491 can file non agreived party

1990 P Cr. L J 1231
[Karachi]
Before Ajmal Mian, CJ and
Mukhtar Ahmad Junejo, J
JUVENILE JAIL, LANDHI KARACHI in Re: (Suo motu notice)
Criminal Miscellaneous No. 245 of 1989 (suo motu), decided on 23rd August 1989.
(a) Constitution of Pakistan (1973)
----Art. 199(1)(a)---Criminal Procedure Code (V of 1898) S.491---Petitioner in order to maintain a petition for reliefs specified in sub-clauses (i) & (ii) of clause (a) of Art.199(1) of the Constitution will have to show that he is an aggrieved party, whereas a habeas corpus petition or a petition for quo warrant can be filed by any person without showing that he is an aggrieved person.
Fazal-e-Haq, Accountant-General, West Pakistan v. The State P L D 1960 SC (Pak.) 295; Islamic Republic of Pakistan v. Muhammad Saeed P L D 1961 SC 192 and Shahnaz Begum v. The Honourable Judges of the High Court of Sindh and Balochistan and another P L D 11) 71 SC 67"1 ref.
(b) Constitution of Pakistan (1973)
----Art. 199(1)(a)---Expression `aggrieved party' has to be given liberal construction.
Mian Fazal Din v. Lahore Improvement Trust, Lahore and another P L D 1969 SC 223; Miss Benarir Bhutto v. Federation of Pakistan and another P L D 1988 SC 416; Begum Nazir Abdul Hamid v. Pakistan (Federal Government) through the Secretary, Interior Division, Islamabad and another P L D 1974 Lah. 7 and Inayat Bibi etc. v. Assistant Settlement Commissioner and Chief Settlement Commissioner P L D 1978 Lah. 252 ref.
(c) Constitution of Pakistan (1973)
----Art. 199---High Court under Art 199 cannot initiate proceedings suo Motu for grant of any of the reliefs provided for in the Article.
(d) Criminal Procedure Code (V of 1898)
----S. 491---Section 491, Cr.P.C. does not provide that the directions referred to in it can only be issued on an application filed in High Court---Words `whenever it thinks fit, direct' are of wide connotation and do not provide any pre-condition for pressing into service the power contained in S.491, Cr.P.C.
(e) Criminal Procedure Code (V of 1898)
----S. 491---High Court under S.491, Cr.P.C. on the basis of inspection of a Judge can initiate proceedings on the judicial side without any application to ensure that the prisoners are treated in terms of Jail Manual and other relevant laws.
Fazal-e-Haq, Accountant-General, West Pakistan v. The State P L D 1960 SC (Pak.) 295; Islamic Republic of Pakistan v. Muhammad Saeed P L D 1961 SC 192; Shahnaz Begum v. The Honourable Judges of the High Court of Sindh and Balochistan and another P L D 1971 SC 677; Mian Fa7a1 Din v. Lahore Improvement Trust, Lahore and another P L D 1969 SC 223; Miss Benazir Bhutto v. Federation of Pakistan and another P L D 1988 SC 416; Begum Nazir Abdul Hamid v. Pakistan (Federal Government) through the Secretary, Interior Division, Islamabad and another P L D 1974 Lah. 7; Inayat Bibi etc.. v. Assistant Settlement Commissioner and Chief Settlement Commissioner P L D 1978 Lah. 252; Llewelyn Evans A I R 1926 Born. 551; Sukhdev Raj v. Emperor A I R 1931 Lah 562; Sunil Balra v. Delhi Administration A I R 1980 SC 1579; Sardar Attaullah Mengal v. The State and others P L D 1965 (W.P.) Kar 320; Zia-ud-­Din v. Superintendent Camp Jail and another P L D 1976 Lah. 93 and Mrs. Bushra Aitzaz Ahsan v. Superintendent Jail, Kot Lakhpat Lahore and others 1982 P Cr. L J 683 ref.
Imdad Hussain v. Noor Hassan and 5 others P L D 1974 Kar. 485 "distinguished.
(f) Criminal Procedure Code (V of 1898)
----S. 561-A---Section 561-A, Cr.P.C. can be invoked in relation to a proceeding pending in some Court.
Shahnaz Begum v The Honourable Judges of the High Court of Sindh and Balochistan and another P L D 1971 SC 677 ref
(g) Constitution of Pakistan (1973)
----Arts. 4 & 14---Criminal Procedure Code (V of 1898) S.491---Court has to adopt activist approach in a case involving interest of public-at-large relating to an issue of public importance in order to discharge its solemn obligation of protecting Constitutional rights guaranteed to people and should not decline to press into service its jurisdiction under S.491, Cr.P.C. merely on technicalities of not having been approached by an aggrieved person.
(h) Criminal Procedure Code (V of 1898)
----S. 491---Fact that a proceeding under S.491, Cr.P.C. is to be initiated by High Court as a result of inspection of a prison by a Judge because of his noticing some matter which needed to be attended to on judicial side, will not disqualify him from proceeding with the judicial proceedings, unless it is shown that he has some personal bias or personal interest which renders him incapable of dealing with the matter impartially.
Fazal-e-Haq, Accountant-General, West Pakistan v. The State P L D 1960 SC (Pak.) 295; Islamic Republic of Pakistan through Secretary, Ministry of Interior and Kashmir Affairs, Islamabad v. Abdul Wali Khan, M.N.A. former President of Defunct National Awami Party P L D 1976 SC 57; Federation of Pakistan v. Hazoor Bakhsh and 2 others P L D 1983 FSC 255; Pakistan v. Muhammad Akram Shaikh Criminal Petition No. 35/R of 1989; Muhammad Akram Shaikh v. Mr. Yahya Bakhtiar Criminal Miscellaneous Petition No.63/R of 1989 and P L D 1989 SC 229 ref. '
A.H. Lakho, A.-G., Sindh and S.A. Wadood Dy. A.-G. for the State.
Sabihuddin Ahmed and Makhdoom Ali Khan: Amicus curiae.
ORDER
AJMAL MIAN, C.J.--- One of us (Ajmal Mian, C.J) visited Juvenile Jail, Landhi, on 24-7-1989. After the above visit, on the basis of the above inspection it was thought that the following questions required consideration on the judicial side by this Court:
"(1) Whether a juvenile jail can be converted into a general jail?
(2) If the answer of the above first question is in the affirmative, further question arises, whether the juvenile offenders can R; lodged with the offenders above 18 years or 21 years of age who are charged with serious offences like murders and dacoities or should there be separate barracks in separate compound earmarked for juvenile offenders?
(3) Whether bar-fetters can be applied merely on the ground that an accused is facing trial in four cases involving serious offences without any previous conviction, and without his committing any disorderly act in the jail?
(4) Whether the bar-fetters can be applied for indefinite period namely from the date of entry till the conclusion of the trial or thereafter?
(5) Whether an offender can be chained 24 hours merely on the ground that jail authorities have assigned him night duty?
(6) What should be the order?
2. Since it was not clear that under what provisions of law this Court could consider the above question, one of us passed the following order:
"The above matter may be fixed for order before D.B.1 on 7-8-1989 after notice to the learned Advocate-General, learned Deputy Attonery­ General and Messrs Sabihuddin Ahmad and Makhdoom Ali Khan Advocates to assist the Court on the question, whether this Court can examine the above-framed questions on the judicial side under Article 199 of the Constitution and or under section 491, Cr.P.C. and or under any other provision of the Constitution or Cr.P.C. or any other law or rules."
3. In response to the notices issued by this Court, Mr. A. Hafeez Lakho, learned Advocate-General, Sindh, Mr. SA. Wadood, learned Deputy Attorney ­General, and Messrs Sabihuddin Ahmad and Makhdoom Ali Khan, advocates, appeared before us inter alia on 16-8-1989 and had made their submissions.
4. All the above learned counsel are unanimous on the point that this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (hereinafter referred to as the Constitution), cannot initiate any proceedings suo motu, as under clause (a) of para 1 of the above Article 199, it is prerequisite that an application is to be filed by an aggrieved party, whereas, under clause (b) of para 1 of the above Article, an application can be filed by any person. In support of their above submission, they have referred to the cases of (1) Fa?1-e-Haq, Accountant-General, West Pakistan v. The State reported in P L D 1960 S.C. (Pak.) 295, (2) Islamic Republic of Pakistan v. Muhammad Saeed reported in P L D 1961 S.C. 192, and (3) Shahnaz Begum v. The Hon'ble Judges of the High Court of Sindh and Balochistan and another reported in P L D 1971 S.C. 677.
5.It may be pointed out that the above clause (b) caters for unlawful detention cases and writ of quo warrant. In other words, in order to maintain a petition for reliefs specified in sub-clauses (i) and (ii) of clause (a), the petitioner will have to show that he is an aggrieved party, whereas, a habeas corpus petition or a petition for quo warrant can be filed by any person without showing that he is an aggrieved person. It may be pertinent to observe here that initially the expression "aggrieved party" was given a narrower interpretation by the superior Courts. However, after the monumental judgment of the Hon'ble Supreme Court in the case of Mian Fazal Din v. Lahore Improvement Trust, Lahore and another reported in P L D 1969 S.C. 223, the superior Courts have been placing liberal construction on the above term "an aggrieved party" used in clause (a) of para 1 of Article 199. The latest case on the point is the case of Miss Benazir Bhutto v. Federation of Pakistan and another reported in P L D 1988 SC 416, wherein, a new dimension has been given to the above expression. Reference may also be Juvenile Jail, Landhi: to the cases, namely, (1) Begum Nazir Abdul Hamid v. Pakistan (Federal Government) through the Secretary, Interior Division, Islamabad and another Inayat Bibi Et c. v. Assistant Settlement reported in P L D 1974 Lahore 7 and (2) Commissioner and Chief Settlement commissioner reported in P L D 1978 Lah. 252, referred to by Mr. A. Hafeez Lakho, learned Advocate-General.
6. The learned counsel also invited our attention to clause (3) of Article 184 of the Constitution which provides that, without prejudice to the provisions of Article 199, the Supreme Court shall, if it considers that a question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II is involved, have the power to make an order of the nature mentioned in the said Article."
7. It was submitted by the learned counsel that there is a marked difference between the phraseology of para (1)of Article 199 and above para (3) of Article 184, inasmuch as in the latter it has not been provided that the Supreme Court could press into service the above clause upon an application of an aggrieved party or a person. It has, therefore, been submitted that on the basis of the language employed in above sub-para (3) of Article 184, it can be reasonably contended that in order to press into service para (3) it is necessary that the Supreme Court should be moved by an aggrieved party or by a person. Since we are dealing with the jurisdiction of the High Court and not with the Hon'ble. Supreme Court, in our view, it is not necessary for us to examine the above aspect. In our view, it is for the Hon'ble Supreme Court to consider the above question, as it relates to its jurisdiction. However, we are inclined to agree with the submission of the learned counsel that this Court cannot under Article 199 initiate proceedings suo motu for grant of any of the reliefs provided for in the above Article. No other provision of the Constitution has been pointed out under which this Court can in the instant case examine the above quoted questions on the judicial side. It is, therefore, evident that this Court cannot examine the above-quoted questions on the judicial side, either under Article 199 or under any other Article of the Constitution.
8. This leads us to the question, whether there is any provision in the Criminal Procedure Code (hereinafter referred to as the Code) which can be pressed into service. The learned counsel have referred to sections 491 and 561-A of the Code in this regard. In order to appreciate their submissions, it may be. pertinent to reproduce the above two sections, which read as follows:- ,
"491-(1) Any High Court may, whenever it thinks fit, direct
(a) that a person within the limits of its appellate criminal jurisdiction be brought up before the Court to be dealt with according to law;
(b) that a person illegally or improperly detained in public or private custody within such limits be set at liberty;
(c) that a prisoner detained in any jail situate within such limits be brought before the Court to be there examined as a witness in any matter pending or to be inquired into in such Court;
(d) that a prisoner detained as aforesaid be brought before a Court-martial or any Commissioners for trial or to be examined touching any matter pending before such Court-martial or Commissioners, respectively;
(c) that a prisoner within such limits be removed from one custody to another for the purpose of trial; and
(f) that the body of a defendant within such limits be brought in on the sheriff's return of cepi corpus to a writ of attachment.
(2) The High Court may, from time to time, frame rules to regulate the procedure in cases under this section.
(3) Nothing in this section applies to persons detained under any law providing for preventive detention."
`561--A.-- Nothing in this Code shall be deemed to limit or affect the inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of process of any Court or otherwise to secure the ends of justice."
9. A perusal of the above-quoted section 491 of the Code indicates that any High Court whenever it thinks fit may issue any of the directions referred to in the above-quoted clauses (a) to (f). It may be pointed out that the above section 491 does not provide that the above directions can only be issued when an D application is filed before this Court. The words `whenever it thinks fit, direct' are of wide connotation and do not provide any pre-condition for pressing into service the power contained in above section 491, whereas, the above-quoted section 561-A emphasises the factum that nothing contained in the Code shall be deemed to limit or affect the inherent power of the High Court to make such orders as may be necessary to give effect to any order under the Code or to prevent abuse of process of any Court or to secure the ends of justice.
10. Mr. Abdul Hafeez Lakho, learned Advocate-General, Mr. SA. Wadood, learned Deputy Attorney-General and Messrs Sabihuddin Ahmed and Makhdoom Ali Khan have candidly submitted that the above-quoted questions can be dealt with by this Court on the judicial side without any application of any person under clauses (a) and (b) of the above section. Reference was also made to the provisions of inter alia section 3 of the Prisoners Act, 1900. Mr. SA. Wadood, learned Deputy Attorney-General, referred to the cases, namely, (1) In re: Llewelvn Evans reported in A I R 1926 Bom. 551, (2) Sukhdev Raj v. Emperor reported in A I R 1931 Lah. 562, and (3) Sunil Batra v. Delhi Administration reported in A I R 1980 SC 1579. In the first case, the question before a Division Bench of the Bombay High Court was whether an accused in Police custody though lodged in a prison could be denied the right to see his advocate, it was held that the Court had ample power under section 561-A of the Code to issue the required direction; in the second case, the question before a Division Bench of the Lahore high Court was, whether the Court had jurisdiction to enquire into treatment of under-trial prisoners and to give directions to Jail Authority, it was held that since the under-trial prisoners are under the judicial custody in terms of the warrant of committal to the prison, the Court had the power to enquire into the complaint of an under-trial prisoner for maltreatment, whereas, in the third case, the Indian Supreme Court while dealing with the various issues in relation to prisoners observed that technicalities and legal niceties are not impediment to the Court entertaining even an informal communication as a proceeding for habeas corpus. It was further observed that `new legislation is the best solution, but when lawmakers take far too long for social patience to suffer. Courts have to make-do with interpretation and carve on wood and sculpt on stone ready at hand and not wait for far away marble architecture".
11. Mr. Sabihuddin Ahmed has referred to the cases of (1) Sardar Attaullah Mengal v. The State and others reported in P L D 1965 (W.P.) Kar. 320, (2) Zia­ud-Din v. Superintendent Camp Jail, and another reported in P L D 1976 Lah. 93 and (3) Mrs. Bushra Aitzaz Ahsan v. Superintendent, Jail, Kot Lakhpat, Lahore and others reported in 1982 P Cr. L J 083. In the first case, a learned Single Judge of the erstwhile High Court of West Pakistan Karachi Bench held that a Provincial Government had no power to have under-trial prisoner removed from the prison where he has been committed under a warrant to any other prison and that the power of the Provincial Government to remove any prisoner to another prison is provided only in the cases mentioned in clauses (a) to (d) of subsection (1) of section 29 of the Prisoners Act, 1900, it was held that the transfer of the applicant from Karachi Central Prison to Bahawalpur Central Prison was illegal. In the second case, a learned Single Judge of the Lahore High Court also took the same view and held that no executive authority can countermand or vary order as to the custody of the under-trial prisoner committed to a prison under a warrant of committal by the Court, whereas, in the third case, another learned Single Judge of the Lahore High Court held that order of transfer of detenu from one jail to another in deviation of the prison specified in the detention order is without lawful authority, a petition under section 491 of the Code was allowed. There seems to be no controversy that the Court had the requisite power to ensure that a prisoner is treated in accordance with law and that in case of any violation the Court can issue appropriate order or direction. However, in the instant case, for the time being the issue is as to whether this Court without any application but on the basis of the inspection of a Judge can initiate proceedings on the judicial side to ensure that the prisoners are treated in terms of the Jail F Manual and the other relevant laws.
12. We are inclined to agree with the learned counsel that the present proceedings can be proceeded with on the judicial side for the purpose of examining the above-framed questions under section 491 of the Code in order to ensure that the prisoners are dealt with in accordance with law.
13. Mr Makhdoom Ali Khan has invited our attention to the case of Imdad Hussain v. Noor Hassan and 5 others reported in P L D 1974 Karachi 485, in which a Division Bench of the erstwhile High Court of Sindh and Balochistan while dealing with the petition under section 491, Cr.P.C. inter alia observed that "there is no doubt that language of section 491, Code of Criminal Procedure places no restraint as to the person or class of persons who may apply forrelief .....As a. general rule, however, any person having special interest, right or authority in or from the person wrongfully detained may seek relief on his behalf, and a stranger has no right to make an application under the Code", it will suffice to observe that in the above case the question, whether the High Court could of its own initiate the proceedings under section 491 was not in issue and, therefore, the above case is distinguishable.
14. However, there seems to be some diversion of view on the interpretation of above-quoted section 561-A of the Code. The submission of Mr. A.H. Lakho, learned A.-G. was that the above section can be pressed into service in relation to a proceeding pending in a Court, whereas, the contention of Messrs S.A. Wadood, learned D.A.-G. and Sabihuddin Ahmed was that the above section 561­A of the Code contemplates passing of order in three eventualities referred to therein, namely, (i) to make such order as may be necessary to give effect to any order under the Code; (ii) to prevent abuse of process of any Court; and (iii) or otherwise, to secure the ends of justice. It was further submitted by them that the above three categories are to be read disjunctively and that the expression "otherwise to secure the ends of justice" would cover a case of the nature in issue in which the High Court is competent to pass appropriate order though no one has filed any formal application before it. In this regard, it may be pertinent to refer to the case of Shahnaz Begum v. The Hon'ble Judges of the High Court of Sindh and Balochistan and another reported in P L D 1971 SC 677, in which a learned Single Judge of the said High Court at the stage of police investigation initiated the proceedings suo motu, the Hon'ble Supreme Court held that the High Court could not have done so inter alia under section 561-A of the Code. It may be instructive to reproduce the observations of Hamoodur Rahman, C.J. on the construction of above section 561-A of the Code, which read as follows
"If an investigation is launched mala ride or is clearly beyond the jurisdiction of the investigating agencies concerned then it may be possible for the action of the investigating agencies to be corrected by a proper proceeding either under Article 98 of the Constitution of 1962 or under the provisions of section 491 of the Criminal Procedure Code, if the applicant is in the latter case in detention, but not by invoking the inherent power under section 561-A of the Criminal Procedure Code.
If this be the position with regard to the quashing of an investigation we have no manner of doubt that section 561-A of the Cr.P.C. does not give any power to transfer an investigation as claimed by the learned Advocate-General of Sindh. Section 561-A of the Criminal Procedure
Code runs as follows:
"561-A. Nothing in this Code shall be deemed to limit or affect the inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice."
It will be observed that the power given thereby can be invoked to give effect to any order under the Code to prevent an abuse of the process of any Court or otherwise to secure the ends of justice. The ends of justice necessarily means justice as administered by the Courts and not justice in the abstract sense or justice administered by agencies other than Courts.
The words "otherwise to secure the ends of justice", have to be read along with the earlier objects mentioned in this section and must have some co-relation with them and it is in this sense that this Court in the case of M.S. Khawaja v. The State P L D 1965 SC 287, opined that the ends of justice to secure which the inherent power may be invoked "have. reference to the purposes which the judicial process is intended to secure, and it is difficult to include actions of investigating agencies within the scope of judicial process:"
15. The above-quoted observations seem to support the submission made by F Mr. A.H. Lakho, learned A.-G. that section 561-A of the Code can be invoked in relation to a proceeding pending in some Court. Messrs Sabihuddin Ahmed and Makhdoom Ali Khan have invited our attention to the factum that recently the superior Courts in cases involving public interest have been entertaining proceedings though if strict view would have been taken, such proceedings could not have been entertained at the behest of the person moving the Court. Mr. Makhdoom Ali Khan has invited our attention to inter alia the following passage from the case of Miss Benazir Bhutto v. Federation of Pakistan P L D 1988 SC 416, which reads as follows:
"The plain language of Article 184 (3) shows that it is open-ended. The Article does not say as to who shall have the right to move the Supreme Court nor does it say by what proceedings the Supreme Court may be so moved or whether it is confined to the enforcement of the Fundamental Rights of an individual which are infracted or extends to the enforcement rights of a group or a class of persons whose rights are violated. In this context the question arises whether apart from the non­ incorporation of sub-Articles 1(a) and 1(c) of Article 199, the rigid notion of an "aggrieved person" is implicit in Article 184 (3) as because of the traditional litigation which, of course, is of an adversary character where there is a lis between the two contending parties, one claiming relief against the other and the other resisting the claim. This rule of standing is an essential outgrowth of Anglo-Saxon jurisprudence in which only the person wronged can initiate proceedings of a judicial nature for redress against the wrong doer. However, in contrast to it, this procedure is not followed in the civil law system in vogue in some countries. The rationale of this procedure is to limit it to parties concerned and to make the rule of law selective to give protection to the affluent or to serve in aid for maintaining the status quo of the vested interests. This is destructive of the rule of law, which is so worded in Article 4 of the Constitution as to give protection to all citizens. The inquiry into law and life cannot, in my view, be confined to the narrow limits of the rule of law in the context of constitutionalism, which makes a greater demand on judicial functions. Therefore, while construing Article 184 (3), the interpretative approach should not be ceremonious observance of the rules or usages of interpretation, but regard should be had to the object and the purpose for which this Article is enacted, that is, this interpretative approach must receive inspiration from the trial of provisions which saturate and invigorate the entire Constitution, namely, the Objectives Resolution (Article 2-A), the Fundamental Rights and the directive principles of State policy so as to achieve democracy, tolerance, equality and social justice according to Islam."
17. He has also invited our attention to the address of the then learned Attorney-General, Mr. Ali Ahmed Fazeel, made by him on the commencement of judicial year 1987-88 of the Supreme Court of Pakistan, in which inter alia the then learned Attorney-General referred to the new development as to the locus standi of public interest litigation in the following words:
"In `public interest litigation' which is brought out before the Court not for the purpose of enforcing the right of certain individual against another as happens in the course of ordinary litigation it is intended to promote and vindicate public interest which demands that violation of Constitutional or legal rights of a large number of people who are poor, ignorant or in a socially or economically disadvantaged position should not go unnoticed and un-redressed."
18. We are also inclined to hold that in a case in which interest of the public­-large in relation to an issue of public importance is involved, the Court should adopt activist approach so that it may discharge its solemn obligation of protecting Constitutional rights guaranteed to the people. In the instant case consideration of the above-quoted framed questions may involve inter alia interpretation of Articles 4 and 14 of the Constitution. The former guarantees the G protection of law and to be treated in accordance with law which has been described as the inalienable right of every citizen, whereas, the latter guarantees the dignity of man by providing that the dignity of man and, subject to law, the privacy of home, shall be inviolable. It is, therefore, in our view, a fit case in which the Court should not decline to press into service its jurisdiction under section 491 of the Code merely on technicalities of not having been approached by and aggrieved person.
19. The last question which may also be considered is, as to Whether the above matter can be proceeded with before a Bench to which one of us (Ajmal Mian, CJ.) may be a member, as the above proceedings were initiated on the basis of the inspection note of one of us referred to hereinabove. In this behalf, Messrs Sabihuddin Ahmed and Makhdoom Ali Khan have submitted that a Judge is only disqualified for hearing a matter in which he may have some personal pecuniary or other interest, but he is not disqualified if he is discharging his Constitutional function in which he has no pecuniary or other interest except to ensure that the person concerned be dealt with in accordance with law. In this regard, they have referred to the cases (1) Fazal-e-Haq, Accountant-General, West Pakistan v. The State reported P L D 1960 SC (Pak.) 295, (2) Islamic Republic of Pakistan through Secretary, Ministry of Interior and Kashmir Affairs, Islamabad v. Abdul Wali Khan, M.N.A. Former President of Defunct-National Awami Party reported in P L D 1976 SC 57, (3) Federation of Pakistan v. Hazoor Bakhsh and 2 others reported in P L D 1983 FSC 255 and recent unreported judgment in the case of Pakistan v. Muhammad Akram Shaikh (Criminal Petition No.35/R of 1989) and the case of Muhammad Akram Shaikh v. Mr. Yahya Bakhtiar (Criminal Miscellaneous Petition No. 63/R of 1989, now reported as P L.D 1989 SC 229 decided by the Honourable Supreme Court on 6-8-1989. In the first case, it was held by the Honourable Supreme Court of Pakistan that the High Court could not be a judge of its own cause where that Court as a whole considers itself aggrieved and initiated suo motu proceedings. In the above case the facts were that a High Court's Judge was suspended w.e.f. 24-11-1958, his pay bill sent by the High Court for the period 1st to 23rd November, 1958, was, after some exchange of correspondence between the Registrar and the Accountant­ General's office the latter passed it only `provisionally' and insisted on a charge relinquishment report being furnished with the bill before it could be normally passed. A subsequent bill was similarly dealt with. In the background of the above fact, the High Court directed notice to be issued to the Accountant-General requiring him to show cause why a writ of mandamus should not be issued against him directing him to pass the bill. In that context, the Supreme Court held that the High Court could not be a Judge of its own cause. In the second case, the Honourable Supreqie Court took the view that in the absence of any Constitutional or statutory bar, a Judge is not disqualified from sitting at trial of a person merely for the reason of having participated in other legal proceedings against such person, whether in the capacity of a Judge or in Administrative Tribunal or Official and that personal bias or prejudice should be of such a nature which would render Judge unable to exercise his functions impartially. It was further held that personal bias or prejudice must also be shown as a matter of fact and not as a matter of mere opinion or suspicion. In the third case, a learned Judge of the Federal Shariat Court while considering the question, whether the learned Ulma Judges were disqualified from hearing the famous case on the question of punishment of `Rajm' (stoning to death) for the reason that they had given their opinion prior to the hearing of the case as Ulmas and not as the Judges of the Federal Shariat Court, held. that the only ground on which a person can be disqualified from hearing matter in the Court would be the ground of bias when he is likely to be a Judge in his cause and that in order to make a Judge in his own cause, he should be a party or there may be likelihood of some financial gain to him. It was further held that mere expression of an opinion by the Ulma Judges in respect of `Rajm' did not preclude them from applying their mind independently in this case and that in fact they had net shown any bias in hearing this petition. In the recent unreported judgment of the Supreme Court also the majority view of the learned Chief Justice and the 8 Judges was in line with the above Supreme Court case of 1976.
20. We are inclined to hold that the fact that a proceeding under section 491 of the Code is to be initiated by the High Court as a result of the inspection of a prison by a learned Judge because of his noticing some matter which need to be attended to on the judicial side will not disqualify him from proceeding with the judicial proceedings, unless it is shown that he has some personal bias or personal interest which renders him incapable of dealing with the matter impartially.
21. In the instant case, it is not the case of any of the learned counsel appearing including the learned Advocate-General and the learned Deputy Attorney-General, that one of us may have the personal bias or personal interest of the nature which warrants that the matter should not be heard by this Bench. On the contrary, the learned Advocate-General and learned Deputy Attorney­General have candidly submitted that they have no objection if the matter is proceeded by this Bench.
22. We would, therefore, order that the above matter may be registered under section 491, Cr.P.C. and may be placed before D.B.-I, after notice to the learned Advocate-General, Sindh, learned Deputy Attorney-General, Messrs I Sabihuddin Ahmad and Makhdoom Ali Khan, Advocates, and to (1) The Province of Sindh through the Home Secretary, Sindh Secretariat, Karachi, (2) Inspector-.General Prisons, Sindh, Karachi and (3) The Superintendent Juvenile Jail, Landhi, for considering the above-quoted framed questions on a date in office.
23. Before parting with the above discussion, we may record our appreciation that the stand taken by Mr. Abdul Hafeez Lakho, the learned Advocate-General, Sindh, and Mr. SA. Wadood, the learned Deputy Attorney ­General was commendable, their desire that justice be done without being fettered with technicalities is laudable. Messrs Sabihuddin Ahmad and Makhdoom Ali Khan, Advocates, have also rendered valuable assistance to us, for which we would like to record our gratitude.
N.H.Q./J-92/KProceedings initiated.