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Petitioner: MR. ZULFIQAR ALI BHUTTO VS Respondent: THE TATE
Court Name: Lahore High Court Judge(s): K. Muhammad A. Samadani Title: MR. ZULFIQAR ALI BHUTTO vs THE TATE Case No.: Criminal Miscellaneous No, 3635/B of 1977 Date of Judgment:1977-09-12 Reported As: 1978 P Cr. L J 331 Result: Petitions dismissed
Judgment JUDGEMENT ' The petitioner has been arrested in connection with a case registered on the 11th of November 1974 on a report lodged with the police by Ahmed Raaz & kasuri the complainant. 2. According to the prosecution on the night between the 10th and 11th of November 1974, the complainant was way-laid while he was returning to his house in a car accompanied by his father and other relatives. An attempt was made on his life but be survived the assault. Ells father, however, received fatal injuries and died. 3. The allegation against the petitioner is that he abetted the commis-lion of this crime. The investigating agency has collected evidence in this case, but the investigation does not appear to have been concluded as yet and an incomplete challan has been filed in the Court. 4. From the material placed before me it appears that there is considerable circumstantial evidence indicating possible involvement of the petitioner in this case. But it as to be noted that most of the evidence so far collected is only circumstantial. As to the direct evidence of abetment, it consists of the statements of Masood Mahmood, co-accused supported to a certain extent by the statements of Saeed Ahmed Khan, a witness, and Mien Abbas, another co-accused. 5. Mr. M. Anwar, the learned Special Public Prosecutor has stated today that Masood Mebmood co- accused has been made an approver in this case and he is going to appear as a witness against the petitioner and the other accused. But again, it should be borne in mind that the testimony of an accomplice has a weak probative value in law although it is not illegal to base a conviction solely on such testimony. The Court has also been informed that further evidence is being collected, presumably documentary in nature.
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6. In these circumstances, I am of the opinion that at least for the time being the petitioner is entitled to bail. Ho Never, if any other piece of evidence cores to light which warrants cancellation of bail, it shall be open to the prosecution to move this Court in that behalf. 7. The petitioner is, therefore, directed to be released in this case on furnishing bail bonds in the sum of Re. 50,000 (fifty thousand only) with two sureties each in the like amount to the satisfaction of the Registrar of this Court. Petition allowed. 1978 P Cr. L .1 332 [Lahore] Before MUSHTAK Hussain, Actg. C. J., Zakluddin Pal, M. S. H. Qureshi, Aftab Hussain and Gulbaz Khan, JJ ZULFIQAR ALI BHUTTO-Petitioner versus Tea STATE-Respondent Criminal Miscellaneous Nos. 932/M and 933/M of 1977, decided on 9th October 1977. (a) Constltation of Pakistan (1973)- - Arta. 192 & 196-Chief Justice, vacancy in office of-Distinguishable from absence of Chief Justice or inability of C fief Justice to perform his functions-Appointment of Chief Justice as Acting Governor of Province-Does not amount to vacating of bis office by Chief Justice-Contention that Chief Justice having vacated his office and there being no Chief Justice in High Court, High Court ceased to be a High Court under Art. 192, held, misconceived. [P. 3304 (h) Coastitation of MIMI) (1973)- -- Art. 196 read with High Courts (Appointment of Acting Chief Justices) Order (President's Post Proclamation) Order 2 of 1977], el. (2)-Acting Chief Justice, appointment of-No contradiction in language of cl. (2) of Order and Art. 196 of Constitution-?Are fact of reference in order of appointment having been made to powers conferred by President's Order 2 of 1977, held, would not make order of appointment at an order beyond ambit of Art. 196-Argument that appointment not having been made under Art. 196 but under President's Order was of no consequence in any case, held further, hardly arises when question of legitimacy of Martial Law sub judical before Supreme Court. (p. 337)3 (c) Constitution of Pakistan (1973)- -- Art. 194-High Court Judges (Oath of Office) Order [President's (Post Proclamation) Order 1 of 19771-Supreme Court Judges (Oath of Office) Order [President's (Post Proclamation) Order 9 of 1977)- Oath-Acting Chief Justice and other Judges subscribing to oath prescribed under President's Order 1 of 1977, argument that Acting Chief Justice having not taken oath as required under Art., 194 of Constitution, if allowed to prevail, held, will be chastic for administration of justice and will lead to result of there being no superior Court in Pakistan-Unreasonable, artificial, or anomalous construction of law-To be avoided. (p. 337)C (d) Constitotion of Pakistan (1973)- --- Arts. 196, 195, 177, 207, 209. 213 & 216-Appointment of Judge as Chief Election Commissioner-Art. 216-Not to be construed in isolation but to be interpreted subject to qualifications and disqualifications contained in Arts. 207 & 213 and provisions about Judge's right to hold office till retirement under Art 195-Disqualification of a Judge to hold another office contained in Att. 207- Held, does not extend to his appointment as Chief Election Commissioner.- Tnterpretation of Constitution) [pp. 338, 341]D, E & F Rao Muhammad 4shfaq Khas v. Mr. Justice Mushtaq Hussain etc. Writ Petition No, 2141 of 1964 and Malik Ghulam Mani v. Mr. Justice Muhammad Gut Petition for Sprcial Leave to Appeal No, 16/P of 1974. (e) Al simnel Procedure ode (V of 189o)- -- S. 526-Transfer of criminal cases-Bias -Case under consideration, like several other cases, transferred to High Court for trial on original side on ground, inter alit: of personalities having held
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high offices being involved and a Bench of five Judges constituted by Acting Chief Justice for trial of case-Transfer of case being ordered in interest of justice and there being nothing singular or strange in order of transfer in view of importance of trial, constitution of a Bench of five Judges, held, should inspire more confidence rather than create any apprehension in mind of any party and petitioner's application about partiality and prejudice of Acting Chief Justice not at all reasonable on such ground.--[Bias). [p. 341)G ( f ) Crinisal Procedure Cole (V of 18911)- -- S. 526 read with Ss. 173 & 160-Transfer of criminal cases-Police challan though incomplete yet revealing facts constituting an offence, naming large number of prosecution witnesses and disclosing names of accused-Such challan a report under S. 173-Magistrate competent to take cognizance of offence on basis of such report and to transfer same to Sessions Court for trial and actually transferring case to Sessions Court-No hurdle in circumstances for transfer of case from Sessions Court to High Court, and transfer in circumstances not hasty. [p. 34211 Zaffar Samar v. State 1969 SCMR 59 ; Water v. State PLD 1962 Lab. 405 ; Ata Muhammad v. Inspector-General of Pollee PLD 1905 Lab. 734 and Muhammad Akbar v. The State 1970 SCMR 335 ref. (8) Criminal Procedure Code (V of 1898)- -- S. 526-Transfer of criminal cases-Bias-Allegation of bias levelled on account of a resolution passed against Chief Election Commissioner by Central Executive of accused petitioner's political party-Chief Election Commissioner's feeling prejudiced against accused on passing of such resolution,-Not conceivable--Chief Election Commissioner admitted in accused's petition to have denied allegations of partisanship and bias in a press report in respect of observations leading to passing of resolution and observations of Chief Election Commissioner clarified to have been supported by record of Election Commission-Election Commission deciding to ignore allegations and not taking action under Contempt of Courts Act-Commission further clarifying to be always prepared to act upon constructive suggestions from all quarters-Conduct of Election Commission, held, sufficient to allay any apprehension on part of accused and his party-Insinuation in resolution of accused's party that bias may have resulted from supersession of Acting Chief Justice (then a mere justice) at time of appointment of Chief Justice -Such insinuation though not made before Supreme Court in transfer application, yet would not furnish any reason for apprehension due to a number of Judges having been superseded and Acting Chief Justice not alone singled out for purpose-Accused expressing his fullest confidence in Bench when challan case put for hearing, accused held could not have entertained any apprehension about possibility of not getting a fair trial.--[Hiss). [p. 343j1 (h) CrIminal Procedure code V of 1895)- --- S 526(1), (3) & (61-Transfer of criminal case i-Notice -High Court, held, authorised to transfer a criminal case in interest of justice to its own file either suo motu or on application of a party and no notice required to be given to accused under law. [p. 343J1 (0 Criminal Procedure Code (V ct 1898)- --- S. 526-Transfer of criminal oases-Bias-Principle of bias appli cable either on basis of maxim "nemo debet esse judex in propria causa" (n3 man can be a judge in his own cause) or where Judge has slightest pecuniary or proprietary interest in subject-matter of proceedings-Reed likelihood of bias-Held, must be established in all other cases for challenge to succeed.-- (Maxims- Bias), (p. 3401 President v. Mr. Justice Shaukat Al! PLD 1971 SC 585 re. Ghulam Ali Memon and .Boat Muhammad Awan for Petitioner. M. Anwar (now late), M. A, Rehman and Ijaz Hussain Batalvi!, Special Public Prosecutors for the State.
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JUDGEMENT ' A PTAS HueslIN, J.-This order will give reasons for disposal of Criminal Milo. Nos. 932/Mt and 93304 of 1977 which have already been dismissed by a short order. 2. During the hearing of petition for cancellation of the bail granted to accused No, 1 (Criminal Misc. No, 3854/8 of 1977). Mr. Ghulam Ali Memon stated at the bar that an objection about the constitution of this Court was taken on behalf of the accused petitioner before the Supreme Court of Pakistan in a petition for special leave to appeal on which their Lordships of the Supreme Court were pleased to direct that these points be taken before the Full Bench constituted to try the challan case. He drew the attention of the Bench to the order dated the 24th of September, 1977, passed by the Supreme Court to this effect. Mr. Memon was directed to take these objections in writing by a duly drafted petition. The above-mentioned two petitions were submitted in pursuance of the above direction on the 4th of October 1977. In the first petition the following objections have been raised: (1) After his appointment as Governor, Mr. Justice Aslam Riaz Hussain continued to hold the office of Chief Justice to the 13th of July, 1977, when the "President on the advice of Chief of the Army Staff (for which there is no sanction in the Constitution, and contrary to the provisions of Article 48 of the Constitution) appointed an Acting Chief Justice. From that date Mr. Justice Aslam xiaz Hussain ceased to hold the office of the Chief Justice of the Lahore High Court, since there is no Chief Justice in this Court it ceases to be a High Court under Article 192 of the Constitution. (2) That the Acting Chief Justice did not take oath as required by Article 194 of the Constitution. (3) That after his appointment as Election Commissioner on the 16th of July, 1977, and in any case on assumption of that office by him with effect from the 17th of July 1977, he ceased to hold the office of Acting Chief Justice in view of Article 216 of the Constitution. 3. In the second petition allegations of bias have been levelled against the Acting Chief Justice on the ground that the Central Executive of the Pakistan People's Party in its meetings held under the chairmanship of the accused petitioner expressed the opinion that the Chief Election Commissioner was prejudiced and partial against the Pakistan People's Party and that combining the o ce of the Chief Election Commissioner with that of Chief Justice of the largest High Court in the country "is a travesty of Justice." Some portion of this resolution is reproduced in which there is an insinuation that the Chief Election Commissioner entertained bias on account of his supersession by the People's Party Government. 4. It is further stated that the apprehension about partiality and prejudice is enhat cad by his order transferring the challan case (Criminal Original No, 60 of 1977) from the lower Court to the High Court on the same day when the order of bail of the petitioner was passed. There is a further complaint that despite the fact that a private complaint on the same facts was being heard by a Division Bench, the Acting Chief Justice considered it necessary to constitute a Bench of five judges for trial of the challan cue. 5. Another ground of apprehension is that the order of transfer was made without hearing the petitioner. 6. It may be stated at this stage that the only point on which bias of the Acting Chid Justice was alleged before the Supreme Court pertaining to criticism about his appointment as the Chief Election Commissioner and not to the supersession of any judge by the Peoples Party Government at the time of appointment of Chief Justice which was rendered necessary by the retirement of presumably Mr. Justice Sardar Mohammad Iqbal. 7. Mr. Ghulam All demon, addressed arguments on an additional point about the illegitimacy of the present Martial Law in view of Miss Asma v. The Government of the Punjab and another (1). According to the learned counsel this is the basic point which requires consideration since a
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decision on it, in favour of the petitioner, would render ultra vlres of the Constitution, the imposition of Martial Law in the country, the suspend sion of the Constitution and the governance of the country by the Laws (Continuance in Force) Order, President's Orders, or the Martial Law Regulations and Orders. 8. It will not be apt to give a judgment on this particular question. The Supreme Court judgment, referred to above directing the petitioner to raise the points of constitution of the Court before this Court does not include this point, nor has it been agitated in any of the two petitions Cr. M. 932/M. And Cr. 933/M of 1977. It appears that the Supreme Court which is seized of this matter in a petition filed by the petitioner's wife directly in that Ccuit, did not consider it fit to let it be the subject-matter of controversy simultaneously in any parallel forum. In these circumstatces, any decision of this controversy raised by the accused will not only amount to pre-empting the decision of the highest Court of the country but will be against the spirit of its order. 9. The other point is based on the assumption that by his appointment as Acting Governor Mr. Justice Aslam Riaz Hussain ceased to hold the office of the Chief Justice. Nothing is farther from the truth. According to Article 196 of the Constitution an Action Chief Justice can be appointed either when the office of Chief Justice is vacant or when the Chief Justice of a High Court is absent or is unable to perform the functions of his office due to any other cause. It is not essential for the appointment of Acting Chief Justice that the office of the Chief Justice must be vacant. An Acting Chief Justice can be appointed even when the Chief Justice holds office provided he is rendered unable to perform the functions of his office. The holding of the office of Chief Justice and ability to perform functions of the office flows and is a necessary corollary to the holding of the office of the Chief Justice, the converse is not true. The holder of an office may be rendered unable to perform his functions by a variety of reasons which need not be enumerated or even illustrated but there is no legal justification for holding that by this inability he ceases to hold his office or that the office becomes vacant. It is for this reason that Article 196 distinguishes between vacancy in the office of the Chief Justice on the one hand and his absence or inability to perform his functions on the other. It does not treat "inability to perform functions" as synonymous with vacancy in the office. 10. It appears that appointment of an Acting Chief Justice has been considered necessary in this Court (as also other High Courts) on account of the appointment of Chief Justice as an Acting Governor of the province and his consequential liability to perform .The functions of the office of Chief Justice. This appointment of the Chief Justice as Acting Governor does not, therefore, amount to his vacating the office of the Chief Justice. The argument in regard to the constitution of the Court is clearly untenable. 11. No objection was taken to the appointment of the Chief Justice {{FOOT NOTE}} (1)PLD 1972 SC 139 {{FOOT NOTE}} as Acting Governor. Even if there had been any such objection that would hardly refloot on the Chief Justice continuing to hold his office as Chief Justice. The quo warran!o could he claimed only in regard to the o subsequently entrusted to him. It will therefore, be preposterous to hold that there is no High Court in the Punjab. 12. Nor can any valid objection be taken to the appointment of the Acting Chief Justice in these circumstances. The Acting Chief Justices in ali the High Courts have been appointed by the President of Pakistan in exercise of the powers conferred upon him by Article 2 of the High Court (Appointment of Acting Chief Justice) Order, 1977 (Post Proclamation Order No, 2 of 1977). It is under this Order that the Acting Chief Justice was appointed as such with effect from the 13th of July, 1977. This Order confers powers on th President by its Clause (2) to appoint an Acting Chief Justice when the Chief Justice of a High Court is acting as a Governor of a Province. There does B not appear to
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be any contradiction in the language of clause (2) of this Order and Article 196 of the Constitution since under that Article the appointment of an Acting Chief Justice may be necessary on account of inability of the Chief Justice to perform the functions as such. The mere fact that the reference in the order of appointment has been made to the powers conferred by the President's (Post- Proclamation) Order No, 2 of 1977 does not make the order of appointment as an order beyond the ambit of Article 196 of the. Constitution. In any case the argument that the appointment is of no consequence for reason of its having been passed under Order 2 rather than under the Constitution hardly arises during the period that the question of legitimacy of Martial Law is subJucdie before the Supreme Court of Pakistan. 13. It was urged that the High Court (Appointment of Acting Chief Justice) Order. 1977, was not retrospective in character. This argument is not relevant since the above Order was enforced on the 13th of July, 1977, on which date my Lord tte Acting Chief Justice was appointed. The appointment synchronises with the date of enforcement of the above Order. 14. The next challenge is to the oath subscribed to by the Acting Chief Justice at the time of assumption of his office. The only objection is that the Acting Chief Justice did not subscribe to the oath as required under Article 194 of the Constitution. This objection cannot be sustained in view of the High Court Judges (Oath of Office) Order, 1977 President's (Post-Proclamation) Order No, 1 of 1977. The oath of oli cc prescribed therein is administrable to the Acting Chief Justice under clause (5) of the High Court (Appointment of Acting Chief Justices) Order, 1977. A similar oath is required to be administered to all the Judges of the Supreme Court by virtue of Supreme Court Judges (Oath of Office) Order, 1977 enforced o the 22nd September 1977- All the Judges of the Supreme Court including his Lordship the Chief Justice have already subscribed to such an oath. The argument of the learned counsel, if allowed to prevail, will be chaotic for the C administration of justice in the country since it will lead to the result that there is no superior Court in Pakistan. Any construction of law which unreasonable or artificial or anamolous should be avoided. In view of the rule I cannot conceive of a construction which may result in anarchy and complete absence of forum for administration of law and justice. 15. The learned counsel finally argued on Criminal :Mac. No, 932/M of 1977 that by the appointment of the Actirg Chief _Justice as the Chief ' Election Commissioner he has ceased to hold the office of the Acting Chief Justice in view of Article 216 of the Constitution which is as follows:- (1) The Commissioner shall not- (a) hold any other office of profit in the service of Pakistani or (b) occupy any other position carrying the right to remuneration for the rendering of service. (2) A person who has held office as Commissioner shall not hold any office of profit in the service of Pakistan before the expiration of two years after he has ceased to hold that office: ' Provided that: (a) This clause shall not be construed as preventing a person who was a Judge of the Supreme Court or of a High Court immediately before his appointment as Commissioner from resuming his duties as such Judge on the expiration of his term as Commissioner ; and 16. It was argued that since the Chief Eiection Commissioner is debarred from holding any other office of profit in the service of Pakistan or from occupying any other position carrying a right to remuneration for rendering of services, the result of assumpti3n of this office is that the Chief Election Commissioner ceases to hold the office of the Acting Chief Justice. 17. Article 213 provides that no person shall be appointed to be a Chief Election. Commissioner unless he is or has been, a Judge of the Supreme Court or is, or has been, a Judge of a High Court and is qualified under paragraph (a) of clause (2) of Article 177 to be appointed a Judge of the Supreme Court. Clearly, therefore. Person holding office as a Judge of the High Court can be
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appointed as a Chief Election Commissioner. The manner in which a Judge of a High Court ceases to hold office is provided in Article 195 which says that he shall hold office "until he attains the age of 62 years, unless he sooner resigns or is removed from office in accordance with the Constitution." A Judge, therefore, retains his office till the date of his superannuation, resignation or removal. 18. The mode of removal of a Judge of a High Court from his office is provided in Article 209 of the Constitution which deals with the constitution and powers of the Supreme Judicial Council of Pakistan. In sub-Article (7) it is specifically provided that "a Judge of the Supreme Court or a High D Court shall not be removed from office except as provided by the Article". Attainment of age of superannuation, resignation or removal from office being the only method by which a person ceases to hold office as a Judge, it cannot be urged with any amount of success that the appointment of a Judge as a Chief Election Commissioner creates automatically a vacancy in the High Court. 19. The disqualification to hold any other office of profit is not confined to the case of the Chief Election Commissioner. By Article 207 a Judge of the High Court also is disqualified from holding any other office of profit in the service of Pakistan if his remuneration is thereby increased or from occupying any other position carrying the right to remuneration for the rendering of services. An exception is, however, made inter din in regard to the office of the Chief Election Commissioner. Sub-Article (2) of this Article provides that a person who had held office as a Judge is competent to hold the office of the Chief Election Commissioner despite his disqualification to hold any office of profit in the service of Pakistan before the expiration of two years after he has ceased to hold that office. Thus despite the b provided in sub-Article (1) a serving Judge can be appointed as Chief Election Commissioner. 20. The question is whether he ceases to be a Judge by his appointment as Chief Election Commissioner. This leads to further query When the Judge ceases to hold office ? The answer is furnished by two cases, decided by the High Court of West Pakistan and the other decided by the Supreme Court. A writ petition Rao Muhammad Ashfaq Khan v. Mr. Justice Musht Hussain etc. (Writ Petition No, 2141 of 1964) was filed in the High Court of West Pakistan to question the continuance of Mushtaq Hussain, J. (as, his Lordship then was) as a Judge of the High Court after his appointras Secretary, Ministry of Law and Parliamentary Affairs in the Government of Pakistan. It was urged on behalf of the petitioner that by assumption of the office of the Law…
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