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Official Citation: 2024 IHC 64
Court / Jurisdiction: Islamabad High Court
Year of Decision: 2024
Decision Date: 2024-04-29
Parties: Bushra Imran Khan vs Federation of Pakistan through Secretary Ministry of Interior and Secretary Ministry of Defence & others
Ruling Summary: This decision was rendered by the Islamabad High Court on 2024-04-29, officially reported as 2024 IHC 64. In this matter between Bushra Imran Khan and Federation of Pakistan through Secretary Ministry of Interior and Secretary Ministry of Defence & others, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
Case cited as 2024IHC64
Court Name: Islamabad High Court Judge(s): Babar Sattar Title:Bushra Imran Khan vs Federation of Pakistan through Secretary Ministry of
Interior and Secretary Ministry of Defence & others Case No.: Writ Petition No. 2758/2023 Date of Judgment:2024-04-29 Reported As: 2024 IHC 64 Result: Order Accordingly Judgment Objection Case No. 8487, 8495, 8497, 8513 & 8548 of 2024 The office objections are overruled. Let the applications be numbered and fixed before the Court for today. C.Ms No. 1341, 1342, 1344, 1345 & 1346 of 2024. This order will decide C.Ms No. 1341, 1343 & 1344 of 2024 filed in above titled Writ Petition and C.Ms No. 1345 and 1346 of 2024 in Mian Najam-us-Saqib Vs. Federation of Pakistan (Writ Petition No. 1805 of 2023). Through these applications, the Federal Investigation Agency (FIA), the Intelligence Bureau (IB), Pakistan Telecommunication Authority (PTA) and Pakistan Electronic Media Regulatory Authority (PEMRA) have simultaneously sought the recusal of the Presiding Judge from adjudication of writ petitions 1805/2023 and 2758/2023. Grounds in the recusal applications 2. The common ground in the applications filed on behalf of FIA, IB and PTA is that the Presiding Judge is one of the six Judges of this Court, who authored a letter dated 25.03.2024 ("Letter"), addressed to members of the Supreme Judicial Council, in which "serious allegations in respect of operatives of agencies, especially ISI" were made. What is interesting in terms of CM No. 1343 of 2024 filed in W.P No. 2758/2023 by the FIA and CM 1345 of 2024 filed by IB in W.P No. 1805/2023 by the IB, is that text in various paragraphs of the two applications, filed obviously by two separate entities independent of one another, is identical, including a quotation of Lord Denning on the matter of bias. The application filed by PTA in addition waving the Letter as a ground for recusal also states that the Presiding Judge, in his capacity as a lawyer, in the past represented PTA as well as contended that the law firm AJURIS, Advocates and Corporate Counsel ("AJURIS"), of which the
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Presiding Judge was a partner prior to being appointed as Judge, acts as counsel in a case involving the issuance of commencement certificate, which has direct nexus with the subject- matter of the instant petition. In the application filed by PEMRA, the ground for transfer of the case is that the subject matter of the instant petitions overlaps with the subject-matter in Airways Media Pvt. Ltd. Vs. Pakistan Electronic Media Regulatory Authority (FAO No. 129/2019), which was decided by Bench-II of this Court by judgment dated 22.12.2021, and propriety therefore demands that the instant petition be heard by some other bench. Arguments of the learned counsels for the applicants 3. The Court asked the learned counsel for PEMRA as to how the judgment issued by another bench of this Court formed a basis for seeking transfer of the instant matter to the bench that had issued such judgment. Learned counsel for PEMRA was at a loss to respond with any legal argument. The Court asked the learned counsel for PEMRA as to why the principle laid down in Multiline Associates vs. Ardeshir Cowasjee (PLD 1995 SC 423) would not apply in the instant matter and why would there be any apprehension of conflicting judgments, when the judgment rendered in Airways Media would bind this Court under the principles of applying precedents enumerated in Multiline Associates. The learned Counsel for PEMRA had no response. He merely stated that the object of the application was to bring the decision in Airways Media to the attention of the Court. 4. As a matter of routine practice, the benches of a High Court continue to hear cases involving similar subject-matter and similar questions of law simultaneously. It is only where a particular order is under challenge in proceedings pending in different benches that the cases are consolidated to avoid conflicting judgments. However, merely because a question of law has been decided by another bench of the court in an earlier proceeding can never be a valid ground for transfer of a subsequent case to such bench. While deciding the case the High Court follows its precedents in terms of the law laid down in Multiline Associates. In a case where a bench of equal size disagrees with an earlier judgment of the Court issued by a bench of equal size and the bench seized of the matter has a different view on the question of law, the proper course is to seek the constitution of a larger bench that is not bound by the precedent in question due to its size. Instead of filing an application seeking recusal, PEMRA could simply refer to Airways Media while making its arguments. Given that PEMRA joined hands with FIA, IB and PTA in filing this application, it appears that the application, which is devoid of merit, has not been filed in good faith. There is no case with overlapping subject-matter that is pending before Bench-II of this Court that issued a judgment in the matter of Airways Media. Consequently, there is no basis for filing an application to seek the transfer of the instant matter to another bench. 5. Learned Additional Attorney General representing FIA has reiterated the grounds in FIA s recusal application. He which recusal was being sought and was asked to identify the part of the Letter that related to FIA. He read through the Letter and submitted that FIA found no mention in the said Letter, but that a general reference had been made to intelligence agencies. He was then asked if FIA was an intelligence agency, to which he responded in the negative and stated that FIA was an investigation agency. He was then asked whether FIA had any connection with the incidents mentioned in the Letter that referred to purported actions of ISI. The learned Additional Attorney General once again responded in the negative. He was asked what possible concern could FIA have with the Letter and how could the Letter form a basis for a motion by FIA seeking recusal of the Presiding Judge in the instant matters. He had no response. He was then asked as to who had authorized the filing of the application and whether FIA was acting as a proxy for ISI, which was not a party in the petitions pending before this Court. His answer was in the negative. He was unable to satisfy the Court as to why FIA would take offense to the Letter or any references therein to purported actions of ISI or why FIA felt that the Presiding Judge was disqualified from hearing the
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instant matter in which FIA, as per its own account, was inquiring into the allegation made by the petitioners pursuant to provisions of Prevention of Electronic Crimes Act, 2016 ("PECA"). 6. Learned Additional Attorney General also made arguments on behalf of IB, which were similar to those made on behalf of FIA. When asked if there was any particular of the Presiding Judge was being sought. His answer was in the negative. He, however, stated that a general reference to operatives of intelligence agencies and members of the executive had been made in the Letter. He was asked if it was IB s position that the Presiding Judge (and the other five judges who authored the Letter) ought to be deemed disqualified from hearing all cases involving the executive (i.e. the Federal Government). The learned Additional Attorney General was at a loss to come up with a coherent response. He was asked if IB was involved in any of the incidents mentioned in the Letter. He responded in the negative. He was asked if IB had no concern with the incidents mentioned in the Letter, why would it perceive that the Presiding Judge had any bias against the IB? The learned Additional Attorney General has no satisfactory response. He was then asked as to who had authorized the application, the content and grounds of which were identical to the application filed by FIA, and whether IB was acting as a proxy for ISI who is seeking recusal of the Presiding Judge, he sought assistance from Mr. Amjad Iqbal, Deputy Director, IB, who had signed the affidavit authorizing the application. Mr. Amjad Iqbal was asked as to who instructed and authorized him to file the application. After some hesitation, he submitted that Mr. Tariq Mehmood, Joint Director of IB, had instructed him to file the application. The learned Additional Attorney General was then asked to explain the framework within which IB works and who, in view of the law and IB's organizational structure, is vested with authority to initiate undertook to file a report for such purpose. Let him file such report within a period of 2 weeks. Let Mr. Tariq Mehmood, Joint Director of IB, also appear before the court on the next date of hearing and explain who had authorized him to instruct that the application be filed and/or under what legal authority had he issued such instruction. 7. Learned counsel for PTA was asked if he had seen the order of this court dated 14.03.2024, which had been referred to in the application for recusal, and which had documented the arguments of Mr. Irfan Qadir, ASC, who represented PTA in the last hearing and had objected to the Presiding Judge adjudicating the matter on the basis that prior to being appointed a judge, the Presiding Judge had represented PTA as well as telecom operators who were all respondents in these proceedings. He answered in the negative. He submitted that as he had been appointed recently and was unable to peruse the order of this Court dated 14.3.2024. He was asked to read paras 1 and 11 of order dated 14.3.2024, where the objection raised by PTA on the basis of prior work of the Presiding Judge in the telecom sector was recorded, which objection was then addressed in para 11 of the order. He was then asked whether PTA had filed any appeal against such order. He responded in the negative. When asked as to how a fresh application on a ground that had been raised and rejected by the court was maintainable, he had no response. 8. On the issue of AJURIS representing clients in the telecom industry and seeking commencement certificates on of the Presiding Judge as contended by PTA, this Court sought the assistance of the learned Attorney General for Pakistan, who was present in the Court to represent the Federation. The Court informed him that while the Presiding Judge was a partner in AJURIS while practicing as a lawyer, the Presiding Judge had no concern with AJURIS since his appointment as Judge in December 2020. The learned Attorney General volunteered that he was the senior partner of AJURIS, presently on leave while serving as Attorney General for Pakistan. He had checked with the active partners of AJURIS and had confirmed that AJURIS was pursuing no cases that had any similarity with or whose subject-matter overlapped with the subject matter in the instant cases. He submitted that the ground for recusal raised by PTA was not just legally invalid, but was also based on factually incorrect information.
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9. The learned counsel for PTA was asked as to what correlation did PTA have with ISI or what interest or concern did PTA have with the Letter, in view of which it was seeking the recusal of the Presiding Judge, especially given that PTA was an independent statutory authority and was not an intelligence agency. The learned counsel for PTA had no response to the question. Doctrinal basis for seeking the recusal of a Judge 10. Before we address the grounds raised in the applications, let us first consider the doctrinal basis for seeking recusal of a judge and the relevant jurisprudence on the subject that has evolved in Pakistan. 11. It is a settled proposition that Judges of the High Court (and the Supreme Court) are under an obligation to determine their own disqualification to hear a case as keepers of their conscience. There are two sources of law that provide guidelines for making such determination. The first is the legal rules that flow from the Constitution itself i.e. the oath of office of Judges prescribed by the Constitution and the code of conduct for judges prescribed by the Supreme Judicial Council and to be followed by the judges in view of Article 209(8) of the Constitution. The second source is the principles of equity essentially encapsulated by the maxims that (i) no one can be a judge in his own cause, and (ii) justice is not only to be done, but also to be seen to be done (which principle is also reiterated by the code of conduct for Judges). 12. A judge of the High Court swears an oath prescribed in terms of Article 194 of the Constitution and states, inter alia, that the judge will "abide by the code of conduct issued by the Supreme Judicial Council", not allow "personal interest" to influence "official conduct" and "official decisions", and that he/she will "do right to all manner of people, without fear or favor, affection or ill-will". Article IV of the Code of Conduct to be observed by Judges of the Supreme Court of Pakistan and the High Courts of Pakistan ("Code of Conduct") provides guidance for recusal and states the following: A Judge must decline resolutely to act in a case involving his own interest, including those of persons whom heregards and treats as near relatives or close friend. A Judge must rigidly refrain from entering into or continuing any business dealing, 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 or action in any case being swayed by any consideration of personal advantage, either direct or indirect. 13. Before we proceed to consider the principles guiding recusal as laid down by precedents, a few observations are warranted in view of the textual basis for recusal reproduced above. One, the Constitutional oath presents the concept of "personal interest" in contradistinction to "official conduct" and "official decisions". The personal interest of the individual occupying the office of a Judge can never be confused with the duty of a Judge to discharge the power and functions of his office "without fear or favor, affection or ill-will". This is both obvious and commonsensical. A Judge doesn t just have an interest in upholding the Constitution and the law, but has a duty to do so. This must never be misinterpreted as "personal interest". 14. Two, the duty to dispense justice "without fear or favor, affection or ill-will" focuses on the parties over whose interests he/she sits in judgment. The oath speaks of doing right "to all manner of people". And Article IV stipulates examples, in an explicatory form, of the persons or parties whose cases ought not be heard by a judge, including, have business dealings with, and parties (and/or their counsel) that he/she may be partial toward due to a personal connection. The guidance on recusal thus focusses on litigating parties in the context of the Judge s personal connection with
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them and not the subject-matter of the case being adjudicated. It is the identity of the party that is central to the question of recusal, whether in case of conflict of interest where the Judge is alleged to have an interest in the outcome of the case in favor of one party, or in case of bias where the Judge is deemed to have a state of mind adverse to a party. The subject-matter of a case or the views of a Judge in relation to such subject-matter, whether expressed in past judgments or otherwise, is never a ground for recusal. 15. And three, the Constitution and the law do not vest in a litigating party the right to demand the recusal of a Judge, but instead place the obligation of seeking recusal on the Judge. This is why it has been held that a Judge is the keeper of his/her own conscience. The need to recuse flows from the consciousness and the conscience of the Judge. It is he/she who is best placed to know who is a near relative or a close friend or that he/she may be partial toward a party or a lawyer, even without such matters having been disclosed or being common knowledge. The concept of self- recusal is rooted in the assumption that a Judge, as a public official, will always act in good faith and recuse himself/herself even when no one knows that grounds for recusal exist. 16. The grounds for recusal are sometimes articulated in terms of the bias/partiality of a Judge and at times in terms recently in Abid Shahid Zuberi vs. Federation of Pakistan (2023 SCMR 2028) that "conflict of interest and bias are indeed two distinct grounds on which a party may seek the recusal of a Judge from hearing a case. Whilst conflict of interest is related to the Judge s interest in the subject matter of a particular case, bias is concerned with his state of mind and his feelings towards the parties appearing before him." Whether one speaks of bias (i.e. Judge's state of mind) or conflict of interest (i.e. Judge's personal or pecuniary interest lined to the outcome of the matter), the underlying concern is the same: the inability of a judge to be a neutral arbiter of the law in view of his/her partiality toward a party whose claim he/she is adjudicating or the Judge's personal interest in the outcome of the matter. In a case where the Judge has a personal or pecuniary interest in the outcome of the matter, his/her disqualification is automatic and he/she has no discretion to decide otherwise. In a case where his/her connection with a party forms the basis for recusal, it is for the Judge to determine whether such connection exists. Jurisprudence on the matter enumerates the tests to be applied by the Judge to determine whether or not he/she ought to hear a case. Such cases fall within the domain of conflict of interest. Where the ground for recusal is bias, it is once again for the Judge to determine whether a case for recusal is made out, in view of the facts presented before him/her. Definition of Bias 17. Bias is defined as a mental attitude toward a personal hostility or prejudice. In Asif Ali Zardari and another v. The State (PLD 2001 SC 568), the Supreme Court cited Corpus Juris Secundum (Volume X pp. 354 and 355), which provides that bias is "a condition of mind; and has been referred, not to views entertained regarding a particular subject matter, but to mental attitude or disposition toward a particular person, and to cover all varieties of personal hostility or prejudice against him". Thus, the disposition of the judge towards a particular litigating party rather than a disposition towards a particular view-point on a subject matter is referred to as bias. 18. This notion was reiterated by in Muzaffar Hussain v. The Superintendent of Police, District Sialkot (2002 PLC (C.S.) 442), wherein the Black s Law Dictionary was cited for the proposition that bias is a "disposition of the Judge towards a party to the litigation and not to any views that he may entertain regarding the subject-matter involved." It is sometimes mistakenly assumed that a judge must hold no views on matters that affect the polity. The consciousness of a judge, like any other person, is shaped by his/her circumstances, education, experiences etc. It is both delusional and counterproductive to expect Judges to be viewpoint neutral. To be viewpoint neutral would equally mean that Judges must have no sense of right and wrong.
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19. For a judge to be viewpoint neutral or amoral would be a serious disqualification. The Code of Conduct is laced with the obligation of a judge to be a moral being. Just as an example, it requires a judge to "present before the public an is that a Judge is duty-bound to makes decisions with regard to right and wrong in accordance with the Constitution and the law. And to the extent that his/her personal morality comes in conflict with the morality of the law, the latter must trump the former. A Judge is never neutral when it comes to right and wrong as defined by the law and the Constitution. He/she is neutral only in terms of applying notions of right and wrong to the parties before the court. 20. It is thus that the notion of bias, for purposes of recusal, focusses on the identity of parties and not the subject-matter of the case. For example, it cannot be argued that a Judge is biased because he/she believes in the supremacy of the Constitution and abhors constitutional deviance, including imposition of martial law. A Judge is duty bound to uphold and protect the Constitution and cannot be indifferent to whether or not the Constitution lives or dies. Parliamentary democracy and government through chosen representatives of people is a salient feature of the Constitution. A Judge can therefore not be apathetic toward the principle of civilian control of the military as explicitly prescribed by Article 243 of the Constitution. The Constitution mandates independence of the Judiciary within a scheme of trichotomy of powers. A Judge cannot be indifferent toward these foundational constitutional principles. He/she has a duty to protect, defend and uphold them. Personal /Pecuniary Interest and Bias 21. No man can judge his own case (nemo judgex in re sua) is a settled principle of fairness. A judge cannot he has the training and wherewithal to decide the matter unaffected by such interest. This is because justice must not only be done but must also be seen to be done. In Anwar and another v. The Crown (PLD 1955 FC 185) it was held that "no Judge can be a Judge in his own cause, or in a case in which he is personally interested." It was held in Asif Ali Zardari Vs. The State (PLD 2001 SC 568) that, "a judge may have a bias in the subject-matter which means that he is himself a party or has direct connection with the litigation". 22. If a Judge has a pecuniary interest in the matter before him, he/she stands automatically disqualified from hearing the case. In Anwar and another v. The Crown (PLD 1955 FC 185) the Federal Court explained that, "pecuniary interest in the cause, however slight, will disqualify the Judge, even though it is not proved that the decision has in fact been affected by reason of such interest." In Mr. Zulfiqar Ali Bhutto and 3 others v. The State (PLD 1979 SC 38) the Supreme Court held that pecuniary or proprietary interest ... however small may be, is operative as a disqualification in the Judge". Ms. Benazir Bhutto v. The President of Pakistan (1992 SCMR 140) reaffirmed the judicial consensus that "a Judge having pecuniary or proprietary interest in the subject-matter of a case before him cannot hear the same". 23. Personal bias toward or against one party is sufficient for the finding of bias. In Anwar v. The Crown the Federal Court noted that a judge may have a personal bias towards a party owing to [a] relationship and the like [sic] or he may be personally hostile to a party". In Federal Government v. General (R) Parvez Musharraf (2014 PCr.LJ 684) the Supreme Court held that "a personal friendship or animosity between [a] Judge and any member of the public," who is before the Judge in a case, constitutes a sufficient basis for a finding of bias. 24. Disqualification for bias can also flow from clear exhibition of animosity by a Judge during adjudicatory proceedings. In Federal Land Commission and another v. Sardar Ashiq Muhammad Khan Mazarin and 37 others (1985 SCMR 317) in view of (1) substituted notice to respondents without justification, (2) inadequate nature of the notices that did not contain charges, (3) expedited nature of the proceedings displaying unholy haste , (4) not affording sufficient opportunity to one of the respondents to defend his case since he was undergoing treating in
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London, and (5) disregard for contentions of bias repeatedly made before the Chairman, it was found that proceedings were not held in a fair and impartial manner and were biased. 25. Gross improprieties in conducting the proceedings in favor of one party can also result in the finding of bias. In Asif Ali Zardari vs. The State (PLD 2001 SC 568) bias was inferred from, among other things, (1) the Judge getting a diplomatic visa without being so eligible, (2) not recording a statement of Benazir Bhutto even when she was available, (3) the transfer of Reference against Asif Ali Zardari from Lahore to Rawalpindi, and then sending a judge from Lahore to Rawalpindi, (4) the formation of a commission and sending documents, and (5) not allowing the defendant to appropriately defend its position. 26.It must be pointed out, as a general matter and without articulating a strict rule, that where the claim for bias is brought on the basis of facts that are external to the adjudicatory process (i.e. personal or…
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