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P L D 1989 Supreme Court 689

ORDER

SHAFIUR RAHMAN, J.--The Federation of Pakistan has


moved a Petition (C.M.P. No.196-R/1989) on 23-5-1989
expressed to be under Order XXXIII Rule 6 of the Supreme
Court Rules, and all other enabling provisions in this behalf.
The prayer made is that "three Honourable Judges who had
been affected by the judgment, dated 10-3-1989 of this
Hon'ble Court and by the judgment under review, one way
or the other; may not participate in the adjudication of the
matter."

2. This petition has a background. It requires mention.


Immediately on the release of the detailed judgment on
9-3-1989 in Civil Appeals No. 314 to 317/88 and Civil
Petitions Nos. 392-11/88 and 393-R/88, the Federal
Government issued a Press Release published through the
media and also sent to the various offices. It reads as
hereunder:-

"GOVERNMENT OF PAKISTAN
MINISTRY OF LAW, JUSTICE & PARLIAMENTARY AFFAIRS
ISLAMABAD
PRESS RELEASE

March 10, 1989.


The Supreme Court of Pakistan on 5-10-1988 by a Short
Order upheld the judgment, dated 27-9-1988 of the Full
Bench of the Lahore High Court. The Lahore High Court inter
alia had held that the appointment of the Prime Minister
after the dissolution of the National Assemble by General
Zia-ul-Haq on 29th May, 1988 was necessary under the
Constitution to head the caretaker Government. In this
regard the Supreme Court while giving the detailed reasons
in support of their Short Order, dated 5-10-1988 has inter
alia held:-

"The reference to the provisions of the Constitution made


above show that the Office of the Prime Minister is
necessary at all time for running the affairs of the country
and that he should have been appointed to head a
care-taker Cabinet."

The Supreme Court has further observed:-

"In this background the Constitution does not visualise a


care-taker Cabinet without a Prime Minister. The absence of
Prime Minister from a care-taker Cabinet alters for the
period under discussion the very character of the
Constitution from a Parliamentary democracy to a
Presidential system of Government The Court can neither
countenance nor condone all this at this stage and in these
proceedings. Such violations and breaches concern the very
essential features of the Constitution. What are the legal
consequences on individual acts done. or actions already
taken and suffered, we are leaving it to be decided in
individual cases, more appropriately brought before us.
Finally, the breach concerning the alteration in the Oath of
Ministers, the learned Attorney-General had no explanation
for it. We do not find any mention of it even in the record.
What has been accomplished by an unwritten executive fiat
amounts to a material amendment of the Constitutional
Provision which could not be accomplished without recourse
to Provisions of Part XI of the Constitution.

The Judgment is given by 11 Judges of the Supreme Court


and all of them have unanimously agreed with High Court
that the care-taker Government appointed by the President
from 29-5-1988 to 2-12-1988 was in violation of the
Constitutional provisions.

Consequently the actions taken, orders passed or


appointments made after 29th May, 1988 upto 2nd
December, 1988 by the President which were required to be
taken, passed or made on the advice of the Prime Minister
were illegal. Such actions, orders and appointments have to
he regularised in accordance with the provisions of the
Constitution arid therefore all Government Offices,
Departments, the Registrars of the High Courts and Supreme
Court are requested immediately to contact the Ministry of
Law and Justice with regard to such actions, orders and
appointments taken, passed or made by or in the name of
the President from 29th May to 2nd December, 1988 so that
these are regularised by taking appropriate steps in
accordance with the Constitution in the light of the
judgment of tire Supreme Court. It is further advised that all
such appointees may suspend the performance of their
official duties till their appointments are regularised or
reaffirmed by the President on the advice of the Prime
Minister. Certain legislative measures may also be required
to be taken after carefully considering the implications of
the judgment of the Supreme Court.”

3. An application (C.M.P. No.68--R of 1989) was then


filed by Mr. Muhammad Akram Sheikh, Advocate on
13-3-1989 seeking the following reliefs:-

(i) to clarify the full and correct implications of our own


detailed judgment in Civil Appeals Nos. 314, 315, 316,
317/88 and C.Ps. Nos. 392-R and 393-R/1988;

(ii) to proceed in contempt against those who are


deliberately misinterpreting it to deprive political advantage
out of it;

(iii) to end the legal chaos and Constitutional crises into


which the country has been plunged.

It was disposed of by a Bench of four Judges on 18-3-1989


directing that the specified disputed portion "should stand
deleted and be taken not to have been issued at all".

4. A Petition (Civil Review Petition No.33-R/1989) was


thereupon filed by the Federation seeking review of the
Judgment, dated 18-3-1989. Before that review could be
taken up the Federation filed air application (C.M.P.
No.149-R of 1989) praying as hereunder:-
"On behalf of the Federation of Pakistan, it is respectfully
submitted that consistent with high traditions of our
judiciary and the principle of natural justice i.e. that no
person shall be a Judge in his own cause, it is submitted that
the three Judges of this Honourable Court who had been
appointed by the President without the advice of the Prime
Minister and had been affected by the judgment of this
Hon'ble Court under review one way or the other, are
requested that they may not sit on the Bench on 27th May,
or on any date thereafter when the matter is heard as that
will set a very bad precedent as Judges personally interested
in the matter do not sit as Judges to decide a case."

5.It was disposed of by my Lord the Chief Justice in


Chamber on 16-5-1989 with the following Order:-

"I have heard the learned Attorney-General but I am afraid it


will not be possible for me to disturb the constitution of the
Full Court when it is seized of the case, and the case has
already been partly argued and is now fixed for further
hearing. It is also of significance to mention that in the case
under review, the jurisdictional defect in the constitution of
the Bench which decided the case is also involved, as a
result of the ground taken in the review petition that the
case should have been heard by the Full Court which heard
and decided Saifullah's case. I have consulted the Judges
who have signed the main judgment and they have stated
that they will not feel embarrassed to hear the case."
6.It was thereafter that this application (C.M.P.
No.196-R/1989) was moved explaining why the earlier
application was moved, and praying as hereunder:-

"(i) This application was filed keeping in view the high


traditions and- principles of natural justice universally
accepted that no one should act as Judge in his own cause.

(ii) The rule that the Review Petition may be heard by the
same Judges has exceptions. One of these is based upon the
principle, that 'no one should be a Judge in his own cause'.

(iii) the clarification, if permissible, should be made by the


remaining 9 Judges who were party to the judgment of
10-3-1989 and also by any other Judge that might be
available."

7.When this petition /application came up for hearing


before the Full Court the learned Attorney-General
explained that when a general challenge was thrown to the
dissolution of the National Assembly and the Provincial
Assemblies, to the legitimacy of the governmental set up
that ensued and to the validity of its acts and deeds, that
sort of bias was not at all involved as after the decision,
some of those very issues were once again before the Court
with the reasonings and the findings of the Court having
become known through the detailed judgment. The learned
Attorney-General drew our attention to the case of Miss
Asma Jilani (P 1. D 1972 S C 139) wherein the legitimacy of
the usurper's rule was in issue, the Judges appointed by such
usurper participated in the decision but that would not have
been possible in any o her/subsequent case if the principle
of condonation of certain acts of the usurper including the
appointment of the Judges had not been condoned as was
done in that very judgment.

8. In order to further clarify the point of law invoked by him


the learned Attorney-General has referred to decisions of
this Court in Anwar and another v. The Crown (P L D 1955
Federal Court 185) emphasizing every word of the
observation made in that case and reproduced hereunder:-

"There is a species of bias which vitiates judicial


proceedings irrespective of the correctness or otherwise of
the result, but that is not because bias, whatever form it
may assume, avoids the result of judicial proceedings, but
because the Judge with that kind of bias is, on grounds of
public policy, disqualified to be a Judge. Thus no Judge can
be a Judge in his own cause, or in a case in which he is
personally interested, not because his decision must
invariably be in his own favour but on the principle that
justice must not only be done but seen to be done, and
however right the Judge deciding a cause in his own favour
may be, neither the public nor the aggrieved party will be
satisfied with the adjudication, and its result will be vacated
by the Court of Appeal at the instance of the dissatisfied
party. Instances of such bias are recognised in our law in
section 556 of the Code of Criminal Procedure, and will also
be found in Dimes v. The Grand Junction Canal (No.l) and
others (1852) H.L.C. 759-794 and Rex v. Susex Justices
(1924) 1 K B 256."
9. The learned Attorney-General also relied on the
decision in

Fazle-Haq v. The State (P L D 196(1 S (' 295), wherein suo


motu proceedings for a writ of mandamus were initiated
and the Supreme Court held "the entire proceeding in this
case is misconceived and void and there has been violation
of two important juridical principles (1) that the
extraordinary jurisdiction relating to a writ can only be
exercised by the High Court when moved by a party whose
legal rights have been denied; and if in this case the High
Court as a whole considered itself aggrieved by the
objection of the Accountant General in taking the action, it
has violated (2) the principle that nobody should sit as a
Judge of his own cause".

10. The learned Attorney-General has also referred to the


decision given in Mirza Akbar Ali v. Mirza Iftikhar Ali and
others (P L D 1956 Federal Court 50) in order to distinguish
that particular bias which paralyses the mind of a Judge in
rightly adjudicating the cause and from every other bias. The
observation of the Court in that case was as hereunder:-

"Friendship is too vague and general a term to be judicially


recognised as a factor disqualifying » Judge to hear a muse
to which one of the parties is his friend. Such relationship, in
the case of a Court like the Federal Court or the High Court,
should never create any apprehension in the mind of a party
that his cause will not be impartially heard and determined;
nor can it ever be urged that friendship with a party creates
in the mind of the judge such bias as to paralyse his mind
from rightly adjudicating; on the merits of the dispute or
that for that reason the Judge becomes a party interested in
the cause and therefore disqualified to be a Judge in that
cause. The matter is essentially one of propriety and good
sense, and though Judges are always alive to the
susceptibilities of the parties in this respect, the situation is
entirely outside the principle that justice should not only be
done but should manifestly appear to be done."

11. The learned Attorney-General has also referred to Para.


67 Volume I of Halsbury's Laws of England (Fourth Edition)
to the following effect on the subject that none can be Judge
in his own cause:-

"Where persons having a direct interest in the


subject-matter of an inquiry before an inferior tribunal take
part in adjudicating upon it, the tribunal is improperly
constituted and the Court will grant an order of prohibition
to prevent it from adjudicating, or an order of certiorari to
quash a determination arrived at by it, or such other remedy
(for instance, an injunction or a declaration) as may be
appropriate. The principle extends not only to Courts and
tribunals, but also to other bodies, including public
authorities, determining questions affecting the civil rights
of individuals."

He extensively referred to commentaries from Second


Edition of 'De-Smith's Administrative Law' page 239 and
'Natural Justice' by Marshal, 1959 pages 27 to 29 to contend
that even small pecuniary interest acts as a disqualification
vitiating the entire proceedings in which adjudicators
suffering from such qualification participate.

12. The learned Attorney-General has indeed invoked a very


salutary, non-controversial, and fully entrenched juridical
principle of high standing relating to Administration of
Justice and to quasi-Judicial adjudications. But the principle
is not attracted to the case and its invocation and
application to these proceedings will seriously impair and
subvert that very principle rather than advance it.

13. A few words about the principle itself on which the


submissions are based. It has been noted in the following
words in Flick's "Natural Justice" (1979 Edition at page 113):-

"Although the days have long since passed in which such


exalted judges as Lords Bacon and Macclesfield willingly
accepted bribes and sold offices, there is no more firmly
established principle of law today than that no man is
qualified to adjudicate upon a matter with regard to which
he stands to gain or lose financially as a direct result of his
decision: de Smith at 225-27; Davis 12.03; Cooper at 343-44.
In such cases the mere existence of the pecuniary. interest is
sufficient to disqualify and an aggrieved party need not go to
prove a real likelihood of bias. Nor need one prove that the
decision was influenced in any way by the interest. Thus, in
yet another decision involving an English Lord Chancellor,
the House of Lords has held that Lord Cottenham could not
pronounce a decree in favour of a canal company in which
he held shares worth several thousand pounds. During the
course of his judgment, Lord Campbell observed:
No one can suppose that Lord Cottenham could be, in the
remotest degree, influenced by the interest that he had in
this concern; but, my Lords, it is of the last importance that
the maxim that no man is to be a judge in his own cause be
held sacred. And that is not to be confined to a cause in
which he is a party, but applies to a cause in which he has an
interest ....This will be a lesson to all inferior tribunals to
take care not only that in their decrees they are not
influenced by their personal interest, but to avoid the
appearance of labouring under such an influence."

14. Three criteria, identified by the author on the basis of


decisions, place some limitations upon the operation of
general rule just stated and these find mention as
hereunder:-

(a) "The first limitation to the general rule is that a


decision maker must stand to gain or lose personally as a
result of his decision and, unless this can be shown, any
disqualification must be founded upon the existence of a
real likelihood of bias having regard to all the circumstances
of the case. Consistent with this view, it has been held that
justices who were trustees of funds invested with a local
corporation could decide a matter involving that corporation
and an argument that the trustees' partiality may have been
affected by their tendency to favour a decision which would
improve the security of their cestui que trusts was classified
as an objection "not in the nature of interest, but of a
challenge to the favour'."
(b) "a second limitation is that this interest will not be
objectionable if it is remote or arises upon a purely
speculative series of events.".

(c) "Substantiality of interest may provide a third


limitation to the pecuniary interest rule. Such a proposition
has the support of Professor Davis (Davis 12.03 at 154), and
the Supreme Court decision in Tumey v. Ohio (273 US at
523); although tile value of this precedent is somewhat
diminished by the modification of the conventional meaning
of the word "substantial" to the effect that due process
requires disqualification if the interest is more than de
minimis."

15. Marshall in 'Natural Justice' (1959 Edition) defines


'interest' its "a legal interest or a pecuniary interest and is to
be distinguished from 'favour'." Distinguishing one from the
other the author at page 32 states as hereunder:-

"favour should not be presumed in a Judge. Herein lies the


distinction between a pecuniary or "legal" interest and a
non-pecuniary bias. In the former case the smallest interest
immediately disqualifies; in the latter case disqualification is
not automatic. On the contrary, in order to have that effect
the bias must be shown at least to be real. Blackburn, J. said
in R. v. Rand in 1866: (1866) L.R. 1 Q.B. 230, 232.

"But the only way in which the facts could affect their
impartiality would be that they might have a tendency to
favour those for whom they were trustees; and that is an
objection not in the nature of interest, but of a challenge to
the favour. Wherever there is a real likelihood that the
Judge would, from kindred or any other case, have a bias in
favour of one of the parties, it would be very wrong in him
to act: and we are not to be understood to say that where
there is a real bias of this sort, this Court would not
interfere."

And in R. v. Meyer in 187; (1875) 1 Q.B.D. 173 the same


Judge said:

"... though disqualifying interest is not confined to pecuniary


interest, the interest if not pecuniary, must be substantial."

He then goes on to refer to the Court's decision in R. v.


Rand, and says:

"The effect of our judgment in that case was that, though


pecuniary interest in the subject-matter of dispute, however
small, disqualifies the Justices, yet the mere possibility of
bias did not ipso facto avoid the justices' decision; and we
thought that, though there was a possibility of bias in that
case, yet it was not real."

16. Taking up the subject of pecuniary interest the author


thereafter summarises the facts of the leading authority on
the subject, Dimes v. Grand Junction Canal (1852) 3 H.L. Cas
759 in the following words at page 25:-

"it is a case of the highest possible authority because it was


a decision of the House of Lords, presided over by the Lord
Chancellor of the day (Lord St. Leonards), as to the effect of
the conduct of a previous Lord Chancellor (Lord Cottenham).
The facts were that a public company, which was
incorporated, filed a bill in equity against a landowner, in a
matter largely involving the interests of the Company. The
Lord Chancellor (Cottenham) had en interest as a
share-holder in the company to the amount of several
thousand pounds, a fact which was unknown to the
defendant in the suit. The cause was heard before the
Vice-Chancellor, who granted the relief sought by the
company. The Lord Chancellor, on appeal, affirmed the
order of the Vice-Chancellor. It was held on appeal to the
House of Lords that the Lord Chancellor (who. had by then
ceased to hold office as such) was disqualified, on the
ground of interest, from sitting as a Judge in the cause and
that his decree was, therefore, voidable and must
consequently be reversed. It was also held that the
Vice-Chancellor was under the Administration of Justice Act,
1813, a Judge subordinate to, but not dependent on the
Lord Chancellor and that consequently the disqualification
of the Lord Chancellor did not affect him; but that his decree
might be made the subject of appeal to the House of Lords."

17. The underlying; principle has been explained in the


judgment of Lord Campbell, C.,1. in that case in the
following words:-

"No one can suppose that Lord Cottenham could be, in the
remotest degree, influenced by the interest that he had in
this concern; but it is of the last importance that the maxim
that no man is to be a Judge in his own cause should be held
sacred. And that is not to be confined to a cause in which he
is a party, but applies to a cause in which he has an interest.
Since I have had the honour to be Chief Justice of the Court
of Queen's Bench, we have again and again set aside
proceedings in inferior tribunals because an individual, who
had an interest in a cause, took part in the decision. And it
will have a most salutary influence on these tribunals when
it is known that this High Court of last resort, in a case in
which the Lord Chancellor of England had an interest,
considered that his decree was on that account a decree not
according to law, and was set aside. This will be a lesson to
all inferior tribunals to take care not only that in their
decrees they are not influenced by their personal interest
but to avoid the appearance of labouring under such an
influence.".

The principles emerging from various decisions have been


summarized by the author at p. 27 in the following words:-

"This rule has been stated many times but the following
dicta may be quoted:

"There is no doubt that any direct pecuniary interest


however small in the subject of inquiry does disqualify a
person from acting as a Judge in the matter." Blackburn J. in
R. v. Rand (1866) L.R. 1 Q.B. 230, 232.

"If he has any legal interest in the decision of the question


one way !re is disqualified no matter how small the interest
may be." Lush, J. in Serjeant v. Dale (1877) 2 Q.B.D. 558, 567.
"....the least pecuniary interest in the subject-matter of the
litigation will disqualify any person from acting as a Judge."
Stephen, J. in R. v. Farrant (1887) 20 Q.U.B. 58, 60.

"....a person who has a judicial duty to perform disqualifies


himself from performing it if !re has a pecuniary interest in
the decision which he is about to give or a bias which
renders him otherwise than an impartial Judge. If he has a
pecuniary interest in the success of the accusation he must
not be a Judge." Bowen L.J. in Leeson v. General Council of
Medical Education. (1889) 43 Ch. D. 366, 384."

The strictness of the principle has been explained by Lush, J.


in Serjeant v. Dale (1877) 2 Q.B.D. 558 at 567 in the
following words:-

"The law in laying down this strict rule, has regard, not so
much perhaps to the motives which might be supposed to
bias the Judge, as to the susceptibilities of the litigant
parties. One important object, at all events, is to clear away
everything which might engender suspicion and distrust of
the tribunal, and so to promote the feeling of confidence in
the administration of justice which is so essential to social
order and security."

18. This has been done by Lord Esher also in Eckersley v .


Mersey Docks & Harbour Board (1894) 2 Q.B. 667 at 671 in
the following words:-

" .... the doctrine which is applied to Judges, not


merely of the superior Courts, but to all Judges, that, not
only must they be not biased, but that, even though it be
demonstrated that they would not be biased, they ought not
to act as Judges in a matter where the circumstances are
such that people--not necessarily reasonable people, but
many people would suspect them of being biased."

19. Pecuniary interest has been contrasted with


non-pecuniary interest in the following words in an Article
by Francis Alexis under the heading "Reasonableness in the
Establishing of Bias" appearing in 1979 Volume of 'Public
Law' at page 143. The author has contrasted it as hereunder
at page 159:-

"By contrast, once there is a direct and certain pecuniary


interest, not merely remote, speculative, or contingent, See
R.v. Rand (1866) L.R. 1 Q.B. 230, D.C.; R. v. Deal Justices
(1881) an adjudicator is disqualified. He is disqualified by
"even the slightest pecuniary interest," as applied in R. v.
Gaisford (1892) 1 9.13. 381 at 1). 384 (Mathew J.), no matter
"however small", be it "less than a farthing", as the English
Judge, Blackburn, J., put it. R. v. Rand (1866) L.R. 1 Q.B. 230
at p. 232; R. v. Hammond (1863) 9 Law Reporter 423 at
p.423 respectively.".

20. In an Article appearing in Harvard Law Review Volume 86


(1972-73) on the subject of "Disqualification of Judges and
Justices in the Federal Courts", the following conclusions
have been recorded (at page 751):-

"When the Judge has financial interests which may be


directly affected by the outcome of the litigation-- i.e., an
interest in a party or in the subject-matter in
controversy-- his impartiality clearly can be questioned by
reasonable men, and therefore, disqualification should
follow [See, e.g. Tumey v. Ohio, 273 U .S. 510 (1927) J.
Supreme Court Justices beginning with Justice Livingston
Livingston & Gilchrist v. Maryland Ins. Col. 11 U.S. (7 Cranch)
506 (1813), and Chief Justice Marshal Fairfax's Devisee v.
Hunter's Lessee, II U.S. (7 Cranch) 603 (1813) have
consistently disqualified themselves under such
circumstances (See Frank, supra note 14 at 615) whether or
not they consciously applied the strict appearance test.
Indeed, even under the early English common law, which
rarely required disqualification because, as Blackstone
explained, "the law will not suppose a possibility of bias or
favour in a Judge who is already sworn to administer
impartial justice," (3 W. Blackstone, Commentaries 361)
disqualification was required when the Judge had a direct
pecuniary stake in the outcome, e.g. , Dr. Bonham's Case, 77
Eng. Rep. 645 (K.B. 1609); see Frank supra note 14, at
609-12; Note, Disqualification of Judges for Prejudice or
Bias--Common Law Evolution, Current Status, and the
Oregon Experience, 48 ORE. L. REV. 311, 315-20 (1969).".

21. Haji Muhammad Saifullah Khan had sought a declaration


in indentical terms that "All the steps taken, appointments
made, laws framed including the issuance of the Ordinances
by the President after 29-5-1988 are without lawful
authority". (Item (iii) page 196 of PLD 1989 SC 166). The
Federation was the respondent. All the Judges who were
then available, participated in the decision of this and other
legal and constitutional issues arising in the case. A detailed
judgment dealing with every aspect of the case was
rendered. These very Judges, who are now being termed as
'Judges in their own cause' by the learned Attorney-General,
fully participated in the decision making. To contend now
that while dealing with and deciding the same legal question
when the Federal Government is the petitioner some of the
Judges became Judges in their own cause and that while
deciding the same question on the appeal or application of
Haji Muhammad Saifullah Khan they were not so is highly
unreasonable self-contradictory and palpably untenable
proposition. As rightly pointed out by the learned
Attorney-General the general questions regarding the
legitimacy of a meta legal order or of the de facto A regimes
in power and the validity of their deeds can be decided and
are decided by those very Judges whose purses and
privileges are controlled by such regimes. That does not
make them Judges in their own cause.

22. A review of decided cases by Courts of our own country


amply demonstrates this. In the case of Farzand Ali (P L D
1970 S C 98) the very competence of the Legislature as then
constituted to make constitutional amendments was
questioned and one such amendment was the Fourth
Amendment to the Constitution by Act XV of 1965 whereby
the disability of the Judges of the High Court to be
appointed Judges of the Supreme Court Article 126 clause
(1) Para. (a) was removed. The Judges of the Supreme Court
who, but for this amendment, would have suffered from the
disability participated in the decision and upheld the
amendment.
23. In the case of Asma Jilani (P L D 1972 S C 139) the legality
of the powers exercised by General Muhammad Yahya Khan
during the period 25-3-1969 to 21-12-1971 was questioned
and the Judges appointed by him participated in decision
making and declared him to be usurper and then proceeded
to condone certain categories of the actions taken by the
usurper including those of the appointment of Judges.

24. In the case of Begum Nusrat Bhutto (P L- D 1977 S C 657)


the Chief Justice appointed as Chief Justice after
Constitutional amendment (C. M. L. A. Order No. 6 of 1977,
dated 22-9-1977) by General Muhammad Ziaul Haq
participated in the Judgment questioning the authority of
General Muhammad Ziaul Haq to assume power and to
make amendments in the Constitution. Some of the Judges
rendering judgment in that case were also appointed by
General Muhammad Ziaul Haq.

25. These are but only a few of the cases illustrative of the
point and more can be found and cited. Where the whole
legal order is being challenged and the Judges functioning
within the framework of the legal order under challenge are
called upon to render judgment, the question of there being
a personal bias, of being a Judge in his own cause, of having
a legal or pecuniary interest in the matter does not arise.
The same happened in the appeal of Haji Muhammad
Saifullah and other connected matters. The vires of the legal
Order after 29-5-1988 was questioned and also the legality
of appointments made after 29-5-1988, in the absence of
the Acting Prime Minister was pointedly raised in the
proceedings and considered by the Court and finally dealt
with in a decision inter partes. Now one of the parties to
that decision, the Federation, while seeking review of
another matter arising thereunder by reference to that
decision, wants some of the Judges who decided that case,
to be declared as Judges in their own cause having a
pecuniary interest. This does not happen. Those Judges do
not become Judges in their own cause simply because the
respondent has become the petitioner.

26. Secondly, and this has disillusioned us greatly, the


Federal Government by repeating such an application, has
manifested an attitude of instransigence insisting that its
Press Release should be respected, implemented and
honoured first, by reconstituting the Bench which is to hear
the matter and a decision should be given thereafter under
its umbrella. This as we have remarked, defeats the very
object which the learned Attorney General has, in his
arguments and the applications taken pains to sustain and
which all the decisions and commentaries referred have
emphasized, namely that justice should not only be done
but should manifestly and undoubtedly appear to have been
done.

27. Thirdly, there is an obvious inconsistency in the stand of


the Government. In the petition for Review the very first
ground taken up was as hereunder:-

"That 12 Hon'ble Judges of this Hon'ble Court constituted


the Full Bench which passed the short order on 5-10-1989 as
well as the detailed judgment recorded and issued later on.
The Government of Pakistan interpreted the judgment in
the light of observations made therein and issued a Press
Note on 12-3-1989. The Press Note in fact became the
subject-matter of Civil Misc. No.68-R/89. The Civil Misc. was
heard by 4 Hon'ble Judges of this Hon'ble Court and
disposed of by an order, dated 18-3-1989. It is respectfully
submitted that the interpretation, clarification or any order
relating to the detailed judgment could be passed by the
same Hon'ble Bench consisting of 12 Judges of this Hon'ble
Court. All the Hon'ble Judges were still available. 4 Hon'ble
Judges could not pass any order in respect of the Full Court
judgment."

In the application under consideration, the ground was


materially altered to read as hereunder:-

"the clarification, if permissible, should be made by the


remaining 9 Judges who were party to the judgment of
10-3-1989 and also by any other Judge that might be
available. Needless to point out that justice should not only
be done but must also appear to be done."

28. The ground initially taken up in the Petition for review


and reproduced above embodies an accepted principle
attracted to all such cases. It finds recognition and approval
in the following words-(underlining is ours):-

(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." (Halsbury Laws of, England - Fourth Edition Volume
para. 67);
(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." (Natural Justice by Marshall 1959 Edition,
page 38);

(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" (vide American
Jurisprudence Vol. 30, page 770) (Quoted in the President v.
Mr. Justice Shaukat Ali P L D 1971 S C 585 at p. 606);

(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 ell 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."
De-Smith's Judicial Review of Administrative Action (Fourth
Edition) 1980 Vol. p. 276.

29. Initially, the learned Attorney-General in his application


for review invoked this very principle for inviting all the
Judges who participated in decision-making in Haji
Saifullah's appeal to sit and resolve the question of
interpretation of that judgment, if at all any interpretation
war. called for. It was only in the subsequent application
that the ground of bias was brought in to get over this
principle of necessity by departing from the rule applicable
to review of judgments by a reduced number.

30. While this judgment was under preparation and had


almost been finalized, a further application dated 1st July,
1989 was received from the learned Attorney-General and it
is reproduced in extenso hereunder: -

"The above Review Petition was heard by the Supreme


Court on 27th of this month and the orders are reserved.

In addition to my submissions, I would respectfully like to


draw the attention of the Hon'ble Chief Justice and other
Judges of the Supreme Court who heard the Review Petition
to the Code of Conduct framed by the Supreme Judicial
Council which reads:

"FRAMED BY THE SUPREME JUDICIAL COUNCIL


UNDER ARTICLE 128(4) OF THE CONSTITUTION
FOR JUDGES OF THE
SUPREME COURT AND THE HIGH COURTS
IN PAKISTAN"

(PLD 1967 Journal p.97)


I will particularly draw the attention of the Judges to Article
4 of the Code of Conduct which reads:

"A Judge must decline resolutely to act in a case involving his


own interest, including those of persons whom he regards
and treats as near relatives or close friends."

"A Judge must rigidly refrain from entering into or


continuing any business, howsoever unimportant it may be,
with any party to a case before him. Should the dealing be
unavoidable, he must discontinue his connection with the
case forthwith.".

"A Judge must refuse to deal with any case in which he has a
connection with one party or its lawyer more than the other,
or even with both parties and their lawyers.”

"To ensure that justice is not only done, but is also seen to
be done, a Judge must avoid all possibility of his opinion in
any case being swayed by any consideration of personal
advantage, either direct or indirect."

Copy of this note may kindly be placed before the Chief


Justice and every other Judge who heard the case. Fourteen
copies are herewith submitted."

31. No suggestion was at any earlier stage made either in


writing or orally by the learned Attorney-General that any
interest of a close friend or near relative of any of the Judges
was involved or any preferential connection with any lawyer
engaged in the proceedings of any one of the Judges existed.
These are the grounds invoked now by reference to Code of
Conduct. The bias attributed pertained and was confined to
the fact of the appointment of some of the Judges during
the period under discussion. It was adequately taken care of
in the submissions already made by the learned Attorney- .
General, alleging bias on account of such pecuniary or
professional stakes. This has already been dealt with and no
further discussion of it seems necessary or called for.

32. The ground of general unspecified bias now put forward


cannot be allowed to prevail. The learned Chief Justice had
while passing the order, dated 16-5-1989 (reproduced)
consulted the concerned Judges and noted that "they have
stated that they will not feel embarrassed to hear the case".
In the case of Islamic Republic of Pakistan v. Abdul Wali
Khan (P L D 1976 S C 57) a passage, as reproduced
hereunder was quoted with approval from American
Jurisprudence Volume 30 page 774, paragraph 74:-

"at common law bias or prejudice on the part of a Judge, not


the result of interest or relationship, is not supposed to
exist, and generally it does not incapacitate or disqualify a
Judge to G try a case unless the Constitution or statute so
provides."

33. The law on the subject of general bias attributed to


Judges of superior Courts has been fully dealt with in the
case of Islamic Republic of Pakistan v. Mr. Abdul Wali Khan
(PLD 1976 SC 57 at pp.188-189) in the following words:-
"As regards the objection taken to the constitution of the
Bench, learned counsel were informed on the very first day
that no party to a litigation can claim the right to be tried by
a particular Judge or Judges of his choice. In the case of
superior Courts, it is entirely a matter for the Judge or
Judges concerned to decide as to whether they will or will
not sit in that particular case. Mr. Wali Khan has been
informed that both the learned Judges, against whom the
objection has been raised, on the record minutes in writing
have now recorded on these proceedings to say that they do
not feel embarrassed in sitting to hear this proceeding. The
objection based purely on conjectures is, therefore, in our
view, unwarranted. Judges concerned are fully conscious of
their own responsibilities. There is nothing to show that they
are in any way disqualified from sitting to hear this
reference."

34. In the circumstances and for the foregoing reasons none


of grounds advanced can prevail and the application (C .
M.P. No.196-R of 1989) objecting to the constitution of the
Bench is rejected. The Review Petitions shall come up for
hearing at Karachi on the 6th of August, 1989.

MUHAMMAD HALEEM, C. J.--I agree and am adding a note


of few lines of concurrence.

MUHAMMAD AFZAL ZULLAH, J.--1 agree and have added a


separate note (appended herewith) in token of my
agreement.

(Sd.)
Nasim Hasan Shah, J

(Sd.)
Shafiur Rahman, J.

(Sd.)
Javid lqbal, J.

(Sd.)
Ghulam Mujaddid, J.

(Sd.)
Saad Saood Jan, J.

(Sd.)
Usman Ali Shah, J.

(Sd.)
Ali Hussain Qazilbash, J.

(Sd.)
Naimuddin, J.

ASLAM RIAZ HUSSAIN, J.--I have had the privilege and


advantage of going through the draft order recorded by my
learned brother Mr. Justice Shafiur Rahman, rejecting the
application (C.M.P. No.196-R/89) .

In this petition the learned Attorney-General has invoked


the principle of Natural Justice that "No one should be a
Judge in his own cause", and prayed that if possible,
clarification of the Full Court Judgment, dated 9-3-1989 be
made by a Bench of which the three learned Judges, who are
likely to be directly affected, one way or the other, by the
interpretation of the said judgment, are not members.

2. While I, most respectfully, agree with the portion of his


Lordship's observations in paragraph No.12 of his order with
respect to the rule of Natural Justice invoked by the
Attorney-General that "no one can be a Judge in his own
cause", which reads as follows:-

"The learned Attorney-General has indeed invoked a very


salutary, non-controversial, and fully entrenched juridical
principle of high standing relating to Administration of
Justice and to quasi-judicial adjudication..."

Yet, with utmost respect, I am unable to agree with the


conclusion arrived at by his Lordship in the. later portion of
that paragraph, namely that the said "principle is not
attracted to the case" in hand.

I feel compelled to write this separate order because the


principle involved in this case, and its application, is of
extreme importance for the maintenance of the dignity and
image of impartiality of the judicial system in Pakistan, and
whatever is laid down by this Court today, shall provide the
guideline for the subordinate judiciary for a very long time
to come. I may add at the outset that the case law and the
books that I am relying upon, are the same as referred to by
Mr. Justice Shafiur Rehman in his order. I have only altered
the sequence to highlight the angle from which these may
be seen in order to apply it to the facts of this case.

3. The facts leading to this petition by the Federal


Government, briefly stated, are that on 20-8-1988 Haji Saif
Ullah, a Member of the dissolved National Assembly filed a
Constitution Petition in the Lahore High Court, praying inter
alia that the dissolution of the National Assembly by General
Ziaul Haq, the then President of Pakistan, be declared illegal
and ultra-vires of the Constitution; and the National
Assembly be restored and that the appointment of a Prime
Minister in the Care-taker Cabinet was necessary under
Article 48 (5)(b) of the Constitution, therefore, all steps
taken, appointments made and laws framed by the
President/ Acting President between 29-5-1988 and
2-12-1988, which could be made or done by him only on the
advice of the Prime Minister, be declared as invalid and
without lawful authority and should consequently be
reversed. The petition was allowed by the Lahore High Court
but reliefs prayed for were not granted.

4. The Federal Government came up in appeal against the


said order before this Court. A short order dismissing the
appeal and upholding the judgment of the High Court was
delivered by this Court on 5-10-1988. But the question
regarding the appointment of a Prime Minister in the
Care-taker Cabinet was not dealt with therein. Subsequently
the detailed judgment giving reasons for the said short order
was recorded by Mr. Justice Dr. Nasim Hasan Shah on
9-3-1988 with which the learned Chief Justice and 8 other
learned Judges concurred. The question regarding the
appointment of a Prime Minister has been dealt with in it.
Mr. Justice Shafiur Rehman recorded a separate judgment
giving further reasons for reaching the same conclusion. Mr.
Justice S. Usman Ali Shah concurred with him. Mr. Justice
Shafiur Rehman has also dealt with this question as also the
question of condonation and the manner in which
condonation would be granted if at all.

5.The portion of the judgment recorded by Mr. Justice Dr.


Nasim Hasan Shah, relevant for the purpose of this case,
reads as follows: -

"The reference to the provisions of the Constitution made


above show that the Office of the Prime Minister is
necessary at all times for running the affairs of the country
and that he should have been appointed to head a
Care-taker Cabinet."

Whereas the portion of the judgment of Mr. Justice Shafiur


Rehman, relevant for the purpose of this order, reads as
follows:-

"In this background the Constitution does not visualise a


Care-taker Cabinet without a Prime Minister. The absence of
Prime Minister from a Care-taker Cabinet alters for the
period under discussion the very character of the
Constitution from a Parliamentary democracy to a
Presidential system of Government. The Court can neither
countenance nor condone all this at this stage and in these
proceedings. Such violations and breaches concern the very
essential features of the Constitution. What are the legal
consequences on individual acts done, or actions already
taken and suffered, we are leaving it to be decided in
individual cases, more appropriately brought before us."

"Finally, the breach concerning the alteration in the Oath of


Ministers, the learned Attorney-General had no explanation
for it. We do not find any mention of it even in the record.
What has been accomplished by an unwritten executive fiat
amounts to a material amendment of the Constitutional
Provision which could not be accomplished without recourse
to provisions of Part XI of the Constitution."

6. From the aforementioned portions of the said judgments,


specially the one recorded by Mr. Justice Shafiur Rahman,
wherein it was observed that the Constitution had been
violated in a manner which could not be countenanced by
the Court and which the Court could not condone "at this
stage and in the proceedings", and the observation that the
"legal consequences of all the individual acts done or actions
already taken and suffered" during that period were to be
decided as and when brought before the Court for that
purpose individually, through proceedings more
appropriately brought before it, the Federal Government
felt justified in coming to the conclusion that till such time as
these were condoned, as indicated by the Court, all actions
taken, appointments made or laws framed by the President/
Acting President during the period between 29-5-1988 and
2-12-1988 were illegal and invalid till such time as they were
condoned.
7. It, therefore, issued a Press Release, infer alia,
requesting the Registrars of the Supreme Court and the four
High Courts to immediately contact the Ministry of Law and
Justice with regard to such actions, orders or appointments
made or laws framed by or in the name of the President
during the said period so that these are regularised by taking
appropriate steps in accordance with the Constitution, in the
light of the judgment of the Supreme Court.

It further advised that all such appointees may


suspend the performance of their official duties till their
appointments were regularised or reaffirmed in an
appropriate manner.

8. In response to this Press Release, Registrars of the


Supreme Court and all the four High Courts sent lists of
Judges so appointed during this period, and all the Chief
Justices of the High Courts, as well as the H'ble Chief Justice
of Pakistan, requested the Judges of their respective Courts,
who had been appointed during these dates, to suspend
their work, which they did. According to the Federal
Government this demonstrated that the interpretation
placed by it on the detailed Full Court judgment of the
Supreme Court, dated 9-3-1989 through its Press Release,
was considered to be correct by the H'ble Chief Justice of
Pakistan himself and the three learned Judges of this H'ble
Court appointed during the above-said period actually
stopped functioning. But later, on 13-3-1989 Mr.
Muhammad Akram Sheikh, an Advocate from Multan filed
CMP No.68-R/88, seeking the following relief:--
(i) to clarify the full and correct implications of our own
detailed judgment in Civil Appeals Nos.314, 315, 316 and
317/88 and C.Ps. Nos.302-R and 303-R of 1988;

(ii) to proceed in contempt against those who are


deliberately misinterpreting it to deprive political advantage
out of it; and

(iii) to end the legal chaos and Constitutional crisis into


which the country has been plunged.

It was disposed of by a Bench of four Judges, on 18-3-1989


directing that the specified disputed portion "should stand
deleted and be taken not to have been issued at all".

9. On this the Federation of Pakistan filed a Review petition


(Civil Review Petition No.33-R/89 on 22-4-1989, praying that
the detailed judgment, dated 10-3-1989 should be
interpreted by a Bench consisting of all the Judges who had
heard the appeal. This review petition came up for hearing
at Rawalpindi on 29-4-1989 and was adjourned to be heard
at Quetta on the 27th of May, 1989. The Court however, sat
at Karachi. In the meanwhile the Federal Government had
filed CMP No.149-R/89, praying that:--

"On behalf of the Federation of Pakistan, it is respectfully


submitted that consistent with high traditions of our
judiciary and the principle of natural justice i.e. that no
person shall be a Judge in his own cause, it is submitted that
the three Judges of this H'ble Court who had been appointed
by the President without the advice of the Prime Minister
and had been affected by the judgment of this H'ble Court,
under review one way or the other, are requested that they
may not sit on the Bench on 27th May, 1989 or on any date
thereafter when the matter is heard as that will set a very
bad precedent as Judges personally interested in the matter
to do not sit as Judges to decide the case."

The learned Chief Justice, dismissed this application in


Chamber on 16-5-1989, with the following observation, inter
alia that:--

"I have consulted Judges who have signed the main


judgment and they have stated that they will not feel
embarrased to hear the case."

10. The Federal Government thereafter moved another


application (CMP. No.196-R/89) explaining as to why the
earlier application was moved, and prayed as under:-- l

(i) "This application was filed keeping in view the high


traditions and principles of natural justice universally
accepted that no one should act as Judge in his own cause."

(ii) "The rule that the Review Petition may be heard by


the same Judges has exceptions. One of these is based upon
the principle, that 'no one should be a Judge in his own
cause'."

(iii) "The clarification, if permissible, should be made by


the remaining 9 Judges who were party to the judgment of
10-3-1989 and also by any other Judge that might be
available."

11. This application was taken up at Karachi on 27-5-1989


but was adjourned to be heard at Rawalpindi on 27-6-1989.
CMP No.196-R/89 (in Civil Review Petition No.33-R/89) was
then heard by the Full Court on 27-6-1989 at Rawalpindi and
the judgment was reserved. My learned brother Mr. Justice
Shafiur Rehman has sent me a well-considered draft of his
order whereby he proposes to dismiss the said Misc.
Petition. It is on this matter that I am recording my separate
opinion.

12. In this Order my learned brother has cited and quoted


from almost all the important judgments on the subject,
from Pakistani. British and American Courts and has also
made reference to the relevant portions of books written on
the subject by well-known jurists e.g. Dr. Smith, Marshall,
Flicks and Davis, as well as Halsbury's Laws of England. He
has also quoted important and relevant portions from the
said judgments and books.

I may profitably reproduce quotations from some of the


judgments and books referred to and relied upon by my
learned brother in his order, because it is primarily these
which have led me to form the opinion and reach the
conclusion which I propose to record.

13. While explaining the principle of natural justice in


question namely !'no man shall be a Judge in his own
cause", my learned brother started with quoting, in
paragraph No.13 of his order, from a book by Flicks, called
'Natural Justice'. In the portion relied upon
and quoted, Flicks says that:--

" there is no more firmly established principle of


law today than that no man is qualified to adjudicate upon a
matter with regard to which he stands to akin or lose
financially as a direct result of his decision.''

He says further that:--

" In such cases the mere existence of pecuniary


interest is sufficient to disqualify (the Judge) and an
aggrieved party need not go to prove a real likelihood of
bias. "

14. Similarly, in Dimes v. Grand Junction ('anal which is


considered to be "a case of the highest possible authority",
Lord St. Leonard, the Lord Chancellor of England in 1852, set
aside a judgment recorded by a former Lord Chancellor
(namely lord Cottenhem), in a case, because he (i.e. Lord
Cottenhem) was shown to have had an interest, as a
shareholder, in the company which was one of the parties in
that case. The case was first heard by the Vice-Chancellor,
who granted the relief sought by the company. On appeal
the Lord Chancellor (Lord Cottenhem) affirmed the order of
Vice-Chancellor. This was subsequently challenged and it
was held, on appeal to the House of Lords, that the former
Lord Chancellor (i.e. Lord Conttenhem who had by then
ceased to hold office as such), was disqualified, on the
ground of interest, from .sitting as a Judge in the case and
that "his decree was therefore voidable and must
consequently be reversed" .

15. The underlying principle in the above-noted judgment


was explained by Lord Campbell, C.J. in his judgment, in the
following words:--

"No one can suppose that Lord Cottenhem could be, in the
remotest degree, influenced by the interest that he had in
his concern but it is of the last importance that the maxim
that no man is to be- a- Judge in his own cause should by
held sacred.”

His Lordship went on to observe that:

"(Ever) since 1 have had the honour to be Chief Justice of


the Court of Queens Bench we have, again and again, set
aside proceedings in inferior tribunals because an individual,
who had an interest in a cause, took part in the decision.
And it will have a most salutary influence on these tribunals
when it is known that this High Court of lest resort, in a case
in which the Lord Chancellor of England had an interest
considered that his decree was not according to law and was
set aside."

His Lordship then went on to make the following pertinent


observation--

"This will be a lesson to all inferior tribunals to take care, not


only that in their decrees they are not influenced by their
personal interest, but to avoid the appearance of labouring
under such an influence."

Marshall in his book "Natural Justice" defines 'interest' as


legal or pecuniary interest which is to be distinguished from
'favour'. In the former case, i.e. in the case of legal or
pecuniary (i.e. financial interest), the smallest interest
immediately disqualifies the Judge. In the latter case (i.e. in
case of alleged bias, which does not involve pecuniary
interest), disqualification is not automatic. On the contrary,
in order to have effect such bias must be shown, at least, to
be real.

16. In the case of Rex v. Meyer (1875-1 Q.B. 173), Blackburn,


J. referred to the decision in R.V. Rand (1866 L.R.-1
Q.B.D.-230), and observed that:-

" ....The effect of our judgment in that case was that though
pecuniary interest in the subject-matter of the dispute,
however small, disqualifies the Justices, yet the mere
possibility of bias did not ipso facto, avoid Justices' decision,
and we thought that though there was possibility of bias in
that case, yet it was not real."

My learned brother has also referred to the view of Francis


Alexis on this aspect of the rule of natural justice under
discussion and observed that:-

"Pecuniary interest has been contrasted with non-pecuniary


interest in the following words in an Article by
Francis Alexis under the heading 'Reasonableness in the
Establishing of Bias' appearing in 1979 Volume of 'Public
Law' at page 143. The author has contrasted it as hereunder
at page 159" :

"By contrast, once there is- a direct and certain pecuniary


interest, not merely remote, speculative, or
contingent, [See R. v. Rand (1866) L.R. 1 Q.B. 230, D.C.; R. v.
Deal Justices (1881) ] an adjudicator is disqualified. He is
disqualified by 'even the slightest pecuniary interest, 'as
applied in R. v. Gaisfnrd [(1892) 1. Q.B. 381 at p.384
(Mathew, J.)], no matter 'however small,' be it less than a.
farthing ' as the English Judge, Blackburn J., put up. [R. v.
Rand (1866) L.R. 1 Q.B. 230 at p.232; R. v. Hammond (1863)
9 Law Reporter 423 at p.423, respectively. ]."

17. The same principle has also been summarized in Harvard


Law Review Volume 86 (1972-73) which has been
reproduced in paragraph No. 20 of his Lordship's judgment
and reads as follows: -

"When the Judge has financial interests which may be


directly affected by the outcome of the litigation - i.e. , an
interest in a party or in the subject-matter in
controversy - his impartiality clearly can be questioned by
reasonable men, and therefore, disqualification should
follow [See, e.g. Tumey v. Ohio, 273 U.S. 510 (1927)].
Supreme Court Justices beginning with Justice Livingston
[Livingston & Gilchrist v. Maryland Ins. Col. II U. S. (7 Cranch)
506 (1813).] and Chie Justice Marshall Fair ax's Devisee v.
Hunter's Lessee, 11 U.S. (7 Cranch) 603 (1813)] have
consistent disqualified themselves under such
circumstances. (See Frank, supra note 14 at p. 15) whether
or not they consciously applied the strict appearance test.
Indeed, even under the early English common law, which
rarely required disqualification because, as Blackstone
explained, 'the law will not suppose a possibility of bias or
favour in a Judge who is already sworn to administer
impartial justice,' (3 W. Blackstone, Commentaries - 361)
disqualification was required when the Judge had a direct
pecuniary stake in the outcome. [e.g. Dr. Bonham's Case, 77
Eng. Rep. 646 (K.B. 1609); see Frank supra note 14, at
609-12; Note, Disqualification of Judges for Prejudice or
Bias - Common Law Evolution, Current Status, and the
Oregon Experience, 48 ORE. L. REV. 311, 315-20 (1969). ]"

18. The principle that emerges from various judgments and


treatises referred to by my learned brother, some of which
have been quoted above is that where the pecuniary or
financial interest of a Judge., H no matter however small, is
likely to be affected as a direct result of the decision in any
case, he is ipso facto disqualified from hearing it, and has no
option left but to decline to sit on the Bench deciding it.

19. My learned brother has himself referred to the summing


up of the principle emerging from various decisions in
paragraph 17 of his order, as under:-

"The principles emerging from various decisions have been


summarized by the author at page 27 in the following
words".-
"This rule has been stated many times but the following
dicta may be quoted":-

"There is no doubt that any direct pecuniary interest


however small in the subject of inquiry does disqualify e
person from acting as a Judge in the matter". [Blackburn J. in
R. v. Rand (1866 L.R. 1 Q.B. 230, 232].

"If he has any legal interest in the .decision of the question


one way he is disqualified no matter now small the interest
may be." [Lush, J. in Serjeant v. Dale (1877) 2 Q.B. D. 558,
567].

"....the least pecuniary interest in the subject-matter of the


litigation will disqualify any person from acting as a Judge."
[Stephen, J. in R. v. Farrant (1887) 20 Q. D.B. 58, 60].

" ....a person who has a judicial duty to perform disqualifies


himself from performing it if he has a pecuniary interest in
the decision which he is about to give or a bias which
renders him otherwise than an impartial Judge. If he has a
pecuniary interest in the success of the accusation he must
not be a Judge." [Bowen L.J. in Leeson v. General Council o
Medical Education (1889)43 Ch. D. 366, 384]."

20. I am of the view that the reason for this extraordinary


caution in matters where a Judge has a financial or
pecuniary interest in the outcome of the decision of a case,
is obvious. While Judges are' passing judgments in the cases
that come before them, they are themselves being
constantly judged by the public in general. The dignity and
respect of the Courts is neither engendered nor protected
by the Law of Contempt, but by the conduct and impartiality
of the Judges themselves. It is because of their reputation of
impartiality and neutrality that Sessions Judges in remotest
districts like Mianwali and Dera Ismail Khan, who routinely
sentence accused persons to death or acquit them, can go
out alone for a walk in the evening, without the least fear or
apprehension of being assaulted, attacked 1 or injured.

It is not that while deciding cases, Judges are in any way


partial or subject to any external influence, but they have
always to be very mindful of the impression that the public
in general may form about them. Judges have to be
extremely careful about their image of impartiality,
neutrality, and disinterestedness in the result of any case
before them. One slip, giving the public a reason to believe
that the Judge is motivated, and the lofty image of the
Superior Courts in public mind, built so carefully during the
last 150 years, would fall to the ground and shatter to
pieces.

21. The importance of the opinion that people in general


may form about Judges and the necessity to maintain the
confidence in the public mind with respect to the neutrality
and impartiality of the Judges, by ensuring that justice is not
only done but is seen to be done, has been summarized by
Justice Esher in Eckerslev v. Hersey Docks & Harbour Board
(1894 2 Q.B. 667 at 671) in the following words:-

" ....the doctrine which is applied to Judges, not merely of


the Superior Courts, but to all Judges, that, not only must
they be not case , but that, even though it be demonstrated
that they would not be biased, they ought not to act as
Judges in the matter where the circumstances are such that
people - not necessarily reasonable people, but many
people
would suspect them o being biased."

"he same principle has been enunciated by Mr. Justice Lush,


J. in Serjeant v. Dale as follows-

"The law in laying down this strict rule, has regard, not so
much perhaps to the motives which might be supposed to
bias the Judge, as to the susceptibilities of the litigant
parties. One important object at all events, is to clear away
everything which might engender suspicion and distrust of
the tribunal, and so to promote the feeling of confidence in
the administration of justice which is so essential to social
order and security.”

22. The plea of the counsel for the Federal Government was
that while hearing the appeals against the judgment of
Lahore High Court in the petition filed by Haji Saif Ullah
wherein he had challenged the validity and legality of
actions taken and laws framed or appointments made by the
President between the period 29-5-1988 to 2-12-1988. the
learned members of the Bench hearing the appeal were
concerned merely with considering the Constitutional
question as to whether or not the Prime Minister was
necessary for the formation of a "care-taker Cabinet" under
Article 48(5)(b) of the Constitution. At that stage the
proposition was merely a legal one and no pecuniary
interest of any kind was involved. But later, by the time
Federal Government filed C.M.P. Nos.149-R/89 and
196-R/89, the position had materially altered. The
Government brought out a Press Release on 10th of March,
1989, requesting inter alia that "all such appointees ma)
suspend performance of their official duties till their
appointments are regulated or reaffirmed by the President
on the advice of the Prime Minister" and the Honourable
Chief Justice of Pakistan actually risked the three learned
Judges of this Court who were appointed (luring the relevant
period to suspend work and they actually discontinued
functioning, the position altered materially. According to the
Federal Government, from that stage onward those learned
Judges, whose career would be affected, one way or the
other, by any decision taken with respect to the
interpretation of the Full Court Judgment dated 5-10-1988,
would obviously have a pecuniary interest in the outcome of
the proceedings.

At the time when the Federal Government filed C.R.P.


No.33-R/89, the fact that had agitated it was that a
judgment in which very serious Constitutional questions had
been decided on the 9th of March by 12 Judges, had within
a few days been given an absolutely different meaning than
what, according to it, the plain language used in the
judgment clearly indicated. It, therefore, rushed, in a flush,
to pray that the very same 12 Judges should assemble to
interpret and explain it. It is only later that other
consideration started weighing with it. Hence the
subsequent application (C.M.P. No.149-R/89) praying that
only 9 learned Judges may interpret the judgment.
As such the "inconsistency", that the Federal Government
had first asked that all the 12 Judges who heard the appeal
should hear the petition, but it is now asking for only 9 out
of them to hear it, is more apparent than real.

23. As for the question whether the principle of necessity


overrides the rule of Natural Justice, "that no one should be
a Judge in his own cause", the law has been stated by my
learned brother Mr. Justice Shafiur Rehman in the following
summary in paragrpah No.28 of his order: -

(i) "It is a fundamental principle that in the absence of


statutory authority or consensual agreement or the
operation of necessity, no man can be a Judge in his own
cause."

(Halsbury Laws of England - Fourth Edition Volume(?) para.


67);

(ii) "A Judge who would otherwise be disqualified may act in


a case of necessity, where no other Judge has jurisdiction.
Thatthe 'necessity' rule is a part of the common law is
undoubted."

(Natural Justice by Marshall 1959 Edition, p. 38);

(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" (vide American Jurisprudence Vol. 30, page
770)" (Quoted in the President v. Mr. Justice Shaukat Ali
PLD 1971 S C 585 at page 606);

(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 o 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, (i.e. in similar
circumstances) a Judge may be obliged to hear a case in
which he has a pecuniary interest."

[ De-Smith's Judicial Review of Administrative Action (Fourth


Edition), 1980 Volume, page 276].

24. I would like to re-summarise this principle for the sake of


brevity and clarity.

As re-summarised, the rule of exception due to necessity


would read as follows:-

No man can sit as a Judge in his own cause;

(a) Unless there is--


(i) statutory authority; or

(ii) consensual agreement; or

(iii) it becomes necessary to do so;

(b) a Judge who would otherwise be disqualified, may act


in a case of necessity, when no other Judge has jurisdiction
to hear the case:

(c) a Judge who is otherwise disqualified because of having


interest in the case may justifiably be required to sit:

(i) if there is no other competent tribunal or forum,


to hear the case; or

(ii) a quorum cannot be formed without him.

(d) Similarly, if proceedings were brought against all the


superior Judges they would be obliged to sit as Judges in
their own cause, because in such a case no Judge will be left
to form a Bench.

It is obvious that none of the situations envisaged in the


above summary of the principle of "Necessity" has arisen in
the present case. The same is therefore not applicable to
this case.

24-A. As for the argument that this principle does not apply
to the superior Courts, at the apex, I would respectfully
refer to the following portion of the extract. reproduced
from Harvard Law Review in paragraph No.15, above:-

"Supreme Court Justices beginning with Justice Livingston I


[Livingston & Gilchrist v. Maryland Ins. Col. II U.S. (7 Cranch)
506 (1813).] and Chief Justice Marshall [Fairfax's Devisee v.
Hunter's Lessee, II U.S. (7 Cranch) 603 (1813)] have
consistently disqualified themselves under such
circumstances

The following portion of the judgment of Lord Esher in


Eckersley v. Hersey Docks & Harbour Board (1894) 2 Q.B.
667 at 671)) reproduced in para. No.21 above is also
relevant in this connection and may be usefully reproduce
again:-

" …….the doctrine which is applied to Judges, not merely of


the Superior Courts but to all Judges, that, not only must
they be not bed, but that, even though it be demonstrated
that they would not be biased, they ought not to act as
Judges in a matter where the circumstances are such that
people-- not necessarily reasonable people, but many
people would suspect them of being biased."

The judgment in Dimes v. Grand Junction Canal, is also


relevant as it relates to the disqualification of the Lord
Chancellor of England himself, when he was found to have
had pecuniary interest in the case decided by him.

Moreover, it is well known that Judges of superior Courts in


Pakistan itself have always refrained from sitting on the
Bench deciding cases in which there is even the slightest
apprehension that they may be considered to be 'biased'
(not to speak of being financially interested) in the matter
and transfer the cases with the observations like: -

"I would not like to hear this case for personal reasons"

or simply

"may be placed before another Bench"

This practice has been followed so rigidly that some Judges


(e.g. Justice Douglas Young C.J.). even refrained from
reading newspaper reports with respect to the cases before
them.

It may however be mentioned here that there can be


exceptions to this practice. A Judge can always distinguish
cases where any of the parties is resorting to a device, with
an ulterior motive, so as to prevent him from sitting on the
Bench dealing with a particular case, for example by
engaging a Counsel who is barred from appearing before
him. He may not disqualify himself in such cases.

27. Again, as pointed out by my learned brother, after


referring to Islamic Republic of Pakistan v. Khan Wali Khan
(PLD 1976 SC 57, pp.188-189) it is true that in the case of
Superior Courts it is entirely a matter for the Judge or the
Judge concerned to decide as to whether or not he will sit in
that particular case, and if he decides to sit, whether or not
he would feel embarrassed. In Wali Khan's case the learned
Judges, against whom bias (but not pecuniary interest) had
been alleged, did not feel that they stood disqualified from
sitting by such an allegation and did not feel any
embarrassment in hearing the case.

As such, in the present case also, it would ultimately depend


upon the view taken by the learned Judges concerned, in the
light of the precedent case-law laid down and cited above,
as also the long-standing practice of the Judges of the
superior Courts in this respect.

28. It may be mentioned that after hearing of this petition


had concluded and the judgment was under preparation,
the learned Attorney-General made a further application on
1-7-1989 wherein he stated that in addition to his
submissions made at the Bar he would respectfully like to
draw the attention of the Hon'ble Chief Justice of Pakistan
and other Judges of this Court, to the Code of Conduct
framed by the Supreme Judicial Council. The portion of this
Code which is relevant for the purpose of this order is clause
(1) of Article 4 which reads as under:-

"A Judge must decline resolutely to act in a case involving his


own interest, including those of persons whom he regards
and treats as near relatives or close friends."

To decide whether or not any act on the part of the learned


Judge falls within, or is outside, the ambit of this Article of
the Code of Conduct, is in the exclusive jurisdiction of the
Supreme Judicial Council. Therefore any observations on this
aspect, which may tend to indicate whether or not an action
of any learned Judge was in consonance with or was against
rules of conduct prescribed in the said Code, would
constitute an infringement on the jurisdiction of the
Supreme Judicial Council. I, therefore, refrain from making
any observation or comment whatsoever on this aspect of
the matter.

With these observations, the C.M.P. No.196-R/89 (in Civil


Review Petition No. 33-R/89), stands disposed of.

MUHAMMAD AFZAL ZULLAH, J.--I agree that on examination


of the Common Law principles and the relevant rule of
natural justice prevailing in that system invoked by the
learned Attorney-General, this Civil Miscellaneous Petition
should fail. As he has chosen not to argue and rely upon the
relevant principles of Islamic Law on the subject, despite a
brief reference to it during the arguments, it is not necessary
in this case, to discuss that aspect. It may, however, be
mentioned that in a recent judgment of this Court by a
Bench of five Judges including three of us (Muhammad Afzal
Zullah, Dr. Nasim Hasan Shah and Shafiur Rahman, JJ.) we
dealt with one of Islamic Law principles relevant to a similar
situation. See Mujeeb-ur-Rehmar and 3 others v. Federal
Government of Pakistan through the Attorney General o
Pakistan (1988- S C M R 897 ), Regarding the additional
submission made by the learned Attorney-General after the
arguments, in a written application wherein reliance was
placed on Clause (I) of Article IV of the Code of Conduct,
suffice it to observe that the expression "a case involving his
own interest" means the direct involvement in the case
which is being determined by the Court of which the Judge
is a Member. The interest should not be contingent and
dependent upon other cases or matters which are yet to be
decided. Prima facie, therefore, the said Clause is not
attracted.

Looked at from whatever angle this Civil Miscellaneous


Petition is liable to be- dismissed.

NASIM HASAN SHAH, J.--I agree with the views expressed by


my learned brother Shafiur Rahman, J. in the very valuable
judgment proposed to be delivered by him, but being one of
the authors in the Dissolution of National and Provincial
Assemblies case it is only appropriate that I should also
express my views in my own words:

On 9-3-1989, the detailed reasons for the short order


announced on 5-10-1988 in the Dissolution of National and
Provincial Assemblies cases (Civil Appeals Nos. 314 to 317 of
1988 and Civil Petitions Nos. 392-R and 393-R of 1988)
(hereinafter called the Dissolution Cases) were released. On
the very next day, the Federal Government issued a Press
release wherein it was, inter alia, averred--

"The Supreme Court of Pakistan on 5-10-1988 by a Short.


Order upheld the judgment, dated 27-9-1988 of the Full
Bench of the Lahore High Court. The Lahore High Court inter
alia had held that the appointment of the Prime Minister
after the dissolution of the National Assembly by General
Zia-ul-Haq on 29th May, 1988 was necessary under the
Constitution to head the caretaker Government."
and

"That the caretaker Government appointed by the President


from 29-5-1988 to 2-12-1988 was in violation of the
Constitutional provisions.

Consequently, the actions taken, orders passed or


appointments made after 29th May, 1988 upto 2nd
December, 1988 by the President which were required to be
taken, passed or made on the advice of the Prime Minister
were illegal. Such actions, orders and appointments have to
be regularised in accordance with the provisions of the
Constitution and therefore all Government Officers,
Departments, the Registrars of the High Courts and Supreme
Court arc requested immediately to contact the Ministry of
Law and Justice with regard to such actions, orders and
appointments taken, passed or made by or in the name of
the President from 29th May to 2nd December, 1988, so
that these are regularised by taking appropriate steps in
accordance with the Constitution in the light of the
judgment of the Supreme Court. It is further advised that all
such appointees may suspend the performance of their
official duties till their appointments are regularised or
re-affirmed by the President on the advice of the Prince
Minister. Certain legislative measures may also be required
to be taken after carefully considering the implications of
the judgment of the Supreme Court."

Mr. Muhammad Akram Shaikh, Advocate and President of


the Multan Bar Association filed an application (C.M.P. No.
68-R of 1989) on 13-3-1989 seeking the following reliefs-
(i.) to clarify the full and correct implications of our own
detailed judgment in Civil Appeals Nos. ;114, 315, 316,
317/88 and C.Ps. Nos. 392-R and 393-R of 1988;

(ii) to proceed in contempt against those who are


deliberately misinterpreting it to derive political advantage
out of it;
(iii)to end the legal chaos and Constitutional crisis into which
the country has been plunged."

This application was disposed of on 18-3-1989 by a Bench of


4 Judges (consisting of the learned Chief Justice, Nasim
Hasan Shah, S. Rehman and Ali Hussain Qazilbash, JJ.)
wherein it was, inter alia, observed--

"The portion of the Press Note reproduced above does not


appear to correctly reflect our judgment in so far as it states
that the consequence of the judgment is that actions taken,
orders passed or appointments made after 29th May, 1988
upto 2nd December, 1988 by the President which were
required to be taken, passed or made on the advice of the
Prime Minister were illegal and required regularisation and
re-affirmance awaiting which the appointees should
suspend the performance of their official duties. Such a
relief had been asked for from the Court but was riot
granted. The findings on all the matters in controversy were
recorded to remove all doubts and ambiguities with regard
to distribution of functions and powers under the
Constitution for guidance in the future."
It was, therefore, directed that the portion of the Press Note
reproduced above should "stand deleted and be taken not
to have been issued at all".

Feeling dissatisfied with this order, the Federation of


Pakistan filed a review petition (C.R.P. No.33-11 of 1989)
seeking the review of the order, dated 18-3-1989 passed in
C.M.P. No.68-R of 1989. In this petition, the first ground
taken was--

"That 12 Hon'ble Judges of this Hon'ble Court constituted


the Full Bench which passed the short order on 5-10-1989.
as well as the detailed judgment recorded and issued later
on. The Government of Pakistan interpreted the judgment in
the light of the observations made therein and issued a
Press Note on 12-3-1989. The Press Note in fact became the
subject-matter of Civil Misc. No.68-11 of 1989. The Civil
Miscellaneous was heard by 4 Hon'ble Judges of this Hon'ble
Court and disposed of by an order, dated 18-3-1989. It is
respectfully submitted that the interpretation, clarification
or any order relating to the detailed judgment could be
passed by the same Hon'ble Bench constituting of 12 Judges
of this Hon'ble Court. All the Hon'ble Judges were still
available. Four Hon'ble Judges could not pass any order in
respect of the Full Court judgment."

This application came up for hearing on 29-4-1989 before


the Bench of 12 Judges who had heard the original appeal
and was partly argued on that date, when it was adjourned
for further arguments on 27-5-1989. In the meanwhile
however, the Federation of Pakistan submitted an
application (No. C.M.P. 149-8 of 1989 in C.R.P. No.33-11 of
1989) requesting that 3 Judges of this Court, namely Mr.
Justice S. Usman Ali Shah, Mr. Justice Ali Hussain Qazilbash
and Mr. Justice Naimuddin who had been appointed by the
President without the advice of the Prime Minister and
stood affected by the judgment of this Court under review
may not sit on the Bench when the matter is heard on
27-5-1989 as these Judges were personally interested in the
matter and that Judges in such circumstances do not sit as
Judges to decide a case. This request was declined by the
learned Chief Justice in Chambers on 16-5-1989 observing,
inter alia--

"I have consulted the Judges who have signed the main
judgment and they have stated that they will not feel
embarrassed to hear the case."

Undeterred the learned Attorney-General moved another


application (C.M.P. No.196-R of 1989) on 23-5-1989
reiterating his earlier prayer that the 3 learned Judges likely
to be affected should not sit on the Bench in view of the
high traditions and principles of natural justice universally
accepted that no one should act as Judge in his own cause
and the matter be disposed of by the remaining 9 Judges
who were parties to the earlier judgment in Dissolution
Cases and also by any other Judge that might be available.
This application alongwith Civil Review Petition (C.R.P.
No.33-11 of 1989) and other connected matters ultimately
came up for hearing on 27-6-1989 again before the Full
Court consisting of 12 Judges who had earlier disposed of
Civil Appeals Nos. 314 to 317 of 1988 and Civil Petitions Nos.
392-11/88 and 393-R/88. At this hearing, the learned
Attorney- General presented an elaborate argument in
support of his prayer that the three learned Judges
appointed between 29-5-1988 and 2-12-1988 should not
participate in the proceedings. However, when asked to
explain the error committed in the order, dated 18-3-1989
whose review was being sought, he declined to do so on the
plea that he would come to the matter only after the prayer
made in his application seeking withdrawal of the three
Judges (C.M.P. No.196-11 of 1989) was granted.

The stand taken by the learned Attorney-General in his


miscellaneous applications is not easy to comprehend. It will
be observed that the foremost ground taken by him in the
petition seeking review of this Court's order dated
18-3-1989 (C . R .P. No.33-11 of 1989) was that in so far as
the judgment in the Dissolution Cases was rendered by 12
Judges any clarification etc. thereof could be made only by
the same Bench consisting of 12 Judges (who had passed the
original order) and that the Bench of 4 Judges (who had
passed the subsequent order, dated 18-3-1989) could not
pass any order in respect of the Full Court judgment.

This plea was manifestly untenable as the order dated


18-3-1989 was passed in connection with the Press Note,
dated 10-3-1989 issued by the Ministry of Law, Justice and
Parliamentary Affairs purporting to implement and interpret
this Court's detailed judgment passed by the Bench of 12
Judges. The question raised before the Bench of 4 Judges
passing the order, dated 18-3-1989 was whether the
interpretation placed in the Press Note issued by the
Ministry of Law, Justice and Parliamentary Affairs on the said
judgment of the Court was correct. This matter could be
decided by any Bench of this Court. It was a normal case
coming before the Court wherein one party claimed that it
was purporting to follow and implementing a decision of this
Court while some other party was disputing this claim and
the question before the Court was to ascertain as to which,
of them was actually right. In these circumstances, no
occasion arose for constituting a Bench consisting of all the
Judges who had delivered' the earlier judgment for deciding
this question.

Be that as it may the review petition (C . R.P. No.33-11 of


1989), was, as requested, ordered to be placed before a
Bench of the same 12 Judges who heard the earlier cases
and the matter was thereafter partly heard by it on
29-4-1989 when it was adjourned to 2?-5-1989 for further
hearing. However, before the matter came up for further
hearing on the adjourned date, one application followed by
another was submitted raising a totally new issue namely
that 3 of the Judges of the Bench of 12 Judges, who were
parties to the earlier judgment rendered in the Dissolution
Cases should not now sit on the Bench which was
constituted on its own request, to interpret the said
judgment.

It is noteworthy that no objection was raised by the learned


Attorney-General to this effect when he appeared before
the Bench of 4 Judges on 18-3-1989, where one of such
Judges (Mr. Justice Ali Hussain Qazilbash) was also sitting.
Again, no such plea was raised when the main petition for
review (C.R.P. No.33-R of 1989) came up for hearing on
29-4-1989. It was only after the matter was adjourned on
29-4-1989 for further hearing that this new issue was raised
first by the application (C .M .P. No.149-R of 1989 in C.R.P.
No.33-R of 1989)~and after its rejection on 16-5-1989 by the
learned Chief Justice in Chambers by further application
(C.M.P. No.196-R of 1989). In the last-mentioned application
it was again requested that the prayer made in the earlier
application (C.M.P. No.149-R of 1989) be accepted but it
went on to add that in case "this prayer is not acceded to by
this Hon’ble Court, the Federal Government has instructed
that the review petition may be allowed to be withdrawn
without prejudice to the contentions raised in the Review
Petition".

Notwithstanding this unhappy prospect and however


desirous we may be to see the learned Attorney-General
complete his submissions on the review petition, being duty
bound to do right, in all circumstances, no other course, but
to do what we conceive is the right, is open to us.

The very foundation of the learned Attorney- Generals


submission that the appointment, inter alia, of a Judge of
the Supreme Court not made on the advice of the Prime
Minister is illegal, is itself debateable. The question whether
a Judge. who has been appointee by the competent
authority (the President), after consultation with the
specified authority (Chief Justice of Pakistan) can be said to
have been appointed illegally because his appointment was
not made on the advice of the Prime Minister or Cabinet is
not free from difficulty and a serious argument would be
necessary to resolve it. Since, however, arguments on this
aspect of the matter have yet to be addressed, nothing
further need be said in regard thereto, at this stage.

Be that Fps it may the above question can Arise, if at all, only
if the view expressed in the order. dated 18-3-1989 of the
Bench or 4 Judges to the effect that the findings on all
matters in controversy were recorded in the Dissolution
Cases to remove all doubts and ambiguity with regard to the
distribution of functions and powers under the Constitution
for guidance .in the future and things done during the period
from 29-5-1988 to 2-12-1988, even though some of them
were not in accordance with the Constitution, allowed to
prevail, is reversed. The said view was grounded on the facts
that despite the finding that the Assemblies were unlawfully
dissolved they were not restored. Instead the orders for
holding new elections to replace them were upheld. Again
despite the fact that no Prime Minister was appointed to
head the care-taker Government and although it was found
that it was necessary that he must head the Government at
all times under the Constitution, the Ordinances
promulgated on its advice, inter alia, the Delimitation of the
Constituencies (Amendment) Ordinance, 1988, were not
only upheld but found to have paved the way for the
General Elections held on 16th November and 19th
November, 1988. But the Federation of Pakistan is now
questioning the view at least in so far as acts done, actions
taken, orders passed and appointments made by the
President during the said period is concerned and in this
connection the following passage occurring in the judgment
of my learned brother S. Rehman, J. is mainly being relied
upon:

"In this background the Constitution does not visualise a


caretaker Cabinet without a Prime Minister. The absence of
Prime Minister from a care-taker Cabinet alters for the
period under discussion the very character of the
Constitution from a Parliamentary democracy to a
Presidential system of Government. The Court can neither
countenance nor condone all this at this stage and in these
proceedings. Such violation and breaches concern the very
essential features of the Constitution, What are the legal
consequences on individual acts done, or actions already
taken and suffered, we are leaving it to be decided in
individual cases, more appropriately brought before us."

Apart from the fact that this passage occurs in the judgment
of my learned brother to which only one of my learned
brothers concurred, while nothing in support of these
observations has been said in the main judgment delivered
by the remaining 10 Judges; even my learned brother S.
Rehman, J. in his aforesaid judgment has himself clarified
the purport of his above observations by observing--

"The mere transitory continuance of such a pre-existing


state of affairs, with an eye on the immediate and prime
objective of holding a timely and fair General Election
prompts us not to interfere in these proceedings with those
matters, and the prevailing affairs."
Accordingly, unless the main judgment in the Dissolution
Cases is reviewed it is not possible to accede to the prayers
made in the miscellaneous applications. Indeed this is all the
more necessary because Haji Saifullah (the petitioner in the
Dissolution Cases) has also sought review of the judgment
passed in the aforesaid ,Dissolution Cases by another review
petition (C.R.P. No.30-R of 1989) praying that full effect be
given to all the findings recorded by the Court including the
finding that the Assemblies were illegally dissolved (by
restoring the said Assemblies and allowing them to
function); declaring the Ordinances promulgated after the
unlawful dissolution of the National Assembly to be illegal
and ultra vires, holding the appointments etc. made in this
period to be null and void. This review petition (C.R.P.
No.30-R of 1989) has been fixed for hearing alongwith Civil
Review Petition No. 33-R of 1989 filed. by the Federation of
Pakistan.

In short, while in the review petition filed by the Federation


of Pakistan (C.R.P. No.33-R of 1989), the interpretation
placed on the judgment in the dissolution cases is being
questioned only so far

as appointments etc. made between 29-5-1988 and


2-12-1988 is concerned; and in the miscellaneous
applications submitted thereafter (C.M.P. No.149-R of 1989
and C.M.P. No.196-R of 1989) the prayer made is that the
Judges appointed during this period should not sit to hear
the review petition (C.R.P. No.33-R of 1989) this prayer
cannot be granted unless it is held that the interpretation
placed on the order, dated 18-3-1989 by the Bench of 4
Judges that the findings in the judgment in the Dissolution
Cases were intended only to apply in the future and not to
past transactions, is reversed. And so far as the question of
the interpretation and proper effect of the judgment in the
Dissolution Cases is concerned, this is also desired by Haji
Saifullah in his review petition (C.R.P. No.30-R of 1989). But
he has raised no objection to all the 12 Judges sitting in his
review petition who were party to the said judgment.
Indeed this course was favoured even by the Federation of
Pakistan in the main review petition (C.R.P. No.33-R of
1989) and in my humble opinion this, in fact, is the only
appropriate course.

I would, with these observations, agree with the order


proposed by my learned brother S. Rehman, J.

ABDUL KADIR SHAIKH, J.--We are dealing with a very unusual


prayer made by Federation of Pakistan in this Civil
Miscellaneous Petition which has arisen out of an important
judgment of this Court on the Constitutional empasse that
arose following dissolution of National Assembly of Pakistan
on 29-5-1988 by the then President of Pakistan, in purported
exercise of power under Article 58(2)(b) of the Constitution,
and almost simultaneously, dissolutions of all Provincial
Assemblies by the respective Provincial Governors. The
dissolutions of National Assembly of Pakistan and the
Provincial Assembly of Punjab and the appointment of a
caretaker Cabinet, without a Prime Minister, were
successfully challenged in Constitutional Petitions filed in
Lahore High Court. Learned Judges of the Full Bench who
dealt with the Constitution Petition held that "the grounds
given for dissolution of National Assembly and the Provincial
Assembly of Punjab are so vague, general or non-existent
that the orders are not sustainable in law". Learned Judges,
however, took the view for the reasons elaborately stated in
the judgment that "the discretionary jurisdiction under
Article 199 of the Constitution will not permit restoration of
the dissolved Assemblies. Rather it will call for that no
interference is made in the process of bringing about
democratic polity". As regards the prayer for grant of
direction for appointment of a properly constituted
caretaker Cabinet with a Prime Minister, learned Chief
Justice held that "it would appear to be that the office of
Prime Minister is necessary for running the affairs of the
State at all times. However, in exercise of discretionary
jurisdiction under Article 199(1)(b)(ii) of the Constitution we
pass no order as the matter can be set right sooner or later
and to avoid any confusion, crisis or collapse. Restraint is
part of judicial discretion". !n this connection, learned Chief
Justice agreed with the learned Attorney-General, who
appeared for the Federation of Pakistan, that "caretaker
Cabinets have to take care of the day-to-day administration
of the State. There may be no bar to take policy decisions if
so required by the circumstances. He is right. Caretaker
Cabinets have to confine themselves to take care of the
day-to-day administration of the State. They can take all
decisions requiring attention or action, may be having
far-reaching effects, like in respect of war and peace or
earthquake or floods. But they can neither forget the
predominant position of their being care-taker nor can they
take undue advantage of their position either for themselves
or for their political parties. They have to be impartial to
everybody, including their rivals or opponents in the political
fields. They cannot take advantage of their official position
of Caretaker Government at the expense of other political
forces or people at large. Neutrality, impartiality,
detactment and devotion to duty to carry on day-to-day
affairs of the State without keeping in view one's own
interest or of one's party are the sine qua non of a Caretaker
Cabinet".

Rustam S. Sidhwa, J. and Muhammad Afzal Lone, J. , agreed


with the views of the learned Chief Justice although for the
reasons recorded separately .by them. Lehrasap Khan,J. also
concurred with these views, however he added a separate
note on the position of Caretaker Cabinet impressing the
fact that "the Caretaker Cabinet, envisaged in Article
48(5)(b) of the Constitution of Islamic Republic of Pakistan
has to be headed by the Prime Minister, as is evident from
the provisions of Article 91(8) ibid,. which reads:

"Nothing contained in this Article shall be construed as


disqualifying the Prime Minister or any other Minister or a
Minister of State for continuing in office during any period
during which the National Assembly stands dissolved, or as
preventing the appointment of any person as Prime Minister
or other Minister or as Minister of State during any such
period. "

In this behalf, Gul Zarin Kiani, J. , another member of the Full


Bench, emphasised as under:
"In my view, a Caretaker Cabinet is a Cabinet to be headed
by a Prime Minister and without it, it may not appear to be
complete. A living body without a head is unthinkable. As
regards the role of such a Caretaker Cabinet, it was observed
by Sabyasachi Mukherji, J. in Madan Murari Verma v.
Choudhuri Charan Singh and another AIR 1980 Cal. 95.

'There is no mention of any Care-taker Government as such


in our Constitution or in the Constitutional law, though Sir
Ivor Jennings has described in his book-Cabinet
Government, Third Edition, page 85 the ministry that was
formed by Mr. Churchill in England after the war before and
pending the General Election in 1945 as Care-taker
Government. But an extraordinary situation like the present,
in my opinion, calls for a Care-taker Government and,
therefore, the respondent No.1 and his Council of Ministers
can only carry on day-to-day administration in office which
are necessary for carrying on 'for making alternative
arrangements'.

In effect the President in my opinion is, therefore, not


obliged to accept the advice that the respondent No.1 and
his Council of Ministers tender to him except for day-to-day
administration and the Council of Ministers and the
respondent No.l should not make any decisions which are
not necessary except for the purpose of carrying on the
administration until other arrangements are made. This in
effect means that any decision or policy decision or any
matter which can await disposal by the Council of Ministers
responsible to the House of People must not be tendered by
the respondent No.l and his Council of Ministers. With this
limitation the respondent No.l and the Council of Ministers
can only function. And in case whether such advice is
necessary to carry on the day-to-day administration till
'other arrangements are made' or beyond that, the
President, in my opinion, is free to judge. It is true again that
this gives the President powers which have not been
expressly conferred by the Constitution but, in my opinion,
having regard to the basic principle behind this Constitution
under Article 75(3) read with Article 74(1), in the peculiar
facts wind circumstances of this case is the only legitimate,
legal and workable conclusion that can be made.' Beyond
this statement, I do not propose to go further."

This Court on appeal against the impugned judgment of the


High Court also took the view that the orders of the
President of Pakistan and the Provincial Governors
dissolving the National Assembly of Pakistan and the
Provincial Assemblies respectively were without lawful
authority, and also that the formation and the functioning of
a Care-taker Government without a Prime Minister is in
violation of the Constitutional requirement under Article
48(5)(b).

The opinion of the Court was expressed by two Judges, Mr.


Justice Dr. Nasim Hasan Shah and Mr. Justice Shafiur
Rahman. The former summarised it as under:

"The reference to the provisions of the Constitution made


above shows that the office of the Prime Minister is
necessary at all times for running the affairs of the country
and that he should have been appointed to head a
Care-taker Cabinet."

Mr. Justice Shafiur Rahman observed:

"Yet another breach of Constitutional provision was the


non-compliance with the requirement of clause (5) (b) of
Article 48. It requires the appointment of a Care-taker
Cabinet immediately on dissolution of the National
Assembly. The Cabinet has been described in clause (1) of
Article 91 of the Constitution as hereunder:--

'There shall be a Cabinet of Ministers, with the Prime


Minister at its head, to aid and advise the President in the
exercise of his functions.'

Clause (8) of Article 91 provides as follows:--

'Nothing contained in this Article shall be construed as


disqualifying the Prime Minister or any other Minister or a
Minister of State for continuing in office during any period
during which' the National Assembly stands dissolved, or as
preventing the appointment of any person as Prime Minister
or other Minister or Minister of State during any such
period.'

Clause (2) of Article 92 provides as hereunder:--

'Before entering upon office, a Federal Minister or Minister


of State shall make before the President oath in the form set
out in the Third Schedule.'
The relevant portion of the Oath of Federal Minister or a
Minister of State prescribed in Third Schedule of the
Constitution reads as hereunder:--

'I,----, do solemnly swear that I will bear true faith and


allegiance to Pakistan:

That, as Federal Minister (or Minister of State); I will


discharge my duties……….as Federal Minister (or Minister of
State), or as may be specially permitted by the Prime
Minister.

May Allah Almighty help and guide me (A'meen).'

In this background the Constitution does not visualise a


Caretaker Cabinet without a Prime Minister. The absence of
Prime Minister from a Caretaker Cabinet alters for the
period under discussion the verb character of the
Constitution from a Parliamentary democracy to a
Presidential system of Government. The Courts can neither
countenance nor condone all this at this stage and in these
proceedings. Such violations and breaches concern the very
essential features of the Constitution. What are the legal
consequences on individual acts done, or actions already
taken and suffered, we are leaving it to be decided in
individual cases, more appropriately brought before us.''

Subsequent to the announcement of the judgment of this


Court, the Federation of Pakistan issued a Press Release
which reads as under:
"GOVERNMENT OF PAKISTAN
MINISTRY OF LAW, JUSTICE & PARLIAMENTARY
AFFAIRS
ISLAMABAD
PRESS RELEASE

March 10, 1989


The Supreme Court of Pakistan on 5-10-1988 by a Short
Order upheld the judgment. dated 27-4-1988 of the Full
Bench of the Lahore High Court, The Lahore High Court inter
alia had held that the appointment of the Prime Minister
after the dissolution of the National Assembly by General
Zia-ul-Haq on 29th May, 1988 was necessary under the
Constitution to head the care--taker Government. In this
regard the Supreme Court while giving the detailed reasons
in support of their Short Order, dated 5-10-1988 has inter
alia held---

"The reference to the provisions of the Constitution made


above show that the Office of the Prime Minister is
necessary at all times for running the affairs of the country
and that he should have been appointed to head a caretaker
cabinet."

The Supreme Court has further observed:--

"In this background the Constitution does not visualise a


caretaker Cabinet without a Prime Minister. The absence of
Prime Minister from a care-taker Cabinet alters for the
period under discussion the very character of the
Constitution from a Parliamentary democracy to a
Presidential system of Government. The Court can neither
countenance nor condone all this at this stage and in these
proceedings. Such violations and breaches concern the very
essential features of the Constitution. What are the legal
consequences on individual acts done, or actions already
taken and suffered, we are leaving it to be decided in
individual cases, more appropriately brought before us.

"Finally, the breach concerning the alteration in the Oath of


Ministers, the learned Attorney-General had no explanation
for it. We do not find any mention of it even in the record.
What has been accomplished by an unwritten executive fiat
amounts to a material amendment of the Constitutional
Provision which could not be accomplished without recourse
to Provisions of Part XI of the Constitution."

The judgment is given by 11 Judges of the Supreme Court


and all of them have unanimously agreed with High Court
that the caretaker Government appointed by the President
from 29-5-1988 to 2-12-1988 was in violation of the
Constitutional provisions.

Consequently tire actions taken, orders passed or.


appointments made after 29th May, 1988 upto 2nd
December, 1988 by the President which were required to be
taken, passed or made on the advice of the Prime Minister
were illegal. Such actions, orders and appointments have to
be regularised in accordance with the provisions of the
Constitution and therefore all Government Offices,
Departments,, the Registrars of tire High Courts and
Supreme Court are requested immediately to contact the
Ministry of law and Justice with regard to such actions,
orders acid appointments taken, passed or made by or in the
name of the President from 29th May to 2nd December,
1988 so that these are regularised by taking appropriate
steps in accordance with the. Constitution in the light of the
judgment of the Supreme Court. It is further advised that all
such appointees may suspend the performance of their
official duties till their appointments are regularised or
reaffirmed by the President on .the advice of the Prime
Minister. Certain legislative measures may also be required
to be taken after carefully considering the implications of
the judgment of the Supreme Court".

After the Press Release. Mr. Muhammad Akram Sheikh,


Advocate and President of Multan Bar Association filed a
Miscellaneous Petition in this Court on 13-3-1989 praying;
that "action for contempt of this Hon'ble Court /clarification
of the order be made. by this Hon'ble Court so that the
Constitutional chaos into which the country has been
plunged may be. ended". The Constitutional crisis, according
to .Mr. Muhammad Akram Sheikh had arisen due to the fact
that "the Hon'ble Judges appointed during this period
(between 29-5-1988 and 2-12-1988) have been asked to
suspend their work and, in particular, since Judges who had
been deputed to work at the Multan Bench have been asked
not to work with the result that the Bench of the High Court
at Multan has come to a stand still". The Miscellaneous
Petition was disposed of by a Bench. of 4 Judges on
18-3-1989 with the following observations and directions:
"The portion of the Press Note reproduced above does not
appear to Correctly reflect our judgment in so far as it states
that the consequence of the judgment is that actions taken,
orders passed or appointments made after 29th May, 1988
up to 2nd of December, 1988 by the President which were
required to be taken, passed or made on the advice of the
Prime Minister were illegal and required regularisation and
re-affirmance awaiting which the appointees should
suspend the performance of their official duties. Such a
relief had been asked for from the Court but was not
granted the findings on all the matters in controversy were
recorded to remove all doubts and ambiguities with regard
to distribution of functions and powers under the
Constitution for guidance in the future.

In case the Federation of Pakistan wants to seek a different


conclusion, it is open to it 'to bring appropriate proceedings
before this Court which will be considered on merits.

We, therefore, direct that the portion of the Press Note


reproduced above should stand deleted and be taken not to
have been issued at all."

Aggrieved by this order the Federation of Pakistan filed a


Petition for Review on several grounds, inter alia:

(1) That 12 Hon'ble Judges of this Hon'ble Court


constituted the Full Bench which passed the short order on
5-10-1988 as well as the detailed judgment recorded anti
issued later on. The Government of Pakistan interpreted the
judgment in the light of observations made therein and
issued a Press Note on 12-3-1989. The Press Note in fact
became the subject-matter of Civil Misc. No.68-R/89. The
Civil. Misc. was heard by 4 Hon'ble Judges of this Hon'ble
Court and disposed of by an order, dated 18-3-1989. It is
respectfully submitted that the interpretation, clarification
or any order relating to the detailed judgment could be
passed by the same Hon'ble Bench constituting of 12 Judges
of this Hon'ble Court. All the Hon'ble Judges were still
available. 4 Hon'ble Judges could not pass any order in
respect of the Full Court judgment.

(2) That the High Court in its judgment had inter alia held
that the office of the Prime Minister is necessary at all times
for running the affairs of the country remained without a
Prime Minister from 29-5-1988 to 2-12-1988.

(3) It is the contention of the petitioner that no specific


declaration to this point was required and the result of the
judgment of this Hon'ble Court is that 'all such acts
performed during the relevant period in the absence of the
Prime Minister are rendered illegal and need to be legalised
or regularised'. In fact, Mr. Justice Shafi-ur-Rehman in a
separate note while elaborating the legal consequences held
that the legal consequences on individual acts done or
actions already taken and suffered shall be decided in
individual cases, more appropriately brought before this
Hon'ble Court. It is, therefore, absolutely clear that such
violations and breaches which arise because of absence of
the Prime Minister during the relevant period were neither
to be condoned nor ratified by the Courts but the legality of
such acts were left to be decided afterwards. It is the
submission raised by the petitioner that by passing order,
dated 18-3-1989 this important finding has been made
vague which is bound to create extremely serious
repercussions."

Before this Review Petition could be taken up the Federation


of Pakistan filed a Miscellaneous Petition (being C.M.P.
No.149-R of 1989) praying as under:

"On behalf of the Federation of Pakistan, it is respectfully


submitted that consistent with high traditions of our
judiciary and the principle of natural justice i.e. that no
person shat! be a Judge in his own cause, it is submitted that
the three Judges of this Hon'ble Court who had been
appointed by the President without the advice of the Prime
Minister and had been affected by the judgment of this
Hon'ble Court under review one way or the other, are
requested that they may not sit on the Bench on 27th May,
or on any date thereafter when the matter is heard as that
will set a very bad precedent as Judges personally interested
in the matter do not sit as Judges to decide a case."

This Miscellaneous petition was disposed of by my Lord


Chief Justice in Chamber on 16-5-1989 with the following
order:

"I have heard the learned Attorney-General but I am afraid it


will not be possible for me to disturb the constitution of the
hull Court when it is seized of the case, and the case has
already been partly argued and is now fixed for further
hearing. It is also of significance to mention that in the case
under review, the jurisdictional defect in the constitution of
the Bench which decided the case is also involved, as a
result of the ground taken in the review petition that the
case should have been heard by the Full Court which heard
and decided Saifullah's case. I have consulted the Judges
who have signed the main judgment and they have stated
that they will not feel embarrassed to hear the case."

It was thereafter that the present Miscellaneous Petition (C


.M.P. No.196-R of 1989) was moved explaining the reasons
why the earlier Miscellaneous Application was moved and it
is submitted as under:

(1) This application (C . M . P. No.149-R of 1989) was filed


keeping in view the high traditions and principles of natural
justice universally accepted that no one should act as Judge
in his own cause.

(2) It is respectfully submitted that this order (dated


16-5-1989), has been passed on misunderstanding that the
case had already been partly argued and now fixed for
further hearing. As submitted above, the Review Petitions
are always heard at the preliminary stage and thereafter "if
a case is made out for full hearing, then the petitions are
fixed for final disposal.

(3) That Rule 8, Order XXVI of the Supreme Court Rules


also provides -that 'as far as practicable' the application for
Review shall, be posted before the same Bench that delivers
the judgment or order sought to be reviewed. The
contentions raised in the Review Petition inter alia relate to
the competency of the three Honourable Judges to hold
their office and as such it is the demand of justice that these
Honourable Judges may not participate in the adjudication
of the matter. The rule that the Review Petition may be
heard by the same Judges has exceptions. One of these is
based upon the principle, that 'no one should be a Judge in
his own cause'. Secondly a larger bench can hear a Review
which includes those Judges who did not pass the
order/judgment under review as was done by this Hon'ble
Court in Mr. Zulfikar Ali Bhuttos Review Petition. Therefore,
the clarification, if permissible, should be made by the
remaining 9 Judges who were party to the judgment of
10-3-1989 and also by any other Judge that might be
available. Needless to point out that justice should not only
be done but must also appear to be done..

In the end it is prayed as under:

"That under the circumstances detailed above, it is again


respectfully prayed that this Honourable Court may be
pleased to accept the prayer made in C:M.P. No.149-R/1989
as Rule 8 of Order XXVI is also prefixed with 'as far as
practicable'. If however this prayer is not acceded to by this
Honourable Court, the Federal Government has instructed
that the Review Petition may be allowed to be withdrawn
without prejudice to the contentions raised in the Review
Petition."

At the hearing of the application, Mr. Yahya Bakhtiar,


learned Attorney-General submitted that it is an established
principle that no Judge can be a Judge in this own cause or
in a case in which he is personally interested, not because
his decision may be in his favour, but on the principle that
justice must not only be done but seen to be done. Although
this principle is very well-established, yet in order to
highlight it, learned Attorney-General referred to Chaper 3
in "Natural Justice" by H . H . Marshall (1959 Edition) in
which reference is made to Bowen L.J's famous quotation in
"Lesson v . General Council of Medical Education etc.,"
(1889) 43 Ch. D. 366, 385,, that "Judges, like Caesar's wife,
should be above suspicion" . The principle that "no man shall
be a judge in his own cause" is not confined merely to the
cases where the Judge is an actual party to a cause, but
applies to a cause in which he has an interest. Such interest
(or bias) which disqualifies must be one in the matter to be
litigated, and per Field J. in "R. v. Mayor and Justices of
Deal", (1881) 45 L.T. 439 "the interest or bias which
disqualifies is an interest in the particular case, something
reasonably likely to bias or influence the minds of the
Magistrates in the particular case."

Lush J., in "Serjeant v. Dale" (1877) 2 Q.B.D. 558, 567


observed, "the reason for the strictness of the rule can be
traced more to considerations of public policy than to the
actuality of the bias affecting the Judge".

The leading judgment on this principle is "Dimes v. Grand


Junction Canal" (1852) 3 H.L. Cas. 759 quoted by Marshall in
"Natural Justice" is in the following words:

"It is a case of the highest possible authority because it was


a decision of the House of Lords, presided over by the Lord
Chancellor of the day (Lord St. Leonards), as to the effect of
the conduct of a previous Lord Chancellor (Lord Cottenham).
The facts were that a public company, which was
incorporated, filed a bill in equity against a land owner, in a
matter largely involving the interests of the company. The
Lord Chancellor (Cottenham) had an interest as a
shareholder in the company to the amount of several
thousand pounds, a fact which was unknown to the
defendant in the suit. The cause was heard before the
Vice-Chancellor, who granted the relief sought by the
company. The Lord Chancellor, on appeal, affirmed the
order of the Vice-Chancellor. It was held on appeal to the
House of Lords that the Lord Chancellor (who had by then
ceased to hold office as such) was disqualified, on the
ground of interest, from sitting as a Judge in the cause and
that his decree was therefore voidable' and must
consequently be reversed. It was also held that the
Vice-Chancellor was under the Administration of Justice Act,
1813, a Judge subordinate to, but not dependent on the
Lord Chancellor and that consequently the disqualification
of the Lord Chancellor did not affect him; but that his decree
might be made the subject of appeal to the House of Lords.

Lord Campbell C.J. said:

No one can suppose that Lord Cottenham could be, in


the remotest degree, influenced by the interest that he had
in this concern; but it is of the last importance that the
maxim that 'no man is to be a Judge in his own cause' should
be held sacred. And- that is not to be confined to a cause in
which he is a party, but applies to a cause in which he has an
interest. Since I have had the honour to be Chief Justice of
the Court of Queen's Bench, we have again and again set
aside proceedings in inferior tribunals because an individual,
who had an interest in a cause, took part in the decision.
And it will have a most salutary influence on these tribunals
when it is known that this High Court of last resort, in a case
in which the Lord Chanellor of England had an interest,
considered that his decree was on that account a decree not
according to law, and was set aside. This will be a lesson to
all inferior tribunals to take care not only that in their
decrees they are not influenced by their personal interest
but to avoid the appearance of labouring under such an
influcence."

And it was said by lord Cave L.C. in the modern case Frome
United Breweries Co. v. Bath Justices (1926) A.C. 586, 590:

"If there is one principle which forms an integral part of the


English law, it is that every member of a body engaged in a
judicial proceeding must be held to act judicially; and it has
been held over and above again that, if a member of such a
body is subject to a bias, whether financial or other, in
favour of or against either party to the dispute or is in such a
position that a bias must be assumed he ought not to take
part in the decision or even to sit upon the tribunal."

Learned Attorney-General also referred to paragraphs 67


and 70, Volume I of Halsbury's Laws of England (Fourth
Edition), which are to the following effect:
"67. Interest and likelihood of bias.--It is a fundamental
principle that, in the absence of statutory authority or
consensual agreement or the operation of necessity, no man
can be a judge in his own cause. Hence, where persons
having a direct interest in the subject-matter of an inquiry
before an inferior tribunal take part in adjudicating upon it,
the tribunal is improperly constituted and the Court will
grant an order of prohibition to prevent it from adjudicating,
or an order of certiorari to quash a determination arrived at
by it, or such other remedy (for instance, an injunction or a
declaration) as may be appropriate. The principle extends
not only to Courts and tribunals, but also to other bodies,
including public authorities, determining questions affecting
the civil rights of individuals.

At common law, a broad distinction is drawn, for the


purpose of applying this principle, between situations where
an adjudicator has a direct pecuniary or proprietary interest
in a matter before him, and those where lie has a different
form of interest which may lead to an appearance or
likelihood of bias on this part, disqualification being incurred
more readily in the former class of situations. If, however,
the disqualifying effect of a pecuniary interest has been
removed by statute, it is still material to consider whether
the nature of that interest gives rise to a likelihood of bias."

"70. Effect of participation by disqualified adjudicator, --If


one of the adjudicators has -a direct pecuniary interest in
the issue, the proceedings will be set aside even though
none of his fellow adjudicators was thus disqualified; and it
appears that the same principle applies where one
adjudicator is subject to disqualification for likelihood of
bias. In such cases the Court will not consider whether the
disqualified person did in fact influence the decision.

Where a person subject to disqualification leaves the


impression that he is participating in the proceedings, the
general rule is that the proceedings may be set aside even
though he has not in fact taken an actual part in them. If he
is present during the proceedings, they will not be immune
from challenge unless he has made it clear that he is not
present as a participant ."

Learned Attorney-General also extensively referred to the


commentaries from Judicial Review of Administrative Action
by S. A. De-Smith, to highlight the principle that ."no man is
qualified to adjudicate in any judicial proceedings in the
outcome of which he has a personal interest and this rule
applies no matter how exalted the tribunal or how trivial the
interest may be".

Learned Attorney-General submitted that these lofty


principles of justice have all along been. followed by the
superior Courts of Pakistan, and referred to the case of.
Anwar and another v. The Crown (P L D 1955 F C 185) in
which the following observations were made:

"There is a species of bias which vitiates judicial proceedings


irrespective of the correctness or otherwise of the result,
but that is not because bias, whatever form it may assume,
avoids the result of judicial proceedings, but because the
Judge with that kind of bias is, on grounds of public policy,
disqualified to be a Judge. Thus, no Judge can be a Judge in
his own cause, or in, a case in which he is personally
interested, not because his decision must invariably be in.
his own favour but on the principle that justice must not
only be done but seen to be done, and however right the
Judge deciding a cause in his own favour may be, neither the
public nor the aggrieved party will be satisfied with the
adjudication, and its result will be vacated by the Court of
Appeal at the instance of the dissatisfied party. Instances of
such bias are recognised in our law in section 556 of the
Code of Criminal Procedure, and will also be found in Dimes
v. The Grand Junction Canal (1852) H.L.C. 759-794 and Rex v.
Sussex Justices (1924) 1 K.B. 256."

Learned Attorney-General also relied on the decision of this


Court in Fazal-e-Haq, Accountant-General. West Pakistan v.,
The State P L D 1960 S C (Pak.) 295 wherein suo motu
proceedings for a writ of mandamus were initiated by the
High Court and the Supreme Court held that "the entire
proceeding in this case is misconceived and void and there
has been violation of two important juridical principles; (1)
that the extraordinary jurisdiction relating to a writ can only
be exercised by the High Court when moved by a party
whose legal rights have been denied; and i1~ in this case the
High Court as a whole considered itself aggrieved by the
objection of the Accountant General in taking the action, it
has violated (Z2 the principle that nobody should sit as a
Judge of his own cause".

Learned Attorney-General, however, explained that when a


general challenge is made against the dissolutions of the
National Assembly of Pakistan and the Provincial Assemblies
and to the legitimacy of the Governmental set up and to the
validity of its acts and deeds, the principle of interest and
bias would not. be attracted, but after the decision of the
Court if some of those very issues are once again before the
Court with the reasons and the findings of the Court having
become known through a detailed judgment, the implication
of bias and interest would surely be attracted. In this regard,
learned Attorney-General drew our attention to the case of
Miss Asma Jilani v. The Government of the Punjab and
another P L D 1972 S C 139 wherein legitimacy of usurper
was an issue, and the Judges appointed by the usurper
participated in the decision. Learned Attorney-General
emphasised that if the principle of condonation of certain
acts of the usurper, including appointment of the Judges,
had not been applied in that case, the principle of interest
and bias was certainly attracted.

Learned .Attorney-General has indeed referred to a very


well-settled and salutary principle of high standing . relating
to administration of justice and to the cause of judicial
adjudication. The superior Courts of Pakistan have always
maintained and applied these lofty principles. and as an
established practice, if even a simple mention is made on
behalf of a party to the litigation that an interest or bias of
even the slightest magnitude may perhaps be T `1 involved,
the Presiding; Judge or a member of the Bench, unless
,satisfied that it is a mala fide plea, unhesitantly withdraws
himself from the cause for the reason of public policy and
aherence to the above principles, rather than the actuality
of the personal interest or a bias affecting him.
The request made in the miscellaneous petition under
consideration is founded on these principles, for, the central
issue involved in the main Review Petition is the validity of
the appointments made between 29-5-1988 and 2-12-1988
by the President which were required to be made on the
advice of the Prime Minister and, it is urged on the basis of
the dictum laid down by this Court in the main judgment in
Federation of Pakistan v. Muhammad Saifullah Khan P L D
1988 S C 166 that the formation and the functioning of a
Caretaker Cabinet without a Prime Minister was in violation
of the Constitutional requirement under Article 48(5)(b). It is
for this reason that it is submitted that the participation of
three Hon'ble judges of this Bench who are likely to be
affected by the aforesaid judgment of this Court, and by the
decision in the Review Petition, one way or the other, may
not participate in the adjudication of the matter, "in view of
the high traditions and principles of nature justice
universally accepted that no one should act as a Judge in his
own cause".

The prayer is founded on the glorious traditions of this Court


which have always been the hallmark of the administration
of justice in this country. It is in that sense that 1 have
understood the prayer and I cannot persuade myself to
agree with the observations made by my brother Shafiur
Rahman, J. that "the Federation of Pakistan by repeating
such an application has menifested an attitude of
instransigence insisting that its Press Release should be
respected, implemented and honoured first and
reconstituting the Bench which is to hear the matter and a
decision should be given thereafter under its umbrella".

However, I feel that reference is necessary to certain judicial


principles which have agitated my mind. As I read the prayer
made in the Miscellaneous Petition under consideration, it is
indeed for a direction being issued by nine Judges of this
Court constituting the Bench, to the rest three Hon'ble
Judges of the Bench not to deal with and hear the main
Review Petition on the ground that they would virtually be
Judges in their own cause. The question therefore is
whether it is proper for the Bench of this Court to deal with
an application wherein such a direction is prayed for.

Now it may be noticed that the Supreme Court, as a body


under the Constitution, consists of a Chief Justice and the
Judges of that Court, and each Judge is vested with the
judicial powers equal to any other Judge, even for that
matter, the Chief Justice. There is, therefore, equal
distribution of judicial power among the Judges. According
to the Rules of the Court, the cases before the Court are
heard and decided by a Bench consisting of not less than
three Judges, to be nominated by the Chief Justice, except
for certain categories of cases which may be heard and
decided by a Bench of two Judges nominated by the Chief
Justice. The question that has agitated my mind is whether
nine out of twelve Judges of this Bench constituted by My
Lord the Chief Justice should deal with the prayer that nine
Judges of the Bench should direct the remaining three
Judges of the Bench not to participate in the hearing of the
Review Petition. I may refer to a well-settled position in law
that a writ under the Constitutional jurisdiction cannot be
issued by a High Court to itself, or a Judge of that Court on
the principle of necessity of maintaining a high degree of
comity among the Judges of the Superior Courts. This Court
highlighted this principle in the case of Mian Jamal Shah v.
Election Commission (P L D 1966 S C 1). That case arose out
of the judgment of a Full Bench of former High Court of
West Pakistan (Lahore Bench), and one of the questions
raised before the Full Bench was whether a writ under the
Constitutional jurisdiction could be issued against the
Election Commission which constituted of persons having
the status of Superior Judges, and as in particular the
Member, whose order was placed before the Full Bench for
judicial Review was himself a Judge of that High Court.
Learned Judges of the Full Bench agreed that no writ could
issue to a superior Court and this was clearly in accordance
with the direction derivable from the definitive provision of
Article 98 of the Constitution of 1962 that no order under
that Article shall issue to the Supreme Court or High Court.
But they found that the Member was persona designata in
the case and did not act as the Judge of the High Court and
relying on two cases from the English jurisdiction in which it
was held that certiorari could issue in respect of an order of
a High Court Judge acting as a Tribunal, they came to the
conclusion that the Member was 'subject to the control of
the High Court under Article 98 and is amenable to an order
passed by it under that Article'. Dealing with this situation,
Cornelius, C.J. referred to an observation in one of the
judgments cited by the Full Bench with reference to the idea
of a superior Court issuing a writ to itself viz., "the process
involves the rather ludicrous position that Judges are called
upon themselves to show cause to themselves' why their
orders should not be quashed". In this behalf Cornelius, C.J.
observed as under:

"In the present case, the order in question is made by a


Single Judge of the High Court acting as the relevant
authority, but it is conceivable that a statute may appoint a
Tribunal of say two or three High Court Judges to adjudicate
matters arising thereunder, and then indeed the aspect of
'ludicrousness' might arise if a writ were sought from a
Single Judge of the High Court to avoid actions by such
Tribunals. In a number of statutes in the United Kingdom
express provisions are included which avoid the writ
jurisdiction in relation to such adjudications, and it is a
matter for consideration whether such provisions should not
be made use of in Pakistan as well. Quite apart from the
aspect of 'ludicrousness' there are other and more weighty
considerations involved, such as the necessity of maintaining
a high degree of comity among the Judges of the Superior
Court, which could be urged in support of such a provision."

This principle was further highlighted by Muhammad Yaqub


All, C.J. in Abrar Hassan v. Government of Pakistan PLD 1976
SC 15 with these observations at pages 330 and 331 as
under:

"It is relevant in this connection to bear in mind that totality


of the jurisdiction conferred on a High Court by Constitution
and law is exercised by the individual group of Judges sitting
singly or in Benches. In this context each Judge is a High
Court. That explains why orders, judgments and decrees
passed and summons and warrants issued under the
direction of a Judge are expressed in the name of the High
Court and not in the name of the individual Judge. One may
also refer to Article 201 of the Constitution which lays down
that any decision of the High Court shall, to the extent it
decides a question of law or is based upon or enumerates a
principle of law, be binding on all Courts subordinate to it.
The decision rendered by the Judge of a High Court thus
carries the authority conferred by Constitution and law on
the High Court and not the authority of an individual Judge.
To my mind these provisions of the Constitution bring out
clearly that the term High Courts and Supreme Court used in
clause (5) of Article 199 includes Judges of these respective
Courts.

The policy of law that no writ will issue to a High Court and
Supreme Court is based on sound principles. If one Judge of
a High Court were to issue a writ to another Judge under
Article 199, the Judge to whom the writ is issued, may in
exercise of the same jurisdiction nullify the writ. This is the
logical consequence of the fact that High Courts and their
individual groups of Judges are invested with coordinate
jurisdiction. "

With reference to historical background and practice of


British Courts, from which writ jurisdiction was borrowed,
Muhammad Yaqub Ali, C.J. gave several reasons why writs
do not lie against the Judges of superior Courts, and finally
observed as under at pages 332 and 333:
"In consonance with this historical background, Judges of
the Supreme Court and High Courts were, in the 1956
Constitution. excluded from the definition of 'service of
Pakistan'. In the Constitution of 1962, a departure was made
and the Judges of superior Courts were not specifically
excluded and this pattern has been followed. in the 1973
Constitution. This, however, does not affect the legal status
of Judges. Se long as Judges of superior Courts act as
interpreters of law and Constitution and decide disputes not
only between citizen and citizen, but also between citizens
and State and exercise the power to strike down actions of
the State as without lawful authority, they do not fall in `the
category of agents and servants of the State to whom writs
may issue under Article 199. In my view, clause (5) of Article
199 is enacted to achieve this object.

Another reason why writs should not issue from one High
Court to another High Court and from one Judge to another
Judge of the same High Court is that such a course will
destroy the traditional high degree of comity among the
Judges of superior Courts which is essential for the smooth
and harmonious working of the superior Courts.
Observations to this effect will be found in the judgment
delivered by the Court in Mian Jamal Shah v. The Member,
Election Commission and others. This is one of the cases on
which Mr. Mumtaz Hussain relied in the course of his
address. The respect and amity which the Judges should
extend to each other will certainly be diminished if they
were to issue writs to each other.
Lastly, as I read the provisions of Article 199, they spell out
that a writ will not issue from one Judge of a High Court to
another Judge of the same Court. Article 199(1) confers
jurisdiction on High Courts to issue writs to persons
performing, within their territorial jurisdiction, functions in
connection with the affairs of the Federation, a Province or a
local authority. A High Court cannot therefore issue a writ to
a person performing functions in another province. This
restriction applies equally in case of High Courts as the
Judges who constitute these Courts perform their functions
outside the territorial jurisdiction of each other. The
exclusion of High Court from the definition of 'person' is,
therefore, not intended to debar a High Court from issuing
writs to other High Courts. This object is fully served by the
primary condition laid down in Article 199(1). What then is
the purpose of clause (5) of Article 199. Obviously, not to
debar a High Court from issuing a writ to itself. It is too
absurd -to contemplate that a writ could ever issue from the
'High Court of Lahore' to the 'High Court of Lahore'. A more
rational view is that clause (5) is intended to debar Judges of
the High Courts from issuing writs to each other. There is a
weighty reason in support of this view. If this bar is not there
then the judgments delivered by individual groups of Judges
of High Courts in different jurisdictions may in the final
event, be challenged, by litigants, under Article 199 as
without lawful authority on variety of grounds such as error
apparent on the face of the judgment, order or decree, bias,
mala fides etc. In this connection one should bear in mind
large number of decisions given by High Courts in the past
interfering with the orders passed by the Tribunals of
exclusive jurisdiction such as the orders passed by the
Rehabilitation Authorities, Custodian of Evacuee Property,
Settlement Authorities, Revenue Board etc. to which finality
was attached by Statute. These precedents will provide
ample girth to the jurisdiction of each Judge of the High
Courts to quash, under Article 199, judgments, decrees and
orders passed by other Judges of his Court. I do not see how
such a result can be avoided if we exclude Judges from the
term High Court and Supreme Court in clause (5) of Article
199.

I, however, do not mean to say that if a Judge has reached


the age of superannuation or is otherwise not qualified to
hold the office of a Judge of a superior Court, there is no
remedy at law against him. His capacity to hold the office
can be questioned in proper proceedings but not by a writ
under Article 199 of the Constitution. The judgment
delivered by a Judge who is not qualified to hold the office
may be brought before this Court on the ground that it is
not a judgment delivered by the High Court or it may be
challenged on the ground that the High Court is not properly
constituted because a judgeship is vacant."

The above views expressed by Cornelius, C.J. and


Muhammad Yaqub Ali, C.J. are weighty principles of law, and
I am clearly of the opinion that one set of Judges of this
Bench, which has been constituted by my Lord the Chief
Justice, cannot issue a direction to U the other set of Judges
or any of the Judges of this Bench, not to associate
themselves or himself in the hearing of the Review Petition. I
cannot conceive of a situation where one Judge of a Division
Bench constituted by my Lord the Chief Justice to hear a
case can direct the other Judge of the Bench not to hear the
case on the ground that he has a bias or an interest in the
case, or for that matter on any other ground whatsoever. If
this bar were not to exist, then it would amount to
permitting the Judges to destroy or take away the judicial
function or power of each other, which position is neither
conceived nor permitted by the Constitution.

As already held by me the prayer made in the Miscellaneous


Petition under consideration is indeed for issue of a
direction by nine Judges of this Bench to the remaining three
Judges of the Bench which has been constituted by my Lord
the Chief Justice, not to hear the main Review Petition on
the ground that they would be acting as Judges in their own
cause. I have also remarked earlier that this is a very unusual
prayer - in fact a unique of its kind, with no precedent as I
know of - wherein some of the Judges hearing a cause or
dealing with a question whether the judgment rendered by
this Court to which they were the parties, has resulted in the
invalidity of their own appointment to the office as Judges,
and it is submitted that since this question touches upon the
legality of their own appointment, they should not associate
themselves with the case for the reason that they would
virtually be the Judges in their own cause. The prayer is not
founded on any ground of legal disqualification or incapacity
attached to the three Hon'ble Judges themselves, but is
based on the judicial propriety and glorious traditions of this
Court to which reference has already been made, and which
also find place in Article 4 of the Code of Conduct framed by
the Supreme Judicial Council that "a Judge must decline
resolutely to act in a case involving his own interest". I am,
therefore, clearly of the view that it is for the three Hon'ble
Judges of this Bench concerned, and not the rest 1W nine
Judges of the Bench, to decide in their judicious segacity and
wisdom whether they may participate in the proceedings of
the Review Petition.

I am conscious of the fact that the three Hon'ble Judges


have already expressed themselves in regard to the same
prayer that "they will not feel embarrassed to hear the
case", which is recorded in the order of My Lord the Chief
Justice; dated 16-5-1989. However, since the prayer has
been repeated in the Miscellaneous Petition, with the
additional prayer that "if the (first) prayer is not accepted by
this Hon'ble Court, the "Federal Government has instructed
that the Review Petition may be allowed to be withdrawn,
without prejudice to the contentions raised in the Review
Petition", the consideration thereof has become necessary
once again, for the decision of the Miscellaneous Petition.

I, therefore dispose of the Miscellaneous Petition with


these observations.