Judgment:
Jawwad S. Khawaja J:
1. This case was taken up earlier in the day. Before learned counsel for the applicant could state the facts of the case it was pointed out to him from the Bench that apparently there was an objection from some quarters in respect of the constitution/impartiality of the Bench. Therefore, the case was adjourned for hearing after the break at 12 noon. After the break it was stated by the Bench that the respondent or any other person having any objection against constitution of this Bench may come to Court and the matter was adjourned to 1:00 p.m.
1:00 p.m:
2. At 1:00 p.m. when the matter was taken up, the learned Attorney General appeared and stated that the Federation has no objection to the hearing of this petition by this Bench which includes (Jawwad S. Khawaja, J.). However, one Sabir Shakir, Bureau Chief, ARY, Islamabad appeared and stated that Mubashar Luqman who is Anchor Person of ARY had sent him to state that he would like to engage a counsel in this case. There may be justification for this request though,prima facie,it does not appear so but there appears to be some TV talk show aired last evening which may need to be seen as it appears to be relevant in this context. However, in order to ensure absolute transparency in these cases, we are prepared to consider the objections which may appear from the aforesaid TV show to be against one Member of this Bench (Jawwad S. Khawaja,J.). It may be that this objection has something to do with the news programmeKharra Sachwhich was aired on ARY yesterday i.e. 21.5.2014. Therefore, we direct the Registrar of the Court to obtain the CD of the said programme which was aired yesterday and which needs to be seen as the same may throw some light on the basis or otherwise of any objection as vehemently urged by Sabir Shakir.
3. The Court will re-assemble at 2 p.m. today for the viewing of the TV programme. In the meanwhile, the office shall make arrangements for displaying relevant parts of the programme "Kharra Sach"relayed yesterday on ARY News Channel, through multimedia in Court at 2. p.m.
2:00 p.m:
4. This case has been taken up for the third time today. Firstly the case was called at 12: 00 noon and at that time the order of 12 noon was passed which has been reproduced above. The matter was then set for hearing for 1:00 p.m. The order which was passed at 1:00 p.m. is also reproduced above. The matter was then adjourned for hearing at 2:00 p.m. primarily for the purpose of viewing the programmeKharra Sachwhich was aired on ARY TV last evening. We have seen two relevant clips of the aforesaid programme in Court through multimedia. The transcript of the said two clips is reproduced below:-
(LANGUAGE)
5. It is not for the present necessary to make any determination as to the nature of the above reproduced excerpts from the TV programme. If there is any cause or matter which may require intervention in exercise of proceedings under any constitutional or statutory provision, that matter, needless to say, will proceed separately because that has no direct nexus with the matter at hand. The matter right now is as to whether one of us (Jawwad S. Khawaja, J.) should sit on this Bench. The basis of the objection can be gathered from the second excerpt of the TV programme reproduced above. It is in this excerpt that it has been alleged that because of a relationship I (Jawwad S. Khawaja) have with Shakeel ur Rehman I should recuse from the hearing of this case. This statement has been made by a gentleman named Aqeel Karim Dhaidi aged 56 years. It is quite obvious that he is totally unaware of the nature of the office of a judge and of the rules which have been laid down to ensure transparency and impartiality of Benches hearing cases. Mr. Dhaidi appears to be unaware that although Mir Shakeel ur Rehman happens to be the brother of the wife of my brother, I do not recall the last time we met, it may have been 20 years ago, 16 years ago or perhaps at someshadiorghamiwhich I do not recall at present. It is always for the Judge himself to make a determination as to whether or not his relationship with any other person is such that he should not hear a particular case in which such person is a party.
6. The Code of Conduct prescribed by the Supreme Judicial Council for Judges of the Superior Courts includes Article 4 which states that a Judge should not"act in a case involving his own interest, including those of persons whom he regards and treats as near relatives or close friends."From this it will be evident that only such persons can trigger recusal of a Judge who are considered to be close by a Judge. The rationale of this stipulation is evident from its content. It is clear that I have no basis for regarding or treating Shakeel ur Rehman as a near relative.
7. The Oath of Office of Judges of the Supreme Court is set out in the Schedule to the Constitution as per Article 178. It is expressly stated therein that the Judge "will not allow [his] personal interest to influence [his] official conduct or [his] official decision".Judges also swear under the Constitution to "do right to all manner of people according to law without fear or favour, affection or ill-will".The Holy Quran in fact directs Judges to act fairly, justly and impartially even if they are hearing cases involving their own relatives. The above provisions of the Code of Conduct or Oath of Office or the verses from the Holy Quran do not impose a bar on a Judge from hearing cases unless there is cause under Article 4 of the Code of Conduct reproduced above. No such cause exists in this case.
8. In a recent judgment in CRPs-328 and 329 of 2013 which had been filed by General
(Retd.) Parvaiz Musharraf it was held as under:-
"6. Judges, it may be noted, do encounter allegations of bias and also receive criticism some of which may be expressed in civil language while others may be through hate speech or outright vilification based on malice. In either event, the Judge by training does not allow such vilification to cloud his judgment in a judicial matter. Even extremely derogatory language used against Judges does not, by itself create bias,
as is evident from the negligible number of contempt cases based on scandalisation of Judges, (none leading to a sentence) cited in the case titled Baz Muhammad Kakar vs. Federation of Pakistan(PLD 2012 SC 923). Courts, therefore, cannot decide questions of perceived bias by accepting the individual and personal views of an aggrieved petitioner and thus recuse from a case ... if a subjective perception of bias could be made a basis for recusal of a Judge ... it would be very simple for any litigant notwanting his case to be heard by a particular Judge to start hurling abuses at such Judge and thereafter to claim that the Judge was biased against him."
9. In the said judgment, we have also observed that it may become very easy for a litigant to avoid appearing before any Bench which is not of his choice. He can speak against a Judge or such Bench directly or through innuendo and thereafter claim that the Judge is biased against him and should recuse from the hearing. In the present case, we may assume that the comments made by Mr. Dhaidhi may be in good faith, however, such comments before being aired on a TV channel licensed by PEMRA could have been vetted or even in the case of a live telecast it should have been ascertained that the interviewee was aware of Article 19 of the Constitution and the law. We, however, donot intend to embark on any such inquiry as this will be a matter within the competence and jurisdiction of PEMRA. It is for PEMRA to ensure that the constitutional provisions set out in Articles 19 and 19A of the Constitution are strictly adhered to. These provisions have also been incorporated in the PEMRA Ordinance and the rules framed by PEMRA thereunder and also in the provisions of the licences which are issued by PEMRA to various channels.
10. In the above context, it may be useful to record that all litigants at times make attempts to avoid hearing before certain Benches but at times such attempts are not well intentioned. There may even be attempts to intimidate or malign judges or institutions of the State and thereby, to undermine such individuals or institutions.
11. It is in this context that two instances can be referred to by us. When I, (Jawwad S. Khawaja, J.) was a Judge of the High Court, I received a letter stating therein that I had illicit relations with women folk of the opposite party. The said letter was circulated by me amongst the lawyers of the parties. The person who purportedly wrote this letter was summoned in Court on the following day. She appeared in Court. Her demeanor in Court depicted that she was a simple village woman. She admitted that she wrote the said letter. When asked why she did so, she replied that she did not want the case to be heard by me and was advised by a worldly-wise man in the village to write the letter to me and as a consequence the case would be ordered to be placed before some other Bench. This approach is unfortunate but is prevalent in our society. Judges cannot be tricked by such tactics. If they succumb to such tactics they will thereby empower litigants and enable them to control fixation of cases and constitution of Benches.
12. There is another instance relating to a commercial matter in which a letter was received by me. This letter was purportedly from one of the parties to the case. In the letter it was stated that I had been a lawyer for one of the parties and was, therefore, biased in favour of the opposite side. This letter was also circulated amongst the lawyers of the parties at which point the party who was purported to have written the letter stood up in Court and stated that he had not written the letter and in fact he would want the same Bench headed by me to hear the case.
13. These instances show that there can be reasons, other than those that meet the eye, which may motivate a remark or comment. If judges donot deal firmly with such remarks (where unfounded) this may encourage unscrupulous or uninformed elements into saying things which may erode the standing, respect and credibility of the Court. The hearings of this case at intervals today is significant. Courts are not to succumb to any remark, defamatory or otherwise. It is the conscience of the Judge himself which must determine his decision to sit on a Bench or not.
14. We are very conscious and careful in noting that Mr. Dhaidhi may genuinely have felt the way he did when he said that one of us (Jawwad S. Khawaja, J.) should recuse from this case. Therefore, it may be for some other person or some other proceedings to deal with the utterances in the TV Programme as reproduced above. We have no intention to comment on matters which aresub judicebefore this Court and before other Courts including Accountability Courts which are part of the Judicial System of Pakistan wherein Mr. Dhaidhi may be arrayed as a party or as an accused. We are deliberately and consciously not recording any remarks or comment lest it causes prejudice to the trial or to Mr. Dhaidhi in such pending matters.
15. The upshot of the above is that I do not find any reason whatsoever not to sit on this Bench.
16. At this juncture, it is important to reproduce Article 19 of the Constitution which is in the following terms:-
"19. Every citizen shall have the right to freedom of speech and expression, and there shall be freedom of the press, subject to any reasonable restrictions imposed by law in the interest of the glory or Islam or the integrity, security or defence of Pakistan or any part thereof, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, [commission of] or incitement to an offence.
17. Thus barring the exclusions which have been mentioned in the said Article, there can be no restriction imposed on the freedoms of speech and expression set out in Article 19 of the Constitution.
18. To come up tomorrow i.e.23.5.2014,for further proceedings.