency or the petitioner acted in his own discretion, to which  Mr.  Satti  replied  that  the  petitioner  acted  in  his  own discretion. He referred to the judgment of this Court in Tikka Iqbal Muhammad  Khan  Vs.  General  Pervez  Musharraf  (PLD  2008  SC 178) to contend that in the said judgment this Court had validated the imposition of state of emergency and all orders passed by the petitioner.  He  added  that  one  of  the  factors  mentioned  by  the Prime  Minister  in  his  letter  for  deteriorating  law  and  order situation was the interference by the Courts. He submitted that in the  afore-cited  case  PLD  2008  SC  178  supra  some  judges  of  this Court  during  hearing  of  the  said  case  recused  themselves  on  the ground  that  they  had  at  one  stage  or  the  other  released  certain accused  in  terrorist  cases  but  nevertheless  they  were  invited  to take  oath  by  the  then  President.  He  in  particular  referred  to  that paragraph  of  the  proclamation  of  emergency  which  specifically mentions  that  the  same  was  being  done  after  deliberations  in meetings  with  the  Governors,  Cabinet  Ministers  and  the  Corps Commanders.  The  Court  at  this  stage  referred  to  Abdul  Hameed Dogar,  former  Judge/CJP  Vs.  Federation  of  Pakistan  (PLD  2011 SC 315 at page 321 para 8) wherein Justice Abdul Hameed Dogar who was made the Chief Justice after the imposition of the state of emergency admitted and regretted that he did not comply with the 7 Member Bench’s order of this Court dated 3.11.2007.

13.  A  three  Member  Bench  passed  the  order  for proceedings  against  General  Musharraf  for  ‘high  treason’  and unless  the  judgment  under  challenge  is  reviewed,  the  Special Court  /  Tribunal  constituted  to  try  the  petitioner  is  likely  to  be influenced  by  the  observations  made  therein.  He  referred  to Shoukat Ali Dogar Vs. Ghulam Qasim Khan Khakwani (PLD 1994 SC 281) and Emperor v. Khwaja Nazir Ahmad (AIR 1945 PC 18) to contend that the Court should not interfere in the function of the investigating agency. He referred to Sharf Faridi v. The Federation of Islamic Republic of Pakistan through Prime Minister of Pakistan and another (PLD 1989 Karachi 404) and Government of Sindh Vs. Sharaf  Faridi  (PLD  1994  SC  105)  to  argue  that  every  violation  of the Constitution does not amount to ‘high treason’. He added that the  petitioner  in  his  capacity  as  President  could  be  impeached under  Article  47  of  the  Constitution  but  when  asked  he  admitted that the order was passed by the petitioner in his capacity as Chief of  Army  Staff  and  not  as  President.  He  referred  to Article  12  to contend  that  the  law  has  to  have  prospective  effect  and  not retrospective and Article 6 as presently worded can not be applied retrospectively. He lastly contended that in view of Article 270AA of the Constitution, PCO 2002 and 2007 are on same footing.

Syed Sharif ud Din Pirzada, Sr. ASC

14.  Mr. Sharif ud Din Pirzada, learned Sr. ASC submitted that  the  judgment  under  review  stands  vitiated  on  account  of personal bias that the former Chief Justice of Pakistan Mr. Justice Iftikhar  Muhammad  Chaudhry  had  against  the  petitioner  since petitioner had filed a Reference against him and had also imposed state  of  emergency  on  account  of  which  he  was  rendered dysfunctional. He further contended that the salutary principles of due  process  and  right  to  fair  trial  have  been  violated.  Learned counsel relied on the following case law on question of bias:-

i)  Matlub Hussain v. Gaman with others and the Crown (PLD 1951 FC 115).

ii)  Asif  Ali  Zardari  Vs.  The  State (PLD  2001  SC  568 at   page 587),

iii)  All  Pakistan  Newspapers  Society  Vs.  Federation  of Pakistan (PLD 2012 SC 1 at page 58, para 55)

iv)  AWG Group Ltd and another v. Morrison and another  (2006 (1) All ER 967 at page 971)

v)  Anwar and another v. The Crown (1955 FC 185 at 227 and 233)

vi)  Zulfikar Ali Bhutto Vs. State (1977 SCMR 514)

15.  Responding  to  a  Court  query  as  to  whether  the principle of severance can be applied in this case to which his reply was  that  it  cannot  be  applied  in  the  present  case  because  the former Chief  Justice  was  in  a  commanding  position  and  he  could influence  the  other  Judges.  He  referred  to  Bangalore  principles reproduced  in  Shimon  Shetreet’s  book  “Culture  of  Judicial Independence” at page 598. The Court confronted him with the law laid  down  by  this  Court  in  Nadeem  Ahmed  Vs.  Federation  of Pakistan (2013  SCMR  1062)  wherein  it  was inter  alia held  that  if one  member  is  disqualified, this  would  not  vitiate  the  judgment given by the Court.

16.  Having  considered  the  submissions  made,  the questions which crop up for consideration in these review petitions mainly are as follows:-

(i)  Whether  there  are  grounds  tenable  in  law  to  condone delay of 1576 days in filing these petitions;

(ii)  Whether  while  passing  the  judgment  under  challenge, petitioner  was  not  issued  any  notice  and  the  judgment under challenge can be interfered with on the ground that petitioner was condemned unheard;

(iii)  Whether the judgment under challenge is reflective of an element  of  bias  which  can  be considered  as  a  ground  in review jurisdiction to ensure substantive justice;

(iv)  Whether the conclusion drawn and the findings rendered in  the  judgment  review  of  which  is  sought  are  patently incorrect and something obvious has been overlooked by the  Court  which,  if  considered,  would  warrant  review  of the said judgment;

(v)  Whether  the  error  in  the  judgment is  so  apparent  and material that if the same had been brought to the notice of this Court before the pronouncement of the judgment, a different conclusion could have been drawn; and

(vi)  Whether  the  judgment  under  challenge  has  the  effect  of giving retrospective effect to Article 6?

Q. No.1   Whether there are grounds tenable in law to  condone  delay  of  1576  days  in filing these petitions;

 17.  This  petition  is  barred  by  1576  days  and  in  the application (Civil  Misc.  Application  No.  8164  of  2013)  filed  by petitioner  for  condonation  of  delay,  the  grounds  pressed  into service are:

1.  That the petitioner who was President of Pakistan was compelled by the circumstances to resign the office and thereafter, he left for abroad as he was having security threats to his life by Talibans and from  many  others  quarters  and  he  was  not  in  a position  to  come  to  Pakistan  and  file  the  review petition.

2.  That  it was in  March  2013  when  the  petitioner landed in Pakistan  and  by  that  time  Mr.  Iftikhar Muhammad  Chaudhry,  Chief  Justice  of  Pakistan was Head of Judiciary who was having personal enmity,  bias  and  grudge  against  the  petitioner and  the  petitioner  was  not  expecting  any  justice as  long  as  he  was  in  office,  and  so  is  evident when  he  knocked at  the  door  of  various  High Courts for justice.

3.  That  the  case  of  petitioner  squarely  falls within four  corner  of  the  case  of  Mian  Muhammad Nawaz  Sharif  where  he  filed  a  Crl.  Appeal against his conviction after about 9 years but that delay  was  condoned  in  similar  situation  and  the case of the petitioner is even more plausible as if the  judgment  is  not  reviewed  the  same  is  to  be used against him in High Treason  against  which entails  the  penalty  of  death or life  imprisonment and, therefore, the judgment of Mian Muhammad Nawaz  Sharif  reported  in  PLD  2009  SC  814  is fully  applicable  and  also  the  case  of disqualification  of  Mian  Muhammad  Nawaz Sharif  reported  as  PLD  2009  SC  531  is  relevant for condonation of delay.

4.  That  now  after  superannuation  of  Mr.  Justice Iftikhar  Muhammad  Chaudhry,  Chief  Justice  of Pakistan  the  petitioner  after  obtaining  the certified  copy  and  engaging  the  counsel  is  filing the instant review petition without any delay and as  such  the  delay  caused in  filing  of  the  review petition  was  beyond  the  control  of  the  petitioner and thus there is sufficient cause for condonation of delay.”

18.  In  support  of  the  application,  learned  counsel contended  that  since  the  petitioner  had  filed  a  Reference  against the then Chief Justice of Pakistan Mr. Justice Iftikhar Muhammad Chaudhry  who  presided  over  the  Bench (which  delivered  the judgment  under  review)  petitioner apprehended  utter  bias  from him and therefore as long as he remained Chief Justice, he did not file  a  review  petition.  The  argument is  not a sufficient  ground  in law  to  condone  the  delay.  Because, first he  could have appeared during hearing of the said case and asked that Mr. Justice Iftikhar Muhammad Chaudhry should not hear the case; second even after the  pronouncement  of  the  judgment  he  could  file  review  petition and  could  have  requested the  Court  that  the  then  Chief  Justice who  presided  over  the  Bench should  not  hear  the  review  petition and may  recuse  himself; and  third in  the  judgment  under consideration  despite  the  finding  that  the  imposition  of  State  of Emergency  by  Chief  of  Army  Staff  was  unconstitutional  and  void, the Court did not direct the trial of the petitioner under Article 6 of the Constitution; if there was bias there could have been directions to that effect; and fourth the Bench which disposed of the petition in view of the undertaking given by the Federal Government that it shall  proceed  against  the  petitioner  under  Article  6 (in C.P.  No. 2255 of 2010 reported at 2013 SCMR 1683) was not presided over by the then Chief Justice against whom bias is alleged.

19.  The  contention  that  the  delay  be  condoned  since  the petitioner was not heard or that the judgment on that count is void ab  initio and  that  no  limitation  runs  against  a  void  order  is  not tenable  because  even  against  a  void  order,  limitation  would  run and  would  be  computed  from  the  date  of  knowledge.  In Muhammad Raz Khan v. Government of NWFP (PLD 1997 SC 397), this Court specifically adverted to the question whether a party can be  extended  indulgence which  pleads  that  the  order  was  not challenged in time as it was void. The Court repelled the argument and held:-

“Principle  of  justice  and  fair  play  does  not  help those  who  were  extraordinary  negligent  in asserting their right and despite becoming aware about  alleged void order  adverse  to  their  interest remain  in  deep  slumber.  Therefore,  according  to our  considered  opinion,  facility  regarding extension of time for challenging orders cannot be legitimately  stretched  to  any  length  of unreasonable  period  at  the  whims,  choices  or sweet  will  of  affected  party.  Thus,  order  termed as  nullity  or  void could  at  best  be  assailed  by computing  period  of  limitation  when  he  factually came  to  know  about  the  same.  When  a  person presumes that adverse order is a nullity or totally devoid  of  lawful  authority  and  ignores  it  beyond the  period  specified  by  law  of  limitation,  then  he does so at his own risk. Therefore, in all fairness terminus  a  quo  will  have  to  be  fixed,  the  date  of knowledge  of  alleged  void  order;  which  too  must be  independently  established  on  sound  basis.  In this  behalf  we  derive  strength  from  the observations contained in PLD 1975 Baghdad-ul-Jadid 29 (Sayed Sajid Ali v. Sayed Wajid Ali) and 1978  SCMR  367  (S.  Sharif  Ahmad  Hashmi  v. Chairman, Screening Committee).”

20.  In  Qaisar  Mushtaq  Ahmad  v.  Controller  of Examinations (PLD  2011  SC  174),  this Court  while  dismissing  an appeal which was barred by 14 days held as follows:-

“The  fact  that  the  applicant  himself  for unexplained  reasons  allowed  his  appeal  to become  time  barred,  thus  filed  the  C.P.L.A.,  in which  his  request  for  the  conversion  etc.  was specifically  disallowed,  can  by  no  stretch  of  any factual  or  legal  imagination  be  considered  a ground  for  the  condonation  of  delay.  We  are  not convinced,  if  the  case  of  the  applicant  is  covered by  the  cases  reported  as  Zulfiqar  and  others  v. Shahdat Khan (PLD 2007 SC 582) as in that case the  Court  for  certain  reasons  allowed  the conversion  of  C.P.L.A.  into  an  appeal  or  treated alike, whereas in the present matter the situation is  converse,  due  to  the  order  dated  9-5-2005 whereby  the  Court  declined  the  request  of conversion, rather it was observed that the direct appeal  so  initiated  by  the  applicant  shall  be subject to all just exceptions (emphasis supplied).

This  order  as  mentioned  above  has  attained finality, therefore it cannot be directly or indirectly revisited. The question thus now to be resolved is not  about  the  conversion  of  the  C.P.L.A.  into  an appeal  or  vis-a-viz,  but  whether  for  the  un-disclosed,  unexplained  and  abstract  reasons, which  the  applicant  still  has  described  in  this application  as  beyond  his  control  (emphasis supplied),  the  delay  can  be  condoned.  In  my considered  view,  this  in  the  given  circumstances of the case is not permissible,  as it shall  amount in  an  indirect  manner,  to  provide  vantage  and gain  to  the  delinquent  party  for  its  unexplained inaction  in  approaching  this  Court  in  proper remedy, which he could not achieve in the earlier C.P.L.A.,  (see  order  dated  9-5-2005),  over  the other  side  which  has  earned  a  right  for  such lapse  of  the  applicant;  the  other  judgment reported  as  Chairman,  N.-W.F.P.  Forest Development  Corporation  and  others  v.  Khurshid Anwar Khan and others (1992 SCMR 1202) cited by  the  applicant’s  counsel  is  also  inapt  to  the present  case  and  is  distinguishable  on  its  own facts.”

21.  In Messrs Blue Star Spinning Mills v. Collector of Sales Tax (2013 SCMR 587), this Court clearly held that the rule that no limitation runs against a void order is not an inflexible rule that a party cannot sleep over to challenge such an order; that it is bound to do so within the stipulated/prescribed period of limitation from the  date  of  knowledge  before  the  appropriate  forum.  It  has never been petitioner’s  plea  that  he did  not  have  the  knowledge  of  the impugned  judgment.  Even  otherwise  it  has  been  admitted  by petitioner’s learned counsel that one Maulvi Iqbal Haider had filed a  constitution  petition  bearing  No.  454  of  2010  wherein  he  had sought trial of the petitioner in view of the judgment of this Court in Sindh High Court Bar Supra. But the said petition was disposed of with a direction that the petitioner should approach this Court.

Maulvi Iqbal Haider thereafter filed Civil Petition No. 2255 of 2010 before this Court.  It remained pending for 2½ years and no order was passed for trial of the petitioner and eventually on 3.7.2013 a Bench  of  three  Judges  disposed  of  the  petition whereafter Special Tribunal  was  constituted  to  try  the  petitioner.  For  two  to  three years, the question of petitioner’s trial in the light of the judgment of  this  Court  in Sindh  High  Court  Bar Supra remained  pending either before  the  High  Court  of  Sindh  or  before  this  Court  but petitioner  never  filed  any  application  for  review  of  the  judgment. This conduct is reflective of an element of contumacy which does not warrant indulgence in review jurisdiction.

22.  The reliance  of learned  counsel  for  the  petitioner  on two judgments of this Court wherein limitation of many years was condoned  would  be of  no  avail as  the  facts  and  circumstances  of those  cases  are  distinct.  In  Federation  of  Pakistan  v.  Mian Muhammad  Nawaz  Sharif  (PLD  2009  SC  644),  petitioner Muhammad  Nawaz  Sharif  had sought  review of  a three  Member judgment of this Court whereby he was disqualified to contest the elections without hearing him. While condoning the delay in filing the  review  petitions,  the  Court  had  taken  note  of  the circumstances under which initially the said review petitioner was restrained  from  returning  to  this  country  and  thereafter  on account  of  removal  of  Judges of  the  Supreme  Court  and  High Courts pursuant to imposition of State of Emergency 2007, he and those  of  his  party  men  who  were  contesting  General  Elections  of 2008  had made  a  public Oath that  they would not  appear  before the Supreme Court till the lawful judiciary was restored. The Court in the said judgment observed:-

“The  case  of  the  petitioners  who  happen  to  be  real brothers  is  that  as  leaders  of  one  of  the  main  stream political parties i.e. Pakistan Muslim League (N), they had taken  a  public  stand  against  the  Imposition  of  “State  of Emergency” on 3rd of November, 2007 by  General Pervez Musharraf, the  arbitrary  and  unconstitutional  removal  of judges  of  the  superior  courts  and  were  party  to  a  public and  collective  oath  taken  by  all  the  candidates  of  their party in the General Elections held in February, 2008 that if  elected,  they  would  struggle  for  the  restoration  of superior  judiciary  and  till  then  they  had  decided  to abstain  from  appearing  before  the  court  then  constituted. This stand it  was contended  was neither directed against the  judiciary  as  an  institution  nor  any  particular  judge was  targeted  but  it  was  more  an  effort  to  save  the Constitution  and  the  institution  of  judiciary  which  is  the third  most  important  organ  of  the  State.  (Emphasis is supplied).

24.  While  rendering  the  judgments  under  review,  the Court  did  not  have  the  benefit  of  hearing  the  petitioners on account of which their stance could not be appreciated.

The  petitioners  in  their  letter  to  the  Chief  Election Commissioner  and in their  public  statements  had expressed  great  anguish  over  the  imposition  of  the  “State of Emergency”, the unconstitutional removal of judges and induction  of  judges  through  the  Provisional  Constitutional Order.  In  all  fairness,  the  Court  which  passed  the judgment  under  review,  shared  this  anguish  on  moral plane but opted a course which in their perception was in institutional  interest.  In  Para-29  of  the  judgment (in case of  Mian  Muhammad  Nawaz  Sharif)  while  referring  to  the “Imposition  of  State  of  Emergency”  on  3rd  of  November, 2007 and the issuance of Provisional Constitutional Order under  which  the  judges  were  asked  to  take  the  oath,  it was  observed,  ”  ………The  Judges  who  were  offered  and invited to take oath were in an enigma as to take or to refuse the  oath.  In  case  of  refusal,  the  judicial  institution  was  to suffer  greatest  harm  and  its  fabric  which  was  woven  in  a period of more than 150 years, was to collapse completely. In the event of refusal to take the oath, it was expected that this judicial  institution  might  be  occupied  by  such  persons  who had  no  knowledge  and  expertise  of  delivering  justice.  There were  many  other  considerations  also  in  their  mind.  To  save the judicial institution, to create hindrance and to prevent the spreading  of  chaos  in  the  country,  for  the  better  interest  of this institution and for the whole betterment of the citizens of Pakistan,  it  was  decided  that  the  offer  of  oath  might  not  be declined.”

25.  Notwithstanding  the  sharing  of  moral  perception,  the Court repelled the reasons for non-appearance on the ground that  the  petitioners  were  by  implication  attributing  personal bias  to  the  judges.  It  was  observed  that  Judges  “are assessors  of  their  own  conscience,  as  they  knew  that  they are  answerable to the Allah Almighty. Why they should feel bias in favour of any one? When they are not involved in any referred  to  incident,  which  has  already  become  a  past  and closed  transaction.  There  are  no  reasons  and  grounds  to possess  the  bias  against  petitioners  and  their  candidate.”

However,  on  a  deeper  appreciation  of  the  stance  taken  and after hearing their learned counsel, it has been found by us that  petitioners’  non-appearance  was  not  attributable  to  a personal  bias  against  the  Court  then  constituted  but  on account of a public stand that they had taken before entering the process of elections i.e. the collective oath which they and all  the party candidates  had  taken  on  the  issues  relating  to the  Imposition  of  “State  of  Emergency”  on  3rd  of  November, 2007 and a resolve to launch a movement for the restoration of  superior  judiciary.  The  restoration  of  the  Hon’ble  Chief Justice  of  Pakistan  and  other judges  who  were  deposed  on the  imposition  of  “State  of  Emergency”  and  the  immediate appearance  of  the  petitioners  by  way  of  filing  these  review petitions  indicate  that  the  stance  taken  was  based  on  a certain moral grounds (sic) which stood vindicated. The same cannot  be  dubbed  as  either  contumacious  or  reflective  of acquiescence to warrant the impugned findings.

26.  There is  yet  another  aspect  of  the  matter.  Notice  was issued to the petitioner Mian Muhammad Shahbaz Sharif (in Civil Petition  No.905  of 2008) filed by  Khuram  Shah  but  the review  petitioner  did  not  appear.  The  Court  heard  the respondent-petitioner  and  others  at  some  length  and  after conclusion  of  arguments,  the  same  day  on  25-2-2009 converted the civil petition into appeal and allowed it  which, as was candidly argued by learned Attorney General, is not in consonance with Order XIII Rule 6, Order XIV, Rule 2 and Order XVI, Rule I of the Supreme Court Rules which mandate as under:–

“——————————

——————————-

——————————-

——————————-

Order  XIV,  Rule  2.–Where  an  appeal  has been  admitted  by  an  order  of  this  Court,  the Registrar  shall  notify  the  respondents  of  the order  of  this  Court  granting  leave  to  appeal, and shall also transmit a certified copy of the order  to  the  Registrar  of  the  High  Court concerned.

Order  XVI,  Rule  1.–The  respondent  shall enter  an  appearance  within  30  days  of  the receipt  of  notice  from  the  Registrar  regarding grant  of  leave  to  appeal  to  the  appellant, under Rule 2, Order XIV, but he may enter an appearance at any time before the hearing of the  appeal  on  such  terms  as  the  Court  may deem fit.”

27. We agree with learned Attorney General for Pakistan that after the grant of leave, Order XVI Rule I provides 30 days’ time for the respondent  to  appear.  In  the  instant  cases,  however,  instead  of waiting  for  30  days  to  enable  the  petitioner/respondent  to  appeal, the  Court  allowed  the  appeal  immediately  when  the  petition  was converted into appeal.

28.  No one  should  be  condemned  unheard  is  an  old  adage  ever since  the  advent  of  judicial  dispensation.  In  Commissioner  of Income  Tax,  East  Pakistan  v.  Syeedur  Rehman  (PLD  1964  SC 410),  this  Court  went  to  the  extent  of  classifying  an  order  passed without  hearing  as  a  void  order.  In  the  afore-referred circumstances,  we are of the view that non- hearing of petitioners is  an  error  on  the  face  of  record  meriting  interference  in  review jurisdiction.”

23.  Again  in Muhammad  Nawaz  Sharif  v.  the  State (PLD 2009  SC  814), the Court  condoned  the  delay  in  filing  criminal petition for leave to appeal by observing as follows:-

16.  The period of delay of more than eight years in filing the  present  petition  for  leave  to  appeal  can  be  broadly divided in  two  phases;  the first is  the petitioner’s  absence from  the  country  for  about  seven  years  and  the  second  is his  abstinence  from  approaching  this  Court  for  almost  a year  and  a  half  after  his  return.  For  the  purpose  of condonation of delay for the first phase, the circumstances under  which  the  petitioner  left  the  country  are  not  as relevant  as  the  resolution  of  the  issue  whether  the petitioner  was  prevented  from  returning  to  the  country.  It has been the consistent stand of the petitioner that despite efforts he had not been allowed to return to Pakistan. This stand is substantiated by the judgment pronounced by this Court  in  the  case  of  Pakistan  Muslim  League  (N)  v. Federation of Pakistan and others (PLD 2007 SC 642) (ibid) and the ensuing events. It was declared that the petitioner was  entitled  to  enter  and  remain  in  Pakistan  and  that  no hurdle or obstruction was to be created by any authority to prevent  the  petitioner’s  return.  Pursuant  to  the  said direction,  the  petitioner  embarked  on  a  return  journey  to Pakistan  and  took  a  flight  from  London  to  Islamabad. However,  after  landing  at  Islamabad,  he  was  not  allowed to  leave  the  airport  and  was  sent  out  of  the  country.  In view  of  violation  of  the  order  of  this  Court,  an  application for contempt of Court was filed before this Court. A similar abortive attempt was earlier made in the year 2004 by the petitioner’s brother, Mian Muhammad Shahbaz Sharif, and he was not allowed to leave the airport and put on a flight destined for overseas. The above facts clearly demonstrate that  the  petitioner  was  prevented  from  returning  to Pakistan.

17.  The petitioner returned to the country on 27.11.2007 but  did  not  file  the  petition  for  leave  to  appeal  until 28.4.2009.  The  explanation  for  this  delay  is  mentioned  in Paras J, K and L of the application of condonation of delay (Cr.  Misc.  A.  No.  168  of  2009) w h i c h are  reproduced  as under:–

 “(j)  That  it  is  a  matter of record  that  the  petitioner had,  on  his  return  to  Pakistan,  publicly  pledged, at the very outset, neither to accept nor to condone the  aforesaid  constitutional  deviation  whereby, inter  alia,  63  hon’ble  Judges  of  the  Superior Courts  had  been  forcibly  restrained  from continuing  to  perform  their  judicial  functions.  It was  because of this  reason  that  all  the candidates of the  Pakistan  Muslim  League  (N) contesting General Election 2008, pledged on oath to  restore  the  judiciary  to  pre  November  3,  2007 position,  and  this  ceremony  of  collective  oath  of Pakistan Muslim League (N) candidate was widely publicized  and  covered  by  the  media.  Moreover, the petitioner had repeatedly declared that he will not  appear  before  the  judges  of  the  Superior Courts  till  the  entire  set of judges  who  were illegally  deposed  on  November  3,  2007,  including the  hon’ble  Chief  Justice  Iftikhar  Muhammad Chaudhry, were restored.

(k) —————-

(l)  That  it  was  only  on  March  17,  2009  that, pursuant  to  a  long  and  arduous  struggle of the lawyer’s  fraternity,  as  well  as  the  indefatigable efforts  made  by,  inter  alia,  the  Pakistan  Muslim League  (N),  that  the  illegally  and unconstitutionally  deposed  judges  have  been restored  to  their  original  position  with  effect  from pre  November  3,  2007.  there  being  no  longer  any constraint  upon  the  petitioner  for  appearance before  the  Hon’ble  Judges,  he  has  immediately initiated  action  for  challenging  the  Judgment passed  by  the  Full  Bench of the Sindh High Court in the instant case.”

Admittedly there was no such restraint order against the petitioner to  come  to  this  country  and  file  review  petition.  He  has  failed  to show  a  cause  or  reason  sufficient  in law  to  condone  such  an inordinate  delay.  The  petition  merits  dismissal  on  this  short ground alone.

Q.  No.  2: Whether  while  passing  the  judgment  under challenge, petitioner was not issued any notice and  whether  the  judgment  under  challenge can  be  interfered  with  on  the  ground  that petitioner was condemned unheard;

24.  The  principle  of audi  alteram  partem or  that  nobody should  be  condemned  unheard  is  a  time  honored  principle  of natural justice. However, facts of each case have to be considered before  delay  can  be  condoned  and  this  principle  cannot be  made an inflexible rule to give license to someone who knowing fully well that  a  lis  is  pending  against  him  or  that  a  judgment  has  been passed  against  him  refuses  to  appear  and  when  the  judgment  is passed  fails  to challenge  it  in  time.  In  the  instant  case,  we  note that the Court had issued a  notice  to  petitioner  on  his  available address  in  Islamabad  and  when  from  there  it  transpired  that  he was abroad, the notice was widely published and televised. In Para 6 of the judgment under challenge it has specifically been noted as follows:-

“On  22.7.2009  a  notice  was  issued  to  General Pervez Musharraf (Rtd.) on his available  address intimating him about the proceedings in this case and  29.7.2009  as  the  date  fixed  therein  before this  Court.  The  Process  Serving  Officer  reported on  the  same  day  that  he  had  gone  to  the residential  place  viz.  C-1,  B  Park  Road,  Chak Shahzad,  Islamabad  where  a  person  identifying himself  as  Muhammad  Hussain  son  of  Amir  and that on former’s offer the latter refused to receive the  notice.  The  factum  of  issuance  of  the  afore-referred  notice  was  widely  televised  through National  and  International  T.V.  channels.  Also,  it was  widely  published  in  National  and International  print  media,  but,  on  the  date  so fixed no one entered appearance.”

25.  Even  otherwise,  it  has  never  been  the  case  of  the petitioner, not  even  in  the  body  of  this  petition that  he  was  not aware  of  the  pendency of  proceedings  which  culminated  in  the judgment of this Court in Sindh High Court Bar (Supra) review of which is sought.

Q.  3  Whether  the  judgment  under  challenge  is reflective  of  an  element  of  bias  which  can  be considered  as  a  ground in  review  jurisdiction  to ensure substantive justice;

26.  The assertion of bias against a Judge and whether he is disqualified to hear a case on that ground has been a subject of judicial  review  in  several  cases.  In  Federation  of  Pakistan  v. Muhammad Akram Shaikh (PLD 1989 SC 689), this Court having considered  the  precedent  case  law,  laid  down  following  principles which the Court may keep in mind while deciding the question of bias:-

“(i) It is fundamental principle that in the absence of statutory authority or consensual agreement or the  operation  of  necessity,  no  man  can  be  Judge in his own cause.

(ii) A Judge who  would otherwise be disqualified may  act  in  a  case  of  necessity  where  no  other Judge has jurisdiction. That the ‘necessity’ rule is a part of the common law is undoubted.

(iii)  The  rule  of  disqualification  must  yield  to  the demands  of  necessity,  and  a Judge  or  an  officer exercising  judicial  functions  may  act  in  a proceeding  wherein  he  is  disqualified  even  by interest, relationship or the like, if his jurisdiction is  exclusive  and  there  is  no  legal  provision  for calling  in  a  substitute,  so  that  his  refusal  to  act would  destroy  the  only  tribunal  in  which  relief could  be  had  and  thus  prevent  a  termination  of the proceeding.

(iv)  An  adjudicator  who  is  subject  to disqualification  at  common  law  may  be  required to sit if there is no other competent tribunal or if a quorum  cannot  be  formed  without  him.  Here  the doctrine  of  necessity  is  applied  to  prevent  a failure of justice. So, if proceedings were brought against all the superior Judges, they would have to  sit  as  Judges  in  their  own  cause.  Similarly,  a Judge may be obliged to hear a case in which he has a pecuniary interest.”

27.  In Gullapalli Negeswararao etc v.  The State of Andhra Pradesh  and  others  (AIR  1959  SC  1376)  and Ranjit  Thakur  v. Union of India and others (AIR 1987 SC 2386), the question of bias was also considered. In the former judgment, it was held that “no man  shall  be  a  judge  in  his  own  cause;  justice  should  not  only  be done but manifestly and undoubtedly seen to be done; if a member of a judicial body is subject to a bias (whether financial or other) in favour of, or against, any party to a dispute, or is in such a position that  a  bias  be  assumed  to  exist,  he  ought  not  take  part  in  the decision or sit on the tribunal”. While in the latter judgment test of likelihood of bias was noted as follows:-

“…tests of the likelihood of bias what is  relevant is the reasonableness of the apprehension in that regard  in  the  mind  of  the  party.  The  proper approach  for  the  Judge  is  not  to  look  at  his  own mind  and  ask  himself,  however,  honestly,  “am  I biased?”;  but  to  look  at  the  mind  of  the  party before him…”

28.  In Asif  Ali  Zardari  Vs.  The  State (PLD  2001  SC  568), the  facts  are  distinguishable. Facts  in  brief were that  the  Chief Ehtesaab Commissioner filed a reference in the Lahore High Court, Lahore  against Mohtarma Benazir  Bhutto  ex-Prime  Minister  of Pakistan and her husband Asif Ali Zardari and some other officials inter alia on the ground that in their authority as holders of public office  in  collusion  with  each  other  and  with M/s  Societe  General  De  Surveillance  SA  (“SGS”)  as  well  as  Jens  Schlegelmilch,  they awarded  a  contract  for  shipment  inspection  to  M/s  SGS  after accepting  illegal  gratification  in  the  form  of  kickbacks  and commissions resulting in a huge loss to the public exchequer. Vide a  short  order  dated  15.4.1999  both  Mohtarma  Benazir  Bhutto, former  Prime  Minister  and  Asif  Ali  Zardari  were  convicted  and sentenced  to  various  terms. This  conviction  was  challenged  in appeal  which  was  allowed  by  this  Court,  the  convictions  were  set aside  and  the  case  was  remanded for de  novo trial  mainly  on  the ground  of  bias  on  the  part  of  the  bench  headed  by  Malik Muhammad Qayyum,  J.  The  Court  while  alluding  to  the  question of bias observed as under:-

“25.  No  doubt,  the  Judges  of  the  Superior  Courts  are blessed with a judicial  conscience  but question nonetheless is  whether  a  particular  Judge  of  the  Subordinate  or  the Superior  Judiciary  against  whom  the  allegation  of  bias  is alleged is possessed of judicial conscience. This litmus test is indeed  very  difficult  but  certainly  not  impossible.  The circumstances of a particular case wherein bias of a Judge is alleged  would themselves  speak  volumes  for  the  same.  In other  words, the principle is  well settled that a Judge of the Superior Court is a keeper of his own conscience and it is for him  to  decide  to  hear  or  not  to  hear  a  matter  before  him.  However, in the present case we are not inclined to adhere to the  said  settled  principle  because  bias  is  floating  on  the surface of the record.”

29.  The  Court  in  arriving  at  the  conclusion  quoted in  the preceding  paragraph  had  considered  the  circumstantial  and documentary  evidence  which  comprised  of  issuance  of  red passport to the head of the Ehtesab Court (who was not otherwise entitled) on  the  direction  of  Senator  Saif  ur  Rehman  who  was incharge  of  the  Ehtesab  cell;  the  transfer  of Ehtesab  Reference from Principal  Seat  at Lahore  to  Rawalpindi Bench  of  the  Lahore High Court; the order of the then Chief Justice, Lahore High Court to  send  the  same  judge  of  the  Lahore  High  Court to Rawalpindi who  was hearing  the  case  at  Lahore;  the  fact  that  the  accused Mohtarma Benazir Bhutto was not even examined during trial; the appointment  of  Commission comprising  of the Registrar,  Lahore High Court to visit Switzerland and ascertain the genuineness and authenticity  of  certain  documents;  the  manner  in  which  the Commission  conducted  itself; the  production  of  audio  tapes  and their  transcripts  in  proof  of  the  allegation  that  the  learned judges who convicted the accused had been pressurized and forced by the authorities  in  power  to  oust  the  appellants  from  the  arena  of politics  by  securing  their  conviction  to  hold  public  office.  In the case in hand, however, it has never been the case of the petitioner that the  then  Chief  Justice  Iftikhar  Muhammad  Chaudhry  had done any overt  act  which  could  warrant  an  inference  that  he  was inimical towards him rather it is petitioner’s case that they were on good  terms  till  filing  of  the  reference  before  the  Supreme  Judicial Council  against  the  said  Chief  Justice  which  was  challenged  by him  and  the  same  was  set  aside  by  a 13-Member  Bench  of  this Court  against  which  petitioner  never  filed  any  review  application rather accepted it. As a matter of fact he welcomed the judgment. However,  a few  weeks  after  the  restoration  of  the  former  Chief Justice,  petitioner imposed  state  of  emergency;  issued  various presidential orders and after prescribing a new oath those Judges who  did  not take  the  oath  were stopped  from  working  which included the said former Chief Justice.  The events which followed and the  launching  of  the  peoples’  movement  leading  to  the restoration  of  the  then  Chief  Justice  Iftikhar  Muhammad Chaudhry  on 16.3.2009  have  already  been  narrated  above.  The judgment  sought  to  be  reviewed  in  the  afore-referred circumstances does not reflect any personal bias on his part. First, because  admittedly  after  the  setting  aside  of  the Presidential Reference and  restoration  of  the  former  Chief  Justice when  the case  of  General  (R)  Pervez  Musharraf’s  disqualification to  contest the Presidential elections while in Army uniform (as Chief of Army Staff) was  taken  up, the  said  former  Chief  Justice constituted a Bench and did not include himself as a member of the said Bench. Second, petitioner’s counsel has not referred to any case in which after his reinstatement for the second time on 24.3.2009 the then Chief  Justice passed  any  adverse  order  against  the  person  of  the petitioner.  Even  in  the  judgment  under  review, the  Bench  headed by  him  did  not  direct  trial  of  petitioner  under  Article  6  of  the Constitution  and  in fact  this  is  one  of  the  grounds  to  seek  review that though the Bench which delivered the judgment in Sindh High Court Bar Association’s case did not direct trial but a 3 Members Bench  in Moulvi  Iqbal  Haider  vs.  Federation  of  Pakistan  through Secretary M/o  Law  and  Justice (2013  SCMR  1683) directed  trial under Article 6 of the Constitution.

30.  This  brings  us  to  questions  No.  (iv)  and  (v)  which  we propose to deal jointly. These are as follows:-

(iv)  Whether the conclusion drawn and the findings rendered in the  judgment  review  of  which  is  sought  are  patently incorrect  and  something  obvious  has  been  overlooked  by the Court which, if considered, would warrant review of the said judgment; and

(v)  Whether  the  error  in  the  judgment  is  so  apparent  and material  that if the same had been brought  to  the notice of this  Court  before  the  pronouncement  of  the  judgment,  a different conclusion could have been drawn?

31.  For  a  proper  appreciation  of  the  afore-referred  two issues, it would be pertinent to first examine the nature of review jurisdiction. Article 188 of the Constitution provides that subject to the provisions of any act of the Parliament and any rules framed by the  Supreme  Court, to  review  any  judgment  pronounced  or  any order made by it; Order XXVI, rule 1 of  the Supreme Court Rules lays down that subject to law and practice of this Court, the Court may  review  its  judgment/order in  civil  proceedings  on  grounds similar to those mentioned in Order XLVII, rule 1 of C.P.C. and any criminal proceeding on the ground of an error apparent on the face of  the  record.  Order  XLVII  of  C.P.C.  stipulates  that  a  party  may apply  for  review  if  it  is  aggrieved  by  the  orders  or  decrees,  or decisions  mentioned  in  sub  clauses  (a),  (b),  (c)  of  rule  1  on  three grounds  namely,  discovery  of  new  and  important  matter  or evidence  which,  after  the  exercise  of  due  diligence  was  not  within its knowledge or could not be produced by it at the time when the decree was passed or order made, or on account of some mistake or  error  apparent  on  the  face  of  the  record,  or  for  any  other sufficient reason.

32.  The  scope  of  review  jurisdiction  came  up  for consideration before this Court in Lt. Col. Nawabzada Muhammad Amir  Khan  v.  The  Controller  of  Estate  Duty,  Government  of Pakistan,  Karachi  and  others (PLD  1962  SC  335), and this  Court speaking  through  its  Chief  Justice  Mr.  Justice  Cornelius  as  he then was observed as follows:-

“For the present purpose, the emphasis should, in my  opinion,  be  laid  upon  the  consideration  that, for  the  doing  of  “complete  justice”,  the  Supreme Court is vested with full power, and I can see no reason why the exercise of that full power should be  applicable  only  in  respect  of  a  matter  coming up  before  the  Supreme  Court  in  the  form  of  a decision  by  a  High  Court  or  some  subordinate Court.  I  can  see  no reason  why  that  purpose,  in its full scope, should not also be applicable for the purpose of reviewing a judgment delivered by the Supreme Court itself provided that there be found a necessity within  the  meaning of the expression “complete  justice” to exercise that power. It  must, of  course,  be  borne  in  mind  that  by  assumption, every  judgment  pronounced  by  the  Court is  a considered  and  solemn  decision  on  all  points arising  out  of  the  case,  and  further  that  every reason  compels  towards  the  grant  of  finality in favour  of  such  judgments  delivered  by  a  Court which  sits  at  the  apex  of  the  judicial  system. Again, the expression “complete justice” is clearly not to be understood in any abstract or academic sense.  So  much  is  clear  from  the  provision  in Article  163  (3)  that  a  written  order  is  to  be necessary  for  the  purpose  of  carrying  out  the intention  to  dispense  “complete  justice”.  There must  be  a  substantial  or  material  effect  to  be produced  upon  the  result  of  the  case if,  in  the interests  of  “complete  justice”  the  Supreme  Court undertakes to exercise its extraordinary power of review of one of its own considered judgments. If there be found material irregularity, and yet there be no substantial injury consequent thereon, the exercise  of  the  power  of  review  to  alter  the judgment  would not necessarily be required. The irregularity must be of such a nature as converts the  process  from  being  one  in  aid  of  justice  to  a process  that  brings  about  injustice.  Where,  how-ever,  there  is  found  to  be  something  directed  by the  judgment  of  which  review  is  sought  which  is in  conflict  with  the  Constitution or  with  a  law  of Pakistan,  then it  would be  the duty of the Court, unhesitatingly  to  amend  the  error.  It  is  a  duty which  is  enjoined  upon  every  Judge  of  the  Court by  the  solemn  oath  which  he  takes  when  he enters  upon  his  duties,  viz.,  to”  preserve,  protect and  defend  the  Constitution  and  laws  of Pakistan”.

 33.  In  Abdul  Ghaffar-Abdul  Rehman  v.  Asghar  Ali  (PLD 1998 SC 363), this Court after having examined a plethora of case law both from Pakistan & India laid down principles which a Court should consider before exercising review jurisdiction:

17.  From  the  above  case-law,  the  following principles of law are deductible:

(i)  That  every  judgment  pronounced  by  the Supreme  Court  is  presumed  to  be  a  considered, solemn and final decision on all points arising out of the case;

(ii)  that if the Court has taken a conscious and deliberate  decision  on  a  point  of  fact  or  law,  a review petition will not lie;

(iii)  that  the  fact  the  view  canvassed  in  the review petition is  more reasonable  than  the view found  favour  with  the  Court  in  the judgment/order of which review is sought, is not sufficient to sustain a review petition;

(iv)  that  simpliciter  the  factum  that  a  material irregularity  was  committed  would  not  be sufficient  to  review  a  judgment/order  but  if  the material  irregularity  was  of  such  a  nature,  as  to convert  the  process  from  being  one  in  aid  of justice  to  a  process  of  injustice,  a  review  petition would lie;

(v)  that  simpliciter  the  fact  that  the conclusion recorded  in  a  judgment/order  is  wrong  does  not warrant  review  of  the  same  but  if  the  conclusion is  wrong  because  something  obvious  has  been overlooked  by  the  Court  or  it  has  failed  to consider  some  important  aspect  of  the  matter,  a review petition would lie;

(vi)  that if the error in the judgment/order is so manifest  and  is  floating  on  the  surface,  which  is so material that had the same been noticed prior to  the  rendering  of  the  judgment  the  conclusion would  have  been  different,  in  such  a  case  a review petition would lie;

(vii)  that  the  power  of  review  cannot  be  invoked as  a  routine  matter  to  rehear  a  case  which  has already  been  decided  nor  change  of  a  counsel would  warrant  sustaining  of  a  review  petition, but the same can be pressed into service where a glaring  omission  or  patent  mistake  has  crept  in earlier by judicial fallibility;

(viii)  that  the  Constitution  does  not  place  any restriction  on  the  power  of  the  Supreme  Court  to review its earlier decisions or even to depart from them nor the doctrine stare decisis will come in its way so long as review is warranted in view of the significant  impact  on  the  fundamental  rights  of citizens or in the interest of public good;-

(ix)  that  the  Court  is  competent  to  review  its judgment/order  suo  motu  without  any  formal application;

(x)  that under the Supreme Court Rules, it sits in  divisions  and  not  as  a  whole.  Each  Bench whether small or large exercises the same power vested  in  the  Supreme  Court  and  decisions rendered by the Benches irrespective of their size are  decisions  of  the  Court  having  the  same binding nature.”

34.  In  Justice  Sajjad  Ali  Shah  v.  Malik  Asad  Ali  (1999 SCMR 640), the afore-referred view was reiterated.

35.  In Justice  Khurshid  Anwar  Bhinder  v.  Federation  of Pakistan (PLD 2010 SC 483), this Court held:

“A review is by its very nature not an appeal or a rehearing merely on the ground that one party or another  conceives  himself  to  be  dissatisfied  with the decision of the court, but that it should only be granted  for  some  sufficient  cause  akin  to  those mentioned  in  Order  XLVII,  Rule  1  of  the  Code  of Civil  Procedure,  the  provisions  whereof incorporate  the  principles  upon  which  a  review was usually granted by Courts of law in England.

The  indulgence  by  way  of  review  may  no  doubt be  granted  to  prevent  remediable  injustice  being done  by  a  court  of  last  resort  as  where  by  some inadvertence an important statutory provision has escaped  notice  which,  if  it  had  been  noticed, might  materially  have  affected  the  judgment  of the  court  but  in  no  case  should  a  rehearing  be allowed upon merits.”

36.  The  facts  of  the  case  in  hand  are  rather  straight  i.e. the  imposition  of  state  of  emergency,  the  promulgation  of Presidential  Order  2007,  the  requirement  of taking  fresh  Oath by Judges  and  those  who  did  not,  ceased  to  be  Judges.  The appointment of Mr. Abdul Hameed Dogar as Chief Justice after the former  Chief  Justice  was  held  to  have  ceased  to  hold  office,  the judgment  of  Tikka  Iqbal’s  case  whereby  a  Bench  headed  by  Mr. Abdul Hameed Dogar validated the actions taken by the petitioner on  3rd  of  November,  thereafter  the  turn  of  events,  the  movement for  restoration  of  judiciary  and  the  ultimate  restoration  of  Chief Justice  and  other  Judges  and  the  vires  of  the  actions  taken  were examined  by  the  Court  headed  by  the  restored  Chief  Justice,  Mr. Justice Iftikhar Muhammad Chaudhry and the pronouncement of the  Sindh  High  Court  Bar  (Supra).  The  view  taken  in  Sindh  High Court  Bar  (Supra)  is  that  the  Chief  of  Army  Staff  could  not  have imposed emergency as he had no power under the Constitution to do so; that the former Prime Minister had addressed a letter to the President and not to the Chief of Army Staff about the deteriorating law  and  order  situation  and  orders  of  some  of  the  Judges  of  this Court  which  according  to  him  were  not  appropriate in  the  given circumstances  in  the  country.  The  full  Bench  of  this  Court  had unanimously  declared  the  actions  taken  to  be void  ab  initio and non est and held as follows:-

“60.  From  the  contents  of  the  letter  of  the  Prime Minister,  it  cannot  be  said  that  he  issued  any direction  to  the  Armed  Forces  in  terms  of  Article 245  of  the  Constitution  to  act  in  aid  of  the  civil power,  nor  the  actions  of  General  Pervez Musharraf  of  3rd  November,  2007  could  be  said to have been taken or done while acting in aid of the  civil  power.  Even  otherwise,  the  letter  was addressed to the President of Pakistan and not to the  Chief  of  Army  Staff.  But  for  the  sake  of argument, it  may be stated  that even if the letter was addressed to the Chief of Army Staff, it could not be construed to give to the latter any power to take  the  kind  of  steps  that  he  took  in  pursuance of the aforesaid letter.

80.  Seen  in  the  above  perspective,  the  actions  of General  Pervez  Musharraf  dated  3rd  November, 2007  were  the  result  of  his  apprehensions regarding  the  decision  of  Wajihuddin  Ahmed’s case  and  his  resultant  disqualification  to  contest the election of President. Therefore, it could not be said  that  the  said  actions  were  taken  for  the welfare  of  the  people.  Clearly,  the  same  were taken  by  him  in  his  own interest  and  for  illegal and  unlawful  personal  gain  of  maneuvering another  term  in  office  of  President,  therefore,-the same  were  mala  fide  as  well.  The  statement made  in  Proclamation  of  Emergency  that  the situation had been reviewed in meetings with the Prime  Minister,  Governors  of  all  the  four Provinces,  and  with  Chairman,  Joint  Chiefs  of Staff Committee, Chiefs of the Armed Forces, Vice Chief  of  Army  Staff  and  Corps  Commanders  of the  Pakistan  Army,  and  emergency  was proclaimed in pursuance of the deliberations and decisions of the said meetings, was incorrect. The Proclamation  of  Emergency  emanated  from  his person,  which  was  apparent  from  the  words  “I, General Pervez Musharraf….” used in it.

          ——————————————

 85.  In  the  light  of  the  above  discussion,  the actions  of  General  Pervez  Musharraf  dated  3rd November, 2007, viz., Proclamation of Emergency, PCO No. 1 of 2007 and Oath Order, 2007, etc. are held  and  declared  to  be  unconstitutional,  illegal, mala  fide  and  void  ab  initio.  In  pursuance  of  the aforesaid  declaration,  it  is  further  held  and declared  that  the  Chief  Justice  of  Pakistan,  the Judges  of  the  Supreme  Court  of  Pakistan,  Chief Justices  and  Judges  of  High  Courts  who  were declared  to  have  ceased  to  hold  office  by  the notifications  issued  by  the  Ministry  of  Law  and Justice,  Government  of  Pakistan  in  pursuance PCO No.1 of 2007 and Oath Order, 2007 shall be deemed  never  to  have  ceased  to  be  such  Chief Justices  or  such  Judges,  irrespective  of  any notification  issued  regarding  their  reappointment or  restoration.  The  notifications  issued  by  the Ministry  of  Law  in  this  behalf  are  declared  to  be null and void.”

37.  The afore-referred declarations and findings could not be subject matter of review as neither there is any discovery of new or  important  matter  or  evidence  which  after  the  “exercise  of  due diligence” was not within the knowledge of the petitioner or could not  be  produced  by  him  at  the  time  when  the  judgment  under challenge  was  passed.  As  noted  in  para  16  above,  in  fact, petitioner’s learned counsel frankly admitted, on Court query, first that the then Prime Minister Mr. Shaukat Aziz had written a letter to  the  President  of  Pakistan  and  not  to  the  Chief  of  Army  Staff; second that the Prime Minister had not advised him to impose the State  of  Emergency  rather “the  petitioner  acted  in  his  own discretion”.  This  frank  admission  by  his  counsel  has  further weakened his case for review. How could petitioner in his capacity as  Chief  of  Army  Staff  or  even  as  President  act  on  his  own discretion. He  had  no  power  under  the  law  to  impose  State  of Emergency  and  make  Judges  of  the  Supreme  Court  and  High Courts dysfunctional notwithstanding the mandate of Article 48 of the Constitution which inter alia stipulates that:

[48. (1)  In  the  exercise  of  his  functions,  the President  shall  act  [on  and]  in  accordance  with the advice of the Cabinet [or the Prime Minister]:   [Provided  that  [within  fifteen  days]  the President may require the Cabinet or, as the case may  be,  the  Prime  Minister  to  reconsider  such advice,  either  generally  or  otherwise,  and  the President  shall[,  within  ten  days,]  act  in accordance  with  the  advice  tendered  after  such reconsideration.]”

38.  Yet another argument raised was that although in the judgment  under  challenge,  there  was  no  direction  for  trial  of petitioner under Article 6, but a 3-Member Bench has directed trial (2013  SCMR  1683)  which  is  not  warranted  in  law.  First  this argument  is  no  ground  to  seek  review  of  the  judgment  under challenge because it seems the petitioner’s grievance is against the order of the three Member Bench (2013 SCMR 1683). But the said judgment has not been challenged in review. Second, a violation of Article  6  has  two  aspects/consequences  i.e. constitutional and criminal.  In  the  judgment  under  review,  the  former  aspect  was dealt  with  and  the  Court  held  that  the  acts  of  petitioner  were violative  of  the  constitutional  provisions.  While  in Moulvi  Iqbal Haider  v.  Federation  of  Pakistan  (2013  SCMR  1683),  the  Court dealt with the latter aspect i.e. criminal. But while doing so it did not give a finding on merit, lest it may prejudice the case of either side  during  trial.  Rather  the  Court  disposed  of  the  case  on  the statement of Attorney General for Pakistan who said:

(1)  The  Prime  Minister  has  directed  the Secretary  Interior  to  forthwith  direct  the Director-General  FIA  to  constitute  a  special investigative  team  of  senior  officers  to commence  an  inquiry  and  investigation  in relation  to  the  acts  of  General  (R)  Parvez Musharraf of 3rd November, 2007 that may amount  to high  treason  under  Article  6  of the  Constitution  and  to  finalize  as expeditiously  as  possible  the  statement  of case  to  be  put  up  by  the  Federal Government  before  the  Special  Court  to  be constituted  under  the  Criminal  Law Amendment (Special Courts) Act, 1976.

(2)  The  Law  entrusts  the  investigation  of  the offence  of  high  treason  to  the  FIA  under entry No. 14 of the Schedule of the FIA Act, 1974 read with sections 3(a) and 6 thereof. However,  in  order  to  ensure  expeditious completion of the inquiry and investigation, the  Prime  Minister  is  also  considering  the constitution  of  a  Commission  to  oversee and  monitor  the  progress  of  the proceedings.

(3)  On  the  completion  of  the  investigation,  the Federal  Government  shall  file  the  requisite complaint  under  section  5  of  the  Criminal Law Amendment (Special Courts) Act, 1976 and  take  steps  to  constitute  the  Special Court  in  accordance  with  section  4  of  the said Act for the trial of the offence.”

 39.  In  Para  3  of Moulvi  Iqbal  Haider (supra), to  be  fair  to the petitioner, the Court observed:-

“3.  We  are  consciously,  deliberately  and  as submitted  by  Mr.  Muhammad  Ibrahim  Satti, learned  Senior  Advocate  Supreme  Court  for  the respondent,  not  touching  the  question  of “abrogation”  or  “subversion”  or  “holding  in abeyance  the Constitution” or “any conspiracy in that behalf” or indeed the question of suspending or  holding  the  Constitution  in  abeyance  or  the issue  as  to  abetment  or  collaboration  in  the  acts mentioned in Article 6 of the Constitution. This is so  because  any  finding/observation  or  view expressed  by  us  may  potentially  result  in prejudice  to  the  inquiry/investigation  or subsequent  trial  should  that  take  place  as  a result of such investigation.”

40.  Third the findings rendered and the conclusions drawn in  Sindh  High  Court  (Supra)  did  not in  any  manner  preclude  the passing  of  an  order  of  the  kind  passed  in  Moulvi  Iqbal  Haider’s case  (2013  SCMR  1683).  Because  if  the  Court  in  an  earlier judgment  held  the  actions  of  petitioner  Pervez  Musharraf  as unconstitutional,  it  did  not  deter  a  Bench  of  this  Court  from passing  an  order  as  a  consequence  of  the  findings  rendered therein.  Fourth  notwithstanding  the  Sindh  High  Court supra,  the discretion  to  direct  trial  under  Article  6  of  the  Constitution  lies with the Executive as reflected in the Preamble of the Criminal Law Amendment (Special Courts) Act, 1976 which stipulates, “whereas it  is  expedient  to  provide  for  the  trial  by  a  Special  Court  of  certain offences affecting the security, integrity or sovereignty of Pakistan or any part thereof, including offences of high treason and for matters connected therewith….”. It was for the exercise of the said executive discretion  that  petitioners  in  Moulvi  Iqbal  Haider  (supra),  had prayed  that  the  Federal  Government  be  directed  to  lodge  a complaint  under  Article  6 of  the  Constitution  against  General  (R) Pervez  Musharraf.  Fifth  in  Moulvi  Iqbal  Haider  (supra),  the judgment per se did not amount to an order rather it is provided in the  operative  part  of  the  judgment  that  the  case  would  be investigated  and  thereafter  final  report  submitted  before  the  trial Court.  The  judgment  merely  refers  to  the  commencement  of proceedings by the Federal Government which include, but are not limited, to the task of investigation. As indicated earlier the Court has  been  conscious  not  to  make  any  expression  of  opinion  on merits  of  the  case  lest  it  may  prejudice  the  case  of  the  petitioner during trial.

(vi)  Whether  the  judgment  under  challenge  has  the  effect  of  giving retrospective effect to Article 6?

41.  To  appreciate  this  argument,  a  reference  to unamended and amended Article 6 of the Constitution and Article 12 would be pertinent:-

Un-amended Article 6 Amended Article 6
6.  (1)  Any  person  who abrogates  or  attempts  or conspires to abrogate, subverts or  attempts  or  conspires  to subvert the Constitution by use of  force  or  by  other unconstitutional  means  shall

be guilty of high treason.

(2)  Any  person  aiding  or abetting  the  acts  mentioned  in clause  (1)  shall  likewise  be guilty of high treason.

(3)  [Majlis-e-Shoora (Parliament)]  shall  by  law

provide  for  the  punishment  of persons  found  guilty  of  high treason.

 6.  [(1)  Any  person  who abrogates  or  subverts  or suspends  or  holds in  abeyance, or  attempts  or  conspires  to abrogates or subvert or suspend

or  hold  in  abeyance,  the Constitution  by  use  of  force or show  of  force  or  by  any  other unconstitutional means shall be guilty  of  high  treason.]

(Emphasis is supplied).

(2) Any person aiding or abetting [or  collaborating]  the  acts mentioned  in  clause  (1)  shall likewise  be  guilty  of  high treason. (Emphasis is supplied)

[(2A)  An  act  of  high  treason mentioned  in  clause  (1)  or clause  (2)  shall  not  be  validated

by  any  court  including  the Supreme  Court  and  a  High Court.] (Emphasis is supplied)

(3)  [Majlis-e-Shoora  (Parliament) shall  by  law  provide  for  the punishment of  persons  found

guilty of high treason.

42.  The  argument  of  petitioner’s  learned  counsel  is grounded  on  protection  against  retrospective  punishment guaranteed under Article 12 which mandates:

“12. (1) No law shall authorize the punishment of a person——-

(a)  for  an  act  or  omission  that  was  not punishable  by  law  at  the  time  of  the act or omission; or

(b)  for  an  offence  by  a  penalty  greater than,  or  of  a  kind  different  from,  the penalty  prescribed  by  law  for  that offence  at  the time  the  offence  was committed.

(2)  Nothing in clause (1) or in Article 270 shall  apply  to  any  law  making  acts  of abrogation or subversion of a Constitution in force  in  Pakistan  at  any  time  since  the twenty-third  day  of  March,  one  thousand nine hundred and fifty-six, an offence.”

43.  Article 6  of  the  Constitution  as  it  stands  today  was amended  by  virtue  of Constitution  (Eighteenth  Amendment)  Act, 2010 (10 of 2010). The amended parts of Article 6 which have been highlighted indicate following additions/changes:-

(i)  In Article 6(1), words “or hold in abeyance”;

(ii)  In Article 6(2) words, “or collaborating”; and

(iii)  Article  6(2A):  This  is  a  new  sub-clause  whereby it  has  been  mandated  that  any  act  of  high treason  within  the  meaning  of  Article  6(1)  and Article  6(2)  “shall  not  be  validated  by  any  court including the Supreme Court and a High Court”.

44.  The nature of offence, definition and procedure of trial substantially  remain  the  same  except  that  another  mode  of suspending  the  Constitution  (hold  in  abeyance) in  the  definition clause of high treason have been added. The major change brought is  the  addition  of  Article  6(2A).  By  this  newly  added  sub-clause there  is  prohibition  for  courts  including  the  High  Court  and Supreme Court to validate it.

45.  The  Court  is  seized  of  a  review  petition  against  a judgment  wherein  neither  the  question  of  petitioner’s  trial  or  the retrospective  or  prospective  effect  of  Article  6  were  moot  points. The  argument qua  this is therefore misplaced  and  is  accordingly repelled.

46.  The Court has narrated with a measure of dismay the frequent constitutional deviations in the country. The spirit which underpins the judgment is a strong realization that we should not remain trapped by mistakes in history and turn a new leaf towards constitutionalism and the rule of law:-

“For  the  first  time,  Constitution  of  1956  was abrogated on 7th October, 1958 and Martial Law was  imposed  by  the  then  President,  Iskandar Mirza  who  dismissed  the  Central  and  Provincial Governments;  dissolved  the  Parliament  and Provincial  Assemblies  and  abolished  all  Political Parties  and  appointed General Muhammad Ayub Khan,  the  then  Commander  in  Chief  as  Martial Law  Administrator.  Iskandar  Mirza  was  soon, within  few  days,  replaced  by  the  latter.  On  25th March,  1969,  again  the  then  head  of  Army, General  Agha  Muhammad  Yahya  Khan, abrogated  the  Constitution  of  1962  and  by Proclamation  (PLD  1977  Central  Statutes  42) Promulgated Martial Law followed by Provisional Constitution  Order  (Gazette  of  Pakistan, Extraordinary 4th April, 1969). On 5th July, 1977 once again Martial Law  was imposed  throughout the  country  by  the  then  head  of  Army  Chief  viz. former General Muhammad Ziaul Haq,  who, vide Proclamation  of  Martial  Law  (PLD  1969  Federal Statutes  326)  dissolved  the  National  Assembly, the Senate, the Provincial Assemblies etc. and put the Constitution of 1973 in abeyance followed by Laws  (Continuance  in  Force)  Order,  1977.  When the  Constitution  was  revived,  it  was  undeniably, in  a  mutilated  form  by  the  notorious  Eighth Amendment.

10.  Later,  there  was  another  onslaught  on  the ongoing  democratic  system  of  governance.  On 12th October, 1999, the then Chief of Army Staff, General  Pervez  Musharraf,  now  retired,  once more,  put the Constitution  in  abeyance  and  the whole of Pakistan  was brought under  the control of  Armed  Forces.  The  National  Assembly,  the Senate  and  the  Provincial  Assemblies  were suspended,  so  also,  the  Chairman  and  Deputy Chairman  of  Senate,  the  Speaker  and  Deputy Speaker  of  the  National  Assembly  and  the Provincial  Assemblies  were  suspended  and  it was  declared  that  the  Prime  Minister,  Federal Ministers,  Parliamentary  Secretaries,  the Provincial  Governors,  the  Provincial  Chief Ministers  and  the  Advisor  to  the  Chief  Ministers would cease to hold offices, followed by issuance of Provisional Constitution Order  and the  Oath of Office  (Judges)  Order  2000.  General  Pervez Musharraf  (Rtd.),  self  styled  himself  as  Chief Executive  and  started  ruling  the  country  under the  new  dispensation.  Later,  he, unceremoniously, occupied  the office of President and  in  the  coming  years  revived  the  Constitution with Seventeenth Amendment.

11.  Again,  on  3rd  November,  2007  the  General Pervez Musharraf, (Rtd.), in his capacity as Chief of  Army  Staff,  in  the  garb  of  declaration  of emergency,  put  the  Constitution  in  abeyance, issued  Provisional  Constitution  Order  No.1  of 2007  followed  by  the  Oath  of  Office  (Judges) Order,  2007,  making  as  many  as  sixty  one  (61) Judges  of  superior  judiciary  including  Chief Justice  of  Pakistan  and  Chief  Justices  of  three Provinces  dysfunctional  for  many  of  them  either did not  agree  to  take or  were not given  the oath. Of  them  were;  from  Supreme  Court  13  out  of  18 (17 permanent  and one  ad-hoc) Judges including Chief Justice of Pakistan, 18 out of 31 Judges of the  Lahore  High  Court,  24  out  of  28  Judges including  Chief  Justice  of  High  Court  of  Sindh, 6 out  of  13  Judges  including  Chief  Justice  of Peshawar  High  Court.  It  is  quite  saddening  that all  the  five  Judges  including  the  Chief  Justice  of Balochistan High Court took oath under the Oath of Office (Judges) Order, 2007.

—————————–

13. ……………In  order  to  save  the  judiciary  from being destroyed, for the first time in the history of this Country, a seven member Bench of this Court headed  by  the  de  jure  Chief  Justice  of  Pakistan, passed  an  order,  inter-alia,  restraining  the President  and Prime  Minister  of  Pakistan  from undertaking any such action, which was contrary to  the  Independence  of  Judiciary.  So  also  the Judges of this Court  and  that of the High Courts including  Chief  Justice  (s)  were  required  not  to take  oath  under  the  Provisional  Constitution Order  or  any  other  extra  Constitutional  step  and on  the  same  day  viz.  3.11.2007,  the  order  was served  on  the  members  of  superior  judiciary through the respective Registrars of the Courts by way  of  Fax.  It  was  also  sent  to  all  the  relevant Executive functionaries.”

 47.  The  foregoing  narration,  analysis  and  observations lead us to conclude that the judgment under review does not stand vitiated  by  any  bias  or  error  in  law  or  fact  to  warrant  review.  The petitions having no merit are accordingly dismissed. These are the detailed  reasons  for  our  short  order  dated 30.1.2014 which  reads as under:-

“For  reasons  to  be  recorded  later  in  the  detailed judgment,  we  find  the  review  petitions  filed  by petitioner  General  (R)  Parvez  Musharraf  to  be barred by  time  and  the precedent case law cited in  this  behalf  to  be  distinguishable.  Even otherwise,  we  have  considered  the  submissions made  on  merits.  The  grounds  urged  by  the petitioner’s learned counsel neither fall within the purview  of  review  jurisdiction  nor  tenable  on merit  to  warrant  interference  in  the  judgment under  challenge.  Both  the  petitions  filed  by  him are accordingly dismissed.”

CHIEF JUSTICE

JUDGE (HJ 1)     JUDGE (HJ 2)     JUDGE (HJ 3)

JUDGE (HJ 4)     JUDGE (HJ 5)     JUDGE (HJ 6)

JUDGE (HJ 7)     JUDGE (HJ 8)     JUDGE (HJ 10)

JUDGE (HJ 11)    JUDGE (HJ 13)    JUDGE (HJ 14)

JUDGE (HJ 15)

Islamabad, the 30th of January, 2014

Jawwad S. Khawaja, J.  I  have  had  the  benefit  of  reading  the  detailed judgment  of Honourable the Chief  Justice,  with  which  I  agree completely. My  aim here  is  to highlight briefly, some  additional  aspects relating  to bias  and the contention advanced  on  behalf  of the  petitioner  that  the  former Chief  Justice of  the  Court,  Justice  Iftikhar  Muhammad Chaudhry was biased against the petitioner General Pervez Musharraf and that in hearing the case  relating  to  the  Proclamation  of  Emergency he  was  acting  as  a  “judge  in  his  own cause”. For this reason, it was urged that the judgment dated 31.7.2009 in the said case (now sought to be reviewed) is not sustainable.

2.  Syed  Sharifuddin  Pirzada,  learned  Sr.  ASC,  almost  exclusively confined  his arguments  to  stress  the  point  that  the judgment  under  review  should  be  set  aside  as averred  in  the  Review  Petition, firstly  because  “General  (Retd)  Pervez  Musharraf  and  Mr. Justice  Iftikhar  Muhammad  Chaudhary  were rival [sic] to  each  other  and  were  dagger [sic] drawn and they were party against each other in case of Reference against Mr. Justice Iftikhar Chaudhry . . . and  on filing  the  Presidential  Reference  [the]  Supreme  Judicial Council  had  suspended  Mr.  Justice Iftikhar Muhammad Chaudhry, Chief Justice of Pakistan and. . . that [sic] again ceased to hold office for  about  ½  years  [sic]  which  show  [sic]  that  by  no  stretch  of  imagination  Mr.  Justice  Iftikhar Muhammad  Chaudhry  CJP  was  qualified  to  constitute  and  preside  over  the  Bench”  which rendered  the  aforesaid  judgment. And  secondly because  the Proclamation of  Emergency was due to “the deed [sic] and mis-deed of the [sic] Mr. Justice Iftikhar Muhammad Chaudhry CJP and  therefore  he  was  not  supposed  to  be  Judge  of  his  own  cause  as  it  violates  the  basic  maxim (NEMO  DEBATE  SSE  JUDEX  IN  PROPRIA  SUA  CAUSA  [sic])  and  other  principles  of administration of justice”.

3.    In relation to the learned counsel’s first argument, the Honourable Chief Justice has already noted the counsel’s inability in  providing  evidence of any act  of the  former Chief Justice which establishes his bias against  the  Petitioner. On  29.1.2014  Mr.  Pirzada  Sr. ASC was asked to go through the Review Petition (spanning 34 pages and settled by three ASCs) and advert to that paragraph or sentence where a fact had been asserted which, if accepted, would demonstrate bias on the part of the former Chief Justice. Mr. Pirzada took some time thumbing through and shuffling papers in his file but could not point to any such factual assertion.  He,  therefore,  sought  time  (which  was allowed)  till  the  following  day.  The  next day  also  he  failed  to  show  that  any  fact  had  been  pleaded  in  support  of  the  allegation  of actual bias. The reason for setting out, in some detail this aspect of the case, will be evident from the discussion below.

4.  The assertion of bias against a Judge can take two forms recognized by our law viz. ‘actual’ bias  and ‘reasonable  perception’ of  bias even though  there  may  be  no actual  bias. Actual  bias  is  alleged on  the  basis  of  one  or  more  specific incidents showing partiality or animosity amounting to bias. In order to demonstrate such bias, a factual averment has to be  made  in  the  pleadings  of  the  party  alleging it.  The  question  as  to  whether the  factual allegation is true or not, will not arise if the relevant fact has not been pleaded. As has been noted above, the review petition was settled by three eminent Advocates of our Bar and the petitioner himself had the occasion to meet with and instruct the learned counsel. In these circumstances, in  the  absence  of  any  factual  assertion  of  actual  bias, we  can  only say that there was in fact no basis for such allegation. We may, however, advert to certain assertions made  in the  review  petition (as  noted  above) and  arguments  advanced  on  behalf  of  the petitioner inviting the Court to infer bias of the former Chief Justice against the petitioner. It  was submitted that bias  arose on  account  of the  unlawful  removal  of  the  former  Chief Justice  and  his  house  arrest  and  also  on  account  of  a  reference  having  been  filed  by the petitioner  against the former  Chief  Justice  under Article  209  of  the  Constitution,  wherein the  Supreme  Judicial  Council  had  stopped  the  former  Chief  Justice  from  performing  the duties  of  his  office. This  submission  on  its  face  is  irrational  and  without lawful  basis, as these events may show a bias harboured by the petitioner against the former Chief Justice but not the other way round. This aspect of the case has been further elaborated later in this opinion. Learned counsel for the petitioner argued that at the very least, we should accept the  allegation  of  bias  on  the  ground  that  there  was  the  possibility  of  a  ‘reasonable perception’  of  bias.  This  argument  appears  to  be  based  on  the  ratio  in  the  case  of Metropolitan Properties, Ltd. v. Lannon [(1968) 3 All E.R. 304]. The perception of bias, without there being actual bias, as noted above is also recognized by our law but again it has to be founded on a more solid footing than allegations which are imaginary or which are based on a subjective opinion divorced from objective reality. The main thrust of the argument of Mr. Pirzada,  Sr.  ASC  was  that  our  judgment  of  31.7.2009  must  be  reviewed  because  of actual  bias  on  the  part  of  the  former  Chief  Justice  or  in  the  alternate,  on  account  of  a reasonable  perception  that  there  could  have  been  bias  which  must,  without  more,  be inferred from the events noted above.

5.  The above aspect of the case may become clearer and the attitude of the petitioner in levelling  allegations  of  bias  against  the  former  Chief  Justice  could  become  more comprehensible  if  looked  at  in  the  context  of  the  petitioner’s  career  leading  up  to  his appointment  as  the  Chief  of  Army  Staff.  We  can  only  try  to  understand  the  motivation behind such allegations of bias. The inference, if  any, to be drawn is not in relation to the Court  or  the  alleged  bias  of  its  former  Chief  Justice,  it  is  to  be  drawn  in  relation  to  the petitioner himself. It appears that the petitioner, perhaps on account of his long service in the armed forces, may not have encountered dissent, disagreement or resistance to orders issued in a chain of command, necessary for a cohesive fighting force. He may, therefore, in his  own  mind,  have  considered  the  resistance  to  his  unconstitutional  Proclamation  of Emergency, by  the  Judiciary  of  the country  including  the  former  Chief  Justice,  as  a manifestation  of  disobedience  or  insubordination  and  thus ill  will  or  animus against  him.

The imperious tenor of the Proclamation of Emergency brooks no dissent and says it all : “I, General Pervez Musharraf, Chief of the Army Staff, proclaim emergency throughout Pakistan … I hereby order  and  proclaim  …  (emphasis  supplied). With  such  thinking,  it  may  not  have crossed his mind that he may actually have missed the reality that the Court and its Judges were  only  doing  their  job  in  accordance  with  the  law  and  the  Constitution.  His  logic, perhaps  not so  strange  to  him  can  be  best  explained  by  referring  to  the  wisdom  of  Hafez who  recognized  the  elements  of  ‘zarf’ and  ‘nafs’,  and  while  doing  so,  understood  the extremes  of  subjective  opinion  which  may  be  contrary  to  accepted norms  and  which  may lead a person bedevilled by subjective standards into an irrational persecution complex. As the sage of Shiraz said:

However, as noted above, Courts are required to proceed on the basis of objective/rational standards and not on the basis of unfounded subjective opinions or on the basis of assumed perceptions of bias which may border on paranoia.

6.  Judges, it may be noted, do encounter allegations of bias and also receive criticism some of which may be expressed in civil language while others may be through hate speech or outright  vilification  based  on  malice.  In either  event,  the  Judge  by  training  does  not allow  such  vilification  to  cloud  his  judgment  in  a  judicial  matter.  Even  extremely derogatory language used against Judges does not, by itself create bias, as is evident from the negligible number of contempt cases based on scandalisation of Judges, (none leading to  a  sentence) cited  in  the  case  titled Baz  Muhammad  Kakar  vs.  Federation  of  Pakistan (PLD 2012 SC 923). Courts, therefore, cannot decide questions of perceived bias by accepting the individual  and  personal views of  an  aggrieved  petitioner  and  thus  recuse  from  a  case.  It was  pointed  out  to  Mr.  Pirzada,  Sr.  ASC  that  if  a  subjective  perception  of  bias  could be made  a  basis  for  recusal  of  a  Judge merely  because  the  petitioner had  done  things  or  had taken  unconstitutional  steps  against  the  former  Chief  Justice, it  would  be  very  simple  for any litigant not wanting his case to be heard by a particular Judge to start hurling abuses at such Judge and thereafter to claim that the Judge was biased against him. For litigants and their Advocates it is important to bear this in mind while urging ‘perception of bias’ against a Judge.

7.  The  submissions  of  learned  counsel  are clearly not  tenable in  law.  In  the  present case there is not even an allegation of actual bias pleaded in the Review Petition let alone proof  of  the same. As  for  perception  of  bias,  this  has  been  discussed  above  and  will  be further  dealt  with  later.  The  acts  of  the  petitioner  to  which  learned  counsel  drew  our attention, if anything, only serve to demonstrate a sense of bias harboured by the petitioner against the former Chief Justice. The actions and conduct of the former Chief Justice on the contrary,  demonstrate  a  dignified  restraint  such  that  even  after  being  twice  unlawfully prevented from performing his constitutional duties, orders (including the judgment under review) were not passed by him or by this Court which could be considered as having been made in respect of the petitioner in a personal capacity. However, even if the perception of bias  is  for  a  moment said  to  exist,  it  is  quite  impossible to  hold  that  the  same  has  any relevance to the present review petition.

8.  Mr.  Pirzada  cited  a  number  of  precedents  to  define  the  contours  of  bias  as recognized in law and the effect which these may have on the validity of a judgment. The Hon’ble Chief Justice in the lead judgment has already discussed in some detail the ratio of these  precedents. It  may  be  added  that  the  time-honoured  principles  of  natural  justice which call for vitiating a judgment as a result of bias in a Judge, are reasonably well defined in law and cannot be disputed. The purpose of these principles is to ensure that the rights of litigants are adjudicated upon by an impartial Court. This is an established rule and the Supreme  Court  would  be  the  first  to  uphold  it.  We,  however,  are  not engaged  in  an academic exercise, to determine generally the law relating to bias. Our endeavour is to see if,  in  the  facts  and  circumstances  of  the  case  before  us,  there  was  bias  sufficient  to  justify review of our judgment dated 31.7.2009. Learned counsel failed to advert to a single right of the  petitioner  which  was  the  subject  matter  of  adjudication  in  the  case under  review and which could, by extension, be prejudiced on account of the alleged bias of the former Chief Justice.

9.  The cases cited by the learned Sr. ASC involve some personal right of a party which is in  danger  of  being prejudiced  because  of  the  bias  of  the presiding judge.  Indeed, in the Pakistani cases cited by him, the liberty of a party alleging bias was at stake. Ghulam Rasool v. Crown (PLD  1953  Federal  Court  62) concerned an  appellate ruling  by  M.  R.  Kayani,  J where he had convicted and sentenced, as judge of the Lahore High Court, the appellants therein for murder. However, prior to being elevated to the Bench, Kayani, J had, as Legal Remembrancer to the Government of Punjab, advised the government on the same murder case. On appeal, the Federal Court held that the judgment of Kayani, J was vitiated due to the ‘possibility’  of  him  being  biased  against  the  appellants  on  account  of  him  having expressed an opinion on the same case in favour of the prosecution and thus pre-judged the case.  Anwar  v.  Crown  (PLD  1955  Federal  Court  185)  also concerned  a  sentence  passed against the appellant therein on a charge of murder. The Sessions Court had acquitted the appellant,  but  the  deceased’s  father  filed  a  criminal  revision  petition  before  the  Lahore High  Court  which  was  accepted  and  re-trial  was  ordered.  The  appellant  challenged  this decision before the Federal Court on the ground that the language used by the High Court in its findings was so strong that the Sessions Court would be influenced by it and therefore he would not get a fair trial. The Federal Court however held that there was no danger of bias and upheld the order of re-trial. In Asif Ali Zardari v. State (PLD 2001 Supreme Court 568)  Mr.  Zardari,  who  was  the  spouse  of  a  former  Prime  Minister  was  convicted  by  a Division Bench of the Lahore High Court headed by Malik Muhammad Qayyum, J under the  Ehtasab  Act,  1997. The  appellant Mr.  Zardari contended  that  Qayyum,  J  was  biased because he had purportedly accepted a diplomatic passport for himself and his wife (which they  otherwise  were  not  entitled  to)  in  exchange  for  a  ruling  against  Mr. Zardari. Recordings  of  telephonic conversations  were  also  adduced  in  evidence  where  Qayyum,  J was  heard  to  be  receiving directions  from  functionaries  of  the  Federation. The  Supreme Court found that bias was “floating on the surface of the record” and decided to set aside the judgment. This, it may be noted, was an instance of actual bias.

10.   Unlike  the  above  mentioned  cases,  the  judgment  under  review  makes  no determination with respect to the personal rights of the Petitioner. The Court in the case of Sindh  High  Court  Bar  Association  was  instead  primarily  tasked  with  determining  the constitutional validity of the Proclamation of Emergency made on November 3rd, 2007 and certain acts and other instruments following the said Proclamation. While determining this issue,  the  Court  struck  down  and  declared  unconstitutional inter  alia the Proclamation of Emergency, the Provisional  Constitution  Order  No.1  of  2007  and  the  Oath  of  Office (Judges) Order of 2007. These were all indeed actions taken by the petitioner, but the Court did  not comment  on  the  criminal  or civil  consequences  which could  flow  against  the petitioner  as  a  result  of  this  determination.  The  petitioner has  conceded  this  much  in paragraph 30 of the Review Petition in the following words:

“30. That it is also pertinent to mention that though this Hon’ble Court after declaring that the Acts of 3rd November, 2007 were un-Constitutional yet in the  operative  part  of  the  judgment  this  Hon’ble  Court  did  not  mention  the prosecution of the petitioner under the High Treason Act…”

11.   The actions of the Petitioner on 3.11.2007, may have well been taken for his personal benefit,  as  the  judgment  under  review  holds,  but it  cannot  be  held  on  this  basis  that  the petitioner’s  act  of  appointment/removal of judges  of  the  superior  courts,  attempts  at making unilateral amendments  to  the  constitution,  declaring  a state  of  emergency, and so forth were personal rights of  the petitioner the  adjudication  of which showed bias  of  the former Chief Justice against the petitioner. The judgment under review was rendered by 14 Judges  of  this  Court  who  held  the  aforesaid  acts  of  the  petitioner  to  be  unconstitutional.

The Court, it may be noted, was called upon to decide constitutional questions concerning the affairs of the State. These questions were much bigger than the person of the petitioner and  the  same  were  decided  in  accordance  with  the  Constitution.  If  the  petitioner’s contention  is  accepted  it  would  be  akin  to  saying  that  a  judge who decides  against  the constitutionality  of  actions  taken  by  a  State  functionary,  thereby  demonstrates impermissible bias against such functionary rendering the Judge incapable of hearing cases involving  such  functionary.  It  is  the  very  essence  of  the  judicial  function  to  adjudicate matters coming before a Court. To illustrate this point one can, for instance, well imagine a situation where on  the  advice  of  the  Prime  Minister, the  President  files  a  reference  under Article  209  of  the  Constitution  against  a  judge  of  the  superior  courts and  the  judge is cleared  of  all  charges  by the  Supreme  Judicial  Council.    Can it  be contended that  the said judge will be incapacitated from questioning the validity of any subsequent act of the Prime Minister  or  of  the  President because  of a purported  bias? If  such  a  position  is  accepted,  it would  lead  to  the  absurd situation  that  despite  being  cleared  by  the  Supreme  Judicial Council,  the  Judge  would  become  non-functional  in  respect  of  cases  against  the  President or  the  Prime Minister. In  other  words, such  a  Judge  would  stand  accused  of  bias  without having  done  anything  to  invite  such  an  accusation  and  simply  because  he  had  been unsuccessfully proceeded  against  earlier  through  a  Presidential  reference  to  the  Supreme Judicial  Council.  Moreover,  this  position  would  provide  the  Executive  an  impermissible means  of  control  over the  Judiciary  which  is  neither  provided  for  by  the Constitution nor ever believed to have been so provided. Reading this novel check on the Judiciary into the Constitution  would  distort  and  obfuscate  the  carefully  designed  system  of  checks  and balances already made part of the Constitutional structure.  Judges, because of the nature of their  work,  at  times do encounter  invective,  and  at  times  malicious  tirades,  including abnoxious hate  speech from  litigants  and  sometimes  even  from  members  of  the  Bar.  But they  are  able  to  disregard  the  same  on  account  of  their  experience  and  training,  when hearing cases involving such persons in Court.

12.  Even  otherwise,  in  observing  that  the actions taken  by  the  petitioner  on  November 3rd  2007  were  unconstitutional,  the  Court  did  little  more  than  state  what  the  petitioner admitted  before  the  national  and  international  media.  Within  a  few  days  after  the Proclamation  of  Emergency, the petitioner himself,  in  an  interview  to  a  foreign  TV  news channel  (BBC)  admitted  that  he  had taken  unconstitutional  steps.  Relevant  portions from his  interview,  as  reported  in  the  Daily  ‘DAWN’ of  18th  November,  2007, are reproduced below:

 The daily DAWN, Islamabad, 18th November, 2007

NO ILLEGAL STEP TAKEN BEFORE NOV. PRESIDENT

“Before  March,  I  was  very  good.  Suddenly  did  I  go  mad  after  March  or suddenly my personality changed, am I Doctor Jekyll and Mister Hyde or what is it?” He said.

“Am I such a person?

“Please go into the details, the causes. What I am doing? Have I done anything unconstitutional, yes, I did it on Nov. 3.

“Did I do it before? Not once.” (Emphasis Added)

It is difficult in these circumstances, to hold that the petitioner could have been prejudiced by the purported bias of the former Chief Justice, as the observations made in the judgment under  review appear  to  be  in  line  with  the  public  pronouncement  of  the  petitioner  noted above. It is also important to note here that the said interview was within the knowledge of the  Bench which  rendered  the  judgment  under  review  and  was  quoted  in  the  said judgment.  There  is  no  denial  of  the  said  interview  from  the  petitioner  whether  in  the Review Petition or otherwise.

13.  This brings me to the petitioner’s other argument i.e. the former Chief Justice acted as a “judge in his own cause” in deciding a matter related to the Proclamation of Emergency.

The petitioner contends that it was the “deed and mis-deed” [sic] of the former Chief Justice which led to the Proclamation of Emergency and therefore he was biased in deciding this case  against the  petitioner.  This  argument is  both  fallacious  and fails  to  recognize  the objective reality of Constitutional rule.

14.   The Proclamation of  Emergency,  it  will  be  seen,  did  not  target  the  former  Chief Justice  alone,  it  targeted  the  Judiciary  of  the  country.  This  much  is  clear  even from  a cursory reading of the text of the Proclamation of Emergency and the advice of the Prime Minister quoted  below which  was  purpor

 

 

 

tedly  relied  upon  by  the petitioner  in  taking  his actions  of  3.11.2007.  The  grounds  of  the  Proclamation  of  Emergency  are  reproduced  at paragraph 47 of  the judgment under  review and  the  aforementioned  letter  of  the  Prime Minister  is  reproduced  at  paragraph 58  of  the  same judgment.  These  two  documents,  on account of their relevance to the petition in hand, are reproduced hereunder in extenso:

Text of the Proclamation of Emergency

“WHEREAS  there  is  visible  ascendancy  in  the  activities  of  extremists  and incidents  of  terrorist  attacks,  including  suicide  bombings,  IED  explosions, rocket  firing  and  bomb  explosions  and  the  banding  together  of  some  militant groups have taken such activities to an unprecedented level of violent intensity posing a grave threat to the life and property of the citizens of Pakistan;

WHEREAS  there  has  also  been  a  spate  of  attacks  on State  infrastructure  and on law enforcement agencies;

WHEREAS some members of the judiciary are working at cross purposes with the  executive  and  legislature  in  the  fight  against  terrorism  and  extremism thereby  weakening  the  Government  and  the  nation’s  resolve  and  diluting  the efficacy of its actions to control this menace;

WHEREAS  there  has  been  increasing  interference  by some  members  of  the judiciary  in  government  policy,  adversely  affecting  economic  growth  in particular;

WHEREAS  constant  interference  in  executive  functions,  including  but  not limited  to  the  control  of  terrorist  activity,  economic  policy,  price  controls, downsizing of corporations and urban planning, has weakened the writ of the government; the police force has been completely demoralized and is fast losing its efficacy to fight terrorism and Intelligence Agencies have been thwarted in their activities and prevented from pursuing terrorists;

WHEREAS  some  hard  core  militants,  extremists,  terrorists  and  suicide bombers, who were arrested and being investigated were ordered to be released.

The  persons  so  released  have  subsequently  been  involved  in  heinous  terrorist activities,  resulting  in  loss  of  human  life  and  property.  Militants  across  the country have, thus, been encouraged while law enforcement agencies subdued;

WHEREAS some  judges by  overstepping  the  limits  of  judicial  authority  have taken over the executive and legislative functions;

WHEREAS the Government is committed to the independence of the judiciary and  the  rule  of  law  and  holds  the  superior  judiciary  in  high  esteem,  it  is nonetheless  of  paramount  importance  that  the  Honourable  Judges  confine  the scope  of  their  activity  to  the  judicial  function  and  not  assume  charge  of administration;

WHEREAS  an  important  Constitutional  institution,  the  Supreme  Judicial Council,  has  been  made  entirely  irrelevant  and  non  est  by  a  recent  order  and judges  have,  thus,  made  themselves  immune  from  inquiry  into  their  conduct and put themselves beyond accountability;

WHEREAS  the  humiliating  treatment meted  to  government  officials by  some members  of  the  judiciary  on  a  routine  basis  during  court  proceedings  has demoralized  the  civil  bureaucracy  and  senior  government  functionaries,  to avoid being harassed, prefer inaction;

WHEREAS the law and order situation in the country as well as the economy have been adversely affected and trichotomy of powers eroded;

WHEREAS a situation has thus arisen where the Government of the country cannot  be  carried  on  in  accordance  with  the  Constitution  and  as  the Constitution provides no solution for this situation, there is no way out except through emergent and extraordinary measures;

AND WHEREAS the situation has been reviewed in meetings with the Prime Minister,  Governors  of  all four  Provinces,  and  with Chairman  Joint  Chiefs  of Staff  Committee,  Chiefs  of  the  Armed  Forces,  Vice-Chief  of  Army  Staff  and Corps Commanders of the Pakistan Army;

                NOW,  THEREFORE,  in  pursuance  of  the  deliberations  and  decisions  of  the said meetings:-

1. I, General Pervez Musharraf, Chief of the Army Staff, proclaim Emergency throughout Pakistan.

 2. I hereby order and proclaim that the Constitution of the Islamic Republic of Pakistan shall remain in abeyance.

3. This Proclamation shall come into force at once.”

    (emphasis added)

                ……………..

                Text of the letter of Prime Minister

                “SUBJECT:  NATIONAL SECURITY SITUATION.

Dear Mr. President,

I  am  writing  to  you  to  share  my  thoughts  on  the  current  national  security situation and the risks that it represents for the future of Pakistan.

2.  The  Government  has  made  serious  and  sincere  efforts  to  revive  the economy, maintain law and order and to curb extremism and terrorism in the  country.  In  the  last  few  months,  however,  militancy, extremism  and  terrorist activities  have  been  in  ascendance,  particularly  in  some  districts  of  NWFP where the writ of  the government is being eroded and non-State militants are apparently  gaining  control.  There  have  been  a  number  of  bomb  blasts  and suicide attacks in other parts of the country including the recent suicide attack on  a  political  rally  in  Karachi  on  18th October,  2007.  During  the  last  ten months, 1322 precious lives have been lost and 3183 persons have been injured.

Details  of  such  incidents  between  April –  October,  2007  are  enclosed.  The executive measures taken against extremist elements to contain militancy and terrorist activities have, on a number of occasions, been called into question by some members of the judiciary making effective action impossible.

3.  There  has  been  increasing interference  by  some  members  of  the judiciary  in  government  policy,  adversely  affecting  economic  growth,  in particular.  The  cornerstone  of  the  economic  policies  of  the  government  is privatization,  liberalization  and  deregulation  which  create  economic  growth and investment. Both local and foreign investment has been negatively affected.

4.  It cannot be disputed that the legality of executive measures is open to judicial  scrutiny.  The  wisdom  or  necessity  of  a  policy  or  a  measure  is  an executive function and not open to judicial review, however, in the recent past, some  members  of  the judiciary  have, nevertheless,  departed  from  these norms.

While we all are committed to the independency of the judiciary and the rule of law  and  hold  the  superior  judiciary  in  high  esteem,  it  is  nonetheless  of paramount  importance  that  the  Honourable  Judges  confine  the  scope  of  their activity  to  the  judicial  function.  While  judges  must  adjudicate  they  must neither legislate nor assume the charge of administration.

5.  Most  importantly,  constant  interference  in  executive  functions, including  but  not  limited  to  the  control  of  terrorist  activity,  economic  policy, price controls, downsizing  of  corporations  and  urban planning,  has  weakened the writ of the government. This has increased the incidents of terrorist attacks thereby posing grave threat to the life and property of the citizens of Pakistan and negatively impacting the economy. Wide-ranging suo motu actions of the courts  negate  the  fundamentals  of  an  adversarial  system  of  justice.  The  police force  has  been  completely  demoralized  and  is  fast  losing  its  efficacy  to  fight terrorism.  Intelligence  Agencies  have  been  thwarted  in  their  activities  and prevented from pursuing terrorists.

6.  A  large  number  of  hard  core  militants,  extremists,  terrorists  and suicide bombers, who were arrested and being investigated have been released.

The  persons  so  released  are  reported  to  be  involved  in  heinous  terrorist activities,  resulting  in  loss  of  human  life  and  property.  Militants  across  the country have, thus, been encouraged while law enforcement agencies subdued.

7.  There  is  a  widespread  perception  of  overstepping  the limits  of judicial authority and taking over of executive functions. Privatization is at a standstill while  domestic  and  foreign  investors  are  being  compelled  to  reconsider investment plans thus adversely affecting the economy.

8.  On  the  other  hand,  an  important  constitutional  institution,  the Supreme Judicial Council, has been made entirely irrelevant by a recent order.

Detailed reasons for this order are still awaited despite a lapse of three months. Judges  have,  thus,  made  themselves  immune  from  inquiry  into  their  conduct and are now beyond accountability.

9.  The  law  and  order  condition  in  the  country  as  well  as  the  economy have been adversely affected and trichotomy of powers eroded. A situation has thus  arisen  where  the  routine  and  smooth  functioning  of  government  machinery is becoming increasingly difficult and causing grave concern among ordinary citizens about their security. As evident from the attached list, there has  been  an  unusual  increase  in  security  related  incidents  highlighting  the gravity of the situation.

10.  Mr.  President,  the  contents  of  this  letter  reflect  my  views  and  public opinion  about  the  current  scenario.  For  any  State  to  function,  all  the  three pillars of State must act in harmony in the best national interest. Pakistan is a country  that  achieved  independence  after  immense  sacrifices  and  has tremendous potential to develop prosper and be recognized among the comity of nations as a country with an exciting future.

Yours sincerely,

Sd/-  (Shaukat Aziz)

General Pervez Musharraf

President

Islamic Republic of Pakistan

Aiwan-e-Sadr, Islamabad.”   (emphasis supplied)

15.   Nowhere  in  the  above  quoted  texts  is  the  former  Chief  Justice  mentioned  as  the cause for declaring the emergency and he was certainly not the only one affected by it. In a narrow  context,  all  judges  of  the  superior  courts  in  office  on  November  3rd, 2007  were directly affected by the Proclamation of Emergency. The majority of these judges suffered from this  act,  as  they  were  unlawfully prevented  from  performing  the  duties  of  their Constitutional  office.  The  remaining  judges  in  the  minority  who  decided  to  take  the unconstitutional oath of office, on the other hand, could be perceived as beneficiaries of the aforesaid  act  of  the  petitioner.  Therefore,  at  the  time  the  case  of  Sindh  High  Court  Bar Association was being  heard, the  14 Hon’ble  Judges  on  the Bench (other than myself) had been Judges in the Supreme Court and/or a High Court on 3.11.2007 and were thus direct ‘affectees’  of  the  unconstitutional  Proclamation  of  Emergency  made  that  day  by  the petitioner. Yet, as per Mr. Pirzada only the former Chief Justice acted as a judge in his own cause.  The  argument  of  the  learned  counsel  is  therefore  clearly  fallacious:  if  the  Chief Justice  acted  in  his own cause  by  hearing  this  case,  then  so  did 12  other  Judges  on  the Bench. If the petitioner seeks to draw a distinction between the former Chief Justice and the 12  other  Judges  simply  on  the  basis  of  the  reference  he  filed  against  the  former  Chief Justice,  the  distinction  would  be illogical  and quite  misleading. Such  reference  (as  noted earlier) can raise an inference that it was the petitioner who was biased against the former Chief Justice and not the other way round.

 16.   Having  observed  as  above,  the  submission  of  Mr.  Pirzada  also  fails  on  another ground.  If  indeed  there  were  no  Judges who  could  satisfy  the impartiality litmus  test the petitioner proposes for the former Chief Justice, could the Court justifiably stand back and ignore the crucially important constitutional questions of national importance raised in the case of the Sindh High Court Bar Association. Such option was not available to the Court and it, therefore, had to assume jurisdiction since no one else could. This position finds support from numerous precedents such as Federation of Pakistan v. Muhammad Akram Sheikh (supra) which has been cited in the lead judgment as well and which holds in relevant part that, “a judge who would otherwise be disqualified may act in a case  of necessity where no other judge has jurisdiction.” I therefore find no merit in the argument of Mr. Pirzada, Sr. ASC even on this score.

 17.  Before  concluding  this  opinion,  I must take note  of  the  statements  of the Quaid-e-Azam that Mr. Pirzada elaborated on. He cited the following speech of the Quaid from his book “The Collected Works of Quaid-e-Azam Mohammad Ali Jinnah” (Vol. II) pages 308-309:

         Excerpt from the book by S. Sharifuddin Pirzada

“On  17  February  1925  Sir  Hari  Singh  moved  a  resolution  for  the establishment of a Supreme Court in India for the quick disposal of civil suits, previously disposed of by the Judicial Committee of the Privy Council, and for the  disposal  of  appeals  in  serious  criminal  cases.  Colonel  Sir  Henry  Stanyon opposed on the grounds that it would involve heavy expenditure; considerably lower the prestige of the provincial High Courts; the disposal of appeals would not be more quick than those of the privy Council; and the provincial advocates to  be  taken  to  conclude  the  struggle  in  the  Supreme  Court  would  not  be  less costly than those obtained in England.

The  Home  Member,  Hon.  Sir  Alexander  Muddiman,  and  Pandit  Motilal Nehru also spoke against the resolution. Supporting the resolution, Mr. M. A. Jinnah refuted the arguments advanced by the Members opposing the motion”.

……………..

Excerpt from Quaid-e-Azam’s speech

“…  My  Honourable  friend,  Sir  Henry  Stanyon,  said  that  it  will  lower  the prestige  of  the  provincial  High  Courts.  Why?  I  really  fail  to  see  it.  How  is  it going to lower the prestige of the provincial High Courts? Then you find in the Privy Council for which I have great respect, although I have no hesitation in saying  that  the  Privy  Council  have  on  several  occasions  absolutely  murdered Hindu law, and slaughtered Muhammadan law – with regard to common law, the English law, of which they are the masters, undoubtedly they command the greatest respect of every practitioner and of every Judge in this country …”.

18.  Although in these  statements  I  could  see no  direct  relevance  to  the  present  case,  it must  be  said  that  as  an  indomitable constitutionalist  and  parliamentarian, the Quaid-e-Azam  would  have  been  severely  disappointed  with  the  long  list  of  constitutional deviations  that  this  country  has  been  subject  to. Perhaps,  with  the  sounding  of  the  death knell  (in  the  judgment  under  review)  for  the  concept  of  constitutional  deviations  and martial  law,  we  have  now  started  on  the  path  to  becoming  the  nation  founded  on constitutionalism that our Founder envisioned.

19.  Lastly, we must remain cognizant of a central tenet of the rule of law, that the law must  be  widely accessible  to  the  public.  It  is  particularly  important  for  the public  to understand the aspects of law elaborated upon in this note. I refer to Articles 28 and 251 of the Constitution and the imperative highlighted therein of promoting languages other than English. To fulfil this need, the note has also been written in the national language to make it accessible to a wider section of those who are unable to understand the alien language of this note. It is hoped that this will free the people from reliance on pontificating pundits (to whom they are currently beholden) who themselves, at times, donot have a good grasp of the  English  language.  It  is  a  result  of  the  initiative  of  the  former  Chief  Justice  that  a translation  department  has  been  set  up  in  the  Court  and  judgments  in  cases  of Constitutional  and  public  importance  are  being  written  or  translated  in  the  national language.

 (Jawwad S. Khawaja)

Judge

Dated: 30-jANUARY-2014

 

Pakistan Supreme Court’s order in Panama Papers case[28.07.2017]

KEYWORDS:- CORRUPTION-

SUPREME COURT OF PAKISTAN

Imran Khan v. Mian Muhammad Nawaz Sharif

ALTERNATIVE CITATION : PLD 2017 SC 265; PLD 2017 SC 692

IN THE SUPREME COURT OF PAKISTAN
(Original Jurisdiction)
Constitution Petition No. 29 of 2016
PRESENT:
Mr. Justice Asif Saeed Khan KhosaMr. Justice Ejaz Afzal Khan Mr. Justice Gulzar Ahmed Mr. Justice Sh. Azmat Saeed Mr. Justice Ijaz ul Ahsan
Majority Ejaz Afzal Khan, joined by Asif Saeed Khosa, Gulzar Ahmed, Sh. Azmat Saeed, Ijaz-ul-Ahsan

ACTS: Article 62(1)(f) of the Constitution of PakistanSection 12(2)(f), 19(f) of the Representation of People Act, 1976

 

JUDGMENT

Ejaz Afzal Khan J.

This judgment is in continuation of our judgments dated 20.04.2017 in Constitution Petitions No. 29, 30 of 2016 and Constitution Petition No. 03 of 2017 which ended up in the following order of the Court :

“By a majority of 3 to 2 (Asif Saeed Khan Khosa and Gulzar Ahmed, JJ) dissenting, who have given separate declarations and directions, we hold that the questions how did Gulf Steel Mill come into being; what led to its sale; what happened to its liabilities; where did its sale proceeds end up; how did they reach Jeddah, Qatar and the U.K.; whether respondents No. 7 and 8 in view of their tender ages had the means in the early nineties to possess and purchase the flats; whether sudden appearance of the letters of Hamad Bin Jassim Bin Jaber Al-Thani is a myth or a reality; how bearer shares crystallized into the flats; who, in fact, is the real and beneficial owner of M/s Nielsen Enterprises Limited and Nescoll Limited, how did Hill Metal Establishment come into existence; where did the money for Flagship Investment Limited and other companies set up/taken over by respondent No. 8 come from, and where did the Working Capital for such companies come from and where do the huge sums running into millions gifted by respondent No. 7 to respondent No. 1 drop in from, which go to the heart of the matter and need to be answered. Therefore, a thorough investigation in this behalf is required.

In normal circumstances, such exercise could be conducted by the NAB but when its Chairman appears to be indifferent and even unwilling to perform his part, we are constrained to look elsewhere and therefore, constitute a Joint Investigation Team (JIT) comprising of the following members :
i) a senior Officer of the Federal Investigation Agency (FIA), not below the rank of Additional Director General who shall head the team having firsthand experience of investigation of white collar crime and related matters;

ii) a representative of the National Accountability Bureau (NAB);

iii) a nominee of the Security & Exchange Commission of Pakistan (SECP) familiar with the issues of money laundering and white collar crimes;

iv) a nominee of the State Bank of Pakistan (SBP);

v) a seasoned Officer of Inter Services Intelligence (ISI) nominated by its Director General; and

vi) a seasoned Officer of Military Intelligence (M.I.) nominated by its Director General.

The Heads of the aforesaid departments/ institutions shall recommend the names of their nominees for the JIT within seven days from today which shall be placed before us in chambers for nomination and approval. The JIT shall investigate the case and collect evidence, if any, showing that respondent No. 1 or any of his dependents or benamidars owns, possesses or has acquired assets or any interest therein disproportionate to his known means of income. Respondents No. 1, 7 and 8 are directed to appear and associate themselves with the JIT as and when required.
The JIT may also examine the evidence and material, if any, already available with the FIA and NAB relating to or having any nexus with the possession or acquisition of the aforesaid flats or any other assets or pecuniary resources and their origin. The JIT shall submit its periodical reports every two weeks before a Bench of this Court constituted in this behalf. The JIT shall complete the investigation and submit its final report before the said Bench within a period of sixty days from the date of its constitution.

The Bench thereupon may pass appropriate orders in exercise of its powers under Articles 184(3), 187(2) and 190 of the Constitution including an order for filing a reference against respondent No. 1 and any other person having nexus with the crime if justified on the basis of the material thus brought on the record before it.

It is further held that upon receipt of the reports, periodic or final of the JIT, as the case may be, the matter of disqualification of respondent No. 1 shall be considered. If found necessary for passing an appropriate order in this behalf, respondent No. 1 or any other person may be summoned and examined.

We would request the Hon’ble Chief Justice to constitute a Special Bench to ensure implementation of this judgment so that the investigation into the allegations may not be left in a blind alley.”

The Hon’ble Chief Justice of Pakistan constituted the implementation Bench consisting of Ejaz Afzal Khan, J., Mr. Justice Sh. Azmat Saeed and Mr. Justice Ijaz ul Ahsan. The Bench vide order dated 05.05.2017 constituted the JIT consisting of Mr. Amer Aziz, an Officer of (BS-21) who is on deputation with NIBAF, Mr. Bilal Rasool, Executive Director, SECP, Mr. Irfan Naeem Mangi, Director NAB, (BS-20). Brig. Muhammad Nauman Saeed from ISI, Brig. Kamran Khurshid from M.I. and Mr. Wajid Zia, Additional Director General (Immigration), FIA to head the JIT.

The JIT undertook the task thus assigned and submitted a complete investigation report on 10.07.2017. Parties to the proceedings were provided the report of the JIT and a weeks’ time to go through it. Khawaja Harris Ahmed, learned Sr. ASC appearing on behalf of respondent No. 1 submitted a CMA expressing his reservations about the report. Dr. Tariq Hassan, learned ASC for respondent No. 10 also filed a CMA expressing his reservations about the report. Learned ASC appearing for petitioner in Const. P. No. 29 of 2016, Sheikh Rasheed Ahmed, petitioner appearing in person in Const. P. No. 30 of 2016 and learned ASC appearing for the petitioner in Const. P. No. 03 of 2017, by picking up the thread from where they left off, sought to canvass at the bar that the JIT has collected sufficient evidence proving that respondent No. 1, his dependents and benamidars own, possess and have acquired assets which are disproportionate to their known sources of income; that neither respondent No. 1 nor any of his dependents or benamidars before or during the course of investigation could account for these assets, therefore, he has become disqualified to be a Member of Parliament.

They further stated that certified copies of the correspondence between Mr. Errol George, Director Financial Investigating Agency and the Anti-Money Laundering Officer of Mossack Fonseca & Co. (B.V.I.) Limited collected through Mutual Legal Assistance prove that respondent No. 6 is the beneficial owner of the Avenfield apartments, therefore, the document showing her as trustee is a fabrication on the face of it for which she is liable to be proceeded against for forgery and using forged documents; that use of Calibri Font, which became commercially available in 2007, in the preparation of the trust deed in February 2006 is another circumstance leading to the inference that it was forged and fabricated; that narrative of Tariq Shafi vis-à-vis receipt of AED 12 million from sale of 25% shares of Ahli Steel Mills formerly known as Gulf Steel Mills is false on the face of it which has been confirmed by the JIT in its report; that whatever has been stated in Qatri letters remained unsubstantiated as the Qatri Prince neither appeared before the JIT nor ever stated his point of view through any other legally recognizable means; that respondents were given ample opportunities to provide the trail of money and answer the questions asked in the order of the Court dated 20.04.2017 but they throughout have been evasive; that the discrepancies between the first Qatri letter and affidavit of Mr. Tariq Shafi show that neither of them is credible; that the spreadsheet attached with the second Qatri letter too is of no help to the respondents as it is neither signed nor supported by any documentary evidence; that the entire story about trail of money is seriously marred by inconsistencies surfacing in the statements of the respondents recorded by the JIT; that story of transporting machinery from Dubai to Jeddah and thereby establishing Azizia Steel Company Limited still awaits proof; that how the entire amount running to SAR 63.10 million could be utilized by respondent No. 7 notwithstanding he was entitled to only 1/3rd finds no explanation therefor, the sources establishing Hill Metal Establishment have not been proved; that failure of respondent No. 1 to disclose his assets deposited in his account on account of his being Chairman of Capital FZE would also call for his disqualification, as it being an asset for all legal and practical purposes was required to be disclosed under Section 12(2)(f) of the Representation of the People Act, 1976; that the respondent denied withdrawal of salary, but payment of salaries to all employees electronically, through the Wage Protection System, under Ministerial Resolution No. (788) for 2009 on Wage Protection used by United Arab Emirates Ministry of Labour and Rules 11(6) and 11(7) of the Jebel Ali Free Zone Rules, would belie his stance; that the assets of respondents No. 7 and 8 have surprisingly grown manifold overnight notwithstanding all of their business enterprises run in loss; that the facts and figures showing inflow and outflow of Hill Metals Establishment also appear to be fudged and fabricated when seen in the light of the material collected during the course of investigation by the JIT; that material already brought on the record and collected through the JIT leave no doubt that the assets of respondent No. 1, his children and benamidars are disproportionate to their known sources of income and that their failure to satisfactorily account for them would inevitably entail disqualification of respondent No. 1 in terms of Section 9(a)(v) of the National Accountability Bureau Ordinance, 1999.

Learned Sr. ASC appearing for Respondent No. 1 contended that JIT overstepped its mandate by reopening the case of Hudabiya Paper Mills when it was not so directed by the Court; that another investigation or inquiry shall also be barred by the principle of double jeopardy when the Reference relating to the said Mills was quashed in the case of Hudabiya Paper Mills Limited. Vs. Federation of Pakistan (PLD 2016 Lahore 667); that no evidence has been collected by the JIT showing respondent No.1 to have any nexus with the Avenfield apartments, Hill Metals Establishment, Flagship Investment Limited or any other business concern run by respondent no. 7 and 8; that all the material collected and finding given by the JIT do not deserve any consideration inasmuch as they are beyond the scope of investigation authorized by the order of this Court; that the investigation conducted by the JIT cannot be said to be fair and just when none of the respondents was questioned about or confronted with any of the documents tending to incriminate them and that the JIT exceeded its authority while obtaining documents from abroad by engaging the firm of the persons happening to be their near and dear.
Such exercise, the learned Sr. ASC added, cannot be termed as Mutual Legal Assistance by any interpretation nor can the documents thus obtained be vested with any sanctity in terms of Section 21(g) of the National Accountability Bureau Ordinance, 1999. He next contended that no weight could be given to the finding of the JIT when it is not supported by any authentic document. An investigation of this type, the learned Sr. ASC added, which is a farce and a breach of due process cannot form basis of any adverse verdict against respondent No. 1. The learned Sr. ASC to support his contention placed reliance on the cases of Khalid Aziz. Vs. The State (2011 SCMR 136) and Muhammad Arshad and others. Vs. The State and others (PLD 2011 SC 350).

Learned ASC appearing on behalf of respondents No. 6, 7, 8 and 9 contended that Avenfield apartments are owned and possessed by respondent No. 7, and that the trail of money and the way it has culminated in the acquisition of the Avenfield apartments stand explained by Qatri letters; that respondent No. 6 besides being a trustee of the apartments at some stage of time has not been their beneficial owner, therefore, the correspondence between Errol George, Director FIA and Mossack Fonseca & Co. (B.V.I.) Limited or the certified copies thereof obtained through an MLA request cannot be relied upon unless proved in accordance with law and that the JIT report and the material collected by it during the course of investigation per se cannot form basis of a judgment in a proceeding under Article 184(3) of the Constitution of the Islamic Republic of Pakistan.

Learned ASC appearing on behalf of respondent No. 10 contended that assets of respondent No. 10 have been audited and examined from time to time but no irregularity was ever found in any of them; that the respondent has accounted for whatever assets he owns, possesses or has acquired; that his assets were also subject matter of Reference No. 5 of 2000 which was quashed in the case of Hudabiya Paper Mills Limited. Vs. Federation of Pakistan (supra); that another criminal proceeding cannot be initiated when everything has been accounted for down to the rupee.

The learned ASC by producing the income tax returns from 2007 to 2016, wealth tax returns from 1981-1982 to 2000-2001 and from 2009 to 2016 contended that every asset is property vouched and documented; that the finding of the JIT has no legal or factual basis; that no conclusion much less sweeping can be drawn on the basis of such report; that 91 times increase in his assets from 1992-1993 to 2008-2009 shown in the JIT’s report is based on miscalculation; that the respondent cannot be impaled on the same charge by imputing a wrongdoing without any tangible evidence; that failure on the part of the FBR to provide the relevant record cannot be construed to the detriment of the respondent when it has been with the NAB Authorities throughout and that with this background in view, it would be rather unjust to thrust the respondent in another treadmill of tiresome trial before the Accountability Court.

We have carefully gone through the record, the report submitted by the JIT and considered the submissions of the learned ASCs, Sr. ASC of the parties as well as the learned Additional Attorney General for Pakistan.

We have already dealt with the background of the case and detailed submissions of the learned ASCs for the parties in paras 1 to 12 of the majority judgment authored by one of us (Ejaz Afzal Khan, J) and notes written by my learned brothers Mr. Justice Sh. Azmat Saeed and Mr. Justice Ijaz ul Ahsan. What necessitated the constitution of JIT has been highlighted in para 19 of the judgment which reads as under :-

“19. Yes, the officers at the peak of NAB and FIA may not cast their prying eyes on the misdeeds and lay their arresting hands on the shoulders of the elites on account of their being amenable to the influence of the latter or because of their being beholden to the persons calling the shots in the matters of their appointment posting and transfer.

But it does not mean that this Court should exercise a jurisdiction not conferred on it and act in derogation of the provisions of the Constitution and the law regulating trichotomy of power and conferment of jurisdiction on the courts of law. Any deviation from the recognized course would be a recipe for chaos. Having seen a deviation of such type, tomorrow, an Accountability Court could exercise jurisdiction under Article 184(3) of the Constitution and a trigger happy investigation officer while investigating the case could do away with the life of an accused if convinced that the latter is guilty of a heinous crime and that his trial in the Court of competent jurisdiction might result in delay or denial of justice. Courts of law decide the cases on the basis of the facts admitted or established on the record. Surmises and speculations have no place in the administration of justice.

Any departure from such course, however well-intentioned it may be, would be a precursor of doom and disaster for the society. It as such would not be a solution to the problem nor would it be a step forward. It would indeed be a giant stride nay a long leap backward. The solution lies not in bypassing but in activating the institutions by having recourse to Article 190 of the Constitution. Political excitement, political adventure or even popular sentiments real or contrived may drive any or many to an aberrant course but we have to go by the Law and the Book. Let us stay and Act within the parameters of the Constitution and the Law as they stand till the time they are changed or altered through an amendment therein.”

A careful examination of the material so far collected reveals that a prima facie triable case under Section 9, 10 and 15 of the Ordinance is made out against respondents No. 1, 6, 7 and 8 vis-à-vis the following assets:- “(i) Flagship Investments Limited. (ii) Hartstone Properties Limited; (iii) Que Holdings Limited; (iv) Quint Eaton Place 2 Limited; (v) Quint Saloane Limited (formerly Quint Eaton Place Limited). (vi) Quaint Limited; (vii) Flagship Securities Limited; (viii) Quint Gloucester Place Limited; (ix) Quint Paddington Limited (formerly Rivates Estates Limited); (x) Flagship Developments Limited; (xi) Alanna Services Limited (BVI); (xii) Lankin SA (BVI); (xiii) Chadron Inc; (xiv) Ansbacher Inc; (xv) Coomber Inc; and (xvi) Capital FZE (Dubai).”
So is the case against respondent No. 10 vis-à-vis 91 times increase (from Rs.9.11 million to 831.70 million) in his assets within a short span of time. What to do in the circumstances has already been dealt with in the majority judgment in the words as follows:-

“Any liability arising out of these Sections has its own trappings. Any allegation leveled against a holder of public office under these provisions of law requires an investigation and collection of evidence showing that he or any of his dependents or benamidars owns, possesses or has acquired assets etc disproportionate to his known means of income. Such investigation is followed by a full-fledged trial before an Accountability Court for determination of such liability. But where neither the Investigation Agency investigated the case, nor any of the witnesses has been examined and cross-examined in an Accountability Court nor any of the documents incriminating the person accused has been produced and proved in accordance with the requirements of Qanoon-e-Shahadat Order, 1984, nor any oral or documentary pieces of evidence incriminating the person accused has been sifted, no verdict disqualifying a holder of public office could be given by this Court in a proceeding under Article 184(3) of the Constitution on the basis of a record which is yet to be authenticated.

We must draw a line of distinction between the scope of jurisdiction of this Court under Article 184(3) of the Constitution and that of the Accountability Court under the Ordinance and between the disqualifications envisioned by Articles 62 and 63 of the Constitution and Section 99 of the ROPA and the criminal liabilities envisioned by Sections 9, 10 and 15 of the Ordinance lest we condemn any member of Parliament on assumptions by defying the requirements of a fair trial and due process.

We cannot make a hotchpotch of the Constitution and the law by reading Sections 9 and 15 of the Ordinance in Articles 62, 63 of the Constitution and Section 99 of the Act and pass a judgment in a proceeding under Article 184(3) of the Constitution which could well be passed by an Accountability Court after a full-fledged trial. Nor could we lift Sections 9 and 15 of the Ordinance, graft them onto Article 63 of the Constitution, construe them disqualifications and proceed to declare that the member of Parliament so proceeded against is not honest and ameen and as such is liable to be disqualified. A verdict of this nature would not only be unjust but coram non judice for want of jurisdiction and lawful authority. If a person is sought to be proceeded against under Section 9(a)(v) and 15 of the NAB Ordinance resort could be had to the mode, mechanism and machinery provided thereunder. Let the law, the Investigation Agency and the Accountability Court and other Courts in the hierarchy take their own course.

Let respondent No. 1 go through all the phases of investigation, trial and appeal. We would not leap over such phases in gross violation of Article 25 of the Constitution which is the heart and the soul of the rule of law. We also don’t feel inclined to arrogate to ourselves a power or exercise a jurisdiction which has not been conferred on us by any of the acts of the Parliament or even by Article 184(3) of the Constitution. Who does not know that making of a statement on oath in a trial lends it an element of solemnity; cross-examination provides safeguards against insinuation of falsehood in the testimony; provisions of Qanoon-e-Shahadat Order regulate relevancy of facts, admissibility of evidence and mode of proof through oral and documentary evidence and thus ensure due process of law. We for an individual case would not dispense with due process and thereby undo, obliterate and annihilate our jurisprudence which we built up in centuries in our sweat, in our toil, in our blood.”

The same theme was reiterated by my learned brother Mr. Justice Sh. Azmat Saeed by holding as under :-
“22. It is evident from a bare reading of the aforesaid provisions that the prosecution must establish that a person or his spouse or dependent or benamidar owns or possesses a property. If the aforesaid allegation is proved then the accused must give an explanation as to the source of legal funds for acquiring such property and upon his failure to do so, he becomes liable for punishment under the aforesaid law. Such punishment not only includes fine and imprisonment but also disqualification from holding a public Office, including that of Member of the Majlis-e-Shoora for a period of 10 years under Section 15 of the NAB Ordinance, 1999. Reference, in this behalf, can be made to the judgments, reported as (1) Iqbal Ahmed Turabi and others v. The State (PLD 2004 SC 830), (2) Ghani-ur-Rehman v. National Accountability Bureau and others (PLD 2011 SC 1144), (3) Abdul Aziz Memon and others v. The State and others (PLD 2013 SC 594), (4) The State through Prosecutor General Accountability, National Accountability Bureau, Islamabad v. Misbahuddin Farid (2003 SCMR 150), (5) Syed Zahir Shah and others v. National Accountability Bureau and another (2010 SCMR 713), (6) Muhammad Hashim Babar v. The State and another (2010 SCMR 1697) and (7) Khalid Aziz v. The State (2011 SCMR 136).

In none of the aforesaid cases was any person convicted without a definitive finding that the assets were in fact owned or possessed by the accused, his spouse, his dependents or benamidars. And thereafter, the accused had failed to account for the source of funds for acquiring the said property and if the explanation was found unsatisfactory, conviction followed.”
Almost the same view was expressed by my learned brother Mr. Justice Ijaz ul Ahsan in the words which reads as under:-

“58. Where there is an allegation that a holder of public office or any of his dependents or benamidars owns or possesses any assets or pecuniary resources which are disproportionate to his known sources of income which he cannot reasonably account for he can be convicted of an offence of corruption and corrupt practices and upon such conviction, penal consequences would follow.

However, such conviction can only be recorded by an Accountability Court under the NAO, after a proper trial, recording evidence and granting due process rights guaranteed by the Constitution to the accused. To transplant the powers of the Accountability Court and to attach such powers to the jurisdiction of this Court under Article 184(3) of the Constitution has neither been prayed for by the petitioners nor can it be, in our opinion, done without stretching the letter of the law and the scheme of the Constitution. Further, such course of action would be violative of the principles enshrined in Articles 4 and 25 of the Constitution, which guarantee to every citizen the right to be dealt with in accordance with law, equality before law and entitlement to equal protection of law. Adopting any other mode would set a bad precedent and amount to a constitutional Court following an unconstitutional course. This, we are not willing to do, in the interest of upholding the rule of law and our unflinching and firm belief in adherence and fidelity to the letter and spirit of the Constitution.”

The argument that the JIT overstepped its authority by reopening the case of Hudabiya Paper Mills when Reference No. 5 was quashed by the High Court does not appear to be correct as the JIT has simply made recommendations in this behalf which can better be dealt with by this Court if and when an appeal, before this Court, as has been undertaken by Special Prosecutor NAB, is filed and a view to the contrary is taken by this Court.

The next question emerging for the consideration of this Court is whether respondent No. 1 as a Chairman of the Board of Capital FZE is entitled to salaries and whether the salaries if not withdrawn being receivable as such constitute assets which require disclosure in terms of Section 12(2) of the Representation of the People Act, 1976 and whether his failure to disclose them would entail his disqualification? The word asset has not been defined in the Representation of the People Act, 1976, (“ROPA”), therefore, its ordinary meaning has to be considered for the purposes of this case. The word asset as defined in Black’s Law Dictionary means and contemplates “an asset can be (i) something physical such as cash, machinery, inventory, land and building (ii) an enforceable claim against others such as accounts receivable (iii) rights such as copyright, patent trademark etc (iv) an assumption such as goodwill”.

The definition of the word receivable as used in the above mentioned definition as given in the Black’s Law Dictionary is also relevant which means and contemplates “any collectible whether or not it is currently due. That which is due and owing a person or company. In book keeping, the name of an account which reflects a debt due. Accounts receivable a claim against a debtor usually arising from sales or services rendered”. The word ‘receivable’ also has similar ring and connotation according to Business Dictionary which reads as under:-

“Accounting term for amount due from a customer, employee, supplier (as a rebate or refund) or any other party. Receivables are classified as accounts receivable, notes receivable etc and represent an asset of the firm”.

The definitions reproduced above leave no doubt that a salary not withdrawn would nevertheless be receivable and as such would constitute an asset for all legal and practical purposes. When it is an asset for all legal and practical purposes, it was required to be disclosed by respondent No. 1 in his nomination papers in terms of Section 12(2) of the ROPA. When we confronted, the learned Sr. ASC for respondent No. 1, whether the said respondent has ever acquired work permit (Iqama) in Dubai, remained Chairman of the Board of Capital FZE and was entitled to salary as such, his reply was in the affirmative with the only addition that respondent No. 1 never withdrew any salary.

This admission was reiterated in more categorical terms in the written arguments filed by the learned Sr. ASC for respondent No. 1 in the words as under:-

“So far as the designation of Respondent No. 1 as Chairman of the Board is concerned, this was only a ceremonial office acquired in 2007 when the respondent No. 1 was in exile, and had nothing to do with the running of the Company or supervising its affairs. Similarly, the respondent No. 1 did not withdraw the salary of AED 10,000. Thus, the salary shown in the Employment Contract in effect never constituted an “asset” for the respondent No. 1.”

It has not been denied that respondent No. 1 being Chairman of the Board of Capital FZE was entitled to salary, therefore, the statement that he did not withdraw the salary would not prevent the un-withdrawn salary from being receivable, hence an asset. When the un-withdrawn salary as being receivable is an asset it was required to be disclosed by respondent No. 1 in his nomination papers for the Elections of 2013 in terms of Section 12(2)(f) of the ROPA. Where respondent No. 1 did not disclose his aforesaid assets, it would amount to furnishing a false declaration on solemn affirmation in violation of the law mentioned above, therefore, he is not honest in terms of Section 99(1)(f) of the ROPA and Article 62(1)(f) of the Constitution of the Islamic Republic of Pakistan.

As a sequel to what has been discussed in paragraphs 7 to 11 the following directions are made:-
i) The National Accountability Bureau (NAB) shall within six weeks from the date of this judgment prepare and file before the Accountability Court, Rawalpindi/Islamabad, the following References, on the basis of the material collected and referred to by the Joint Investigating Team (JIT) in its report and such other material as may be available with the Federal Investigating Agency (FIA) and NAB having any nexus with the assets or which may subsequently become available including material that may come before it pursuant to the Mutual Legal Assistance requests sent by the JIT to different jurisdictions:-

a) Reference against Mian Muhammad Nawaz Sharif (Respondent No. 1), Maryam Nawaz Sharif (Maryam Safdar) (Respondent No. 6), Hussain Nawaz Sharif (Respondent No. 7), Hassan Nawaz Sharif (Respondent No. 8) and Capt. (Retd) Muhammad Safdar (Respondent No. 9) relating to the Avenfield properties (Flats No. 16, 16-A, 17 and 17-A Avenfield House, Park Lane, London, United Kingdom). In preparing and filing this Reference, the NAB shall also consider the material already collected during the course of investigations conducted earlier.

b) Reference against respondents No. 1, 7 and 8 regarding Azizia Steel Company and Hill Metal Establishment, as indicated above;

c) Reference against respondents No. 1, 7 and 8 regarding the Companies mentioned in paragraph 9 above;

d) Reference against respondent No. 10 for possessing assets and funds beyond his known sources of income, as discussed in paragraph 9 above;

e) NAB shall also include in the proceedings all other persons including Sheikh Saeed, Musa Ghani, Kashif Masood Qazi, Javaid Kiyani and Saeed Ahmed, who have any direct or indirect nexus or connection with the actions of respondents No. 1, 6, 7, 8 and 10 leading to acquisition of assets and funds beyond their known sources of income;

f) NAB may file supplementary Reference(s) if and when any other asset, which is not prima facie reasonably accounted for, is discovered;

g) The Accountability Court shall proceed with and decide the aforesaid References within a period of six months from the date of filing such References; and

h) In case the Accountability Court finds any deed, document or affidavit filed by or on behalf of the respondent(s) or any other person to be fake, false, forged or fabricated, it shall take appropriate action against the concerned person(s) in accordance with law.

As a sequel to what has been discussed in paragraphs 13 above, the following declaration and direction is issued:-
i) It is hereby declared that having failed to disclose his un-withdrawn receivables constituting assets from Capital FZE, Jebel Ali, UAE in his nomination papers filed for the General Elections held in 2013 in terms of Section 12(2)(f) of the Representation of the People Act, 1976 (ROPA), and having furnished a false declaration under solemn affirmation respondent No. 1 Mian Muhammad Nawaz Sharif is not honest in terms of Section 99(f) of ROPA and Article 62(1)(f) of the Constitution of the Islamic Republic of Pakistan, 1973, therefore, he is disqualified to be a Member of the Majlis-e-Shoora (Parliament);

ii) The Election Commission of Pakistan shall issue a notification disqualifying respondent No. 1 Mian Muhammad Nawaz Sharif from being a Member of the Majlis-e-Shoora (Parliament) with immediate effect, whereafter he shall cease to be the Prime Minister of Pakistan; and

iii) The President of the Islamic Republic of Pakistan is required to take all necessary steps under the Constitution to ensure continuation of the democratic process.

The Hon’ble Chief Justice of Pakistan is requested to nominate an Hon’ble Judge of this Court to supervise and monitor implementation of this judgment in letter and spirit and oversee the proceedings conducted by the NAB and the Accountability Court in the above matters.

This Court commends and appreciates the hard work and efforts made by Members of the JIT and their support and ancillary staff in preparing and filing a comprehensive and detailed Report as per our orders. Their tenure of service shall be safeguarded and protected and no adverse action of any nature including transfer and posting shall be taken against them without informing the monitoring Judge of this Court nominated by the Hon’ble Chief Justice of Pakistan.

We also record our appreciation for the valuable assistance provided to us by Mr. Naeem Bokhari, ASC; Khawaja Harris Ahmed, Sr. ASC; Mr. Salman Akram Raja, ASC; Dr. Tariq Hassan, ASC; Mr. Taufiq Asif, ASC; Sheikh Rasheed Ahmed, petitioner in person, Mr. Ashtar Ausaf Ali, Attorney-General for Pakistan; Mr. Waqar Rana; Additional Attorney-General for Pakistan and Mr. Akbar Tarar, Acting Prosecutor-General, NAB and their respective teams.

Final order of the court
The National Accountability Bureau (NAB) shall within six weeks from the date of this judgment prepare and file before the Accountability Court, Rawalpindi/Islamabad, the following References, on the basis of the material collected and referred to by the Joint Investigating Team (JIT) in its report and such other material as may be available with the Federal Investigation Agency (FIA) and NAB having any nexus with assets mentioned below or which may subsequently become available including material that may come before it pursuant to the Mutual Legal Assistance requests sent by the JIT to different jurisdictions:-

a) Reference against Mian Muhammad Nawaz Sharif, (respondents No. 1), Maryam Nawaz Sharif (Maryam Safdar), (Respondent No. 6), Hussain Nawaz Sharif (Respondent No. 7), Hassan Nawaz Sharif (Respondent No. 8) and Capt. (Retd). Muhammad Safdar (Respondent No. 9) relating to the Avenfield properties (Flats No. 16, 16-A, 17 and 17-A Avenfield House, Park Lane, London, United Kingdom). In preparing and filing this Reference, the NAB shall also consider the material already collected during the course of investigations conducted earlier, as indicated in the detailed judgments;

b) Reference against respondents No. 1, 7 and 8 regarding Azizia Steel Company and Hill Metal Establishment, as indicated in the main judgment;

c) Reference against respondents No. 1, 7 and 8 regarding the Companies mentioned in paragraph 9 of the judgment unanimously rendered by Mr. Justice Ejaz Afzal Khan, Mr. Justice Sh. Azmat Saeed and Mr. Justice Ijaz ul Ahsan;

d) Reference against respondent No. 10 for possessing assets and funds beyond his known sources of income, as discussed in paragraph 9 of the judgment unanimous rendered by Mr. Justice Ejaz Afzal Khan, Mr. Justice Sh. Azmat Saeed and Mr. Justice Ijaz ul Ahsan;

e) NAB shall also include in the proceedings all other persons including Sheikh Saeed, Musa Ghani, Kashif Masood Qazi, Javaid Kiyani and Saeed Ahmed, who have any direct or indirect nexus or connection with the actions of respondents No. 1, 6, 7, 8 and 10 leading to acquisition of assets and funds beyond their known sources of income;

f) NAB may file supplementary Reference(s) if and when any other asset, which is not prima facie reasonably accounted for, is discovered;

g) The Accountability Court shall proceed with and decide the aforesaid References within a period of six months from the date of filing such References; and

h) In case the Accountability Court finds any deed, document or affidavit filed by or on behalf of the respondent(s) or any other person(s) to be fake, false, forged or fabricated, it shall take appropriate action against the concerned person in accordance with law.

It is hereby declared that having failed to disclose his un-withdrawn receivables constituting assets from Capital FZE Jebel Ali, UAE in his nomination papers filed for the General Elections held in 2013 in terms of Section 12(2)(f) of the Representation of the People Act, 1976 (ROPA), and having furnished a false declaration under solemn affirmation respondent No. 1 Mian Muhammad Nawaz Sharif is not honest in terms of Section 99(f) of ROPA and Article 62(1)(f) of the Constitution of the Islamic Republic of Pakistan, 1973 and therefore he is disqualified to be a Member of the Majlis-e-Shoora (Parliament).

The Election Commission of Pakistan shall issue a notification disqualifying respondent No. 1 Mian Muhammad Nawaz Sharif from being a Member of the Majlis-e-Shoora (Parliament) with immediate effect, whereafter he shall cease to be the Prime Minister of Pakistan;

The President of the Islamic Republic of Pakistan is required to take all necessary steps under the Constitution to ensure continuation of the democratic process.

The Hon’ble Chief Justice of Pakistan is requested to nominate an Hon’ble Judge of this Court to supervise and monitor implementation of this judgment in letter and spirit and oversee the proceedings conducted by NAB and the Accountability Court in the above mentioned matters.

This Court commends and appreciates the hard work and efforts made by Members of the JIT and their support and ancillary staff in preparing and filing a comprehensive and detailed Report as per our orders. Their tenure of service shall be safeguarded and protected and no adverse action of any nature including transfer and posting shall be taken against them without informing the monitoring Judge of this Court nominated by the Hon’ble Chief Justice of Pakistan.

We also record our appreciation for the valuable assistance provided to us by Mr. Naeem Bokhari, ASC; Mr. Makhdoom Ali Khan, Sr. ASC., Mr. Shahid Hamid, Sr. ASC, Khawaja Harris Ahmed, Sr. ASC; Mr. Salman Akram Raja, ASC; Dr. Tariq Hassan, ASC; Mr. Taufiq Asif, ASC; Sheikh Rasheed Ahmed, petitioner in person, Mr. Ashtar Ausaf Ali, Attorney-General for Pakistan; Mr. Waqar Rana; Additional Attorney- General for Pakistan, Mr. Waqas Qadeer Dar, Prosecutor-General, NAB and Mr. Akbar Tarar, Acting Prosecutor-General, NAB and their respective teams.

 

DATE : 28.07.2017

PRACTICE IN THE TRIAL OF CIVIL SUITS IN INDIA

KEYWORDS:- PRACTICE- CIVIL SUIT-

Indian Law Encyclopedia

PRACTICE IN THE TRIAL OF CIVIL SUITS:-

Court hours, holidays, and cause lists ETC

Reception of plaints and applications.

Examination of the plaint

Service of Processes

Written Statements

Settlement of Issues

Documentary Evidence

Hearing of suits, adjournments, Examination of Witnesses etc

Dismissals in Default and Ex-Parte proceedings

Speedy Disposal of cases

Incident Proceedings

Special Features of certain classes of cases

Alternative Disputes Resolution Rules.

JURISDICTION-

Jurisdiction of Civil Courts

Jurisdiction of Civil and Revenue Courts

VALUATION OF SUITS-

General

Value of the Subject Matter of suits for the purposes of Appeal.

Manner of Determining the value of Suits for purposes specified in Section 9 of the Suits Valuation Act, 1887.

Manner of Determining the value of land for purposes of Jurisdiction in certain classes of Suits, Table of fees

ARBITRATION-

Arbitration

Rules under the Indian Arbitration Act, 1940 AND 1996

The Arbitration (Protocal and Convention)Act, 1937

WITNESSES - CIVIL-COURTS-

Attendance of Witnesses (General )

Attendance of Patwaris in Civil Courts

Remuneration

Copying and Search fees payable to Banks for production of Documents in Law Courts.

Government servants summoned

SUITS BY OR AGAINST PERSONS IN MILITARY SERVICE

Amenability to the Civil courts of persons subjects to Military Law.

The Indian Soldiers Litigation Act

Proceedings with respect to succession certificates

SUITS BY ALIENS AND BY OR AGAINST RULERS, AMBASSADORS, ENVOYS ETC. :-

SUITS BY OR AGAINST THE GOVERNMENT AND PUBLIC OFFICERS IN THEIR OFFICIAL CAPACITY.

UTILIZATION OF THE SERVICES OF SPECIAL KANUNGO OR PATWARI MUHARIR

COMMISSIONS AND LETTERS OF REQUEST.

General Instructions

Appointment of Commissioners

Reciprocal arrangements with Kashmir

Commissions and letters of Request for the Examination of witnesses in foreign Countries.

Special Procedure in regard to particular foreign Countries.

Letters of Request and Commissions issued by Foreign Courts.

JUDGMENTS AND DECREES

Preparation and delivery of Judgments

Preparation of decrees

Award of Costs in Civil Suits

Award of Interest in Civil Suits

EXECUTION OF DECREES

General

Courts competent to execute Decrees

Powers of Executing Courts

Payment into Court and certification of Payments out of Court

Procedure on application for execution

Execution by arrest and Imprisonment

Execution of Decrees for the delivery of immoveable Property.

Attachment

Objections to Attachment

Custody and Disposal of Moveable Property pending Sale

Sale of Property and Delivery to the Purchaser.

Execution of decrees by the attachment and sale or temporary alienation of Revenue paying or Revenue free lands

Execution of decrees against agriculturists

Execution of Decrees against Persons in Military Service

Receipts for Property realized or recovered in Execution of Decrees

Resistance to Execution

Costs in Execution Proceedings

Reciprocal Execution of decrees by Courts in India and Foreign Countries

Reciprocal Arrangements with Jammu and Kashmir

TRANSFER AND WITHDRAWAL OF SUITS AND APPEALS
APPEALS AND REVISIONS--CIVIL

The Appellate System

General Procedure of Appellate Courts

Security in Revision Cases

Procedure in the Case of Appeals and Applications presented after period of Limitation.

Transmission of Appellate Court’s Orders to Lower Courts

REFERENCES TO THE HIGH COURT
LEGAL PRACTITIONERS

The filing of Powers of Attorney by Pleaders in Subordinate Courts.

Fees of Counsel.

Fees in Declaratory Suits etc

Category of cases where the trial is required to be fast tracked.

State of Karnataka v. Shivanna, (2014) 8 SCC 913

Directions issued bySupreme Court in form of mandamus to all police stations’

“2. While we propose to consider this matter on merits after service of notice to the respondent-accused, we feel acutely concerned as to why the Union of India should not take initiative and steps to evolve a procedure for fast-track justice to be adopted by the investigating agencies and the Fast Track Courts by proposing amendments to CrPC for speedy justice to the victim.

3. Fast Track Courts no doubt are being constituted for expeditious disposal of cases involving the charge of rape at the trial stage, but we are perturbed and anguished to notice that although there are Fast Track Courts for disposal of such cases, we do not yet have a fast-track procedure for dealing with cases of rape and gang rape lodged under Section 376 IPC with the result that such heinous offences are repeated incessantly.

4. We are of the considered opinion that there is pressing need to introduce drastic amendments to CrPC in the nature of fast-track procedure for Fast Track Courts and here is an occasion where we deem it just and appropriate to issue notice and call upon the Union of India to file its response as to why it should not take initiative and sincere steps for introducing necessary amendment into CrPC, 1973 involving trial for the charge of “rape” by directing that all the witnesses who are examined in relation to the offence and incident of rape cases should be straightaway produced before the Magistrate for recording their statement to be kept in sealed cover and thereafter the same be treated as evidence at the stage of trial which may be put to test by subjecting it to cross-examination.

We are further of the view that the statement of victim should as far as possible be recorded before the Judicial Magistrate under Section 164 CrPC skipping over the recording of statement by the police under Section 161 CrPC which in any case is inadmissible except for contradiction so that the statement of the accused thereafter be recorded under Section 313 CrPC. The accused then can be committed to the appropriate court for trial whereby the trial court can straightaway allow cross-examination of the witnesses whose evidence were recorded earlier before the Magistrate.

5. What we wish to emphasise is that the recording of evidence of the victim and other witnesses multiple times ought to be put to an end which is the primary reason for delay of the trial. We are of the view that if the evidence is recorded for the first time itself before the Judicial Magistrate under Section 164 CrPC and the same be kept in sealed cover to be treated as deposition of the witnesses and hence admissible at the stage of trial with liberty to the defence to cross-examine them with further liberty to the accused to lead his defence witnesses and other evidence with a right to cross-examination by the prosecution, it can surely cut short and curtail the protracted trial if it is introduced at least for trial of rape cases which is bound to reduce the duration of trial and thus offer a speedy remedy by way of a fast-track procedure to the Fast Track Court to resort to.

6. Considering the consistent recurrence of the heinous crime of rape and gang rape all over the country including the metropolitan cities, we are of the view that it is high time such measures of reform in CrPC be introduced after due deliberation and debate by the legal fraternity as also all concerned. We, therefore, deem it just and appropriate to issue notice to the Union of India through the Attorney General which the counsel for the petitioner is directed to serve by way of dasti summons. The matter be posted again on 3-9-2013 for further consideration.”

19. In continuation of the above, further order dated 25th April, 2014 [(2014) 8 SCC 913] was passed as follows :

“10.1. Upon receipt of information relating to the commission of offence of rape, the investigating officer shall make immediate steps to take the victim to any Metropolitan/preferably Judicial Magistrate for the purpose of recording her statement under Section 164 CrPC. A copy of the statement under Section 164 CrPC should be handed over to the investigating officer immediately with a specific direction that the contents of such statement under Section 164 CrPC should not be disclosed to any person till charge- sheet/report under Section 173 CrPC is filed.

10.2. The investigating officer shall as far as possible take the victim to the nearest Lady Metropolitan/preferably Lady Judicial Magistrate.

10.3. The investigating officer shall record specifically the date and the time at which he learnt about the commission of the offence of rape and the date and time at which he took the victim to the Metropolitan/preferably Lady Judicial Magistrate as aforesaid.

10.4. If there is any delay exceeding 24 hours in taking the victim to the Magistrate, the investigating officer should record the reasons for the same in the case diary and hand over a copy of the same to the Magistrate.

10.5. Medical examination of the victim: Section 164-A CrPC inserted by Act 25 of 2005 in CrPC imposes an obligation on the part of investigating officer to get the victim of the rape immediately medically examined. A copy of the report of such medical examination should be immediately handed over to the Magistrate who records the statement of the victim under Section 164 CrPC.

11. A copy of this order thus be circulated to all the Directors General of Police of all the States/Commissioners of Police in Metropolitan cities/Commissioners of Police of Union Territories who are then directed to send a copy of this order to all the Police Stations-in-Charge in their States/Union Territories for its compliance in cases which are registered on or after the receipt of a copy of these directions. Necessary instructions by the DGPs/Commissioners of Police be also issued to all the Police Stations-in-Charge by the DGPs/Commissioners of Police incorporating the directions issued by us and recorded hereinbefore.”

Madan Mohan Vs. State of Rajasthan & Ors.[SC 2017 December]

KEYWORDS:-  DE FACTO COMPLAINANT -SESSIONS JUDGE ALLOWED APPLICATION U/S 193 Cr.P.C

DATE: December 14, 2017

The De-Facto complainant  filed an application under Section 193 of the Code in the Sessions Trial complaining therein that the names of respondent Nos.2 and 3 – Ashish Meena and Vimal Meena though figured prominently in all the material documents filed along with the charge-sheet, yet for no justifiable reasons, their names were deleted from the charge-sheet whereas only the names of two accused, i.e., Vimlesh and Janak Singh were retained to face the trial.

  • Complainant[De-Facto] as a necessary party had a right of hearing in the Revision because the order impugned in the Revision was passed by the Session Judge on his application.
  • No superior Court in hierarchical jurisdiction can issue direction/mandamus to any subordinate Court commanding them to pass a particular order on any application filed by any party. The judicial independence of every Court in passing the orders in cases is well settled. It cannot be interfered with by any Court including superior Court.
  • When an order is passed, it can be questioned by the aggrieved party in appeal or revision, as the case may be, to the superior Court. It is then for the Appellate/Revisionery Court to decide as to what orders need to be passed in exercise of its Appellate/Revisionery jurisdiction. Even while remanding the case to the subordinate Court, the Superior Court cannot issue a direction to the subordinate Court to either “allow” the case or “reject” it. If any such directions are issued, it would amount to usurping the powers of that Court and would amount to interfering in the discretionary powers of the subordinate Court.

ACT:- Section 193 of the Criminal Procedure Code, 1973 AND Sections 120-B, 363, 366, 368, 370 (4) and 376 of the Indian Penal Code AND Section 3/4 and 16/17 of POCSO Act-

SUPREME COURT OF INDIA

Madan Mohan Vs. State of Rajasthan & Ors.

[Criminal Appeal No. 2178 of 2017 arising out of S.L.P. (CRL.) No.8030 of 2017]

Abhay Manohar Sapre, J.

1. Leave granted.

2. This appeal is filed by the Complainant against the final judgment and order dated 28.04.2017 passed by the High Court of Judicature for Rajasthan at Jaipur in S.B. Criminal Revision Petition No.477 of 2017 whereby the High Court partly allowed the  criminal revision petition filed by respondent Nos.2 and 3 herein and set aside that part of the order dated 19.11.2016 passed by the Sessions Judge, Sawai Madhopur in Session Trial No.44/2016 whereby the Session Judge while allowing the application filed under Section 193 of the Criminal Procedure Code, 1973 (hereinafter referred to as “the Code”) by the appellant (Complainant) issued non-bailable warrants against respondent Nos. 2 & 3 for their arrest.

3. The facts of the case lie in a narrow compass so also the issue involved in the appeal is short. They, however, need mention infra.

4. Two accused, namely, Vimlesh Kumar and Janak Singh are facing trial for the offences punishable under Sections 120-B, 363, 366, 368, 370 (4) and 376 of the Indian Penal Code, 1860 (hereinafter referred to as “IPC”) read with Section 3/4 and 16/17 of POCSO Act, in Sessions Trial No.44/2016. It is pending in the Court of District and Sessions Judge, Sawai Madhopur. The Sessions trial began pursuant to FIR No.110/2014 filed by the complainant-Madan Mohan (appellant herein) in Police Station, Piloda. A charge sheet has since been filed against two accused mentioned above.

5. The appellant filed an application under Section 193 of the Code in the Sessions Trial complaining therein that the names of respondent Nos.2 and 3 – Ashish Meena and Vimal Meena though figured prominently in all the material documents filed along with the charge-sheet, yet for no justifiable reasons, their names were deleted from the charge-sheet whereas only the names of two accused, i.e., Vimlesh and Janak Singh were retained to face the trial.

6. The appellant, therefore, prayed that respondent Nos.2 and 3 be summoned for being arrayed as accused persons along with Vimlesh Kumar and Janak Singh to face the trial because, according to him, respondent Nos.2 and 3 are also involved in the commission of the offence along with other two accused.

7. The Sessions Judge, by order dated 19.11.2016, allowed the application finding prima facie case against respondent Nos.2 and 3 and accordingly summoned both by issuing non-bailable warrant of arrest against them.

8. Respondent Nos.2 and 3 felt aggrieved and filed Criminal Revision under Section 397 of the Code in the High Court at Rajasthan out of which this appeal arises. The complainant-appellant herein at whose instance the order was passed by the Sessions Judge was, however, not impleaded as party in the revision.

9. By impugned order, the Single Judge allowed the revision in part and set aside that portion of the order of the Sessions Judge which had directed issuance of non-bailable warrant of arrest of respondent Nos.2 and 3 while summoning them. The High Court then proceeded to issue further direction to respondent 4 Nos.2 and 3 to surrender before the Trial Court and move the application for their regular bail, which would be considered and allowed by that Court on the same day on which it is moved. A further liberty was granted to respondent Nos. 2 and 3 to raise the contentions at the time of framing of the charges.

10. It is apposite to quote in verbatim the impugned order:

“1. Heard learned counsel for the accused/petitioners.

2. This Criminal Revision Petition has been preferred on behalf of the accused/petitioners against the order dated 19.11.2016 passed by learned Sessions Judge, Sawai Madhopur whereby the application filed under Section 193 Cr.P.C. by the complainant-Madan Mohan Meena has been allowed and the cognizance for the offences punishable under Sections 363 & IPC and Section 5/6 POCSO Act in the alternative Section 376(2)(g) IPC has been taken against the petitioners, Ashish Meena & Vimal Meena, and they have been called through non-bailable warrants.

3. During the course of arguments, learned counsel for the petitioners restricts his prayer to the extent that the order summoning the accused/petitioners  through non-bailable warrants may be quashed.

4. This fact is undisputed that after thorough investigation made by the Police, charge-sheet for the offences punishable under Sections 363, 366, 368, 370(4), 376, 120-B IPC and Section 3/4 and 16/17 of the POCSO Act was filed only against Vimlesh Kumar and Janak Singh. Accused/petitioners, Ashish Meena and Vimal Meena, were not charge-sheeted. Vide order impugned dated 19.11.2016, petitioners have been summoned through non-bailable warrants for the offences mentioned above.

5. Taking all the facts and circumstances of the case into consideration in totality, it appears that the order to the extent of summoning the petitioners, Ashish Meena and Vimal Meena, through non-bailable warrants does not appear justified and is liable to be quashed and set aside. However, the petitioners, Ashish Meena and Vimal Meena, are directed to surrender before the learned trial Court and to move application for their regular bail, which will be considered and allowed by that Court on the same day on which it is moved.

6. It is also made clear that the accused/petitioners will be at liberty to raise the contentions raised before this Court at the time of framing of charges before the learned trial Court.

7. The Criminal Revision Petition stands disposed off accordingly.”

(Emphasis supplied)

11. Against the impugned order of the High Court, the complainant has felt aggrieved and after obtaining the leave has filed this appeal by way of special leave in this Court.

12. Heard learned counsel for the parties.

13. Having heard the learned counsel for the parties and on perusal of the record of the case, we are constrained to allow the appeal and set aside the order to the extent mentioned below.

14. In our considered opinion, the Single Judge seemed to have passed the impugned order without application of judicial mind inasmuch as he committed two glaring errors while passing the order. First, he failed to see that the complainant at whose instance the Sessions Judge had passed the order and had allowed his application under Section 193 of the Code was a necessary party to the criminal revision along with the State. Therefore, he should have been impleaded as respondent along with the State in the revision. In other words, the Complainant also had a right of hearing in the Revision because the order impugned in the Revision was passed by the Session Judge on his application. This aspect of the case was, however, not noticed by the Single Judge.

15. Second and more importantly was that the Single Judge grossly erred in giving direction to the Sessions Judge to consider the bail application of respondent Nos.2 and 3 and “allow” it on the “same day”.

16. In our considered opinion, the High Court had no jurisdiction to direct the Sessions Judge to “allow” the application for grant of bail. Indeed, once such direction had been issued by the High Court then what was left for the Sessions Judge to decide except to follow the directions of the High Court and grant bail to respondent Nos. 2 and 3. In other words, in compliance to the mandatory directions issued by the High Court, the Sessions Judge had no jurisdiction to reject the bail application but to allow it.

17. No superior Court in hierarchical jurisdiction can issue such direction/mandamus to any subordinate Court commanding them to pass a particular order on any application filed by any party. The judicial independence of every Court in passing the orders in cases is well settled. It cannot be interfered with by any Court including superior Court.

18. When an order is passed, it can be questioned by the aggrieved party in appeal or revision, as the case may be, to the superior Court. It is then for the Appellate/Revisionery Court to decide as to what orders need to be passed in exercise of its Appellate/Revisionery jurisdiction. Even while remanding the case to the subordinate Court, the Superior Court cannot issue a direction to the subordinate Court to either “allow” the case or “reject” it. If any such directions are issued, it would amount to usurping the powers of that Court and would amount to interfering in the discretionary powers of the subordinate Court. Such order is, therefore, not legally sustainable.

19. It is the sole discretion of the Sessions Judge to find out while hearing the bail application as to whether any case on facts is made out for grant of bail by the accused or not. If made out then to grant the bail and if not made out, to reject the bail. In either case, i.e., to grant or reject, the Sessions Judge has to apply his independent judicial mind and accordingly pass appropriate reasoned order keeping in view the facts involved in the case and the legal principles applicable for grant/rejection of the bail. In this case, the Single Judge failed to keep in his mind this legal principle.

20. It is for this reason, in our view, such directions were wholly uncalled for and should not have been given. This Court cannot countenance issuing of such direction by the High Court.

21. In our view, at best, the High Court could have made an observation to the effect that the respondent Nos.2 and 3 (accused persons) are at liberty to approach the Sessions Judge for grant of bail and, if any application is filed, it would be decided by the Sessions Judge on its merits and in accordance with law expeditiously but not beyond it.

22. We are, therefore, constrained to set aside the direction given by the High Court to the Sessions Judge to “consider and allow” the bail application made by respondent Nos. 2 & 3 in Sessions Trial Case No.44/2016 on the same day on which it was moved.

23. So far as the direction by which cognizance of the case against respondent Nos.2 and 3 was taken by the Sessions Judge, the Single Judge has upheld it. It is not questioned here. In the light of this, the respondent Nos.2 and 3 have to submit themselves to the jurisdiction of the Sessions Judge and raise the pleas which are available to them in law.

24. In view of foregoing discussion, the appeal succeeds and is accordingly allowed. The impugned order to the extent indicated above is set aside. The Session Judge would now decide the application for bail, if made by Respondent Nos. 2 and 3, on its merits and in accordance with law, if not so far decided.

J. [R.K. AGRAWAL]

J. [ABHAY MANOHAR SAPRE]

New Delhi;

December 14, 2017

The protection of judicial independence in India

  1. “If there were no bad people there would be no good lawyers.”
  2. “Good lawyers know the law. Great lawyers know the judge”
  3. ” A judge is a lawyer”

B

SYNOPSIS 

Cicero : “We are all servants of the laws in order that we may be free.”[Omnes legum servi sumus ut liberi esse possumus]

Socrates: “Four things belong to a judge: to hear courteously, to answer wisely, to  consider soberly, and to decide impartially.”

Justice is administered by human institutions; they can be fallible, but they should never be perverse.

The fundamental concept of judicial independence came into being in England and Wales in 1701 with the enactment of the Act of Settlement.

Indian Constitution : Indian Constitution does not speak about standards of integrity, propriety, competence, independence, etc. as qualifications essential for judicial selection. Collegium System is an extra Constitutional Body accepted by the president of India .

Bharatiya Sanskriti : Dharma and Sathya , two pillars of  Justice System

Devider

United Nations Basic Principles on the Independence of the Judiciary and the role of lawyers[1985 and 1990]

 Bangalore Principles of Judicial Conduct [2003]

Beijing Statement of Principles of the Independence of the Judiciary in the LAWASIA region [1995]

The Latimer House Principles[1998]

The International Association of Judicial Independence and World Peace produced the Mt. Scopus International Standards of Judicial Independence between 2007 and 2012.

“An independent, impartial judiciary; the presumption of innocence; the right to a fair and public trial without undue delay; a rational and proportionate approach to punishment; a strong and independent legal profession; strict protection of confidential communications between lawyer and client; equality of all before the law; these are all fundamental principles of the Rule of Law. Accordingly, arbitrary arrests; secret trials; indefinite detention without trial; cruel or degrading treatment or punishment; intimidation or corruption in the electoral process, are all unacceptable. The Rule of Law is the foundation of a civilised society. It establishes a transparent process accessible and equal to all. It ensures adherence to principles that both liberate and protect. The IBA calls upon all countries to respect these fundamental principles. It also calls upon its members to speak out in support of the Rule of Law within their respective communities”[ International Bar Association 2009 ]

“More than a matter of due process, the rule of law is an enabler of justice and development. The three notions are interdependent; when realized, they are mutually reinforcing. For IDLO, as much as a question of laws and procedure, the rule of law is a culture and daily practice. It is inseparable from equality, from access to justice and education, from access to health and the protection of the most vulnerable. It is crucial for the viability of communities and nations, and for the environment that sustains them”. [International Development Law Organization (IDLO)]

Devider

From rule of law to democratic institutions

Saving the Court from a Judge

Judicial Power in India

How the judiciary is governed

Accountable judiciary

Judicial appointments

Judiciary in India

Judicial review

All India Judicial Service

An independent judiciary may also make it harder for the government to respond quickly and flexibly to changing circumstances or national crises

Litigants in Person – need for practice guidelines in India

Indian Concept of Dharma  and Dharma Tradition

Devider

Judicial oath in in England

“I, _________ , do swear by Almighty God that I will well and truly serve our Sovereign Lady Queen Elizabeth the Second in the office of ________ , and I will do right to all manner of people after the laws and usages of this realm, without fear or favour, affection or ill will.”

Legal Provisions and Standards

  1.  Tribunals, Courts and Enforcement Act 2007 [UK]
  2. American President is free to appoint any person to the federal bench, yet typically he consults with the American Bar Association, whose Standing Committee on the Federal Judiciary rates each nominee “Well Qualified,” “Qualified” or “Not Qualified.”

Interpretation of Criminal Statutes

Stare decisis is a maxim among … lawyers, that whatever has been done before may legally be done again: and therefore they take special care to record all the decisions formerly made against common justice and the general reason of mankind.
— Jonathan Swift, Gulliver’s Travels.

Interpretation

“WE DO NOT KNOW WHAT THE LEGISLATURE HAD INTENDED BUT SURELY WE KNOW THE ENACTMENT “

“To treat precedents as superior to constitutional enactments is to introduce contradictions into the law, and in any system of logical propositions, acceptance of a single contradiction accepts all contradictions, rendering every proposition logically undecidable”

“By treating court opinions as though they are general law, and not just law for a particular case, we become accomplices in delegating legislative powers to judicial officials, which is forbidden by Art. I Sec. 1 of the U.S.”

Classification of Crimes

•The Crime of Misdemeanors • Overview  of Aiding and Abetting or Accessory • Overview of Arson • Overview of  Assault and Battery • Overview of Bribery • Overview of Burglary • Overview  of Child Abuse • Overview  of Child Pornography • Overview  of Computer Crime and Data Theft • Overview of Conspiracy • Overview of Credit/Debit Card Fraud • Overview offensive Conduct • Overview of Domestic Violence • Overview of Drug Cultivation , Manufacturing, Possession , Consumption and Trafficking • Overview  of Embezzlement • Overview of Extortion • Overview  of Murder • Overview of Forgery • Overview of Hate Crimes • Crime of Identity Theft • Crime of  Indecent Exposure • Crime of Insurance Fraud • Crime unintentional Manslaughter • Crime of Kidnapping • Crime of Money Laundering • Crime of Perjury • Crime of Prostitution • Crime of Pyramid Scheme • Crime of Rape • Crime of Robbery • Crime of  aggravated Murder • Crime of Securities Fraud • Crime of Sexual Assault • Crime of Stalking • Crime of Tax Evasion/Fraud • Crime of Telemarketing Fraud • Crime of Theft • Crime of Fraud




SOME BASIC RULES

Relations between the words of a statute

  1. ejusdem generis;
  2.  noscitur a sociis;
  3. expressio unius est exclusio alterius;
  4. casus omissus

Relation of the words in a statute to outside materials

  1. plain meaning rule;
  2. when two statutes are in conflict, the latest in time prevails

SOME ISSUES 

  1. Distribution of power between the legislature and the courts.
  2. Distribution of responsibility between the legislature and the courts

  3. Creation of certainty in the law

  4. To change and adapt the law to new and unforeseen conditions

  5. To decide the controversies of litigants before the courts.

  6. Judges should make law when necessary to the ends of justice.

7. The Relative Merits of Legislatures and Courts as Lawmakers


THE WAY OF INTERPRETATION

  1. Who Should Create and Define Crimes?
  2. Who Does Create and Define Crimes?
  3. Common law crimes.
  4. Three approaches: Textualism, intentionalism, and dynamism of interpretation.

Devider

Specific Interpretation

  1. A Directory or Mandatory Provision
  2. Access or non access to wife
  3. Acts in Pari Materia
  4. An act in law shall prejudice no man
  5. Addition of words by Court while interpreting
  6. The aid of American Concept of law
  7. Amendment of an Act
  8. Any
  9. As far as possible
  10. As it deemed fit
  11. Beneficial construction
  12. Beyond reasonable doubt
  13. Casus Omissus
  14. Cohabition
  15. Conjugal Right
  16. Consider and Determine
  17. Cruelty
  18. Deeming Provision
  19. Definition Clause
  20. Dictionary Meaning
  21. Discussion in Parliament
  22. Divorce -Cruelty Pleading

Devider

 

 

Right of the Accused Person in India

siva

AIn 1978(2) SCC 424 Nandini Satpathy Vs. P.L. Dani Hon’ble Supreme Court laid down following guidelines about Right of accused to consult Advocate.

“(a) Under Article 22(1), the right to consult an advocate of his choice shall not be denied to any person who is arrested. Articles 20(3) and 22(1) may be telescoped by making it prudent for the police to permit the advocate of the accused to be present at the time he is examined. Overreaching Article 20(3) and Section 161(2) will be obviated by this requirement. But it is not as if the police must secure the services of a lawyer, for, that will lead to ‘police station-lawyer’ system with all its attendant vices. If however an accused expresses the wish to have his lawyer by his side at the time of examination, this facility shall not be denied, because, by denying the facility, the police will be exposed to the serious reproof that they are trying to secure in secrecy and by coercing the will an involuntary self-incrimination. It is not as if a lawyer’s presence is a panacea for all problems of self-incrimination, because, he cannot supply answers or whisper hints or otherwise interfere with the course of questioning except to intercept where intimidatory tactics are tried and to caution his client where incrimination is attempted and to insist on questions and answers being noted where objections are not otherwise fully appreciated. The lawyer cannot harangue the police, but may help his client and complain on his behalf. The police also need not wait for more than a reasonable time for the advocate’s arrival.

(b) Where a lawyer of his choice is not available, after the examination of the accused, the police officer must take him to a magistrate, a doctor or other willing and responsible non-partisan official or non-official and llow a secluded audience where he may unburden himself beyond the view of the police and tell whether he has suffered duress, in which case he should be transferred to judicial or other custody where the police cannot reach him. The collocutor communicate the relevant conversation to the nearest magistrate.”

AHon’ble Supreme Court in Criminal Appeal No. 1899-1900 of 2011 Mohd. Ajmal Mohd. Amir Kasab @ Abu Mujahid Vs. State of Maharastra has observed in Para 484 to 488 as follows :-

484. We, therefore, have no hesitation in holding that the right to access to legal aid, to consult and to be defended by a legal practitioner, arises when a person arrested in connection with a cognizable offence is first produced before a magistrate. We, accordingly, hold that it is the duty and obligation of the magistrate before whom a person accused of committing a cognizable offence is first produced to make him fully aware that it is his right to consult and be defended by a legal practitioner and, in case he has no means to engage a lawyer of his choice, that one would be provided to him from legal aid at the expense of the State. The right flows from Articles 21 and 22(1) of the Constitution and needs to be strictly enforced. We, accordingly, direct all the magistrates in the country to faithfully discharge the aforesaid duty and obligation and further make it clear that any failure to fully discharge the duty would amount to dereliction in duty and would make the concerned magistrate liable to departmental proceedings.

485. It needs to be clarified here that the right to consult and be defended by a legal practitioner is not to be construed as sanctioning or permitting the presence of a lawyer during police interrogation. According to our system of law, the role of a lawyer is mainly focused on court proceedings. The accused would need a lawyer to resist remand to police or judicial custody and for granting of bail; to clearly explain to him the legal consequences in case he intended to make a confessional statement in terms of Section 164 CrPC; to represent him when the court examines the charge sheet submitted by the police and decides upon the future course of proceedings and at the stage of the framing of charges; and beyond that, of course, for the trial. It is thus to be seen that the right to access to a lawyer in this country is not based on the Miranda principles, as protection against self-incrimination, for which there are more than adequate safeguards in Indian laws. The right to access to a lawyer is for very Indian reasons; it flows from the provisions of the Constitution and the statutes, and is only intended to ensure that those
provisions are faithfully adhered to in practice.

486. At this stage the question arises, what would be the legal consequence of failure to provide legal aid to an indigent who is not in a position, on account of indigence or any other similar reasons, to engage a lawyer of his own choice?

487. Every accused unrepresented by a lawyer has to be provided a lawyer at the commencement of the trial, engaged to represent him during the entire course of the trial. Even if the accused does not ask for a lawyer or he remains silent, it is the Constitutional duty of the court to provide him with a lawyer before commencing the trial. Unless the accused voluntarily makes an informed decision and tells the court, in clear and unambiguous words, that he does not want the assistance of any lawyer and would rather defend himself personally, the obligation to provide him with a lawyer at the commencement of the trial is absolute, and failure to do so would vitiate the trial and the resultant conviction and sentence, if any, given to the accused (see Suk Das v. UT of Arunachal Pradesh95).

488. But the failure to provide a lawyer to the accused at the pre-trial stage may not have the same consequence of vitiating the trial. It may have other consequences like making the delinquent magistrate liable to disciplinary proceedings, or giving the accused a right to claim compensation against the State for failing to provide him legal aid. But it would not vitiate the trial unless it is shown that failure to provide legal assistance at the pre-trial stage had resulted in some material prejudice to the accused in the course of the trial. That would have to be judged on the facts of each case. [ 95 (1986) 2 SCC 401 ]


In UP the following procedure is followed:

i. Every Police Station under the jurisdiction of a court sends one personnel to the court every day during the 2nd half.

ii. The police personnel then gather trial dates from the concerned court and report to the Superintendent of Police office by the evening.

iii. SP offices then co-ordinate among each other and the concerned IO is informed way in advance of the next hearing date when s/he has to appear as a witness.
This gives considerable amount of time to the IO to plan the court appearance and avoid delay in appearance.


Most frequently found cognizable sections are as follows.
• Murder – Section 302 of the IPC
• Rape – Section 376 of the IPC
• Culpable Homicide not amounting to murder-Section 304 of the IPC
• Dowry Death- Section 304B of the IPC
• Attempt to murder(Marpeet Case)- Section 307 of the IPC
• Kidnapping (Apharan)- Section 363 of the IPC
• Arms Act
• Extortion (Rangdaari)
• Armed Robbery (Dacoity)

A Custodial rape and torture cases :
1. Delay of nearly 2 weeks in conducting medical examination
2. Delay of nearly 2 yrs in filing of Charge Sheet
3. Delay of nearly 2 yrs in charge framing
4. Victim unaware of case status and lawyer

  1. Victim claims she cannot afford a private lawyer and legal aid panel lawyers do not
    want to fight her cases of alleged custodial rape and torture.

In an instance of a custodial rape where victim is a prisoner it is difficult for the inmate to come up to the prison administration to register the complaint which may lead to delay and tampering of evidence. Apart from being hesitant the inmate also may not be aware of the steps that need to be taken. Here the onus to take action and secure the safety of the inmate remains on the prison administration. The prison administration should initiate immediate medical examination of the inmate and initiate other legal steps, necessary actions.

A Police torture in Thana before Production

When torture victim come to prison from court the prison administration should send the inmate for immediate medical treatment. If torture victim come to prison without mention of the same in the medical report, the prison administration should bring the matter to the notice of the concerned court at the earliest.

Section 125 [488 Old] of Criminal Procedure Code [Law Points]

MAINTENANCE-

Note

  1. The proceedings under Section 488 of the Old Code are quasi-civil in nature but that does not mean that the Magistrate dealing with them gets all the powers of a civil court or that all the rules governing the civil proceedings can be imported.
  2. Though Section 125 benefits a distressed father also, main thrust of the provision is to assist women and children in distress. That is fully consistent with Article 15(3) of the Constitution which states that the prohibition contained in the Article shall not prevent the State from making any special provision for women and children. We take note of Article 39 of the Constitution which states, inter alia, that the State shall, in particular, direct its policy towards securing that the citizens, men and women equally, have the right to an adequate means to livelihood, that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment. See Bai Tahira v. All Hussain Fissali, AIR 1979 SC 362 : (1979 Cri LJ 151) and Jagir Kaur v. Jaswant Singh, AIR 1963 SC 1521 : (1963 (2) Cri LJ 413). The provision is a measure of social justice and specially enacted to protect women and children. As the Supreme Court observed in Ramesh Chander v. Veena Kaushal, AIR 1978 SC 1807 : (1979 Cri LJ 3), the brooding presence of the constitutional empathy for the weaker sections like women and children must inform interpretation if it has to have social relevance.
  3.  There can be no quarrel with the proposition that a person summoned under the Code has to be served in the manner provided in the aforesaid Sections 62 to 66 but there is no legal bar to the service of the summons on a person by a registered post in addition to the prescribed mode, as the whole object is to make the person summoned aware of the proceedings being taken against him.  The same principle of law laid down in Sunil Kumar Phukan v. Mt. Pratima Buragohain, 1973 Cri LJ 401 (Gauhati).  It is true that if the mode laid down in Sections 62 to 66 of the Code for effecting service is not at all resorted to by the Court, then an argument would be available that no proper service has been effected on the opposite party as the mode of service laid down in the Code had not been followed. But where not only the mode of service laid down in the Code is followed but in addition, some other process is also issued like sending the summons by registered post or by publication of the notice in the newspaper, it cannot be said that in such a case the ex parte order made against the opposite party would be invalid only on the ground that additional mode of service had been followed which is not contemplated by the Code.
  4. Before proceeding to hear and determine the case ex parte, the Magistrate has to apply his mind to the question whether the opposite party is wilfully avoiding service or wilfully neglecting to attend Court and be satisfied that there has been such wilful conduct on the part of the opposite party. The Magistrate cannot proceed ex parte without arriving at such satisfaction. It is desirable for the Magistrate to pass a formal order recording such satisfaction and giving reasons for such satisfaction. However, the condition precedent for proceeding ex parte is the satisfaction based on reasons and not the formal order. The satisfaction must be discernible from the circumstances evident from the record. Proviso to Sub-section (2) of Section 126 refers to satisfaction of the Magistrate that the opposite party is wilfully avoiding service or wilfully neglecting to attend the Court. The expression “service” is not defined in the Chapter or the Code. It is not stated that what has to be served is “summons” in the general sense of the word or summons as contemplated in the Code or a mere notice.
  5. The case does not deal with an offence. The person against whom the claim is made is not an offender or an accused. The order passed against him does not spell out a finding that he has committed an offence. There is no punishment imposed on him, though as a mode of recovery, imprisonment is provided for. He is not charged for the commission of a criminal offence. The object of the provision is not to punish him for the past neglect. The object is to prevent vagrancy and ameliorate distress. See In re Vithaldas Bhurabhai, AIR 1928 Bom 346 : (1928-29 Cri LJ 1051),Zainab Bibi v. Anwar Khan, AIR 1946 Pat 104 : (1946-47 Cri LJ 821), A. W. Khan v. Zaitunbi, AIR 1950 Nag 45 : (1950-51 Cri LJ 451), Seri Ram Reddy v. Chandramma, AIR 1952 Hyd 45, Nagendramma v. Ramakotayya, AIR 1954 Mad 713, KarnailSinghv. Mst. Bachan Kaur, AIR 1955 Punj 26 : (1955 Cri LJ 334), Jaswantsinghji v. Kesuba Harisinh, AIR 1955 Bom 108 ; (1955 Cri LJ 357), T. K. Thayumanuvar v. Asanambar Ammal, AIR 1958 Mys 190 : (1958 Cri LJ 1522) and Sew Kumher v. Mongru Kumharin, AIR 1959 Cal 454 : (1959 Cri LJ 834).
  6. Proceedings under Chap. IX of the Code,  stand on a different footing. The person against whom claim for maintenance is made is not accused of any offence; nor can he be convicted or sentenced. The proceedings against him are essentially of a civil nature, since the claim against him is essentially of a civil nature. The Court, naturally, has a duty to inform him about the proceedings and of his right to appear and contest. The normal duty of the Court is to record evidence in the presence of the person against whom the claim is made. That does not and cannot mean that the Court can compel his appearance. Whether he should appear or not is a matter left to his own decision. A person against whom a claim is made may not desire to contest the case at all. He cannot be compelled to appear in Court and to be present during the recording of the evidence. If he cannot be so compelled, the Court cannot have power to compel his appearance. This is the rationale for the provision in the proviso to Section 126 (2) which empowers the Court under certain circumstances to proceed ex parte. The circumstances are where the Court is satisfied that the person against whom the claim for maintenance is made is wilfully avoiding service or wilfully neglecting to attend the Court. Of course, it is not mere avoidance of service or failure to attend the Court which attracts the operation of the proviso. Avoidance of service or failure to attend the Court must be wilful, that is, deliberate. Where such a person wilfully avoids service or neglects to attend the Court, the law enables the Magistrate to determine the case ex parte, after recording the evidence in his absence. This would also indicate that the Magistrate cannot compel appearance of such a person in the same manner in which he can compel appearance of an accused person by resorting to provisions relating to summons, warrant of arrest, proclamation and attachment contained in Chap. VI of the Code.
  7. As the proceedings are of a civil nature, the Code does not contemplate any preliminary enquiry.[Nand Lal Misra Vs Kanhaiya Lal Misra[SC 1960 April ]
  8. “But when this date of knowledge falls beyond the period of three months from the date of order, question of limitation arises, no doubt-In this connection it is worthy of note that there is no Article like Article 122 of the Limitation Act, 1963 prescribing limitation for application for setting aside ex parte orders under Section 125, Cr. P.C. In such circumstances aid of Section 5 of the Limitation Act, 1963 may be taken and non-service of notice may be pleaded as sufficient ground for condonation of delay. But in the present case no application has been made under Section 5 of the Limitation Act, 1963 for condonation of delay. The conclusion therefore, is inescapable that the application was time barred and the learned Magistrate was wrong in entertaining the petition”.
  9. “When an ex parte order under Section 126 of the Code is therefore made, the conclusion is inescapable that the learned Magistrate was satisfied not only regarding due service of process but also regarding opposite party’s wilful avoidance of service or wilful neglect to attend the court. Consequently, subsequent to such ex parte order the Magistrate should be slow and cautious to set aside the ex parte order. Only when cogent and convincing evidence is produced to satisfy that there was no wilful avoidance of service or wilful neglect to attend court the Magistrate will set aside the ex parte order. In the present case the husband did not depose before the learned Magistrate that the process server did not tender to him the notice of the case or that the postal peons did not offer to him the registered covers addressed to him. The endorsements of the postal peon on the registered covers attracted presumption of service under Section 27 of the General Clauses Act. Further who was more likely to influence the process server or postal peon, the husband or wife? According to the husband the wife is a maid-servant and her mother is also a maid-servant whereas he himself is a man of higher social status namely, an Assistant Engineer. Moreover in spite of some inaccuracy in the name of the father and village of the husband given in the petition it was not impossible to find out the husband from other particulars of him as given in the petition. The house of the husband located near Mohuri Mill Gate, P. S. Jagacha, P. O. AndulMohuri. The Police Officer who had been to the location to execute the warrant against the petitioner as a matter of fact found out the husband. So there is no reason to believe that the process-server or postal peon because of inaccuracies in the description of the husband failed to find him out. The learned Magistrate does not appear to have considered these aspects of the case. I am, therefore, convinced that the husband failed to make out good cause for setting aside the ex parte order. The learned Magistrate’s findings to the contrary-effect is untenable”.[
    Calcutta High Court Bina Ganguli vs Rash Behari Ganguli on 20 July, 1983   citations: 1983 CriLJ 1672]
  10. In Jagir Singh v. Ranbir Singh, a revision against the order of the Magistrate was decided by a Sessions Judge and a second revision was sought to be made before the High Court. The Supreme Court clearly held that the object of Section 397(3) of the Code is to prevent a multiple exercise of revisional powers and to secure early finality to orders. Any person aggrieved by an order of an inferior Criminal Court is given the option to approach either the Sessions Judge or the High Court and once he exercises the option he is precluded from invoking the revisional jurisdiction of other authority. The language of Section 397(3) of the Code is clear and peremptory and it does not admit of any other interpretation. In another judgment of the Supreme Court in the case of Rajan Kumar Machananda v. State of Karnataka, (1987) 5 JT 637 (1), it has been now clearly laid down that resort to inherent powers of the High Court cannot be had if there is other remedy available in the Code to the aggrieved person.
  11. PLEADING-it is well settled that in the matter of criminal cases pleadings are not to be strictly construed. Even so, the combined effect of Ss. 125 to 128 of the Code leaves no room for doubt that the proceedings are quasi-civil in nature. Therefore, the rules of pleadings as apply to civil proceedings are not to be totally disregarded when dealing with applications under Chapter IX of the Code.The main rules in regard to pleadings applicable to civil proceedings are also applicable to proceedings for maintenance under Chapter IX of the Code.
  12. PAYMENT: Cr.P.C. S.125(3): There is no bar to commit a person under S.125(3), Cr.P.C. to commit a person defaulting in payment of maintenance amount to imprisonment and also simultaneously to proceed against his properties, be it movable or immovable for realisation of the maintenance amount -Smt. Kuldip Kaur Vs. Surinder Singh, AIR 1989 SC 232.

Judge is condemned when guilty is acquitted

judex damnatur cum nocens absolvitur [LATIN]

Supreme Court in a case of Hardeep Singh vs. State of Punjab, 2014(1) RCR (Criminal) 623 wherein the Constitution Bench has consideration the provisions of Section 319 Cr.P.C and held that Section 319 Cr.P.C. springs out of the doctrine judex damnatur cum nocens absolvitur (Judge is condemned when guilty is acquitted) and this doctrine must be used as a beacon light while explaining the ambit and the spirit underlying the enactment of Section 319 Cr.P.C. The entire effort, therefore, is not to allow the real perpetrator of an offence to get away unpunished. This is also a part of fair trial and in our opinion, in order to achieve this very end that the legislature thought of incorporating provisions of Section 319 Cr.P.C. It is with the said object in mind that a constructive and purposive interpretation should be adopted that advances the cause of justice and does not dilute the intention of the statute conferring powers on the court to carry out the above mentioned avowed object and purpose to try the person to the satisfaction of the court as an accomplice in the commission of the offence that is subject matter of trial.

Complete Justice under Articles 136 and 142 by Indian Supreme Court

sc

  1. N. Suriyakala v. A. Mohandoss & Ors
  2. Tirupati Balaji Developers (P) Ltd. & Ors. v. State of Bihar & Ors.
  3. State of Maharashtra v. Champalal Punjaji Shah
  4. Gopal & Ors. v. State of T.N
  5. Kunhayammed & Ors. v. State of Kerala & Anr
  6. Manohar Lal Sharma v. Principal Secy & Ors
  7. Shahid Balwa v. Union of India & Ors
  8. Commissioner of Income Tax, Shimla v. Greenworld Corporation, Parwanoo
  9. Damodar S. Prabhu v. Sayed Babalal H
  10. Satbir v. Surat Singh & Ors.
  11. Monica Kumar (Dr.) & Anr. v. State of U.P. & Ors
  12. E.K. Chandrasenan v. State of Kerala
  13. Sandeep Subhash Parate v. State of Maharashtra & Ors
  14. Secretary, State of Karnataka & Ors. v. Umadevi (3)& Ors
  15.  M.S. Ahlawat v. State of Haryana & Anr
  16. M.C. Mehta v. Kamal Nath & Ors
  17. J. Jayalalithaa & Ors. v. State of Karnataka & Ors
  18. Government of West Bengal v. Tarun K. Roy & Ors
  19. Laxmidas Morarji v. Behrose Darab Madan
  20. Modern School v. Union of India & Ors

Inherent Power of High Court

THUNDER.jpg

THE IDEA

Inherent powers are powers which are resident in all courts, especially of superior jurisdiction. These powers spring not from legislation but from the nature and the Constitution of the Tribunals or Courts themselves so as to enable them to maintain their dignity, secure obedience to its process and rules, protect its officers from indignity and wrong and to punish unseemly behaviour. This power is necessary for the orderly administration of the Court’s business . [ In Indian Bank v. Satyam Fibres (India) Pvt. Ltd., (1996) 5 SCC 550 : JT 1996 (7) SC 135, referring to Lazarus Estates and Smith v. East Elloe Rural District Council, 1956 AC 336 : (1956) 1 All ER 855 : (1956) 2 WLR 888, Supreme  Court stated as above;

CRIMINAL MISCELLANEOUS

QUASHING
FIR
Entire Proceedings
Cognizance Order
Discharge Order
Order passed u/s 311
Order passed u/s 319
 Offences relating to women & Children
  1. The inherent powers of the High Court, which are obviously not defined being inherent in its very nature, cannot be stretched to any extent and nor can such powers be equated with the appellate powers of the High Court defined in the Code.In our considered opinion, once the Court finds that the FIR does disclose prima facie commission of any cognizable offence, it should stay its hand and allow the investigating machinery to step in to initiate the probe to unearth the crime in
    accordance with the procedure prescribed in the Code. [Dineshbhai Chandubhai Patel VS State of Gujarat & Ors..SC January 5, 2018 ]
  2. FIR-The law on the question as to when a registration of the FIR is challenged seeking its quashing by the accused under Article 226 of the Constitution or Section 482 of the Code and what are the powers of the High Court and how the High Court should deal with such question is fairly well settled.[ State of West Bengal & Ors. vs. Swapan Kumar Guha & Ors. (AIR 1982 SC 949)]

Rights of the Victim in Prosecution

SUPREME COURT
CLICK FOR LATEST JUDGMENT

Criminal Procedure Code under Amendment of 2009 ( W.E.F 31.12.2009) recognized the place of Victim and Victim’s role in prosecution and appeal.

Definition of Victim

U/S 2 [wa]- “victim” means a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression “victim” includes his or her guardian or legal heir;  [ POSITION CHANGED]

Prosecution 

24(8) The Central Government or the State Government may appoint, for the purposes of any case or class of cases, a person who has been in practice as an advocate for not less than ten years as a Special Public Prosecutor.

[Provided that the Court may permit the victim to engage an advocate of his choice to assist the prosecution under this sub-Section.]  [ POSITION CHANGED]

301. Appearance by Public Prosecutors. – (1) The Public Prosecutor or Assistant Public Prosecutor in charge of a case may appear and plead without any written authority before any Court in which that case is under inquiry, trial or appeal.

(2) If in any such case any private person instructs a pleader to prosecute any person in any Court, the Public Prosecutor or Assistant Public Prosecutor in charge of the case shall conduct the prosecution, and the pleader so instructed shall act therein under the directions of the Public Prosecutor or Assistant Public Prosecutor,

and may, with the permission of the Court, submit written arguments after the evidence is closed in the case.

302. Permission to conduct prosecution – (1) Any Magistrate inquiring into or trying a case may permit the prosecution to be conducted by any person other than a police officer below the rank of Inspector; but no person, other than the Advocate-General or Government Advocate or a Public Prosecutor or Assistant Public Prosecutor, shall be entitled to do so without such permission :

Provided that no police officer shall be permitted to conduct the prosecution if he has taken part in the investigation into the offence with respect to which the accused is being prosecuted.

(2) Any person conducting the prosecution may do so personally or by a pleader.

APPEAL BY VICTIM

372. No appeal to lie unless otherwise provided. – No appeal shall lie from any judgment or order of a Criminal Court except as provided for by this Code or by any other law for the time being in force.

[Provided that the victim shall have a right to prefer an appeal against any order passed by the Court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation, and such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court.]  [ POSITION CHANGED]

REVISION BY VICTIM

397. Calling for records to exercise powers of revision. – (1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record.

Explanation. – All Magistrates, whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this sub-section and of Section 398.

(2) The powers of revision conferred by sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding.

(3) If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them.

399. Sessions Judge’s powers of revision. – (1) In the case of any proceeding the record of which has been called for by himself, the Sessions Judge may exercise all or any of the powers which may be exercised by the High Court under sub-section (1) of Section 401.

(2) Where any proceeding by way of revision is commenced before a Sessions Judge under sub-section (1), the provisions of sub-sections (2), (3), (4) and (5) of Section 401 shall, so far as may be, apply to such proceeding and references in the said sub-sections to the High Court shall be construed as references to the Sessions Judge.

(3) Where any application for revision is made by or on behalf of any person before the Sessions Judge, the decision of the Sessions Judge thereon in relation to such person shall be final and no further proceeding by way of revision at the instance of such person shall be entertained by the High Court or any other Court.


 

The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.

As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor — indeed, he should do so.

But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.

Quote of Justice Sutherland, Berger v. United States,
295 U.S. 88 (1935)

 

1. In M/S Jk International vs State, Govt Of NCT Of Delhi And Ors … DECIDED on 23 February, 2001 the Apex Court shifted it`s position adopted in  Shiv Kumar vs Hukam Chand And Anr [ SC 1988 AUGUST]

BACK GROUND OF SIVA KUMAR : “That was a case where the complainant engaged his counsel and wanted to conduct the chief examination when he was to be examined as a witness for the prosecution. The said prayer of the complainant was objected to on behalf of the accused on the premise that a private counsel cannot conduct prosecution in a session’s trial. Though the trial Court allowed an application to be filed on behalf of the complainant, which was also endorsed by the public prosecutor, the revision filed by the accused was allowed and the order of the trial Court was set aside”. [Sister Mina Lalitha Baruwa vs State Of Orissa & Ors on 5 December, 2013

2.The Apex Court, in the case of Ramakant Rai vs. Madan Rai and Others, reported in (2003) 12 SCC 395, recognized the right of a private person to file an appeal against order of acquittal passed by a High Court. In case of Masurddin Mushni vs Md. Siraj & Ors, reported in (2008) 8 SCC 434, the Supreme Court held that a First Information Report cannot bequashed by Court at the instance of accused without giving notice to informant.

3. In  A.I.R. 1987 Supreme Court 117, (Chandavarkar Sita Ratna Rao v. Ashalata S. Guram), observed that the golden rule is that the words of a statute must prima facie give their ordinary meaning and the aforesaid principle should not be departed unless it can be shown that the legal context in which the words are used requires different meaning. A bare perusal of definition of „victim‟ manifests that the term has not been used in a restrictive sense and would include both the complainant and the informant so long it satisfies qualifying condition in the proviso that he must have suffered loss or injury by act of omission or commission of the accused.

4. In Subhash Chandra vs State (Delhi Administration), reported in (2013) 2 SCC 17, that there is no distinction between a Complaint Case filed by a private person and a public servant and, as such, the appeal against acquittal, in every single complaint case, would lie under Section 378(4) after seeking Special Leave of the High Court.

When Dispute Is Of Civil Nature, Giving It A Criminal tone Is Abuse Of Process

SUPREME COURT
CLICK FOR LATEST JUDGMENT

KEYWORDS: CHEATING – CRIMINAL BREACH OF TRUST – BREACH OF CONTRACT

Cheating -Hridaya Ranjan Prasad Verma & ors -vs Stat of Bihar and anr (2000) 4 SCC 168

“It is held time and again that the distinction between mere breach of contract and the offence of cheating is a fine one .It would depend upon the intention of the accused at the time of inducement, which may be judged by his subsequent conduct but for this subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of transaction that is the time when the offence is said to have been committed. Therefore, it is the intention which is gist of the offence. To hold a person guilty of cheating, it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise. From his mere failure to keep up promise subsequently such an culpable intention right at the beginning that is when he made the promise cannot be presumed”

State of Haryana and others -vs- Bhajan Lal and others 1992 Supp (1) SCC 335, where a criminal proceeding is manifestly attended with malafide intention and/or the proceeding is maliciously instituted with object to serve the oblique purpose of recovering the amount, such proceeding needs to be quashed and set aside.

Apex Court in the case of Chandran Ratnaswami -vs- K.C. Palanisamy and ors (2013) 6 SCC 740, relied upon by learned counsel for applicant, wherein it was held that, when the disputes are of civil nature and finally adjudicated by the competent authority, as in the present case, by the Company Law Board and the disputes are arising out of alleged breach of joint venture agreement and when such disputes have been finally resolved by the Court of competent jurisdiction, then it is apparent that complainant wants to manipulate and misuse the process of Court. In this judgment, it was held that, it would be unfair if the applicants are to be tried in such criminal proceeding arising out of the alleged breach of a Joint Venture Agreement. It was further held that the wholesome power under Section 482 of Code of Criminal Procedure entitles the High Court to quash a proceeding when it comes to the conclusion that allowing the proceeding to continue would be abuse of the process of the Court or that the ends of justice require that the proceedings ought to be quashed.

In Indian Oil Corpn -vs- NEPC India Ltd and ors, 2006 (3) SCC Cri 736, the Apex Court was pleased to caution about the growing tendency in business circles to convert purely civil disputes into criminal cases.

State of Maharashtra and ors -vs- Arun Gulab Gawali, (2009) 9 SCC 701  relied upon by learned counsel for respondent No.3, Court has explained the parameters and ambit of section 482 of the Code of Criminal Procedure, in the light of decision of Apex Court, in case of State of Haryana -vs- Bhajanlal. when the dispute is of civil nature and does not disclose commission of cognizable offence, would be an abuse of process of law .

  • Pratiba Rani v. Sooraj Kumar – (1985) 1 Crimes 614 = 1985 Crl.L.J. 817 (SC)…Anil Maliajan v. Bhor Industries Ltd. (2005) 10  SCC 228…
    Uma Shankar Gopalika  v. State of Bihar (2005) 10 SCC 336…
    Nalini  Shankaran v. Neelkanth Mahadeo  Kamble  – (2007) 12 SCC 90…Trilok Singh v. Satya Deo Tripathi – (1979) 4 SCC 396 = 1980 Crl.L.J. 822 (SC);George Zacharia v. T.K. Varghese – (1995) Supp. 1 SCC 267; Bal Krishnan Das v. P.C. Nayar – (1991) Supp. 2 SCC 412. …
  • Sagar Suri v. State of U.P….AIR 2000 SC 754 =  2000 Crl.L.J. 824…
  • Kishan Singh (D) Thru Lrs vs Gurpal Singh & Ors on 12 August, 2010 – HELD : The issue as to whether the findings recorded by Civil Court are binding in criminal proceedings between the same parties in respect of the same subject matter, is no more Res Integra. It is to be noted that the appellants’ father Kishan Singh lodged FIR No.144/02 on 23.7.2002 through his attorney Jaswant Singh Mann under Sections 420/323/467/468/471/120-B IPC, against the respondents. The allegations made in the FIR were substantially similar to the allegations made by the appellants in Civil Suit No.1075/96, which had been decided against them. It is evident that the aforesaid FIR was filed with inordinate delay and there has been no plausible explanation for the same. The appellants lodged the aforesaid FIR only after meeting their Waterloo in the Civil Court. Thus, it is evident that the FIR was lodged with the sole intention of harassing the respondents and enmeshing them in long and arduous criminal proceedings. We are of the view that such an action on the part of the appellants’ father would not be bona fide, and the criminal proceedings initiated by him against the respondents amount to an abuse of the process of law.

    In M/s Karamchand Ganga Pershad & Anr. Vs. Union of India & Ors., AIR 1971 SC 1244, this Court, while dealing with the same issue, held as under :-

    “It is well established principle of law that the decisions of the civil courts are binding on the criminal courts. The converse is not true.”

    The said Judgment was delivered by a three-Judge Bench of this Court without taking note of the Constitution Bench Judgment in M.S. Sherrif Vs. The State of Madras & Ors., AIR 1954 SC 397 on the same issue, wherein this Court has held as under :-

    “As between the civil and the criminal proceedings we are of the opinion that the criminal matters should be given precedence. There is some difference of opinion in the High Courts of India on this point. No hard and fast rule can be laid down but we do not consider that the possibility of conflicting decisions in the civil and criminal courts is a relevant consideration. The law envisages such an eventuality when it expressly refrains from making the decision of one court binding on the other, or even relevant, except for certain limited purposes, such as sentence or damages. The only relevant consideration here is the likelihood of embarrassment”.

     In Iqbal Singh Marwah & Anr. Vs. Meenakshi Marwah & Anr., (2005) 4 SCC 370, this Court held as under :-

    “Coming to the last contention that an effort should be made to avoid conflict of findings between the civil and criminal courts, it is necessary to point out that the standard of proof required in the two proceedings are entirely different. Civil cases are decided on the basis of preponderance of evidence while in a criminal case the entire burden lies on the prosecution and proof beyond reasonable doubt has to be given. There is neither any statutory provision nor any legal principle that the findings recorded in one proceeding may be treated as final or binding in the other, as both the cases have to be decided on the basis of the evidence adduced therein.”

 

Co-relation between fair investigation and fair trial

CODE OF CRIMINAL PROCEDURE

186. Having pointed out the role, which a Public Prosecutor is required to play, particularly, in a sessions trial, it may also be, at the cost of repetition, emphasized that a defective, biased or mala fide investigation or a tainted investigation cannot give rise to a valid charge sheet, because such on investigation would, ultimately, prove to be precursor of miscarriage of criminal justice. Not only, therefore, ‘fair trial’, but ‘fair investigation’ too form part of the Constitutional rights guaranteed under articles 20 and 21 of the constitution of india. The investigation, therefore, must be fair, transparent and judicious. In fact, fairness in investigation and consequently, ‘fairness in trial’ form the basic minimum requirement of the ‘rule of law’.

When non-interference by the court with on “*** *** ***

31. Unless an extra ordinary case of gross abuse of power is made out by those in-charge of the investigation, the court should be quite loathe to interfere with the investigation, a field of activity reserved for the police and the executive……..” (emphasis is added)

187. At any rate, there is no difficulty in the State seeking permission for ‘further investigation’, because section 173(8) permits the State to conduct ‘further investigation’. As expected, the Supreme Court, as a visionary, had observed, in the case of Ramlal Narang (supra), that ordinarily, it is desirable that the police should take formal permission from the court for ‘further investigation’. The word ‘ordinarily’ would, therefore, imply, as already discussed above, that in all cases and in every situation, the police need not take formal permission from the court before conducting ‘further investigation’. It is not difficult to visualize situations, where, on information received by the police, the police may justifiably form the opinion that ‘further investigation’ is warranted. In such a case, there may be a situation, where the police may be required to conduct ‘further investigation’ without the accused person(s) being informed of such ‘further investigation’. After the trial starts, the police cannot obtain permission for ‘further investigation’ at the back of the accused person or without informing the accused person. If the accused person is informed that police is seeking permission for ‘further investigation’, the police would be obviously required to disclose, if not to the accused person, at least, to the court as to what has surfaced, which warrants ‘further investigation’. Disclosure of the fact, which may have given rise to the requirement of ‘further investigation,’ may not be disclosed by the police, because, in a given case, such a disclosure may cause prejudice to ‘further investigation’ if the accused becomes aware of an aspect of the investigation would, ultimately, result in failure of justice, the court must interfere. A reference, in this regard, may be made to the case of Babu Bhai (supra) wherein the Supreme Court observed, thus:

“34…………….. If the investigation has not been conducted fairly, we are of the view that such vitiated investigation cannot give rise to a valid charge sheet. Such investigation would ultimately prove to be precursor of miscarriage of criminal justice. In such a case the court would simply try to decipher the truth only on the basis of guess or conjunctures as the whole truth would not come before it. It will be difficult for the court to determine how the incident took place wherein three persons died and so many persons including the complainant and accused got injured. Not only the fair trial but fair investigation is also part of constitutional rights guaranteed under articles 20 and 21 of the constitution of india. Therefore, investigation must be fair, transparent and judicious as it is the minimum requirement of rule of law. Investigating agency cannot be permitted to conduct an investigation in tainted and biased manner. Where non-interference of the court would ultimately result in failure of justice, the court must interfere.”

(emphasis is added)

188. However, unless an extraordinary case of gross misuse of power by those, who are in-charge of an investigation, is made out, the court should be quite loathe to interfere with the investigation, which is, ordinarily, a field of activity reserved for the police and the executives. Commenting on this aspect of law, the Supreme Court observed, in Babu Bhai (supra), thus:

“21………..The manner in which the investigation has been carried out as well as the manner in which these cases have been conducted before this court, clearly indicate that the investigation is not fair and impartial and as such the investigating agency cannot be permitted to continue case which the police wants to examine by ‘further investigation’. No wonder, therefore, that it has been laid down, in A.S. Peter (supra), that in every case, the police need not take formal permission from the court for conducting ‘further investigation’ and, in the case of Hasanbhai Valibhai Qureshi (supra), the Supreme Court has clearly held that ‘further investigation’ may be conducted by the police de hors any permission from the court.

189. In the light of the position of law, as discussed above, when we turn to the facts of the case at hand, it needs to be noted that there were two petitions filed in the learned trial court, one by the Additional Public Prosecutor, who was conducting the prosecution, and the other, by the son of the deceased couple, who stood in the position of the victim.

190. The learned trial court has rejected the appellant’s application, seeking direction for further investigation on two grounds, namely, that the appellant is a mere witness and no prejudice would, therefore, be caused to him and, secondly, the appellant has no locus standi to ask for further investigation inasmuch as it is only the police, who is competent to seek orders for further investigation.

191. As far as the learned Public Prosecutor’s application is concerned, the same was rejected by the learned trial court on the ground that it is not the Public Prosecutor, but only the police, who have the right to seek direction for further investigation and, secondly, that the two persons, who had not been cited as witnesses in the charge sheet, can be examined under section 311 of the Code.

192. In substance, therefore, there were four grounds, assigned by the learned trial court, for rejecting the two applications aforementioned, whereby directions for further investigation were sought for. These four grounds are: (i) the appellant is a mere witness and no prejudice would be caused to him if his prayer for further investigation is not allowed; (ii) it is only the police, which can seek direction for further investigation and, hence, the appellant has no locus standi; (iii) even a Public Prosecutor cannot seek direction for further investigation inasmuch as the right to seek such a direction vests only in the police and not in any one else including Public Prosecutor and (iv) the power given to a trial court, under section 311 of the code, is sufficient to meet the deficiencies, if any, of the investigation in the present case inasmuch as the two persons, who have not been cited as witnesses, can be examined by the court in exercise of its power under section 311.

193. While dismissing the writ petition, the learned Single Judge added one more ground, namely, that the power, under section 319, Cr.PC, can be also invoked by the court if the evidence on record, which may be adduced by the prosecution, reveals involvement of some other persons too, as assailants, along with the accused-respondent herein.

Can Session prosecution be conducted by the counsel of a victim ?

CODE OF CRIMINAL PROCEDURE

In Shiv Kumar`s case , the legislative intention becomes manifestly clear that prosecution, in a sessions court, cannot, under the scheme of the Code, be conducted by any one other than the Public Prosecutor. The Legislature reminds the State that the prosecution of every accused must strictly conform to fairness of a criminal trial.

177. As indicated above, a Public Prosecutor’s role is not ensure conviction of an accused, irrespective of the facts involved in the case. The attitude of the Public Prosecutor, who conducts prosecution, shall be fair not only to the court and to the investigating agencies, but to the accused as well. If an accused is entitled to any legitimate benefit during trial, the Public Prosecutor should not scuttle or conceal it. On the contrary, it is the duty of the Public Prosecutor to help the court reach the truth.

178. As mentioned above, even when a defence counsel overlooks a material aspect of a case, which may help in uncovering the truth and in arriving at a just decision of the case, the Public Prosecutor has the added obligation to bring to the notice of the court such an aspect of the case.

179. Agreed the Supreme Court with the observations of a Division Bench of the High Court of Andhra Pradesh, in Medicheetty Ramakistiah and Ors. v. The State of Andhra Pradesh, AIR 1959 AP 659 , which read:

“A prosecution, to use a familiar phrase, ought not to be a persecution. The principle that the Public Prosecutor should be scrupulously fair to the accused and present his case with detachment and without evincing any anxiety to secure a conviction, is based upon high policy and as such courts should be astute to suffer no inroad upon its integrity. Otherwise there will be no guarantee that the trial will be as fair to the accused as a criminal trial ought to be. The State and the Public Prosecutor acting for it are only supposed to be putting all the facts of the case before the court to obtain its decision thereon and not to obtain a conviction by any means fair or foul. Therefore, it is right and proper that courts should be zealous to see that the prosecution of an offender is not handed over completely to a professional gentleman instructed by a private party.”

(emphasis is added)

180. From the observations made above, it becomes clear that a Public Prosecutor is required to deal with a case with utmost detachment and should not exhibit the intention to secure, by hook or crook, conviction of the accused. Under our criminal jurisprudence, this is one of the essential features of a fair trial.

181. Agreed the Supreme Court with yet another decision of the Andhra Pradesh High Court, Bhupalli Malliah and Ors., In re., AIR 1959 AP 477, wherein the court has deprecated the practice of the Public Prosecutor sitting back and permitting private counsel to conduct prosecution. The High Court, in Bhupalli Malliah (supra), made clear the position of law, in this regard, in the following words:

“We would like to make it very clear that it is extremely undesirable and quite improper that a Public Prosecutor should be allowed to sit back, handing over the conduct of the case to a counsel, however, eminent he may be, briefed by the complainant in the case.”

(emphasis added)

182. Thus, from the scheme of the Code, as delineated above, it becomes clear that once an accused appears in the court, pursuant to the summons issued to him, it is the State, which assumes the role of the prosecutor and conducts the prosecution. A private party, ordinarily, has got no role to play in a case instituted by the State. In all such cases, more particularly, in sessions cases, the prosecution is conducted by the State and a private party, howsoever interested may be in such prosecution, has to act under the directions of the Public Prosecutor, for, there cannot be a situation, where prosecution of a person can be allowed to be conducted by two persons or agencies having two different or conflicting interests. The State, in the case of prosecution of an accused, however, grave the charge may be, has to be impartial and it is no part or the duty of the Public Prosecutor to obtain conviction of an accused facing trial; rather, the solemn role of a Public Prosecutor is to lay bare before the court all such materials, which the State may be capable of producing, in terms of the provisions of law and relevant in the context of the facts of a given case, in order to ensure that justice is done in the case, no matter as to whether the case ends in conviction or acquittal; whereas an informant or a complainant is an interested party. Hence, a prosecution, launched by the State, cannot be allowed to be derailed at the instance of an informant, de facto complainant, aggrieved person or victim.

183. The observations made by the Punjab and Haryana High Court, while dealing with the provisions of section 301, in Kuldip Singh v. State of Haryana1980 Crl. LJ 1159 , throw some light in the above direction. In Kuldip Singh (supra), the court has, at para 4, observed, as under:

“sub section (1) of section 301, deals with the Public Prosecutor and the Assistant Public Prosecutor in-charge of a case. Under sub-section (2), a private person can instruct a pleader to prosecute any person in any court, but such pleader can only act under the directions of the Public Prosecutor or the Assistant Public Prosecutor. The court comes in the picture only if the pleader so engaged wishes to submit written arguments after the evidence is closed. It is, thus, clear that the court is unconcerned in the matter of the engagement of a pleader by a private party and of the conduct of the trial by such pleader under the direction of the Public Prosecutor. This matter is exclusively between the party, pleader and the Public Prosecutor…. The application filed by the petitioner to the learned Additional Sessions Judge for permission to allow his counsel to conduct the trial or to participate therein was misplaced.”

184. In Thakur Ram and Others v. State of BiharAIR 1966 SC 911, the Supreme Court has mode it clear, at para 9, that in a case, which proceeds on a ‘police report’, a private party has no locus standi and that the criminal law cannot be allowed to be used as an instrument of wrecking private vengeance by an aggrieved party against the person, who, according to such a party, had caused injury to the party, who feels aggrieved. The court has made it clear, in Thakur Ram (supra), that barring few exceptions, it is the State, which is the custodian of social interests of the community at large, and so, it is the State, which has to take all steps, which may be necessary, to bring to book the person, who has acted against the social interest of the community, and it is for this reason that in criminal matters, the party, who is treated as aggrieved party, is the State. The relevant observations, in Thakur Ram (supra), read as under:

“In case which has proceeded on a police report a private party has no locus standi. No doubt, the terms of section 435, are very wide and he can even take up the matter suo motu. The criminal law is not, however, to be used as an instrument of wrecking private vengeance by an aggrieved party against the person who, according to that party, had caused injury to it. Barring a few exceptions, in criminal matters the party who is treated as aggrieved party is the State which is the custodian of the social interests of the community at large and so it is for the State to take all the steps necessary for bringing the person who has acted against the social interests of the community to book….”

(emphasis is added)

185. There can be no doubt that investigation and prosecution are two different facets in the administration of criminal justice. While the Public Prosecutor’s role is inside the court, investigation is carried out outside the court. Normally, Public Prosecutor’s role commences on completion of investigation except, perhaps, when the question of consideration of bail arises. There is, however, no impediment, on the part of the investigating agency, to discuss with the Public Prosecutor any aspect of law. Intact, even a police officer is independent, while investigating an offence and his investigation cannot be controlled by, and be subjected to, executive discretion or executive decision. It is the police officer’s duty to enforce law of the land and his obedience is to the law and none else, Lord Denning had observed, in R. v. Metropolitan Police Commissioner, (1968) 1 All. ER 763, thus:

“I have no hesitation, however, in holding that, like every constable in the land, be should, and is, independent of the executive. He is not subject to the orders of the Secretary of State…………………. I hold it to be the duty of the Commissioner of Police, as it is of every chief constable, to enforce the law of the land. He must take steps so to post his men that crimes may be detected; and that honest citizens may go about their affairs in peace. He must decide whether or not suspected persons are to be prosecuted; and, if need be, bring the prosecution or see that it is brought; but in all these things he is not the servant of anyone, save of the law itself. No minister of the Crown can tell him that he must, or must not, keep observation on this place or that; or that he must, or must not, prosecute this man or that one. Nor can any police authority fell him so. The responsibility for law enforcement lies on him. He is answerable to the law and to the law alone.”

(emphasis added)