Form No: HCJD/C

JUDGEMENT SHEET
IN THE ISLAMABAD HIGH COURT, ISLAMABAD
JUDICIAL DEPARTMENT

Case No: Criminal Revision No. 108 of 2023

Imran Ahmad Khan Niazi

Vs.
District Election Commissioner

Petitioner by: M/s. Kh. Haris Ahmed, Senior ASC, Dr.

Yaser Aman Khan, ASC, Barrister Gohar
Ali Khan, ASC, M. Shoaib Shaheen, Senior
ASC, Syed Muhammad Ali Bukhari,
Niazullah Khan Niazi, Hashim Butt, Malik
Naseem Abbas Nasir, Zaynib Chaudhary,
Malik Muhammad Fiaz Kandwal, Salman
Ayub, Khalid Yousaf Ch. Malik Tariq
Noon, Ashfaq Ahmed Kharral, Mirza Asim
Baig, Azam Khan Niazi, Saeed Khan
Sadozai, Qamar Anayet Raja, Raja
Muhammad Haroon, Tanveer Ahmed
Rajpoot, Naheed Iqbal Awan, Murtaza
Toori, Shaheena Shahabuddin, Advocates.

Respondent by: M/s. Muhammad Amjad Pervez, ASC,

Muhammad Nawaz Ch., advocates.
Mr. Arshad Mahmood Kayani, D.A.G.
Khurram Shahzad, Additional Director
(Law), Zaigham Anees, Law Officer ECP.

Date of Decision: 03.08.2023.

AAMER FAROOQ, C.J.- This order shall decide the instant

criminal revision as well as Criminal Revision No.114/2023, Criminal

Revision No.74/2023, Criminal Revision No.76/2023 and Criminal

Miscellaneous (Transfer Application) No.662/2023 as they have arisen

out of the proceedings pending before the Sessions Court (West),

Islamabad. The petitioner is facing trial in the complaint filed by

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Election Commission of Pakistan (ECP) under Section 137 (4) read

with Section 109 of the Election Act, 2017 (the Act).

2. The petitioner, during the course of proceedings, filed an

application challenging the jurisdiction of the Trial Court on the basis

that the complaint filed by ECP is barred by limitation and also is

defective as the person signing the complaint on behalf of ECP was not

duly authorized. The referred application was dismissed by the Trial

Court vide order dated 05.05.2023. The referred order was challenged

before this Court and was the subject matter of Criminal Revision

No.75/2023. The referred criminal revision was allowed by this Court

on 04.07.2023 and the matter was remanded for rehearing within seven

days. The post remand matter was decided on 08.07.2023 by way of

dismissal of the objections qua jurisdiction of the Court. The said order

has been assailed in Criminal Revision No.108/2023. The petitioner

also filed an application regarding the jurisdiction of the Court on the

basis that the matter ought to have been taken into cognizance by the

Trial Court after it had been routed through the Magistrate as provided

in Section 193 of Cr.P.C. The said application was also dismissed by

the Trial Court on 05.05.2023 and has been challenged in Criminal

Revision No.74/2023. The petitioner also questioned the issuance of

summons by the Trial Court vide order dated 15.12.2022 on the basis

that it ought to have looked into the jurisdictional defects before

issuance of summons. The said order has been assailed in Criminal

Revision No.76/2023.
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3. During the course of proceedings a transfer application under

Section 526 Cr.P.C. was filed on the basis of bias of the Judge presiding

the Trial Court; primarily, on the ground that the charge was framed

against the petitioner in haste and improper fashion and also the

contentions of the petitioner in various applications have not been

decided correctly. Later, in the proceedings an application was filed

before the Trial Court for recusal in the matter on the basis of some

alleged posts on the Facebook account of the Presiding Officer which

showed his biasness. The said application was dismissed by the Trial

Court on 18.07.2023 and is under challenged in Criminal Revision

No.114/2023.

4. While arguing the Criminal Revision No.108/2023, Kh. Haris

Ahmed, Senior ASC, learned counsel for the petitioner, inter alia,

contended that this Court in Criminal Revision No.75/2023 had

remanded the matter to the Trial Court by framing different questions as

to the legal issues involved and granted seven days time. It was argued

that even before the lapse of seven days the matter was decided without

providing an opportunity of hearing to the petitioner as the

adjournments were sought but the Trial Court instead of granting

adjournments dismissed the application. It was contended that even

now the petitioner has no cavil with the remand of the matter but only

that it ought to be remaindered to a different Presiding Officer as the

Presiding Officer currently seized of the matter has disclosed its mind

and has repeated the order earlier made dated 05.05.2023. Reference

was made to Allah Dittah v. The State (PLD 1960 SC 18). It was
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argued that since the petitioner has been condemned unheard the proper

course is to remand the matter but to a different Court in light of the

observations made in Allah Dittah v. The State (PLD 1960 SC 18) and

it was contended that on this account no arguments on merit are being

addressed. Learned counsel specified that in case the Court is minded to

decide the matter on merit he would address the arguments accordingly.

Similarly, learned counsel submitted that order dated 05.05.2023 which

is the subject matter of Criminal Revision No.74/2023 is without

application of mind and does not take into account the contentions on

behalf of the petitioner. He added that since the matter was decided

without application of mind the proper course is to remand back the

matter but before a different Presiding Officer. Learned counsel did not

really press the Criminal Revision No.76/2023; however, contended

that the same has been filed by way of abundant caution to counter the

arguments of the complainant that the issuance of summons were never

challenged, hence legal objection cannot be raised subsequently.

5. Learned counsel further submitted that he seeks transfer of the

matter from the Court of current Presiding Officer seized of the matter

not on account of bias as such but the way proceedings have been

conducted by him in an undue haste by jeopardizing right of the

petitioner of fair trial as provided under Article 10-A of the Constitution

of Islamic Republic of Pakistan, 1973 (the Constitution). He submitted

that the application for recusal was made on account of some posts

made on Facebook account of the Presiding Officer which was turned

down without any justification or basis.

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6. Mr. Amjad Pervez, ASC controverted the contentions of the

learned counsel for the petitioner and submitted that there is no

justification or basis for remitting the matter to a different Court

inasmuch as the Presiding Officer has not misconducted himself during

the course of trial nor has shown any bias against the petitioner. He

submitted that challenging interlocutory orders in order to stall the

proceedings of the Trial Court has been deprecated by the Hon’ble

Supreme Court of Pakistan. Reference was made to Mushtaq Hussain

Shah Bukhari v. The State (1991 SCMR 2136), Mohtarma Benazir

Bhutto v. The State (1999 SCMR 1447). He distinguished the facts of

Allah Dittah v. The State (PLD 1960 SC 18) and submitted that this

Court has already in the case titled Mian Muhammad Nawaz Sharif v.

The State (2019 P.Cr.L.J. 389) has held that a decision on an issue by

the Presiding Officer does not bar him from sitting in the same case or a

connected case in subsequent matters. Learned counsel highlighted the

conduct of the petitioner by saying that the posts on the Facebook

account have been found to be fake and fictitious and argued that the

same was done to malign the Court and bring the judiciary to disrepute.

Learned counsel submitted that no bias of the Court as such is made out

in the facts and circumstances which mandates the transfer of the case

to a different Court.

7. In rebuttal, Kh. Haris Ahmed, Senior ASC submitted that the

Federal Investigation Agency report on the issue of fake posts on

Facebook is a unilateral act and cannot form basis for any further

action.
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8. Submissions made by the learned counsel for the parties have

been heard and the documents placed on record examined with their

able assistance.

9. The background leading to filing of above petitions have been

mentioned in detail, hence need not be repeated. The thrust of the

arguments by the learned counsel for the petitioner in Criminal

Revision No.108/2023 is that he has not been heard and the matter

stands decided before expiry of the period prescribed by this Court in

Criminal Revision No.75/2023. He requested that the matter be

remanded before a different Court. In Allah Dittah v. The State (PLD

1960 SC 18) the trial on merit was conducted and the appeal was heard

by the learned Division Bench of the High Court and another accused

was absconder and tried later and while hearing his appeal the different

Bench followed the earlier judgment without due deliberation as to the

evidence available and in the referred backdrop the Hon’ble Supreme

Court of Pakistan while remanding the matter directed that the matter

be reheard by a different Bench. Disclosure of mind on an issue does

not per se disqualify a Judge to hear the matter again. Reference is

made to the judgment of the Division Bench of this Court in Mian

Muhammad Nawaz Sharif v. The State (2019 P.Cr.L.J. 389). The

Division Bench of this Court observed as follows:

“Be that as it may, the pivotal question that needs to be

answered is whether the findings given by A.C. No.1, in
its judgment dated 06.07.2018, passed in Reference
No.20/2017 on certain aspects which are also the subject
matter of References Nos.18 and 19/2017, would
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disqualify the learned Presiding Officer of A.C. No.I to

sit in an adjudicating capacity over the said References.
Now it must be appreciated that the learned counsel for
the applicant was not clear in his position as to whether
the applicant would be taking a defence or producing
evidence during the hearing of References Nos.18 and
19/2017. As mentioned above, the applicant did not take
a defence or produce evidence during the hearing of
Reference No. 20/2017. It is clearly within the realm of
possibilities for A.C. No.I to come to a conclusion
different in References Nos.18 and 19/2017 from the one
in Reference No.20/2017 in the event, the applicant
decides to take a defence or produce evidence. There is
no denying the fact that there are several dissimilarities
in the facts in the three References. To hold that the
learned Presiding Officer of A.C. No.I would come to the
same very conclusion against the applicant and other
accused as the one in Reference No.20/2017 would be
presumptive and speculative.”

10. Similarly, in Benazir Bhutto v. The State (1999 SCMR 1447)

the Hon’ble Supreme Court of Pakistan observed that mere fact that

Ehtesab Bench has passed an interlocutory order that the documents

were admissible does not render it to powerless to revisit the decision if

dictates of justice so demand. While making the referred observation

reliance was placed on Rabert Camoron. V. Philipsi (AIR 37 Lahore

176) wherein it was held that where through an interlocutory order

evident had been admitted to go on record subsequently the Court

seized of the matter could hold it as inadmissible. In light of the

referred view in Benazir Bhutto v. The State (1999 SCMR 1447) and
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Muhammad Nawaz Sharif v. The State (2019 P.Cr.L.J. 389) supra the

fact that the Presiding Officer has decided the matter in a particular way

is no bar for him to hear it again and reach to a different conclusion if

the dictates of justice so requires. The impugned order in Criminal

Revision No.108/2023 shows that a number of opportunities were

provided to the petitioner to address arguments but adjournments were

sought, hence the matter was decided in the absence of learned counsel

for the petitioner so the learned counsel for the petitioner is correct in

saying that he has been condemned unheard and it would be only

appropriate to remand the matter back to the Trial Court for decision

afresh. However, it is not essential that the matter be sent to a different

Presiding Officer or the Court for the reasons as mentioned in the

judgments mentioned hereinabove. It is emphasized that remitting the

matter to different Presiding Officer can be regarded as matter of

propriety and not principle of law. However, in the instant case even

remanding the matter to a different Court is not mandated.

11. Insofar as the Criminal Revision No.74/2023 is concerned, the

same is also based on the same premise that the arguments addressed by

the learned counsel for the petitioner have not been appreciated

correctly, hence the matter be remanded to the Trial Court with the

different Presiding Officer. Since no serious arguments were made on

merit and only to the referred extent it would be appropriate to send the

matter again to the Trial Court to decide afresh but not to a different

Presiding Officer for the reasons mentioned hereinabove.

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12. Though the learned counsel for the petitioner did not really

press the grounds of bias in seeking transfer of the case from Court of

Mr. Hamayoon Dilawar, Additional Sessions Judge (West), Islamabad

to another Court but in the petition the ground of bias has been raised as

to the framing of charge and not appreciating the submissions made by

the learned counsel for the petitioner. Moreover, as noted above, during

the course of trial application for recusal of the Presiding Officer was

also made on the basis of alleged posts on Facebook account of the

Presiding Officer. It is pertinent to mentioned here that this Court on

25.07.2023 referred the matter to Federal Investigation Agency to probe

into the issue of posts on Facebook account of Mr. Hamayoon Dilawar,

Additional Sessions Judge (West), Islamabad as he denied that the said

posts were even made by him. Federal Investigation Agency filed its

report pursuant to order of this Court and according to it the

authenticity of screenshots cannot be determined due to non-availability

of URL/link and the profile of the account of Mr. Hamayoon Dilawar,

Additional Sessions Judge (West), Islamabad that the URL/link as

www.fb.com.dilawardilawar.3154 has been thoroughly and technically

examined/analysis and no post in question/screenshots were found.

Learned counsel for the petitioner was correct in submitting that the

referred report cannot unilaterally form basis for taking any further

action; however, the matter needs to be probed further and inquiry is to

be made by involving all those persons who without verifying the

authenticity of the posts used the same to malign a senior Judicial

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Officer of Islamabad Judiciary, especially, when there is a categorical

denial on his part that the referred posts are not from his account.

13. As mentioned above, though the learned counsel for the

petitioner has not agitated the bias per se but on account of the fact that

almost day-to-day proceedings were conducted by him questions the

undue haste and the manner in which the same was conducted. In

Nawaz v. Ghulam Qadir (1975 P.Cr.L.J. 676) where the applicant

sought transfer of the case from one Court to another on the allegation

of political enmity; the request was turned down on the basis that no

such evidence was available. Similarly, in Abdul Ghafoor v. the State

(1993 P.Cr.L.J. 1784) again where the transfer of a case was sought on

the basis of political affiliation of the Presiding Officer with one of the

parties; the request for transfer was turned down. Likewise, in the same

case the request for transfer on the basis of undue haste by the Trial

Court was turned down as not applicable in the facts and circumstances

viz nothing existed on the record to the effect. The Hon’ble Lahore

High Court in a fairly recent decision in Abdul Razzaq. V The State

and 2 others (2022 P.Cr.L.J. 741) by following the case law on the

subject laid down the principles for transfer or otherwise of a case

under Section 526 Cr.P.C. from one Court to another which are as

follows:

“Following are the principles settled on the question of

transfer of a case from one Court to another:
(a) A case should not be transferred from the Court
of competent jurisdiction unless the allegations are
supported by strong reasons or convincing evidence.
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(b) If such applications are allowed, it would

impliedly mean that the allegations against a Judge
have been deemed to be correct and such situation will
certainly lower the image, dignity and honour of
judiciary in the eyes of public at large.
Transfer of a case is to be allowed only in
exceptional circumstances where the grounds urged
are based on strong reasons and evidence. If this
practice is not followed strictly, the parties are likely to
take undue advantage by filing application for transfer
of their cases on flimsy, frivolous and baseless
grounds.
(c) While considering a transfer application, it must
be kept in mind that the parties should not be allowed
to pick and choose the Court of their own choice or
liking.
(d) Interference in the working of the trial Courts on
fallacious grounds would give rise to a sense of
insecurity amongst the Judicial Officers and in such
eventuality the Judicial Officers may not be able to
work with required vigor.
(e) Vague and general allegations cannot be made
the ground of transfer.
(f) The Judges should equally be protected from
frivolous transfer applications in order to achieve
transparent even-handed justice so that one of the
litigants should not be in a position to overpower the
Judge which might ultimately result in tilting scale of
justice under fear and malignity.
(g) Suspicion or artificial and baseless

apprehensions are not sufficient to seek transfer of

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case. Any bald statement containing allegation is not

sufficient to allow the transfer.”

14. The Court highlighted that the transfer should be allowed only

in exceptional circumstances where the ground urged or is based on

strong reasons or evidence. It was also observed that if the transfer is

made in routine or casual manner that would destroy the dignity of the

Court and would be a ploy by a party to drag the matter and malign the

Judiciary. The Hon’ble Supreme Court of Pakistan in PIslamic

Republic of Pakistan v. Abdul Wali Khan (PLD 1976 SC 57) observed

that the basis of disqualification of a Judge on personal bias or

prejudice of such a nature as would necessarily render a Judge unable to

exercise his intention impartially in a particular case and this must be

shown as a matter of fact and not merely as a matter of opinion. It is

settled principle that mere wrong order or orders by a Presiding Officer

would not suffice as a ground for transfer or show his bias towards a

party. In Independent Media Corporation v. Federation of Pakistan

(PLD 2014 SC 650) it was observed that the Courts are not to succumb

to any remarks defamatory or otherwise. It is the conscious of the Judge

himself to determine his decision to sit on a Bench or not. In Pervez

Musharaf v. Nadeem Advocate (PLD 2014 SC 585) the Hon’ble

Supreme Court of Pakistan observed that a Judge by training does not

allow any vilification to cloud his judgment in a judicial matter and

even extremely derogatory language used against Judges does not, by

itself create bias. In Kanwar Naveed Jameel and 5 others v. Province

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of Sindh etc. (PLD 2022 Sindh 499) the Division Bench of Sindh High

Court held that it is well settled by now that it is for a Judge to himself

to determine whether to recuse from the case or not. There is ample

case laws that where it is apparent that perception of bias/ impartiality

is being created by a litigant or a counsel to divert a case from a Bench

which he perceives as unfavourable to a Bench which he perceives as

more favourable. To succumb to such tactics would not only send the

message that the Judges can be cowed into submission by such tactics,

it would also erode public confidence in the Courts and at the same time

it would increase the work load of the Bench to whom the case is

passed on.

15. The upshot of above discussion is that for decision on Criminal

Revision No.108/2023 and Criminal Revision No.74/2023 an other

opportunity ought to be granted to the petitioner to present his case

before the Trial Court but before the same Presiding Officer as

disclosure of mind on the subject involved per se is no bar for rehearing

the matter in light of the judgments cited above. There is no

justification of basis for transfer of matter from the Court of Hamayoon

Dilawar, Additional Sessions Judge (West), Islamabad to another Court

on the touchstone of the principle that no bias or apprehension of

biasness is made out. In this behalf it is elaborated that mere fact that

the trial is being conducted expeditiously does not show the bias of the

Judge. Likewise, wrong orders also do not mean that the Presiding

Officer is biased in any way. The posts on Facebook account which

formed basis for making application for recusal also do not seems to be
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authentic or genuine prima facie, especially when the Presiding Officer

categorically denied the same. Attack made on the issuance of

summons which is the subject matter of Criminal Revision No.76/2023

stands covered in the arguments which are to be heard with respect to

the decision on 05.05.2023 pursuant to Section 193 Cr.P.C. and on the

basis of limitation and authority of ECP.

16. During the course of proceedings in Criminal Revision

No.74/2023 an application was filed under Diary No.11873 of 2023

seeking transfer of case from this Bench to another; an objection was

raised by the Office that under the High Court Rules and Orders the

transfer application does not lie. The Office objection is sustained.

17. For the above reasons, Criminal Revision No.108/2023 and

Criminal Revision No.74/2023 are allowed and the matter is remanded

to the Trial Court for decision afresh. This Court was informed that the

matter is pending for final arguments tomorrow i.e. 04.08.2023, the

petitioner shall ensure addressing of arguments positively on the issue

when matter is fixed by Court for final arguments. The Trial Court shall

address the issues raised in the referred petitions while deciding the

matter. Criminal Revision No.114/2023 and Criminal Miscellaneous

(Transfer Application) No.662/2023 are dismissed. Criminal Revision

No.76/2023 is disposed of as not warranting any interference for the

reasons mentioned above. All the pending applications are also

disposed of accordingly.

18. Before parting, as observed that Federal Investigation Agency

has rendered its report prima facie that the alleged posts on the
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Facebook account of Mr. Hamayoon Dilawar, Additional Sessions

Judge (West), Islamabad Presiding Officer of Trial Court are not

authentic. Federal Investigation Agency is directed to inquire in the

matter in detail and involve everyone concerned and furnish a report to

Deputy Registrar (Judicial) of this Court within a fortnight.

(CHIEF JUSTICE)

*M.Naveed*