P L D 1996 Lahore 92 (PLP)

This order shall dispose of TA. No.768-C of 1995, C.M.No.914-C/95, C.M.No.915-C/95. C.M. No.916-C/95 and C.M.No.917-C/95.

2. TA. No.768-C/95 under section 24, C.P.C. read with clause (9) of the Letters Patent for the High Court of Lahore, 1919, seeks removal of the civil suit titled "Sardar Farooq Ahmad Khan Leghari v. Mian Muhammad Nawaz Sharif' from the Court of the learned Senior Civil Judge, Islamabad and determination thereof by the High Court in exercise of its original civil Jurisdiction, C.M.No.914-C/95, C.M.No.915-C/95, C.M.No.916-C/95 and C.M, No.917-C/95 under section 151, C.P.C. and all enabling powers in this behalf have been moved for entertaining the revision petitions against four separate interlocutory orders passed by the learned Senior Civil Judge, Islamabad, on 6-12-1995.

3. My learned brother Munir A. Sheikh, J. entertained the petition and issued pre-admission notice by order dated 10-12-1995 to Raja Muhammad Anwar, Advocate, learned counsel for the respondent for 12-12-1995 on which date an objection was taken by the learned counsel for the respondent that under Rule 6 of the Lahore High Court (Establishment of Benches) Rules, 1981 (hereinafter called the Rules) it is power/prerogative of the Chief Justice alone to decide as to the cases or class of cases which should be heard at the Principal Seat. This was also the case of the petitioner. In consequence, my learned brother Munir A. Sheikh, J. directed this petition to be laid before me for considering his request for entertaining the petition at the Principal Seat though the case from which it has arisen is pending before a Civil Court at Islamabad which is an area allocated/assigned to the Rawalpindi Bench of this Court.

4. Mr. Muhammad Akram Sheikh, Advocate, the learned counsel for the petitioner raised the following contentions:-- (i) Rule 3 of the Lahore High Court (Establishment of Benches) Rules, 1981 contemplates that all matters arising within the area assigned to a Bench shall be filed before and disposed of by that Bench but the status of these Rules is to ensure the administrative discipline and there is no bar in entertaining these revision petitions at the Principal Seat if the Hon'ble Chief Justice so decided in the interest of justice. (ii) Islamabad is not a part of Civil division of Rawalpindi. Civil division of Rawalpindi does not include Islamabad. Islamabad is Principal in Federal territory as per Article 1 of the Constitution. Clause (b) of sub-Article (2) of Article 1 refers. (iii) Cases pertaining to Islamabad are filed at the Rawalpindi Bench. This case pertains to Islamabad. If the Hon'ble Chief Justice entertains the revision petitions at the Principal Seat it will not be violative of the Rules. In support of this contention reliance has been placed on Syed Ahmed Ali Rizvi and another v. The State PLD 1995 SC 500.

5. Raja Muhammad Anwar, Advocate, the learned counsel for the respondent opposed the entertainment of the revision petitions as well as the transfer application at the Principal Seat on the following grounds:- (i) It is incumbent upon any petitioner to file either a transfer petition or a revision or an appeal before the Bench to which it belongs and these revision petitions as having not been filed before the Rawalpindi Bench are not liable to be entertained at the Principal Seat. (ii) The cases relating to Islamabad are assigned to Rawalpindi Bench and this is the consistent practice since 19131, therefore, no special treatment should be given to the petitioners. The Hon'ble Chief Justices have been from time to time both in Punjab and Sindh interpreting the application of these rules that such petitions should in the first instance be filed in the concerned Bench. Reliance was placed on Altaf & Company v. Adam Sugar Mills Ltd. and others PLD 1992 Lahore 342 and Sheikh Abdul Aziz Hamad Al-Gosaibi v, Pakistan International Airlines Corporation PLD 1995 Karachi 566, (iii) The rules have the Constitutional status being framed under Article 7 of the Provisional Constitution Order, 1981 (C.M.LA. Order No.l of 1981) which have been made a part of the Constitution by virtue of Article 270-A of the Constitution, (iv) Two of the learned Judges sitting at the Rawalpindi Bench have been the counsel of the Government of Pakistan in the case titled "Public Prosecutor v. Mian Muhammad Nawaz Sharif and, others". They are not debarred from .hearing the cases. It is for the Hon'ble Judges to consider as has been held in the case of Islamic Republic of Pakistan through Secretary, Ministry of Interior and Kashmir Affairs, Islamabad v. Abdul Wali Khan, M.NA., Former President of Defunct National Awami Party PLD 1976 SC 57 and the petitioner cannot regulate or dictate that they are disqualified because none of them has been counsel for the President of ~ Pakistan. The State has filed a petition under section 198-A, Cr.P.C. for the determination of the public functionaries under section 499/50()/501, P.P.C. which >s pending adjudication before tie learned Sessions Judge, Rawalpindi. PLD 1995 SC 500 is not attracted to the facts of this case. (v) Entertainment of these petitions at Lahore will be a departure of the Constitution because all citizens of Pakistan are equal before law and they are entitled to the same treatment and the mere fact that the President/plaintiff wants to appear before the subordinate Judge to refute the false allegations levelled against him, of course, by the leader of the Opposition, the President feels that if these allegations are correct he has no right to remain the President of the country.

6. The working of the Benches at Bahawalpur, Multan and Rawalpindi is regulated by the Rules. It would be advantageous to reproduce the relevant provisions of the rules which are as follows:- "

3. All matters arising within the area assigned to a Bench shall be filed before and disposed of by that Bench.

5. The Chief Justice may transfer any proceedings pending at the Principal Seat of the Lahore High Court or a Bench to another Bench or the Principal Seat of the Lahore High Court.

6. The Chief Justice may determine cases or classes of cases which may be disposed of at the Principal Seat or a Bench as may be deemed expedient.

10. The most Senior Judge for the time being at a Bench shall exercise such powers of the Chief Justice as may be delegated to him by the Chief Justice.

11. Without prejudice to the generality of the foregoing Rules and subject to the provisions of the Order, the Chief Justice may, from time to time, pass such orders as may be considered necessary for efficient working of the Benches."

7. A bare perusal of the Rules would show that all matters arising out of the area assigned to a Bench shall be filed before and disposed of by that Bench. Here, admittedly the subject-matter of the suit arises within the area assigned to the Rawalpindi Bench, therefore, in terms of the rule 3 ibid it has to be filed before and disposed of by the Rawalpindi Bench. Refers M/s. Wilson's Pharmaceutical v. Glaxo Ltd. and another 1994 MLD 2273. However, in the interest of justice, this application is treated to be one under the Rules.

8. In exercise of power conferred by Rules 5 6 and 11 of the Rules read with Article 202 of the Constitution of the Islamic Republic of Pakistan, 1973, Notification No.127/RHC, dated Lahore, the 10th April, 1982 was issued by the then learned Acting Chief Justice that from 17th April, 1982, all classes of civil, criminal and Constitutional matters arising within the areas assigned to a Bench shall be filed before and disposed of by that Bench except the following classes of cases which shall be disposed of at the Principal Seat at Lahore:

, (i) Murder Reference at the choice of the appellant. (ii) An Intra-Court Appeal arising out of the decision of a Single Judge sitting at a Bench when a D.B. is not available at that Bench and there is urgency. (iii) Applications seeking transfer of proceedings from a Bench to another Bench or the Principal Seat. (iv) Pre-arrest bail matters where the petitioner is at Lahore and is in need of immediate interim relief; and (v) Applications seeking transfer of proceedings from a subordinate Court in the area assigned to a Bench to another subordinate Court in the area assigned to another Bench or to the Principal Seat.

9. Let me now examine whether the transfer application can be entertained at the Principal Seat. The answer is in the affirmative in view of clause (v) of the aforesaid Notification. The objection raised by Raja Muhammad Anwar, Advocate, learned counsel for the respondent as to the maintainability of the transfer application is, therefore, overruled.

10. My learned brother Munir A. Sheikh, J. is since seized of the. transfer application, the propriety demands that the transfer application is heard and disposed of by him. Learned counsel for the parties are, therefore, directed to appear before him at 10-00 a.m. today in the interest of expeditious disposal of the application.

11. Let me now deal with the application for entertaining the revision petitions against the interlocutory orders passed by the learned Senior Civil Judge, Islamabad at the Principal Seat of this Court. I am afraid these revision petitions cannot be directly entertained at the Principal Seat at. Lahore, in that, under Rule 5 of the Rules, transfer can be sought only when any proceedings are pending at the Principal Seat of the High Court or a Bench to another Bench or the Principal Seat of the High Court. Here, this condition precedent is lacking. Rule 5 is, therefore, not attracted in the facts and circumstances of the present case. The rule laid down m Syed Ahmad Ali Rizvi and another v. The State PLD 1995 SC 500 is not applicable to the facts of the present case. In the precedent case, the liberty of a citizen was involved and it was a~ habeas corpus matter. This is not the position here. In Syed Ahmed Ali Rizvi supra it was held.-- "A Judge sitting at the Principal Seat of a High Court having Benches, cannot be said to have no jurisdiction to hear cases which arise or originate within the territorial jurisdiction of these Benches. But such cases should. unless otherwise ordered, be heard at the seat of the bench for administrative reasons. However. preferably in cases where lice of citizens is involved or habeas corpus petition has been filed the same can be entertained at the Principal Seat of the Hi Court in respect of the entire territorial jurisdiction of the High Court . .... .... .. ... ... ... ... ... ... ... ... ... ... ... ... ... ...Where actions are mala fide intended to frustrate or obstruct the process of law or harass a person depriving him of his liberty by involving, him in cases pertaining to different Benches technicalities should not stand in the way of justice. And being so satisfied a Judge of the High Court sitting at Bench can exercise jurisdiction in respect of matter arising in an area assigned to any other Bench." (The underlining is mine).

12. None of the conditions stated in the above-quoted pronouncement of the Supreme Court exists in the case in hand, therefore, it is not a fit case for directly entertaining the revision petitions at the Principal Seat, Thus, visualised, the request for entertaining the cavil revision petitions at the Principal Seat is declined.

13. As to the plea of Sh. Muhammad Akram, the learned counsel for the petitioner that two of the learned Judges sitting at the Rawalpindi Bench have been the counsel of the Government of Pakistan in some cases filed against the respondents suffice it to say that the question of bias must be raised before the learned Judge concerned in the first instance. Judges of the superior Courts are keeper of their own conscience and it must be left to them to decide according to their conscience and circumstances of the case whether to hear or not to hear a particular matter assigned to them by the Chief Justice, Refers Mr. Zulfikar Ali Bhutto v. The State and another 1977 SCMR

514. The same principle has been reiterated by the Full Bench of the Supreme Court comprising Mr. Justice Nasim Hasan Shah, Acting Chief Justice, Mr. Justice Shafiur Rehman, Mr. Justice Abdul Qadeer Chaudhry, Mr. Justice Ajmal Mian and Mr. Sajjad Ali Shah, the Hon'ble Judge of the Supreme Court, in the case of Ms. Benazir Bhutto v. The President of Pakistan and another 1992 SCMR 140 after exhaustive survey of the case-law on the subject. ?

14. Be that as it may, in the present case Rule 5 of the Rules expressly empowers the Chief Justice to transfer any proceedings pending at the Principal Seat of the Lahore High Court or a Bench to another Bench or the Principle Seat of the Lahore High Court. A perusal of the above Rule indicates that the Chief Justice can order transfer of any case only when the matter is pending at the Principal Seat of the Lahore High Court or a Bench to another Bench or the Principal Seat of the Lahore High Court. Here, no revision petition is pending before the Rawalpindi Bench of this Court, the revision petition can neither be entertained at the Principal Seat nor any question arose of its transfer from the Rawalpindi Bench to the Principal Seat.

15. It is true that under Rule 6 of the Rules, the Chief Justice may determine cases or classes of cases which may be disposed of at the Principal Seat or a Bench as may be deemed expedient. This category of the case in hand has not been notified to be directly entertained at the Principal Seat. The petitioner, therefore, cannot take benefit of this Rule as well.

16. In view of the above, C.M. No.914-C/95, C.M. No.915-C/95, C.M. Na916-G/95 and C.M. No.917-C/95 are dismissed and the revision petitions be returned to the learned counsel for the petitioner for presenting the same before the Rawalpindi Bench. A.A./M-2687/L ???????????????????????????????????????????????????????????????????????????????????????? Order accordingly.