Monday, 28 October 2013

Nawaz Sharif's case

PLJ 2009 SC 532 [Appellate Jurisdiction] Present: Muhammad Moosa Khan Leghari, Syed Sakhi Hussain Bukhari and Sheikh Hakim Ali, JJ. FEDERATION OF PAKISTAN and others--Petitioners versus MIAN MUHAMMAD NAWAZ SHARIF and others--Respondents C.P. Nos. 778-779 of 2008, CMAs No. 63 & 1674 of 2008 in CP No. Nil of 2008 and CMAs No. 63 & 1675/2008 in CP No. Nil of 2008, decided on 25.2.2009. (On appeal from the judgment/order dated 23.6.2008 of the Lahore High Court, Lahore, passed in W.P. Nos. 6468 and 6469 of 2008) Adjudicate------Undistinguishably maligned--Question to innersolves--Disqualification to contest the election of National Assembly--Validity--Other Judges were to be imputed and would be facing with the allegations and situation as they were also sailing in the same boat and the petitioners had undistinguishably maligned all the judges in the same fashion and no one was left with any exception to it--Supreme Court decided to adjudicate the instant case. [P. 570] V Adjudication------Contemptuous act of a litigant--Belief of independence--Right to ask the judge to recuse himself is lost by litigant because he has already accepted his authority, valid appointment, competency to administer justice and with belief of his independence. [P. 559] C Administration of Justice------Judge to perform his duties of adjudication--Validity--To restrain a judge to perform his duties of adjudication of cases, which cannot be allowed to hamper the administration of justice. [P. 574] II Administrative Law------Justice should not only be done but should manifestly and undoubtedly be seen to be done. [P. 573] FF Aggrieved party------Ambit of--Action of the authority--An aggrieved party can be termed a person who was party to a law suit or to any proceeding--If a person natural or legal was not a party to the proceedings and personal, pecuniary interest or property rights were not adversely affected by action of authority, tribunal Court, order or judgment, that person natural or judicial would not fall within the ambit of aggrieved party. [P. 586] JJJ Bias------Accused having a right of fair trial by judicial minded person, not functioning under an influence which might paralyze mind to result in absence of a fair trial--Bias is in fact based on principle of Latin maxim "Nemo Debet Esse Judex in propria sua causa, meaning thereby that no one can be judge in his own cause. [P. 571] Y Bias------Allegation of--Applicability of principle--Whether the party was not resorting to a device with an ulterior motive--Decision of allegation of bias was the prerogative of the judges to decide it in their judicial sagacity and wisdom as to set or not to sit on the Bench. [P. 567] M Bias------Bias must be differentiated and distinction must be kept in mind between the following situations--"One of a judge who is predetermined to decide the lis in favor of one party before the hearing of case due to extraneous reasons and the other arriving to a conclusion during the hearing of a case. [P. 571] Z Bias------Existence of--Creative of bias in mind of a judge--Question of--Determination of--Ulterior motives-Being no likelihood of bias, or there being no real danger of unfair trial which cannot be exhaustively encompassed--To procrastinate its prompt decision and to get transfer of it to judges of their own choice--A hypothical danger of bias has been invented, otherwise, no likelihood of bias to prevail in decision. [P. 575] KK & LL Biased Adjudication------Magistrates were not biased in their decision when they had got no pecuniary interest and circumstances were not suggesting that there could be likelihood of any bias or there was any biased adjudication. [P. 573] GG Civil Procedure Code, 1908 (V of 1908)------O.I, R. 10--Representation of the People Act, 1976, S. 14(5-A)--Constitution of Pakistan, 1973, Art. 185(3)--Leave to appeal--Locus standi--Disqualified to contest the election--Proposer and seconder filed application in writ petition--Claiming an independent right vesting to defend the candidature--Applications were rejected by High Court--Holding having no right to be impleaded in writ petition--Question of--Whether both petitioners had the right to file these applications under Order 1, Rule 10 of CPC or under Art. 199 of Constitution in writ petition and then to file civil petitions in Supreme Court--Held: When candidate himself not coming forward to defend his qualifications and disqualifications, which are personal and inherent with that person, how the proposer and seconder can claim an independent right to appear and to defend such a candidate--Further held: Proposer and seconder cannot act against the will and wish of a candidate with regard to his acceptance of qualification and disqualification. [Pp. 575, 577 & 578] NN, QQ & TT Civil Procedure Code, 1908 (V of 1908)------O.I, R. 10--Disqualification to contest election--Candidate himself had opted not to defend himself before Election Tribunal--Due to lapse--Proposer and seconder had not filed any application before election tribunal against acceptance of nomination paper--Validity--Proposer and seconder filed applications in writ petition filed against Mian Muhammad Nawaz Sharif--Proposer and seconder had not filed any application before Election Tribunal in Election appeal filed against the acceptance of nomination by Returning Officer for making the defence--No explanation as to why they had not come forward to claim their right of proposing and seconding to defend the candidature--Held: Candidate had opted not to contest the election, otherwise, he would have come forward to defend the election petition which was going to result into passing of an order of disqualifying him to participate in election--Whether the candidate who does not want to contest election by defending his personal right of qualification and disqualification--Question of--Party whose presence before the Court is necessary to enable the Court to effectually and completely adjudicate upon and settle all the questions involved in the proceedings. [P. 589] RRR, SSS & TTT Concept of ineligibility------In competency of a judge to dispense justice--Judge is considered competent and no question of validity or constitutionality of his appointment is in dispute. [P. 559] E Conflict of Interest------Free and fair delivery of justice--Recusal is being sought--Validity--No prudent man can ask a person to decide the validity and constitutionality of his own appointment to an office, post or on a seat occupied by him, as it shall be a decision not appealing to reason and acceptable to the person seeking such decision. [P. 559] F Constitution of Pakistan, 1973------Art. 178 & Sched.--Oath under Constitution--Judges--Highest reverence under oath prescribed by Art. 178 of Constitution--Present judges cannot called as PCO Judges--After having taken oath under the Constitution, they are Constitutional Judges. [P. 568] P Constitution of Pakistan, 1973------Art. 178--Purpose of oath--Qualifications and disqualifications of the judges are not involvement--Crux of oath was not to allow any personal interest to influence the official duty and conduct or decisions--If bias is alleged against the judges, then perception can arise in the mind of respondents against the judges who are being selected by petitioners. [P. 568] N Constitution of Pakistan, 1973------Art. 185(3)--Representation of the People Act, 1976, S. 14(5-A)--Representation of the People (Conduct of Election) Rules, 1977, R. 5--Leave to appeal--Disqualification to contest election--Seat of National Assembly--Nomination paper filed by Mian Muhammad Nawaz Sharif was accepted--Objection to acceptance of nomination paper on the ground i.e. conviction and sentence by Anti-Terrorism Court--Although sentences were pardoned by President, yet conviction was still intact and effective and having not been set aside by any competent appellate Court--Conviction and disqualification would remains in existence--Not a sagacious, righteous and non-profligate and honest and ameen person--All applications were dismissed--No locus standi to file the applications--Respondent did not appear to defend his qualification and disqualifications alleging and incriminating attributions levelled against him by contesting candidate--Proposer and seconder filed separate petitions for leave to appeal while federation filed two independent petitions for leave to appeal--Praying for entertainment of civil petitions--Conspiracy of highest and gravest nature--Vested interests to destroy the whole judicial fabric of highest judicial institutions of Pakistan--Exalted legal profession and to legal fraternity in general--Remarks to be careful in future and not to deviate from the path of augmenting--Validity--Remarks which are creative of an atmosphere of distrust upon the judges or on judicial institution, whether these may be false or true are bound to tumble down sanctified image of the institution, of requiring highest regard--Held: Filing of civil petitions by the petitioners, proposer and seconder without any petition being filed by candidate himself, in the case was only an overdoing with a prior knowledge that their candidate was not prepared to approach Supreme Court--Such strategy and design was manifested with clarity--One can easily judge the intention of the petitioners, who approached Supreme Court for creation of division, bifurcation, disunity amongst the judges of Supreme Court, attribution of dishonesty and arousing of feelings of abhorrence against Supreme Court--Further held: Judges of Supreme Court cannot yield to any temptation and allurement--They are final adjudicators of law of the land and their wrong interpretation of law has got far-reaching repercussions on the whole set up and judicial system--Judges of Supreme Court cannot be an easy prey to pressures of any political party or any other highest authority--To play with their independence, with unfounded perceptions is nothing but the distortion of real facts, which must not be allowed to prevail and to preoccupy the mind of any person, otherwise such trend would destroy the whole image of independence of judiciary--Decision on recusal petitions which gave way to impression that petitioners were not serious to obtain decision on merits but had come to Supreme Court to achieve some ulterior motive and objectives best known to them--Absence of the candidate in whole of the proceedings was supportive in raising presumption of truth--Right to appeal against the order of acceptance or rejection of nomination paper by Returning Officer has been conferred upon the candidate and not upon any proposer or seconder or any other person--Proposer and seconder and other applicants have not been able to establish that they were aggrieved party as expounded, because it is the right of the candidate to contest or not to contest--If the candidate wishes to contest the election and any order, act by any authority comes in his way, it is the candidate who can be called the aggrieved party and not other person--If a candidate refuses to contest, the proposer, seconder and other applicants cannot file a petition in High Court to force the candidate to contest the election or to defend him in any proceedings before any Court or tribunal--All the applicants including the proposer and seconder, cannot be called aggrieved party giving them a right to file a petition--Impugned order has been passed correctly in legal term by holding them not an aggrieved party--Petitions for leave to appeal cannot be entertained in Supreme Court--Proposer, seconder Federation of Pakistan and all the intervenors have got no right to defend the qualification and disqualification of Mian Muhammad Nawaz Sharif, who had failed to defend such qualities and disabilities of election--Petitioners cannot be considered aggrieved party and to have a right to be impleaded in writs, or to file civil petitions for leave to appeal in Supreme Court--Leave to appeal refused. [Pp. 558, 569, 570, 578, 587, 588 & 612] A, Q, R, S, T, U, W, UU, NNN, QQQ & VVVV Constitution of Pakistan, 1973------Art. 199(1)(a)(b)(c)--Jurisdiction of High Court--Writs of certiorari, mandamus and prohibition, habeas corpus and writ of quo warranto--Fundamental rights--Any aggrieved party--Art. 199(1) of Constitution have got important meanings and connotations--Power and jurisdiction of certiorari, mandamus and prohibition can be initiated and commenced on the application of any aggrieved party. [Pp. 585 & 586] HHH & III Constitution of Pakistan, 1973------Art. 199(1)(a)--Material for obtaining writ of prohibition, mandamus and certiorari--Seeking the relief must be an aggrieved party--No right to file the application--No grievance to file or defend the writ petition--Affairs of the Federation, Province or Local Authority--Act done was without lawful authority and of no legal effect--Validity--If party applying is not interested in performance of any act which may be in the nature of declaring, prohibiting or issuing direction, in that case that party would have no right to file the application under Art. 199(1)(a) of Constitution--If a person was party to the proceedings before any authority, tribunal, officer or Court, but afterward, he had got no grievance to file or defend the writ petition, it would not be competent to file audit of certiorari, mandamus or prohibition, as the case may be, by any other person, than the person who was party to that proceedings--A declaration can be sought by a party who is aggrieved by an act or proceeding taken by a person performing functions in connection with affairs of Federation, Province or Local Authority, if that act done was without lawful authority and of no legal effect. [Pp. 587 & 588] KKK, LLL & MMM Constitution of Pakistan, 1973------Art. 45--Representation of the People Act, 1976, S. 14(5-A)--Disqualification to contest the election--Nomination papers were accepted--Objected to acceptance of nomination papers on the grounds i.e. conviction and sentence by Anti-Terrorism Court--Although sentences were pardoned by President yet conviction was still intact and effective and having not been set aside by any competent Appellate Court--Conviction and disqualification would remain in existence--Validity--To understand the extent of pardon, reprieve and respite and to remit, suspend or commute any sentence passed u/Art. 45 of the Constitution--Question of--Whether President u/Art. 45 of Constitution could grant pardon in respect of conviction or only for the sentence--Difference between conviction and sentence in legal phraseology is evident--Conviction is declaration of a person found guilty, while sentence may be in different form as prescribed by the law--Held: President has got power to grant pardon only with regard to sentence but has got no power to set aside the declaration of guilt as recorded by a competent Court, authority or tribunals. [P. 593] YYY Constitution of Pakistan, 1973------Art. 63(1)(g)--Propagating opinion against judiciary--Disqualified to contest election--Mian brothers have been propagating opinion with regarding to integrity, independence of judiciary and are also ridiculing and defaming the judiciary--According to Art. 63(1)(g) of Constitution, they may be declared disqualified to contest election. [Pp. 599 & 600] DDDD Constitution of Pakistan, 1973------Art. 63(1)(h)(i)--Code of Conduct of General Election Order, 2002, Art. 8(3d)(1)--Legal Frame Work Order--Mian Muhammad Nawaz Sharif was not qualified to contest election--Opinion from the Chief Election Commissioner--Amendment in Art. 63 of Constitution as made by Legal Frame Work Order as well as in S. 99(1)(a)(i) of Act, alongwith amendment of Art. 8(3d)(i) of the Code of Conduct of General Election Order, its effect would be retrospective in effect--Mian Muhammad Nawaz Sharif was not qualified to contest election as amendment brought of the Constitution. [P. 595] AAAA Constitution of Pakistan, 1973------Arts. 199 & 225--Constitutional petition--Election disputes--High Court lacks power to interfere--Bar--Applicability--In election disputes, High Court lacks power to interfere, due to provision of Art. 225 of Constitution--Power and jurisdiction under Art. 199 of Constitution can be invoked when whole election process is complete--Election petition would be maintainable by process is complete--Election petition would be maintainable by opposing candidate and if it is not maintainable a writ of quo warranto can be instituted by any person--Held: A person who is not qualified can be debarred through invocation of writ jurisdiction under Art. 199 of Constitution. [P. 609] MMMM, NNNN & OOOO Constitution of Pakistan, 1973------Arts. 199(1)(b) & 185(3)--Aggrieved can file an application--Demonstrate his right to move the Court--Violation of--Fundamental rights--Invocation of--Any person who may or may not be aggrieved can file an application--He is not required to demonstrate his right to move the Court for purpose of Art. 199(1)(b) of Constitution--If he is aggrieved by any action, order or proceedings, having been done, performed or made in violation of Fundamental Rights can file an application--Leave to appeal cannot be entertained in Supreme Court. [Pp. 588] OOO, PPP & QQQ Criminal Procedure Code, 1898 (V of 1898)------S. 401(5-A)--Representation of the People Act, 1976, S. 14(5-A)--Constitution of Pakistan, 1973, Arts. 45 & 185(3)--Leave to appeal--Disqualification to contest election on the ground of conviction and sentence by Anti-Terrorism Court--Pardon was conditional and be fulfilled by the candidate--Scope of--Validity--Pardon was conditional and such condition was to be fulfilled by the candidate as such condition was to be considered to have been imposed by a competent Court and was enforceable--Held: Mian Muhammad Nawaz Sharif was not qualified to contest the election unless a period of 10 years as undertaken had expired in accordance with provision of S. 401(5-A) of Cr.P.C.--Leave refused. [P. 597] CCCC Doctrine of Locus Standi------Sufficient interest--Judicial review of public actions--Reserved the right to be satisfied--Genuine locus standi--Courts are considered as judicial arm of Government and do not act on their own initiative--They have always reserved the right to be satisfied that the applicant had genuine locus standi to appear before it. [P. 584] FFF & GGG Judicial Function------Extra Constitutional steps--Vacuum was created in the working of judicial functions alongwith judiciary--Some of the judges were invited to take oath--Number of judges had declined to take oath--Enigma as to take or to refuse the oath--Validity--In case of refusal, the judicial institution was to suffer greatest harm and its fabric which was woven in a period of more than 150 years, was to collapse completely--Judicial institution might be occupied by such person who had no knowledge and expertise of delivering justice. [P. 561] J Judicial Institution------Offer of oath--Better interest of institution--To prevent the spreading of choose in the country for the betterment of the citizen--Held: Offer of oath might not be declined. [P. 561] K Locus Standi------Proposer and second--Prove of--Necessary for a candidate--Validity--Proposer and the seconder are not bound to prove their locus standi because they are defending the case as a shield and not filing instituting or using it as a sword, which does not require the same rights as are necessary for a candidate--Held: Law has given proposer and seconder an integral role in the election process by rendering as disqualified a candidate, if his proposer or seconder is disqualified. [Pp. 579 & 580] VV & WW 1991 SCMR 2883 ref. National Accountability Ordinance, 1999 (XVIII of 1999)------S. 15--Representation of the People Act, 1976, S. 14(5-A)--Constitution of Pakistan, 1973, Arts. 45 & 185(3)--Leave to appeal--Power of Accountability Court to disqualify a person--No power to President to condone disqualification order, by grant of pardon--Disqualification to contest election--Although sentences were pardoned by President yet conviction was still intact and effective and having not been set aside by any competent authority--Conviction and disqualification would remain in existence--Validity--Accountability Court was granted power to disqualify a person convicted for the offence of corrupt and corrupt practices--Mian M. Nawaz Sharif was disqualified for 21 years to become member of Assmebly--Held: There was no power granted by Constitution to President, to condone such disqualification order, by grant of pardon--If it be presumed for the sake of consideration, that conviction and sentence recorded were set aside by President, even them pardoning of the disqualification power was never granted or conferred upon the President by Constitution--Disqualification had remained in the field--Further held: Mian Muhammad Nawaz Sharif having been held guilty of corrupt practices and corruption was disqualified to contest the election or being elected, chosen, appointed or nominated to any public office or local authority of Government for 21 years u/S. 15 NAB Ordinance, which disqualifying order was never pardoned from the legal character of the candidate--Leave refused. [Pp. 594 & 596] ZZZ & BBBB PCO Judges------Bias--All judges of Supreme Court are constitutional judges and issue of PCO has become a past and closed transaction. [Pp. 572 & 573] EE PCO Judges------Interestingly and astonishingly--No application for bias or recusal--In case of Mian Muhammad Shahbaz Sharif, the brother of the candidate and also a prominent leader of PML (N) with similar view point, not to get hearing of the case from PCO Judges, no such application for bias or recusal was filed in his case--Prayer was dismissed. [P. 575] MM PCO Judges------Proclamation of emergency--Enforcement of Provisional Constitution Order I of 2007 and issuance of an order in the form of Oath of Office (Judges) Order, 2007 were not enforced upon the advice of PCO Judges--Held: No advice was delivered the PCO Judges and no assistance was provided by these judges to military forces to do such acts. [P. 561] I Pecuniary Interest of a Judge------Relationship, intimacy towards and party--Member of political party--Where judge has got fiduciary relationship with any party in the case--Where a judge might have been remained an advocate of any party the lis, he might have been an arbitrator, referee, or conciliator in the subject matter for any party to the case--All the reasons and kinds cannot be completely encompassed. [P. 572] AA Pecuniary Interest------Sufficient to cause disqualification--Applicability--Judges have got no pecuniary interest in the matter or related to any party. [P. 573] HH Preconceived Opinion------Strong grounds for holding bias against the judicial or quasi-judicial officer though it is unfortunate that a judge should have any do not constitute such a bias nor even the expression of such opinions, for it does not follow that the evidence will be disregarded. [P. 574] JJ Prejudice------Supreme Court being the apex Court of judicial hierarchy of the country, there being no other Court except the Court of Almighty Allah, how in such situation, a litigant can ask the Supreme Court to avoid the delivery of judgment after having offered his lis, for doing the justice to it. [P. 560] H Proposer and Seconder------Not figure thereafter in the whole election process--After nomination papers are accepted or rejected--Held: Proposer and seconder cannot force the candidate to contest the election by or through any legal proceedings. [P. 577] SS Proposer and Seconder------Recommendation of--Consent of candidate becomes necessary for contest of election--Validity--If candidate does not give his consent, the recommendations of the proposer and seconder become a futile exercise--Held: After recommendation are made, dependent right is merged into an independent right vested in candidate. [P. 577] RR Qualifications and Disqualifications------To contest election--Personal, capabilities, abilities, qualities and disabilities of a person which are best known to that person. [P. 576] PP Question of Bias------No end to chaos--No appeal or revision can be filed before any other Court--Judgment of Supreme Court are the final decisions of the judiciary--If the judges of Supreme Court cannot be swayed by cheep and petty slogans and attributions of frivolous nature. [P. 568] O Real Likelihood of Bias------Non pecuniary bias--Extent and nature of interest--Determination--Real likelihood depended on the impression which the Court would get from the circumstances in which the justice were sitting--Bias should be based on reasonable suspicion. [P. 565] L Recusal------Constitutional judges and having taken oath under Constitution--Bound to administer and deliver justice in accordance with Constitution and law of the land--Their faculty of approach cannot be considered to be effected by any stretch of imagination to be in favour of anyone due to the stance taken by any political party in Pakistan. [P. 572] BB & CC Recusal------Option of the judge--Litgant has not been granted a right to ask the judge to recuse himself--Validity--If a litigant does not feel justice to be done from a judge, he must not place his case before the judge--When the case is placed before a judge by a litigant, therefore, the litigant cannot ask the judge to recuse himself. [P. 559] B Representation of the People Act, 1976 (LXXXV of 1976)------S. 14(5)--Constitution of Pakistan, 1973, Art. 185(3)--Disqualification to contest the election--Nomination papers were accepted--Objected to acceptance of nomination paper on the ground i.e. conviction and sentence by Anti-Terrorism Court--Although sentences were pardoned by President, yet conviction was still intact and effective and having not been set aside by any competent appellate Court--Order passed accepting or rejecting the nomination paper can be challenged only by the candidate--Right having extinguished by rule of merger in right of candidate--Proposer and seconder would become non-existent giving no legal right to defend their candidate--Validity--After proposing and seconding is made and consent is given by candidate to his nomination papers by declaring his eligibility to Returning Officer--Order passed accepting or rejecting the nomination paper can be challenged only by candidate according to Section 14(5) of Representation of the People Act--Law having restrained the proposer and the seconder after passing of order of Returning Officer from taking any action in the shape of filing of appeal before election tribunal--Intervenors cannot come forward to defend their candidate because their right having extinguished by rule of merger in the right of the candidate, which become non-existent giving no legal right to defend their candidate in any further proceedings. [P. 590] UUU Representation of the People Act, 1976 (LXXXV of 1976)------S. 14--Rejection of nomination papers--Order attained finality--Appeal being competent was not filed--Disqualification had disappeared in by-election--Validity--Order of rejection of nomination papers and appeal u/S. 14 of Act, 1976 being competent was not filed by Mian Muhammad Nawaz Sharif and that order had attained finality--Proposer and seconder could not propose and second Mian Nawaz Sharif who could not also give consent for filing the nomination papers before the Returning Officer for the seat in by-election and nothing was brought on record to prove that the previous order was set aside by any competent Court or forum or disqualification and disappeared in by-election--Petitioners have got no legal right to obtain declaration for purging his disqualification to his status--Leave refused. [P. 603] EEEE & FFFF Representation of the People Act, 1976 (LXXXV of 1976)------S. 14(5-A)--Right of appeal to a candidate--Scope and power of election tribunal--Rejection of nomination papers--S. 14(5-A) of Act, 1976 which had provided the right of appeal to a candidate before election tribunal, against the acceptance or rejection of nomination papers--During the process of election of nomination papers--During the process of election burden of invocation of writ of quo warranto has been relaxed upon a common man who was to wait and see till finalization of election process--Held: Purpose of insertion of the provision was to prohibit a disqualified person to enter into scared Hall of Parliament wherein a seat was prescribed by the Constitution to a qualified person who is pious, sagacious, righteous and non-prefligate, honest and Ameen, not of unsound mind, not on undischarged insolvent not defaulter of loans, taxes, Government dues, utility charges, not guilty of corrupt or illegal practices, not to these persons who were removed or compulsorily retired from service nor to those who were convicted by a Court of competent jurisdiction, not to persons or defamers who were propagating any opinion or acting in any manner prejudicial to ideology of Pakistan, sovereignty, integrity or security, or morality, or maintenance of public order or integrity or independence of judiciary or not to those who brings into ridicule the judiciary or Armed Forces. [P. 607] JJJJ Representation of the People Act, 1976 (LXXXV of 1976)------Ss. 14(3)(1) & 14(5-A)--Disqualification to contest election--Returning officer was granted power to conduct summary inquiry--Rejection of nomination papers on ground of default in payment of loan or utility charges--Power of tribunal--Objections of disqualifications of a candidate--Validity--Returning Officer shall not reject the papers of the candidate in case he deposits any amount of loan, taxes or utility charges--Granting power to Election Tribunal to consider all the objections, of disqualifications brought by any person, natural or legal who lays information, or brings material before tribunal--By providing a separate provision, wider net was supplied of disqualifications, persons bringing information and to empower and to give jurisdiction to tribunal. [Pp. 606 & 607] GGGG, HHHH & IIII Representation of the People Act, 1976 (LXXXV of 1976)------Ss. 14(5-A) & (6)--Period for disposal of petition--Principle and rule--Indefinite period has been provided for decision of the petitions. [P. 609] LLLL Representation of the People Act, 1976 (LXXXV of 1976)------Ss. 52(i) & 14(5-A)--Constitution of Pakistan, 1973, Arts. 185(3) & 225--Election petition can be filed by a candidate--Question of--Whether can be allowed to contest the election, if he has got clear disqualification of unrebutable and undeniable nature, having been proved--Whether such person may be ordered to remain mum and to wait till the election process becomes complete and disqualified person enters the Hall of Parliament, mocking the purety of election process when the election laws are not providing any remedial steps, High Court has got inherent and Constitutional powers to remedy the wrong being done or having been done by election tribunal--Not only a person was allowed to lay information but election tribunal was itself conferred more powers and jurisdiction to entertain such information and material--Held: When such power has been granted to election tribunal, then it was the duty of the election commission to examine and decide the petition--In action of Tribunal High Court has got power under Art. 199 of Constitution to decide that petition--Qualifications and disqualifications of a candidate, being matter of personal rights of candidate--Jurisdiction of High Court would be there, to correct legal errors or apparent defects having been crept into order of election tribunal--Person aggrieved cannot be left without any remedy at a later stage of the close election, because a tribunal having jurisdiction can not do it wrongly, but is bound to do it rightly--Leave refused. [Pp. 610 & 611] PPPP, QQQQ, RRRR, SSSS, TTTT & UUUU Supreme Court Rules, 1980------R. 6--Representation of the People Act, 1976, Ss. 14(5-A)(6)--Question of constitution of the larger Bench--Conflict of view between two Benches--Interpretation of provisions of--Contentions of larger Bench--Neither an objection can be raised nor any party is entitled to ask for Constitution of a Bench of its own choice--Question of--Principle--Judges selected for Constitution of larger Bench would not be accepted by the petitioners--It was sole prerogative of Chief Justice to Constitute a Bench of any number of Judges to hear a particular case--Neither an objection can be raised nor any party is entitled to ask for Constitution of a Bench of its own choice--When the petitioners, are not accepting acknowledging the authority and status of all the Judges of Supreme and Chief Justice, then how they can pray for Constitution of a larger Bench of their own choice to be made available to them. [Pp. 591 & 592] VVV, WWW & XXX Supreme Judicial Council------To protect and guard the interest of Judges--Not to be removed--To impart justice without fear--A Judge once appointed in Superior Court has got sufficient security guarantee in the Constitution, not to be removed or dismissed unless through the decision of Supreme Judicial Council--Democratic set up, are sufficient to protect and guard the interest of judges of superior Courts to impart justice without fear and favour, and without being influenced by the parties stand in the streets. [P. 572] DD Trust Act, 1882 (II of 1882)------S. 3--Nomenclature of--Codified law--Applicability--Supreme Court does not desire to load our land laws by the import of concept of others, who are not based on any codified law as are ours--Our attention towards law enacted and applicable to the Pakistan. [P. 581] YY Trust------Essential ingredient of trust--Beneficiary of--Trustee must be a qualified person and disqualified to contest the election--Trustee of public office--Validity--First of all there must be an electorate who shall elect, which may be called the beneficiary of the trust and the person must be elected or chosen by that electorate, to become a trustee and then creation of trust would be completed when public office is occupied by that trustee--Candidate must be ready to contest the objections raised against him, by opposing candidate before Returning Officer, he must not withdraw or retire from the election--After successful completion of all other steps of election process, on the date of holding of election he may withdraw, retire or loose the election in the contest--Proposer and seconder are not the sole beneficiaries of the trust but after a candidate occupies the seat in the shape of a returned candidate, due to majority choice will of electorate, that he would become a trustee of public office--Right of beneficiaries comes to light when a person is elected, declared returned and is notified as such and occupies the seat in consequence of that there is no presupposed right to be claimed by any voter before the returned candidate holds the office--Held: During the completion of election process, no case can be filed or defended for qualifications and disqualifications of candidate by any alleged voter proposer and second before any Court of law--If candidate is not prepared to defend himself before any tribunal and a Court of law, then no one including proposer and seconder can compel the candidate to contest election by defending his qualification and disqualifications. [Pp. 582 & 583] ZZ, AAA, BBB, CCC, DDD & EEE Words & Phrases------Recusal--Recusal has been defined in Black's Law Dictionary, (Seventh Edition) in column IInd at page 1281. [P. 559] D Words & Phrases------What is bias and what are its determinative factors--It is defined in Black's Law Dictionary, 7th Edition by Brayan A. Garner with others. [P. 570] X Words and Phrases------Derivative "action" has been defined in Black's Law Dictionary Seventh Edition by Bryan A. Garner. [P. 581] XX Words and Phrases------It is the decision of the judge to recuse himself when he feels that there is possibility of conflict of interest or prejudice which would be caused to a party of the case in his participation or in decision of that case. [P. 559] G Black's Law Dictionary Words and Phrases------Qualification and disqualification--Determination--Advert to the definition of qualification and disqualification as defined in Black's Law Dictionary, 7th Edition. [P. 576] OO Words and Phrases------Source--Comprehensive meaning of source has been found in words and phrases (permanent edition) by West Publishing Company, Blacks' Law Dictionary (7th Edition) & New English Dictionary and Thesaurus by Geedes & Grosset (New Edition of 2000) at page 557 Col. II. [P. 608] KKKK Agha Tariq Mehmood, DAG a/w Ch. Arshad Ali, AOR for Petitioners (in C.P. Nos. 778-779 of 2008). Sardar Latif Khan Khosa, Attorney General for Pakistan on Court Call (in C.P. Nos. 778-779 of 2008). Nemo for Respondents No. 1-5 (in C.P. Nos. 778-779 of 2008). Sahibzada Ahmed Raza Khan Qasuri, Sr. ASC and Dr. Mohyuddin Qazi, ASC for Respondent No. 6 (in C.P. Nos. 778-779 of 2008). Mr. A.K. Dogar, Sr. ASC and Mr. Arshad Ali Chaudhry, AOR for Petitioner (in CMAs No. 63 and 1674/2008 in CP No. Nil of 2008). Sahibzada Ahmed Raza Khan Qasuri, Sr. ASC and Dr. Mohyuddin Qazi, ASC for Respondent No. 1 (in CMAs No. 63 and 1674/2008 in CP No. Nil of 2008). Nemo for Respondents No. 2 to 5 (in CMAs 63 and 1674/2008 in CP No. Nil of 2008). Agha Tariq Mahmood, DAG for Respondent No. 6 (in CMAs No. 63 and 1674/2008 in CP No. Nil of 2008). Mr. Muhammad Akram Sheikh, Sr. ASC and Mr. Arshad Ali Chaudhry, AOR for Petitioner (in CMAs No. 64 and 1675/2008 in CP No. Nil of 2008). Sahibzada Ahmed Raza Khan Qasuri, Sr. ASC for Respondent No. 1 (in CMAs No. 64 and 1675/2008 in CP No. Nil of 2008). Nemo for Respondents No. 2 to 5 (in CMAs No. 64 and 1675/2008 in CP No. Nil of 2008). Agha Tariq Mahmood, DAG for Respondent No. 6 (in CMAs No. 64 and 1675/2008 in CP No. Nil of 2008). Dates of hearing: 6, 14, 15, 19 to 22, 27 to 30.1.2009, 2 to 4, 9 to 12, 16 to 20, 23 to 25.2.2009. Judgment Sheikh Hakim Ali, J.--To contest a seat of National Assembly, in the By-election for the constituency of NA 123, Lahore-VI, to be held on 26.6.2008, Mian Muhammad Nawaz Sharif had filed Nomination Papers, out of which one was proposed by Mehr Zafar Iqbal and it was seconded by Shakeel Baig. Noor Ellahi, Respondent No. 6 and Mian Ikhlaq Ahmed alias Guddu, were the contestants of that election from that constituency. Nomination papers were submitted before the Returning Officer, who took up the task of scrutiny of these nomination papers. Nomination paper of Mian Muhammad Nawaz Sharif, the candidate was accepted on 15.5.2008, although Noor Ellahi and Mian Ikhlaq Ahmed alias Guddu, the opposing candidates had objected to the acceptance of this nomination paper of Mian Muhammad Nawaz Sharif. The grounds pleaded for rejection of nomination papers of Mian Muhammad Nawaz Sharif can be summarized in the following form:--(i) Mian Muhammad Nawaz Sharif was convicted by Anti-Terrorism Court No. I, Karachi, on 30.10.2000 in Special Case No. 385 of 1999 under Section 402-B of the PPC read with Section 7 of the Anti Terrorism Act, 1997, which conviction was also upheld by the learned appellate Court (High Court of Sindh vide judgment reported in PLD 2002 Karachi 152 (Muhammad Nawaz Sharif v. The State). In the aforesaid case Mian Muhammad Nawaz Sharif was sentenced to life imprisonment and was imposed a fine of Rs. 5,00,000/-, in default whereof he was to further undergo 5 years imprisonment, on the first count and similar sentence on the second; (ii) Mian Muhammad Nawaz Sharif was also convicted and sentenced by learned Accountability Court, Attock Fort, in Reference No. 2 of 2000 on 22.7.2000, under Section 10 read with Section 9-A(V) of the NAB Ordinance. He was sentenced to 14 years R.I. and fine of Rs. 20 million. In case of non-payment of fine, he was to suffer R.I. for further imprisonment of three years. He was also declared disqualified for 21 years seeking from being elected, chosen, appointed as member or representative of any public office or any authority of the Local Government of Pakistan; (iii) Under Article 45 of the Constitution of the Islamic Republic of Pakistan,1973, (which would be noted as the Constitution hereinafter in the judgment) although sentences were pardoned by the President of Pakistan yet conviction was still intact and effective and having not been set aside by any competent higher/appellate Court, conviction and disqualification would remain in existence. (iv) Respondent No. 1, Mian Muhammad Nawaz Sharif was not a sagacious, righteous and non-profligate and honest and ameen person, because he was convicted by the learned Accountability Court, Attock Fort under Section 9-A(V) in Reference No. 2 of 2000 dated 22.7.2000 and under Section 10 of the NAB Ordinance, 1999 for dishonesty, corruption and corrupt practices, misappropriation of public funds and misuse/abuse of authority, etc. (v) Respondent No. 1 is publicly propagating his biased opinion, and acting in a manner, prejudicial to the integrity of the Judiciary of Pakistan and defaming and bringing into ridicule the judiciary as well as the Armed Forces of Pakistan. (vi) In his application addressed to the Chief Election Commissioner of Pakistan dated 7.12.2007, against the rejection of his nomination papers from NA-120, in the General Election, held on 18.2.2008, he had clearly mentioned in that application that the Judges of the High Court who had taken oath under the PCO, and whose status as such was seriously flawed, he was not acknowledging the appointment of aforesaid judges. He was also maligning the Hon'ble Judges, who had taken oath under the Constitution and undermining their authority and integrity, and thereby trying to divide the judiciary. (vii) Respondent No. 1 after conviction, in order to avoid criminal liabilities for his misdeeds and heinous crimes, malafidely and through deceitful means entered into a compromise, for agreeing to 10 years exile in exchange of his release, which agreement was firstly kept on denying with regard to its period of 10 years but when the document was placed before the Hon'ble Supreme Court of Pakistan and a public press conference was held by Mr. Saad Al-Hariri, a son of former Lebanese Prime Minister Rafique Hariri and the Saudi Intelligence Chief, Mian Muhammad Nawaz Sharif admitted the execution and the exile deal, thus he was disqualified from being elected, as he had committed non-fulfillment of obligation, in breach of that agreement, which act of his was against the Injunctions of Islam which required a person to fulfill all his obligations. (viii) Mian Muhammad Nawaz Sharif was a defaulter of consortium of National Bank of Pakistan, Habib Bank Limited, United Bank Limited, Agricultural Development Bank of Pakistan, Muslim Commercial Bank, PICIC, Bank of Punjab and the first Punjab Mudarba and cases for recovery of loans were pending before the Lahore High Court, Lahore. It was further alleged that he was disqualified for having embezzled millions of valuable public money belonging to the poor citizens of Pakistan. He had committed the breach of contract and was not entitled to reap the fruits of his deceitful means and retain ill-gotten gains. (ix) Nomination papers of Respondent No. 1 were even otherwise liable to be rejected as having been filed in complete disregard of law and containing incorrect declaration. (x) Earlier nomination papers filed by Mian Muhammad Nawaz Sharif for the seat of NA-120 in the present General Elections were rejected by the Returning Officer, against which no appeal was filed by him, so, it had attained finality and Respondent No. 1 could not contest the same election in its by-election, on the principle of constructive resjudicata and estoppel. (xi) By-election being in continuation of General Elections, rejection of nomination paper in the General Elections having attained finality, the present nomination in this by-election was liable to be rejected. 2. Noor Ellahi had submitted a hand-written application in the shape of objections, against the nomination papers of Mian Muhammad Nawaz Sharif before the Returning Officer on 13.5.2008 alongwith affidavit. 3. Many other grounds were allegedly, as per learned counsel raised before the Returning Officer. But the Returning Officer had accepted the nomination papers of Mian Muhammad Nawaz Sharif. So, Mian Muhammad Ikhlaq Ahmed alias Guddu filed Election Appeal N. 6-A of 2008, before the learned Election Tribunal, Lahore consisting of two learned judges of High Court on 24.5.2008. When notices were issued to respondent in that appeal for 27.5.2008, an application under Order I Rule 10 of the CPC was filed by Noor Ellahi seeking his impleadment in aforementioned appeal but on that date, Mian Muhammad Ikhlaq Ahmed alias Guddu, withdrew his appeal allegedly due to political pressure. In these circumstances the learned Election Tribunal directed Noor Ellahi to file an independent appeal, if so desired, which was filed by him and notices were issued to respondents for appearance in that appeal. Syed Khurrum Shah filed a petition under Section 14 sub-section (5-A) of the Representation of the People Act, 1976 (hereinafter referred to as the "Act"), against Mian Muhammad Nawaz Sharif in respect of his disqualifications, before the learned Election Tribunal. It is noteworthy that Mian Muhammad Nawaz Sharif did not appear in the aforesaid Election Appeal and petition and so was proceeded exparte. On 30.5.2008, Mr. Justice Muhammad Akram Qureshi, one of the learned Member of the Election Tribunal, accepted election Appeal N. 26-A of 2008 and Mian Muhammad Nawaz Sharif was declared to be disqualified to contest the election as his nomination papers were rejected. But the other learned member, Mr. Justice Hafiz Tariq Naseem, however, dismissed the appeal against Mian Muhammad Nawaz Sharif upholding the order of Returning Officer. 4. It is material to mention that Noor Ellahi had filed appeal/application under Section 14(5) read with sub-section (5-A) of the Act read with Rule 5 of Representation of the People (Conduct of Election) Rules, 1977 against the order dated 15.5.2008 passed by Returning Officer-Respondent No. 2. 5. As there was a split decision between the learned members of the Election Tribunal, so the matter was referred to Chief Election Commissioner of Pakistan, upon which the Chief Election Commissioner passed the following order on 1.6.2008, which is reproduced hereinbelow: "The proposal highlighted in para-18/ante is approved as it is squarely in line with the mandatory provision of Section 14(6) of the Representation of the People Act, 1976 that an appeal not disposed of within the period specified in the Election Schedule shall be deemed to have been rejected. It is scarcely necessary to mention that according to the Election Schedule notified on 7th May, 2008 the last date for deciding appeals against the acceptance or rejection of Nomination Papers by the appellate Tribunal was 31st May, 2008." 6. Aggrieved from this order, and all the other orders, Writ Petition No. 6468 of 2008 was filed by Noor Ellahi, the candidate, while Writ Petition No. 6469 of 2008 was filed by Syed Khurrum Shah, against Mian Muhammad Nawaz Sharif in the Lahore High Court, Lahore as his application under Section 14(5-A) of the Act, was not decided by the learned Election Tribunal. 7. During the pendency of both these writ petitions, a flood of applications under Order I Rule 10 of the CPC were filed before the Lahore High Court, Lahore, the details of which are as under:--In Writ Petition No. 6468 of 2008: C.M. No. 1305 of 2008 by Shakeel Baig, C.M. No. 1306 of 2008 by Mr. A.K. Dogar, learned Advocate, on his own account. C.M. No. 1307 of 2008 by Mujtaba Shaju-ur-Rehman, Secretary General, City Lahore PML (N), C.M. No. 1308 of 2008 by Marghoob Ahmed, President, PML (N), Lahore, C.M. No. 1309 of 2008 by Mehr Zafar Iqbal, the proposer, C.M. No. 1310 of 2008 by Khawaja Mehmood, President, PML (N), Lawyers Forum. C.M. No. 1317 of 2008 by Judicial Activist Penal of Pakistan. While in Writ Petition No. 6469 of 2008: C.M. No. 1311 of 2008 by Shakeel Baig, C.M. No. 1312 of 2008 by Mr. A.K. Dogar, learned Advocate on his own, C.M. No. 1318 of 2008 by Marghoob Ahmed, President PML (N), Lahore, C.M. No. 1314 of 2008 by Mujtaba Shuja-ur-Rehman, Secretary General, City Lahore, PML (N). C.M. 1315 of 2008 by Khawaja Mehmood President PML (N) Lawyers Wing. 8. Upon all these applications, learned Full Bench of Lahore High Court, Lahore, passed orders dismissing all applications holding that the applicants had no locus standi to file these applications. This order was announced on 20.6.2008. 9. Aggrieved from that order dated 20.6.2008, Mehr Zafar Iqbal had filed Civil Petition for Leave to Appeal No. Nil of 2008 in this Court alongwith a CM for grant of a period, to produce the impugned order, but on 25.6.2008 the C.M. was got dismissed as not pressed. 10. Before the learned Full Bench which was seized of main writ petitions and which were still not decided finally, C.M. Nos.1379 of 2008, CM 1380, 1382 to 1385 of 2008 (review petitions against order dated 20.6.2008) were filed and C.M. No. 1381 of 2008 by one Wali Muhammad seeking permission to be impleaded as party to the writ petition was filed. All the CMs alongwith C.M. Nos.1305 to 1310 and 1317 of 2008 were dismissed. Learned Full Bench of the Lahore High Court vide its judgment/order dated 23.6.2008 disqualified Respondent No. 1 (Mian Muhammad Nawaz Sharif) for 21 years on the basis of judgment dated 22.7.2000 of the Accountability Court; for scandalizing, abusing, disobeying and ridiculing the judiciary of Pakistan, and having sworn a false affidavit attached with the nomination papers. Consequently, order of Returning Officer dated 15.5.2008, order dated 31.5.2008 of the learned Election Tribunal and observation/order dated 1.6.2008 of the learned Chief Election Commissioner were set aside. 11. Aggrieved from that judgment/order dated 23.6.2008, passed by learned Full Bench of Lahore High Court, Lahore, Federation of Pakistan filed two CPLAs No. 778 of 2008 and 779 of 2008 in this Court. During the pendency of these petitions C.M. No. 1914 of 2008 by Manzoor Ahmed Bhatti, and C.M. No. 408 of 2009, by Shahid Orakzai, were filed for impleadment. 12. It is noteworthy that both learned counsel, Mr. A.K. Dogar, and Mr. Muhammad Akram Sheikh had filed applications on their own account, for impleadment before the learned Full Bench of Lahore High Court but those were dismissed by that Court. At present, they are appearing as counsel for Mehr Zafar Iqbal and Shakeel Baig, in this Court. 13. The gist of arguments addressed by all the learned counsel, requiring verdict from this Court is being formulated in the following form: (1) Recusal; (2) PCO Judges; (3) Bias; (4) Locus standi of petitioners; (5) Application under Order I Rule 10 CPC (6) Constitution of Larger Bench and hearing from Selective Judges; (7) Qualification and Disqualification:-(i) Convictions; (ii) Twenty One Years Disqualification; (iii) Breached covenants; (iv) Unpaid Loans; (v) Bank suits; (vi) Propagating opinion against judiciary; (vii) Pending contempt case – false declaration (viii) Miscellaneous Application to C.E.C. (ix) Unrefuted allegations. (8) Interpretation of Section 14(5) and (5-A) of the Act; (9) Subsection (6) of Section 14 of the Act. (10) Jurisdiction of the High Court; (1) RECUSAL 14. Before embarking upon the discussion of factual and legal plane of the case, it is essential to note that this highest Court had made multifarious efforts to inform and serve Mian Muhammad Nawaz Sharif, the candidate, with regard to the filing of this case. Inspite of being apprised of the case, he has opted not to appear and defend, apparently, perhaps due to reasons best known to him towards this Court, which would be later discussed in detail in this judgment at its appropriate place. 15. It is interesting to note that Mian Muhammad Nawaz Sharif, in whole of the proceedings during the hearing of election petitions, petition filed under Section 14(5-A) of the Act, Writ Petitions in the High Court and CPLAs, thereafter in this Court has not appeared to defend his qualifications and disqualifications, allegations and incriminating attributions, levelled against him by his contesting candidates in the election. From the above noted narration, an inference is easily deducible that Mian Muhammad Nawaz Sharif has either got nothing to say in his defence or is shy of and nervous to face the case and its consequence or does not want to become a candidate, after the submission of nomination papers in the by-election, otherwise he would have contested the stigma of disqualification ascribed and attributed to him. 16. After the above narration of facts and arguments, we have found that Shakeel Baig, the proposer and Mehr Zafar Iqbal, the seconder have filed separate civil petitions for leave to appeal while Federation of Pakistan has also filed two independent civil petitions for leave to appeal against the impugned judgment dated 23.6.2008 passed by the Lahore High Court, Lahore. The Registrar office of this Court has not registered and allocated any number to both these civil petitions of the proposer and seconder. Meaning thereby that these civil petitions of Shakeel Baig and Mehr Zafar Iqbal were not yet registered when two separate applications by these petitioners were filed, one, praying for entertainment of these civil petitions and the other for Recusal. Instead of pressing for order to be passed by this Court, for registration of their Civil Petitions, Shakeel Baig and Mehr Zafar Iqbal, petitioners have much insisted upon the acceptance of their applications for recusal. CMA No. 63 of 2009 was filed by Mehr Zafar Iqbal while CMA No. 64/2009 was presented in the office by Shakeel Baig. In both these petitions which are verbatim copy of each other’s petition, it was asserted that on 3rd of November 2007, Martial Law, in the shape of emergency was imposed by General Pervez Musharraf (now retired) who had suspended the Constitution and the Judges sitting in the present Bench had taken oath under the Oath of Office (Judges) Order 2007, while many other Hon'ble Judges of this Court refused to take oath under the said Order, due to which they had ceased to hold their said respective offices, with the consequence that new appointments to fill in the vacancies were made. It was further asserted that petitioner as well as Respondent No. 1 (Mian Muhammad Nawaz Sharif) who was a Quaid of a major political party of the country Pakistan Muslim League (Nawaz Group) had strong reservations to that act of General Pervez Musharraf. The Judges, who have been appointed aftermath of the constitutional deviation are required an adjudication regarding their holding of the office as of Judge in the present proceedings, therefore, necessity of constitution of a larger Bench of this Court was essential. It was further alleged that there was possibility that some prejudice might be occasioned in the case from the present Judges, who had taken oath under the PCO. Founding their case, upon legal Maxim, Nemo debet esse judex in propria sua causa (no man can be a judge in his own cause) it has been argued that bias was consequently to flow and result in their decision. In the last, it was prayed that the present sitting Judges might recuse themselves from these proceedings, by transmitting the case to the Chief Justice for Constitution of the Appropriate Bench (words were notable). When asked as to how the present sitting Judges would feel prejudice against the present petitioners or their leader when all the present sitting Judges of this apex Court have already taken oath under the present Constitution of the Islamic Republic of Pakistan, 1973, and they are constitutional judges, and more so, particularly after the full Court judgment of this Court by seven judges, as reported in PLD 2008 S.C. 178 (Tikka Iqbal Muhammad v. Pervez Musharraf) and affirmed by 17 judges in review, how then the present Judges can be called PCO Judges? Mr. A.K. Dogar, learned counsel was also put a query from the Bench as to whom these petitioners were considering the judges of "Appropriate Bench", learned counsel replied that four Judges who were deposed in consequence of Proclamation of Emergency and they were deposed thereafter but had taken oath under the present Constitution might be considered the Judges appropriate for the Bench. 17. This argument of petitioners’ learned counsel has been found by us to be malicious and vicious, having no legs to stand in the eye of law of the land. The petitioners and their counsel have in fact tried to create division amongst the Hon'ble Judges of this apex Court into two factions of PCO and non-PCO Judges, although at present, all the sitting Judges are those Judges who have taken oath under the present Constitution, and no discrimination or distinction on this account can be made or created amongst them by these petitioners. 18. In fact, it is a conspiracy of highest and gravest nature which has been hatched up by some vested interests, to destroy the whole judicial fabric of this highest judicial institution of this country, for their own interest and purpose. It is being bred so as to get appointed judges of their own choice and interest, in the offices of judges of superior Courts, by eliminating out the present judges even whose impartiality and honesty might be above board. This rule of politics, to divide and rule is being played and brought into this realm of judicial institution, so as to cause disturbance into peaceful, harmonious working and smooth running of this Institution, by raising prejudices and differences amongst the Judges, by procreating two factions in the judiciary, which is most harmful and sinful act, plea, stand and stance of the petitioners. All the Judges sitting in this Court are equal, respectful and revered and brother Judges, amongst whom no distinction and discrimination of belonging to one or the other group can be allowed and permitted by any of the Judges of this Court to be made and raised at this stage and thereafter. All the Judges having taken oath under the present Constitution, a few of them cannot be given preference by the petitioners or their counsel over or against the others. On this basis, unity amongst the Judges has been attempted to be tarnished and torn into pieces through these baseless, frivolous and unfounded premises particularly when it has already been ruled out by the Seven Hon'ble Judges of this Court in Tikka Iqbal Muhammad Khan’s case (PLD 2008 S.C. 178) and thereafter by 17 Judges of this Court in review jurisdiction, and the actions taken against the judiciary are to be considered a past and closed transaction. It is worth-mentioning that judgment in Tikka Iqbal Muhammad Khan's case was never disputed or challenged by these petitioners, through any review petition. It does not now lie in their mouth through these petitions to criticize the above noted judgment of Tikka Iqbal Muhammad Khan case, in collateral proceedings, which have got no nexus to the merits of this case, in respect of question of qualification and disqualification of Mian Muhammad Nawaz Sharif. Having lost the proper opportunity of disputing the validity and vires of that judgment of Tikka Iqbal Muhammad case (ibid), now the petitioners cannot be permitted to dispute or impugn the vires of that judgment, especially through these applications. The petitioners and their learned counsel have attempted to destroy the safe sailing of the ship of this great judicial institution. They have tried to make a hole in the ship so as to let it sink. The obnoxious plea raised and stand taken requires to be deprecated by all the prudent men, women including all stake holders interested to uphold the dignity and independence of this judicial institution and by all the citizens of Pakistan. It is the contempt of serious nature which cannot be forgiven/pardoned by this Court. The petitioners who have sworn affidavits by instructing their learned counsel through the above arguments, addressed by their counsel, do not deserve any leniency shown in the matter of this contumacious and destructive arguments and the stand taken of bifurcating this institution into two water tight compartments. 19. Resultantly the petitioners, namely, Mehr Zafar Iqbal and Shakeel Baig, both are mulcted with cost of Rs. 1,00,000/- each to be paid/deposited in the office of this Court, within 15 days or to suffer simple imprisonment of three months. 20. While the learned counsel who have addressed these arguments without considering the repercussions on the judicial system and institution, on the basis of instructions although imparted to them by their clients, yet they cannot be excused on this plea because it is their primary and prime duty to uphold the dignity, unity and highest respectful image of this judicial institution. This art of advocacy also cannot be approved and appreciated. This Court has noticed with dismay the manner and method of arguments addressed to this Court. As we have got highest regard to the exalted legal profession and to the legal fraternity in general, so we have restricted ourselves to the extent of warning, considering it to be sufficient for them with remarks to be careful in future and not to deviate from the path of augmenting the respect of the judges and the institution, and not to be entrapped, upon the direction of a client, to address the Court in an abusive language or with the pleas and position harmful to the judicial institutions although that may satisfy the ego of their clientele. It is the cardinal principle that the remarks which are creative of an atmosphere of distrust upon the judges or on the judicial institution, whether these may be false or true are bound to tumble down the sanctified image of this institution, of requiring highest regard and respect. The mutilation of the face of this institution would loosen the faith, trust and confidence in the mind of the litigants which would be harmful not for this institution but for the legal fraternity as well, as a whole and the destructive consequences would be borne by all the important segments, of the society in future. 21. Before taking into consideration the law of land and judgments of foreign jurisdiction, we feel dignified to refer and rely upon the Quranic Verses. In Surah Al-Ma’idah (6th Para) Verse No. 42, which has very beautifully laid down the rule of recusal. The text is:

The English translation of above Verse of Surah Al-Maidah by Muhammad Farooq-i-Azam Malik, of the Institute of Islamic Knowledge Houston, Texus, U.S.A and translation by M. Asad published by Daral Andaulus, Gibraltar is as under: "Therefore, if they come to you with their cases, you may judge between them or refuse to do so. Even if you refuse, they will not be able to harm you the least, but if you do act as a judge, judge between them with fairness, for Allah loves those who judge with fairness." "Hence, if they come to thee (for judgment), thou mayest either judge between them or leave them alone; for, if thou leave them alone, they cannot harm thee in any way. But if thou dost judge, judge between them with equity: verily, God knows those who act equitably." 22. From the above Quranic Verse, it is the will, wish and choice of the judge to accept the case for imparting justice between the parties or to recuse himself from adjudicating the dispute. 23. From this verse, a litigant has not been granted a right to ask the judge to recuse himself. In a given case, it is the option of the judge to entertain it or to decline its admission with himself to administer justice between the parties of that case. If a litigant does not feel justice to be done from a judge, he must not place his case before the Judge. When the case is placed before a judge by a litigant, thereafter the litigant cannot ask the judge to recuse himself. The presentation of a case for decision before a judge presupposes that he believes the judge able in all respect to deliver justice. It would be contemptuous act of a litigant to present his case for adjudication and then ask the judge to decline to decide it. When a case is proffered before a judge, in that event, the right to ask the judge to recuse himself is lost by the litigant because he has already accepted his authority, valid appointment, competency to administer justice, and with the belief of his independence. He is presupposed to have believed the judge to be a judge a person of integrity. 24. Before any finding is rendered upon this subject, it is necessary to consider the definition of Recusal and its applicability to the facts of this case. The Recusal has been defined in Black's Law Dictionary, (Seventh Edition) in column IInd at page 1281 as:--"Removal of oneself as judge or policy-maker in a particular manner, esp. because of a conflict of interest." While precusation has been given the meaning of:-"1. Civil Law. An objection, exception, or appeal; esp., an objection alleging a judge's prejudice or conflict of interest. 2. Recusal." 25. It is important to note that recusal has not been defined with the concept of ineligibility or in-competency of a judge to dispense justice. In other words, the Judge is considered competent and no question of validity or constitutionality of his appointment is in dispute. It is only the conflict of interest or prejudices, which may arise and hamper the free and fair delivery of justice for which recusal is being sought. 26. Seen from another angle, no prudent man can ask a person to decide the validity and constitutionality of his own appointment to an office, post or on a seat occupied by him, as it shall be a decision not appealing to reason and acceptable to the person seeking such decision, in case it is decided by that incumbent in his own favour. Accordingly, recusal being prayed on the ground of PCO Judges being invalidly and unconstitutionally appointed, is not maintainable and is a fallacious and vicious prayer itself. 27. From the definition, even taken from the Black's Law Dictionary, it is apparent that it is the decision of the judge to recuse himself, when he feels that there is possibility of conflict of interest or prejudice which would be caused to a party of the case in his participation or in the decision of that case. It is the decision of the judge to gauge as to there is conflict of interest or not, and that by making decision in a lis, his inclination or bent of mind would not take him to such an extent, as to be on one side and that it would be creative of such a mind, so as to cause imbalance in the scale of justice, thereby prejudicing the case of a party without giving fair decision on it. 28. Supreme Court being the apex Court of the judicial hierarchy of the country, there being no other Court except the Court of Almighty Allah, how in such a situation, a litigant can ask the Supreme Court to avoid the delivery of judgment after having offered his lis, for doing the justice to it? CASE LAW FROM PAKISTAN In PLD 1989 S.C. 689 at page 741(w) (Federation of Pakistan v. Muhammad Akram Sheikh) it was held, "It is for the Judges concerned (and not the rest of the Judges in the Bench) to decide in their judicious sagacity and wisdom whether they may participate in the proceedings in question". CASE LAW FROM FOREIGN JURISDICTION In Public Utilities Commission v. Pollak (343 us 451 + 95 L ed 1068), "it was held that when the judges believed that some unconscious feelings might operate in the ultimate judgment, the judges might recuse themselves". In R v. Gough (1993) 2 All ER it was observed: "it is the feeling of the judge to judge as to whether his feelings would be so strongly engaged as to victimize the party in making unfairly in the decision of the controversy due to some prejudice. In such a situation, the judge may recuse himself and not to participate in the judicial judgments." (2) PCO JUDGES 29. This term has been invented when a Provisional Constitution Order was enforced by a brutal force, by deviating from constitutional provisions and taking extra constitutional steps. We are not concerned at this stage as to the reasons, grounds and causes, which had taken place on 3rd of November 2007, particularly in the presence of Tikka Muhammad Iqbal Khan’s case. This case has now closed the chapter of this unhappy event of past history and has made an attempt to save the judicial institutions of the country to take steps forward, instead of beating about the bush. But we have taken this aspect with another angle in this case, which has necessitated this discourse and is required to be noted by all the concerned stakeholders. The proclamation of emergency, enforcement of Provisional Constitution Order I of 2007 and the issuance of an order in the form of the Oath of Office (Judges) Order, 2007, were not enforced upon the advice of the PCO Judges. No advice was delivered by the PCO Judges and no assistance was provided by these Judges to the military force to do such acts. The above noted steps were admittedly taken by a military General which were extra constitutional. Due to these extra constitutional steps, a vacuum was created in the working of judicial functions alongwith judiciary itself. After these steps were taken, some of the Judges were invited to take oath, out of whom a small negligible number of Judges had declined to take oath, while the other Judges were not invited and offered the oath. The Judges who were offered and invited to take oath were in an enigma as to take or to refuse the oath. In case of refusal, the judicial institution was to suffer greatest harm and its fabric which was woven in a period of more than 150 years, was to collapse completely. In the event of refusal to take the oath, it was expected that this judicial institution might be occupied by such persons who had no knowledge and expertise of delivering justice. There were many other considerations also in their mind. To save the judicial institution, to create hindrance and to prevent the spreading of chaos in the country, for the better interest of this institution and for the whole betterment of the citizens of Pakistan, it was decided that the offer of oath might not be declined. With this aim and purpose, and to put the derailed wagons on the track of the rails (as stated by Mr. Ahmed Raza Khan Kasuri), sincere, innocent and serious thoughts were given to the problem by majority of judges, who had thereafter decided to take oath so as to save the interest of country and the Constitution from being destroyed further. These actions and the others were to be appreciated rather than to be deprecated. As pointed out by Mr. Ahmed Raza Kasuri, it were the efforts of these PCO Judges who had tamed the jungle loin by their wisdom. The judges, who are now being named as PCO Judges are in fact, the saviour of judicial institution and system, the main organ of the State and the interest of the litigant public at large. The citizen of Pakistan have been rescued from being pushed into chaotic environmental situation where law of jungle was to prevail in case these judges had not used their gumption of accepting the offer. It may be noted that when the guns are roaring, force of pen is silent, when guns are silent, voice of pen is brightened. The use of pen in given circumstances, without wisdom is nothing but destruction. 30. Let it be noted that these P.C.O. Judges had never been a hurdle or obstacle in the campaign launched for the restoration of those brother judges who either declined to take oath or were not administered the same. 31. The example has been set up by these PCO Judges, when they had welcomed those Hon'ble judges to take their previous positions in the judicial system. It was, therefore, a matter of two different thoughts to achieve the same goal of saving the judicial institution and system, for which no one can be blamed. It is a very sorrowful state of affair that a learned counsel of such a stature, namely Mr. A.K. Dogar has uttered these words of "faithless, law breakers and dishonest" persons. Before arguing the case on this premises, Mr. A.K. Dogar must have given thought, time and again to this aspect of the case and should not have been swayed by the street slogans and should have avoided to utter these words even upon the instructions of his cliental, particularly when the transitional period was got immediately wrapped up by the efforts of these P.C.O. Judges from General Pervaiz Musharraf. If one set of judges had stood up for upholding the flag of independence of judiciary, the other was defending the fort of judiciary from being intruded from the aliens to this complexity of judicial system, although task was different but the goal was one. 32. The stand and the plea taken by Mr. A.K. Dogar although upon the instructions of his clientele, was destructive of the sanctity of this judicial institution. He was unmindful that this plea was being raised when the judiciary and its judicial institutions were working in a complete harmony, unity and delivering justice with its purity of thoughts, without bias and without prejudice to any one. The smooth working of the judicial functions of the judiciary was also disturbed by Mr. A.K. Dogar upon raising this plea of enormously destructive nature regarding this judicial institution. It may be remembered that this magnificent building of justice is constructed upon the belief of its honesty and sanctity. If this image is damaged, then no one will be ready to accept the judgments which are delivered by these judicial institutions. Anarchy and chaos would prevail within the citizens of the country. When judgments of Courts are not accepted, submission and surrender to it is not performed, in that event, street and mob justice is invited, to become the rule of the day. Judgments require yielding of one’s will and wish, without murmuring and grumbling. If any party is grouched, it may approach to the higher Court in accordance with law, and not to become judge himself so as to drag the judgment in the street for mob and street justice. Judicial institutions, judges and their judgments, require veneration and obeisance. If a judge is corrupt, his removal can be attempted through lawful means and manners as prescribed by law. But to malign judges, to impute dishonesty and to utter allegation of their being faithless, and law breakers are the words of gravest contempt. The use of derogatory language for the judiciary is a conspiracy to destroy the sacred temple of justice, which would tumble down its structure and there would be none in that event, to reconstruct it. 33. Learned Advocates and the legal fraternity in general is, in fact, the custodian and preserver of the dignity, independence and sanctity of this judicial institution. It must be remembered that their own respect and reverence is attached with the sanctity and reverence of this judicial institution. If a fraction of the legal fraternity is out to disfigure the face of this scared institution or to annihilate its image of impartiality, sacredness, sanctity and independence, none would be there to save them and this institution. 34. With these words and sentences, we desire and expect that the learned Advocates appearing in the cases, would observe this direction in future, because they are officers of the Court and are saddled with the duty of upholding its dignity and independence. (3) BIASS 35. During arguments of the case much stress has been laid by Mr. Muhammad Akram Sheikh and Mr. A.K. Dogar, learned counsel for Mehr Zafar Iqbal and Shakeel Baig, that as there is every likelihood of bias in the mind to prevail in the decision of the instant case, therefore, the Judges of this Bench may decline to hear this case. The main reason which has been argued by the learned counsel is the apprehension in the mind of petitioners that the judges of this Bench consist of PCO judges and they had taken oath under the Provisional Constitution Order, 2007, and Oath of Office (Judges) Order, 2007, promulgated by Gen. Pervez Musharraf, the Chief of Army Staff, and Mian Muhammad Nawaz Sharif, the candidate, having announced support in favour of deposed judges, there was likelihood of existence of bias in the mind of PCO judges, as against Mian Muhammad Nawaz Sharif. The petitioners, therefore, as per learned counsel are feeling that the case would not be decided fairly and in their favour. According to Mr. Muhammad Akram Sheikh and Mr. A.K. Dogar, learned counsel, Imam Abu Hanifa (Rehmatullah Alaih) had declined to accept the office of the Judge, therefore, the present judges might follow that example. It is argued that as the Judges of this Court have delivered the judgment of PLD 2008 S.C. 178 on 30.11.2007 in Tikka Iqbal Muhammad Khan case, in their own favour, which is a void, non-existent and coram non judice judgment, therefore, as per legal maxim, Nemo debet esse judex in propria sua causa (that no person should be judge in his own cause) it is a prohibited course for the present judges to hear this case, as the petitioners are apprehensive that justice would not be done by the present Judges of this Bench in their case. Mr. Muhammad Akram Sheikh has referred to the passage from a book of De Smith's Judicial Review, Sixth Edition, authored by the Rt., Hon. The Lord Woolf and others, which is reproduced as follows: "by taking the oath of office as a judge, a man ceases to be human and strips himself of all predilections, becomes a passionless thinking machine" is doubtless beyond achievement." "Common law (and sometimes statute) disqualifies a decision-maker from adjudicating whenever circumstances point to a real possibility that his decision may be predetermined in favour of one of the parties)" "The principle expressed in the maxim nemo iudex in sua causa (no one should be a judge in his own cause) refers not only to the fact that no one shall adjudicate his own cause; it also refers to the fact that no one should adjudicate a matter in which he has a conflicting interest." 36. Learned counsel has also referred passages from Halsbury's Laws of England/Administrative Law (Volume 1(1) (2001 Reissue)/4, Judicial Control with regard to rule of "direct personal interest and apparent bias". The following is the relevant passage from that text: "first, where an adjudicator has either a direct pecuniary or proprietary interest in the outcome of the matter, or can otherwise by reason of a direct personal interest be regarded as being a party to the action, and second, where either by reason of a different form of interest or by reason of his conduct or behaviour there is a `real danger’ of bias on his part. In the former category an automatic, and irrebuttable, presumption of bias is raised, in the latter category the test for apparent bias is satisfied." 37. To support the above principles and rules, learned counsel has cited the cases of (i) Metropolitan Properties v. Lannon (1968) 3 All. E.R. 304; (ii) Pinochet, in re - [1999] UKHL 1; (iii) Locabail (U.K.) Ltd. V. Bay Field Properties Ltd. [2000] EWCA Civ 3004; (iv) Magill v. Porter - [2001] UKHL 67, (v) George Meerabux v. The Attorney General of Belize (Belize) -[2005] UKPC 12; (vi) AWG Group v. Morrison [2006] 1 All ER 967; [2006] EWCA Civ 6; and (vii) Gillies (AP) Secretary of State for Work and Pensions [2006] UKHL 2. 38. Learned counsel also has referred American Law on the subject from U.S. Code Collection 455 regarding Disqualification of justice, judge or magistrate judge, The relevant para of which is reproduced through the following passage: "where a judge has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding; in private practice he has served as lawyer in the matter in controversy; he has served in governmental employment or in such capacity participated as counsel, adviser or material witness; has financial interest individually or fiduciary; has got third degree relationship with such a person; was a party to the proceedings; was acting as lawyer; a material witness in the proceedings; or known by the judge to have an interest that could be substantially affected by the outcome of the proceedings." 39. These were the qualifications enumerated by the aforementioned U.S. Code Collection for disqualifying a judge, justice or judge magistrate. 40. He has also relied upon two cases from Indian jurisdiction reported in AIR 1959 S.C.1376 (Gullapalli Negeswararao etc. v. The State of Andhra Pradesh and others) and AIR 1987 S.C. 2386 (Ranjit Thakur v. Union of India and others. In the former judgment, it was held that “no man shall be a judge in his own cause; justice should not only be done but manifestly and undoubtedly seem to be done; if a member of a judicial body is subject to a bias (whether financial or other) in favour of, or against, any party to a dispute, or is in such a position that a bias be assumed to exist, he ought not take part in the decision or sit on the tribunal”. While in the latter judgment test of likelihood of bias was noted as follows: "tests of the likelihood of bias what is relevant is the reasonableness of the apprehension in that regard in the mind of the party. The proper approach for the Judge is not to look at his own mind and ask himself, however, honestly, “am I biased?"; but to look at the mind of the party before him. (underlining is provided by us) Two more judgments on which the learned counsel has placed reliance are as follows: (i) Bhajan Lal v. Jindal Strips Ltd. (1994 SCC (6) 19 JT 1994 (5) 254; (ii) 1994 SCALE (3) 703 41. It was held in those judgments that in the case of non-pecuniary bias, regard was to be had to the extent and nature of interest. It was observed in those cases that the judge had to satisfy himself to this fact that there was a real likelihood of bias. `Real likelihood of bias' is how to be determined, the test was also provided in those judgments. It was found that "real likelihood" depended on the impression which the Court would get from the circumstances in which the justices were sitting. Bias should be based on reasonable suspicion. 42. Learned counsel has also placed reliance upon the judgments pronounced by Pakistani Courts. In Ghulam Rasul and others v. Crown (PLD 1951 F.C. 62) Federal Court observed as under: "Nothing should be allowed to happen in a case which may give rise to a reasonable apprehension in the mind of an accused person that he would not or did not have a fair trial. It is essential that justice must not only be done but must manifestly be seen to be done." 43. And so the case of Federation of Pakistan vs. Muhammad Akram Sheikh (PLD 1989 S.C. 689), which judgment is a landmark judgment on the subject of principles, applicability and exceptions of Bias. 44. We have also found some observations in para 31 of that judgment which are beautifully worded and demonstrate the present scenario of our passions and feelings which are reproduced as follows: "31. Courts are indeed a storm centre facing the panoply of human problems, crowded dockets and unrelenting work schedules. Justice Oliver Wendell Holmes said: “We are quiet here but it is the quiet of a storm centre." In Justice Benjamin Cardozo's memorable words, "the great tides and currents which engulf the rest of men, do not turn aside in their course, and pass judges by". We should only add that the judges must remain unruffled and calm in the midst of contending forces. To recall the words of Mr. Justice Frankfurter in Public Utilities Commission of the District of Columbia v. Franklin S. Pollak16; "The judicial process demands that a judge move within the framework of relevant legal rules and the covenanted modes of thought for ascertaining them. He must think dispassionately and submerge private feeling on every aspect of a case. There is a good deal of shallow talk that the judicial robe does not change the man within it. It does. The fact is that on the whole, judges do lay aside private views in discharging their judicial functions. This is achieved through training, professional habits, self-discipline and that fortunate alchemy by which men are loyal to the obligation with which they are entrusted. With this we leave." (emphasis supplied by us)". 45. We have also been apprised of a judgment Webb and Hay v. The Queen -(1994) 181 CLR 41, (1994) 68 ALJR 582 F.C. 94/030 from the High Court of Australia. In that judgment proper test given was as follows:-"... the proper test is whether fair minded people might reasonably apprehend or suspect that the judge has prejudged or might prejudge the case ......" (Underling provided by us). 46. Although the whole judgment of PLD 1989 S.C. 689 has beautifully assimilated the case law and principle governing bias and the guidance was provided in it as to when a judge was not to take part in the adjudication of a case, yet in the same judgment the circumstances for applicability of principle that no man can be judge in his own cause” were also noted. In it, rule of exception due to necessity was also narrated. In that judgment, in the exception part, it was held that the judge was to decide as to whether the party was not resorting to a device with an ulterior motive, so as to prevent him (the judge) from sitting on the Bench while dealing in a particular case. It was also ruled that the decision of allegation of bias was the prerogative of the judges concerned to decide it in their judicial sagacity and wisdom as to sit or not to sit on the Bench. 47. Judgment in the case of Malik Asad Ali and others v. Federation of Pakistan (PLD 1998 S.C. 161) has also been cited by Mr. Muhammad Akram Sheikh, in which objection raised against some of the judges sitting on the Bench was that they had previously participated in other legal proceedings against the same person. But in the aforementioned judgment, it was also held as under:-"Mere apprehension in the mind of a litigant that he may not get justice such as is based on inferences drawn from circumstantial indications will not justify the raising of the plea. The facts adduced must be such that the conclusion of bias follow necessarily therefrom. On no weak ground can any person be permitted to attack the impartiality of the superior Court and consequently should the proof fail to satisfy the requisite standard, he may be found in contempt". (underlining is ours) 48. Learned counsel has referred to a judgment delivered in the case of Asif Ali Zardari and another v. The State (PLD 2001 S.C. 568) and has referred to the passage with regard to three different kinds of bias which can be found at page 592 of that judgment, which are summarized as the direct connection with the litigant of the judge through a legal interest, pecuniary interest in the cause, or personal bias towards a party. But in the same judgment in para 25, the following exception has been found: In other words, the principle is well settled that a judge of the superior Court is blessed with a judicial conscience. It is for him to decide to hear or not to hear a matter before him." (underlining is ours) 49. Upon the strength of above noted authorities and the principles laid down in those judgments, learned counsel Mr. Muhammad Akram Sheikh has prayed that the present Bench may not hear the case. 50. In reply to the arguments, Mr. Ahmed Raza Qasuri, has stated that the present Judges were not privy to the action of deposing of the judges. Qualifications and disqualifications of the judges are not involved in the present case, so the rule that no one can be Judge in his own cause”, cannot be applied to the present case. As regards the purpose of oath as provided by Article 178 of the Constitution, the crux of the oath is not to allow any personal interest to influence the official duty and conduct or the decisions. Judges come from this environmental set up. They should not be disturbed with contemptuous language. If bias is alleged against the present Judges, then the perception can arise in the mind of the respondents against those judges who are being selected by the petitioners. Frivolous petitions have been filed so as to malign the Judges. Cases of political nature must not be brought before this Court and must be resolved in the Parliament. 51. We have examined the question of bias in detail in accordance with the facts of the case as well as the case law on the subject. This is an apex Court of the country, against the decision of which no appeal or revision can be filed before any other Court. The judgments of this Court are the final decisions of the judiciary. If the judges of this Court are imputed bias, there will be no end to chaos. Judges of this Court cannot be swayed by cheap and petty slogans and attributions of frivolous nature. They are assessors of their own conscience, as they knew that they are answerable to the Allah Almighty. Why they should feel bias in favour of any one? When they are not involved in any referred to incident, which has already become a past and closed transaction. There are no reasons and grounds to possess the bias against petitioners and their candidate. As earlier pointed out, the present Judges cannot be called as PCO Judges because they are holding this office of highest reverence under the oath prescribed by Article 178 of the Constitution through Sixth Schedule of the present Constitution. After having taken oath under the Constitution, they are constitutional Judges. They are working as such. Their work itself display the smooth working of the judiciary under the Constitution. Therefore, there is nothing in their mind to feel prejudice and bias against the petitioners or their candidate on this basis. 52. It is very strange and amazing argument, not appealing to reason that 16 judges out of 20 are biased according to the version of the petitioners. Ex-facie this is a frivolous version adopted by the petitioners because if the above mentioned number of judges were biased as against them, why then civil petitions for leave to appeal were filed by them on 25.6.2008, when all the Judges at that time were holding the office of Judges of the Supreme Court as such? Why the application of bias was not moved alongwith the civil petitions? It may be pointed out here that the reference to our four respectful brother judges, by these petitioners is, in fact, politically motivated and generated version with ulterior purposes, which trend has to be curbed by this highest Court of this country. It may be noted that in the application for recusal, petitioners have iterated the version of their leader. In the text of the petition, it was alleged by them, that their leader was not acknowledging the status and valid appointment of these Judges, if it was so, then why the petitioners had come to this Court and had filed these petitions? It appears, and is evident from the above noted filing of the petitions and the adopted version that the aim and object of the petitioner was not to obtain decision on the merits of the case, as they were fully aware regarding the weaknesses of their case. Their desire and design was only to malign the character of judges and to defame this highest judicial institution with the imputation of partiality. It was, therefore, that the present petitioners, when the case was commenced for hearing, had filed the petition for recusal, which was presented by them after passage of near about 5 months and much stress was laid by them to decide this application first, so that they might be able to create fuss, upon the rejection of their petitions. They had not come to argue the cases to this Court for obtaining the decision of their cases on merits. The filing of CPLAs by these petitioners, the proposer and seconder, without any petition being filed by the candidate himself, in the case was only an overdoing with a prior knowledge that their candidate was not prepared to approach this Court, and that he was not acknowledging the status and was not ready to accept the decision of this Court. In any case, with the filing of these petitions of recusal, this stratagem and design was manifested with much clarity. From this narration, one can easily judge the intention of these petitioners, who had approached this Court for creation of division, bifurcation, disunity amongst the judges of this Court, attribution of dishonesty and arousing of feelings of abhorrence against this institution. Their purpose was only to abuse the judges and the Court by filing these petitions through far-fledged past events, having no nexus or any link with the making of decision of their cases. 53. It must be kept in mind that the Judges of this Court cannot yield to any temptation and allurement. They are the final adjudicators of the law of the land and their wrong interpretation of law has got far-reaching repercussions on the whole set up and judicial system, as they are minarets of law for the subordinate judiciary to follow it in their judicial cases. Their age, judicial experience and training does not allow them to decide the case without keeping its merits in mind. 54. To impute bias is an easy task but to prove its truth is most difficult job. Judges of the highest, and apex Court cannot be an easy prey to the pressures of any political party or any other highest authority. Their impartiality and independence lies in their encouragement to dispense fearless, temptless and pressure less justice. They are cognizant of their stature and status. To play with their independence, with unfounded perceptions is nothing but the distortion of real facts, which must not be allowed to prevail and to preoccupy the mind of any person, otherwise this trend would destroy the whole image of independence of judiciary. 55. Before deciding this case, we have been continuously posing questions to our innerselves as to whether we feel prejudice against a party to the case or have got any leaning in favour of the other. The answer in our mind and from our conscience was in the negative. By giving a thought to it, we felt that the other judges were to be imputed and would be facing with the same allegations and situation as they were also sailing in the same boat and the petitioners and their learned counsel had undistinguishably maligned all the judges in the same fashion and no one was left with any exception to it. Therefore, we decided to adjudicate this case. 56. It is interesting that still the civil petitions were not registered by the Registrar office. Instead of pressing the application containing prayer for registration, much stress was laid down upon the decision on the recusal petitions which gave way to the impression that petitioners were not serious to obtain decision on merits but had come to this Court to achieve some ulterior motive and objectives best known to them. When the petitioners were cognizant that their candidate was not acknowledging the status of this Court as a Court and they were also adopting and toeing the same line, then what was the fun to approach this Court? The answer was visible when arguments were addressed and merits of the case were adjudged. The absence of the candidate in whole of the proceedings was also supportive in raising this presumption of fact. 57. What is bias, and what are its determinative factors? It is defined in Black's Law Dictionary, 7th Edition, by Brayan A. Garner with others; as"--`Bias' "inclination; prejudice < the juror's bias prompted a challenge for cause>. - bias, vb. - biased, adj. judicial bias. Bias that a judge develops during a trial. Judicial bias is usu. Insufficient to justify disqualifying a judge from presiding over a case. To justify disqualification or recusal, the judge's bias usu. Must be personal or based on some extrajudicial reason." In PLD 2001 S.C. 568 (Asif Ali Zardari and another v. The State) description, kinds and test of bias have been exhaustively dealt with, and with clarity expounded. It has been noted in the aforesaid judgment at page 587 that "bias" is synonymous with "partiality" and strictly to be distinguished from "prejudice". Under particular circumstances, the word has been described as a condition of mind; and has been held to refer not to views entertained regarding a particular subject matter, but to the mental attitude or disposition toward or disposition towards a particular person and to cover all varieties of personal hostility or prejudice against him. 58. While providing description of bias in that, it was held:- "accused having a right of fair trial by a judicial minded person, not functioning under an influence which might paralyze mind to result in absence of a fair trial. The bias is in fact based on the principle of Latin maxim "Nemo Debet Esse Judex in propria sua causa" meaning thereby that no one can be judge in his own cause. 59. Bias in our estimation is:--"A state of mind of an adjudicator, having predetermined feeling, inclination, passion or leaning, liking or disliking, prejudicial or adverse to any party or to the subject matter involved in a lis, due to pecuniary or any other interest, based on relationship, friendship or having any intimacy with any party of the case, so as to make decision of the lis in favour of any party or particular person, without adjudging the merits of the case in a fair and balanced manner." 60. But bias must be differentiated and distinction must be kept in mind between the following situations: "One of a judge/arbitrator/juror, who is predetermined to decide the lis in favour of one party before the hearing of the case due to extraneous reasons; and The other arriving to a conclusion during the hearing of a case. The former can be called bias, while the latter would be assessment process of the merits, culminating into a decision of the case. 61. To our mind, causes may be manifold. It may be based on the pecuniary interest of a judge involved in the case, the inclination of a judge in favour of a party; may be based on the ground of relationship, intimacy towards any party, there may be a close relative or an intimate friend. There may be a case where judge has got fiduciary relationship with any party in the case. There may be a case of a judge who had been a member of a political party. There may be a case where a judge might have remained an advocate of any party to the lis, he might have been an arbitrator, referee, or conciliator in the subject matter for any party to the case. He might have developed hatred to a party due to the acts and demeanor of a party before filing of the petition. All the reasons and kinds cannot be completely encompassed through this narration which may give rise to bias and be the example in procreation of bias in the mind of a judge. But it is hard and real fact that we all the judges of this Bench have got no such feelings, links or relations with any party to the proceedings as noted above. There is no apparent or latent reason to lean in favour of one or to be against the other. If one political party has got its own stand or stance, it has nothing to do with the working of this Court and upon its decision. As noted under the heading of "recusal", all the present judges are constitutional judges and having taken oath under the Constitution are bound to administer and deliver justice in accordance with the Constitution and the law of the land. Their faculty of approach cannot be considered to be effected by any stretch of imagination to be in favour of anyone due to the stand/stance taken by any political party in this country. 62. It is worth mentioning that a judge once appointed in the superior Court has got sufficient security/guarantee in the Constitution, not to be removed or dismissed unless through the decision of Supreme Judicial Council constituted under the Constitution. Therefore, these guarantees and safety measures particularly in a democratic step up, are sufficient to protect and guard the interests of judges of the superior Courts to impart justice without fear and favour, and without being influenced by the parties stand in the streets. 63. In 2003 SCMR 104 (Government of NWFP through its Chief Secretary and another v. Dr. Hussain Ahmad Haroon and others) at page 110, test was provided by the Hon'ble Judges of this Court, "where a litigant could reasonably apprehend that a bias might have operated against him" (emphasis through underlining has been provided by us). In PLD 2001 S.C. 568 (Asif Ali Zardari and another v. The State) the word "real likelihood is the apprehension of a reasonable man, apprise of the facts and not suspicion of fools or "capricious persons". It has also been noted in that judgment that judges of superior Courts are blessed with judicious conscience". Accordingly, the real test to adjudge bias is to examine and analyse the facts narrated and stand taken by a party as to whether in the given circumstances a reasonable and prudent man would feel that the "Bias" in the mind of judge was available or not? In the present case, it is evident and established that all judges of this Court are constitutional judges and the issue of P.C.O. has become a past and closed transaction. There is, therefore, no reason to feel "Bias" by a reasonable prudent man in such circumstances. 64. According to Administrative Law by HWR Wade - Third Edition -published by Clarenda Press Oxford, at page 176, it has been noted that "justice should not only be done but should manifestly and undoubtedly be seen to be done. Nevertheless, a line has to be drawn between genuine and fanciful cases." (emphasis is provided by us). It was further provided at another place, where the words are material to be noted which are:-"A Court of appeal has protested against the tendency to impeach judicial decisions upon the flimsiest pretext bias, and against the erroneous impression that it is more important that justice should appear to be done than that it should in fact be done". (Underling is provided by us). 65. In the case of The Queen v. Mc Kenzie 1892] QBD 519, it was found that the Magistrates were not biased in their decision when they had got no pecuniary interest in the matter and the circumstances were not suggesting that there could be likelihood of any bias or there was any biased adjudication. In the case reported as The Queen v. Burton ex parte Young [1897] QBD 468 it was argued that if any pecuniary interest was in existence, it would be sufficient to cause disqualification. A pecuniary loss or interest might be small one. But the above noted case is not applicable to the present case because admittedly in the present case, judges have got no pecuniary interest in the matter or related to any party. The case of Locabail (UK) Ltd. V. Bayfield Properties (2000 1 All ER 65) relied upon by both the parties, had laid down the principles and guidelines with regard to judicial bias. It was held that when there was a real danger of possibility of bias on the part of a judicial decision maker, the judge might recuse himself from the case. It was held that the circumstances were to be considered of each case but in the aforesaid case, it was also held that where the objection was wrongly made, the judge was not to yield to a tenuous or frivolous objection. (Underlining is ours). 66. The crux which has been deduced from the above referred judgments, is that there must be a real danger of possibility of bias. It may be due to conflict of interest, pecuniary or of any other kind. But the judge would not recuse himself on the basis of alleged bias upon the frivolous objections, having no substance, having no possibility of bias to happen, having no likelihood of real danger of bias to strike in the mind of a party and having no reasonable cause to exist. The remonstration against the judge in any of the above mentioned situations hearing the case is nothing but a frivolous attempt to restrain a judge to perform his duties of adjudication of cases, which can not be allowed to hamper the administration of justice. Emphasis was, therefore, laid on the word "real danger" in the cases. 67. In the case of The Queen v. Australian Stevedoring (88 CLR 100 from the High Court of Australia, it was held that there must be strong grounds for holding bias against the judicial or quasi judicial officer. The bias must be “real” with the result that a substantial distrust must result and exist in the minds of the reasonable persons. It was also held that "preconceived opinions" though it is unfortunate that a judge should have any "do not constitute such a bias nor even the expression of such opinions, for it does not follow that the evidence will be disregarded. In this case also, it was held that there must be "real bias". 68. In the case of Public Utilities Commission of the District of Columbia v. Franklin S. Pollak and Guy Martin (343 US 451 + 95 L ed 1068) it was would that a judge would not participate in a decision when there was a ground for believing that such unconscious feelings might operate in the ultimate judgment or might fairly lead others to believe that they were operating in the judgments, in such case judges might recuse themselves. 69. In R v. Gough (1993) 2 All ER 724 the test provided for real danger of bias on the part of concerned member of the Tribunal in question was in the sense that he might unfairly regard with favour or disfavour the case of a party to the issue under consideration by him. 70. In the recent case of 2001 from the Supreme Court of United States in Richard B. Cheney, Vice President of the United States, ET. AL. v. United States District Court for the District of Columbia ET AL., it was held “the decision whether a judge/judges impartiality can "reasonably be questioned" is to be made in the light of the facts as they existed, and not as they were surmised or reported. Mr. Justice Scalia refused to recuse because he held that in the Courts below, a judge could recuse to be replaced by another judge and the case would proceed normally. But in the Supreme Court he considered it in a different consequence by holding that in case of recusal for the remaining eight justices, in case of any division, a tie would not be there. Therefore, in the Supreme Court the case was to be held differently. (underlining is ours). 71. It may be noted, that the present case is akin to the above noted case, where all the judges have been considered by the petitioners to be biased against their case. When such is the case, who would then hear and decide the case of the petitioners. Is it not an interesting prayer, and is it not the case wherein no decision is being wished by the party to be made by any judge of this Bench and by this Court. 72. What is the test to determine the existence of bias? To our mind and from the analysis of the above noted authorities, and facts, the test of bias is, the thought of a prudent/reasonable man in the given circumstances of a case. If a prudent man considers the facts and circumstances of a case demonstrating and to be creative of bias in the mind of a judge and the real danger of having no fair trial at the hands of the aforesaid judge is apparent and existing, then the question would be relevant, otherwise it would not be allowed to work, when a person having mere apprehension on the basis of flimsy grounds, suppositional thoughts, surmises not in reality, with ulterior motives and making pretences so as not to get justice from a particular judge, with a view that he might be able to get the case transferred on that basis to the judge of his own choice or to the selective judges, there being no likelihood of bias, or there being no real danger of unfair trial and so many other reasons which cannot be exhaustively encompassed. 73. In the present case after hearing all the parties, we have found that in fact, there is no question of bias to take place in the hearing of the instant case. Actually, the petitioners do not possess locus standi to pursue this case, therefore, to procrastinate its prompt decision and to get transfer of it to the "judges of their own choice", a hypothical danger of bias has been invented and presented, otherwise there is no likelihood of bias to prevail in the decision. 74. Interestingly and astonishingly, it has been noticed that in the case of Mian Muhammad Shahbaz Sharif, the brother of the candidate and also a prominent leader of PML (N) with similar view point, not to get hearing of the case from PCO Judges, no such application for bias or recusal was filed in his case. Accordingly, this prayer of petitioners is dismissed. (4) LOCUS STANDI 75. Mehr Zafar Iqbal, the proposer and Shakeel Baig, the seconder had filed applications under Order I Rule 10 of the CPC in the Writ Petition filed by Noor Ellahi, the opposing candidate of Mian Muhammad Nawaz Sharif and in the writ petition of Syed Khurrum Shah. Their applications were rejected by the Lahore High Court, Lahore, holding them having no right to be impleaded in these writ petitions. The question arises as to whether both these petitioners had the right to file these applications under Order I Rule of the CPC or under Article 199 of the Constitution in the aforementioned writ petition and then to file civil petitions in this Court, in the absence of Mian Muhammad Nawaz Sharif, the contesting candidate, who had opted not to defend the verdict passed against him in the Lahore High Court, by which he was declared disqualified to contest election. To comprehend the controversy and the right arising therefrom we have to examine the nature of the dispute involved in the case. It is an admitted fact that Noor Ellahi who had filed writ petition No. 6468 of 2008 before the Lahore High Court, Lahore against Mian Muhammad Nawaz Sharif, was an opposing candidate against Mian Muhammad Nawaz Sharif. According to the version of Noor Ellahi, his contesting candidate Mian Muhammad Nawaz Sharif was disqualified and his nomination papers could not be accepted on 15.5.2008 in the by-election. To say in other words, the pivotal point for determination in the case was qualification and disqualification of Mian Muhammad Nawaz Sharif. To understand the nature of this right, we have to advert to the definition of qualification and disqualification as defined in Black's Law Dictionary, 7th Edition which is as under: "Qualification" The possession of qualities or properties (such as fitness or capacity) inherently or legally necessary to make one eligible for a position or office, or to perform a public duty or function." Disqualification:- The act of making ineligible; the fact or condition of being ineligible." 76. From the above noted definition, it is evident that qualifications and disqualifications are the inherent, personal, capabilities, abilities, qualities and disabilities of a person which are best known to that person. The keys of gate of this secret room lie with that person. Other person cannot gauge it or disclose those secrets other than the person himself or unless instructed properly and completely by him to his representatives and agents. All these are the personal rights, inherent and possessed by that person himself. Dispute regarding the right of the person concerned from being a member of Assembly is in the nature of private rights of two persons to the same office vide PLD 1970 S.C. 98 at page 113 (Lt. Col. Farzand Ali and others v. Province of West Pakistan through the Secretary, Department of Agriculture, Government of West Pakistan, Lahore) which judgment was affirmed by this Court in the case of Hafiz Hamdullah v. Saifullah Khan and others (PLD 2007 S.C. 52) at page 62. 77. It is an admitted fact that proposer and seconder are not claiming their status as agents or representatives of Mian Muhammad Nawaz Sharif in the case in hand. They had not filed applications under Order I Rule 10 CPC before the Lahore High Court, Lahore in such capacity. They are claiming an independent right vesting in them to defend the candidature of Mian Muhammad Nawaz Sharif. In such a situation, when the candidate himself is not coming forward to defend his qualifications and disqualifications, which are personal and inherent with that person, how the proposer and seconder can claim an independent right to appear and to defend such a candidate when the candidate himself is not prepared and ready to safeguard his qualifications and to oppose his alleged disqualifications, who has got a legal right to assert, dispute and defend? The proposer and seconder cannot claim an independent right to defend him, when they are not agent or representatives of the candidate, because due to failure of Mian Muhammad Nawaz Sharif to dispute and challenge those findings, those are considered to have been correctly and rightly been possessed by him. Proposer and Seconder cannot act against the will and wish of a candidate with regard to his acceptance of qualifications and disqualifications, as those proceedings shall be antagonist to his interest. 78. After the proposer and seconder recommend a candidate, consent of the candidate becomes necessary for the contest of the seat of the assembly. If the candidate does not give his consent, the recommendations of the proposer and seconder become a futile exercise. They can not compel a person, to whom they have recommended, to become a candidate unless the consent of that candidate is given. In other words, proposer and seconder are only recommendees and their recommendations would ripen into a tasteful fruit when the candidate gives consent. To amplify it, one can state that their recommendations are dependent upon the choice and will of candidate, which right of candidate is an independent right who may or may not exercise it by giving consent or by declining to accept those recommendations to become a candidate. After the recommendations are made, this dependent right is merged into an independent right vested in the candidate. The dependent right looses its significance and existence thereafter and the independent right of candidate comes and appears on the surface. 79. It is material to note that the proposer and the seconder does not figure thereafter in the whole election process. After the nomination papers are accepted or rejected, it is for the candidate to withdraw or to retire from the election. In such an event, the proposer and seconder can not force the candidate to contest the election by or through any legal proceedings. This logic itself shows that after the recommendations are made by the proposer and seconder, they have got no right to ask the candidate legally to remain in the contest. In the present case, the decision of candidate not to defend his qualifications and disqualifications, and not to contest the election, goes a long way to establish this fact that the candidate is not interested to remain in the field of contest or be a candidate for the proposed seat any more, otherwise he would have appeared at least before this Court. In such a situation, the proposer and seconder have no independent right to file this petition for impleadment in the writ petition and through civil petition in this Court. In 1994 CLC (AJ&K) 1108 (Jammu and Kashmir Council for Human Rights through Secretary, Rawalpindi and another v. Secretary, Azad Jammu and Kashmir Legislative Assembly Muzaffarabad and 4 others), elector was declared not to be an aggrieved person, therefore, not competent to file writ petition on behalf of a deseated candidate. 80. It is important to have a cursory look at the provision of sub-section (5) of Section 14 of the Act, by which the right to appeal against the order of acceptance or rejection of nomination paper, by the Returning Officer has been conferred upon the candidate and not upon any proposer or seconder or on any other person. This shows the imposition of limitation and restraint upon the right of proposer and seconder, after the recommendations and scrutiny, by not permitting them thereafter, to pursue the election proceedings any further. 81. Mr. Muhammad Akram Sheikh, has brought a novel concept of trust to be made applicable to the facts and circumstances of the case, to support the locus standi of Mehr Zafar Iqbal and Shakeel Baig, the proposer and seconder. The following arguments have been addressed by the learned counsel with his assistants:--(i) The nature of public office is like a trust. In the words of Mr. Muhammad Akram Sheikh “public office has been held since long to be in the nature of a public trust. The beneficiary of this trust is the electorate and the holder of public office is a trustee”. He has placed reliance on the case of Yaselli v. Goof et al. reported in 12 F.2D 396 from volume 35 of Words and Phrases, Permanent Edition. According to the learned counsel this definition has been found therein:-"Every public office is created in the interest and for the benefit of the people." Referring to American Jurisprudence, Second Edition, published by Lawyers Cooperative Publishing Aqueduct Building Rochester, New York, learned counsel has submitted as follows: "Every public office is created in the interest and for the benefit of the people and belongs to them, thus a public office is a public agency or trust created in the interest and for the benefit of the people. Such trust extends to all matters within the range of the duties pertaining to the office." He has also referred to page 331, Words and Phrases, Permanent Edition, Volume 42-A of the above referred book, wherein public office has been defined as under: "Public office is a public "trust" and the performance of the trust may