This is a petition for transfer of a suit filed by the respondent, Mst. Muniza Begum, against the petitioner, Rashad Iqbal, in the Court of Mr. Nisar Ahmad Sheikh, Judge, Family Court No.8, Karachi, for dissolution of her marriage with the petitioner. On the other hand, the petitioner has brought a suit against her for restitution of conjugal rights and the same is pending before Ch. Riaz Ahmad, Judge, Family Court, Sheikhupura. The petitioner has prayed that the respondent's suit may be transferred to the said Court at Sheikhupura.
2. When I asked learned counsel for the petitioner as to how this Court can transfer the respondent's suit from a Court of Karachi, which is not subordinate to it for being beyond its territorial jurisdiction, his reply was that in view of the provisions of section 25-A of the West Pakistan Family Courts Act, 1964, hereinafter referred to as the Family Courts Act, the High Court can transfer a suit from a Family Court even though such Court is not subordinate to it. His reasoning was that if the makers of law had intended that a High Court shall transfer such cases only as are pending before Family Courts subordinate to it, an indication to this effect would have been given in section 25-A of the Family Courts Act as done in the case of civil and criminal Courts while enacting provisions of section 24 of the Code of Civil Procedure and section 526 of the Code of Criminal Procedure. Learned counsel also relied on Shamsuddin v. The State and another 1968 PCr.LJ 1675 to contend that the respondent's suit can be transferred from Karachi to Sheikhupura. It was further maintained by him that if this Court declines jurisdiction to entertain petitions like the one in hand any party to a matrimonial dispute would be able to cause harassment to the other by filing suit in any far-flung area of the country leaving no remedy with the other party to escape such harassm ent. He also made reference to the newly-added Article 186-A of the Constitution and submitted that the Supreme Court can transfer any case, appeal or other proceedings from one High Court to any other High Court but not from the subordinate Court of one Province to the subordinate Court of another Province.
3.It is true that section 24 of the Code of Civil Procedure as well as section 526 of the Code of Criminal Procedure makes reference to Courts subordinate to the High Court but in section 25-A of the Family Courts Act there is no such mention in regard to the Family Courts; A but, to my mind, it is understood that the Family Courts referred to in section 25-A of the Family Courts Act cannot be Family Courts not subordinate to the High Court which is approached for transfer of a case from one Family Court to another. Similar opinion was expressed by me in Rohil Akhtar v. Gulistan Khan 1981 CLC 548 in which suit for restitution of conjugal rights filed by the husband before a Family Court of Abbottabad was sought to be transferred to a Family Court of Lahore which was seized of the wife's suit for dissolution of marriage. Plea raised before me in the case of Rohil Akhtar was that since in section 25-A of the Family Courts Act it has not been provided that the suit pending before a Family Court of one Province cannot be transferred to a Family Court of another Province, this Court was competent to transfer the suit from the aforementioned Family Court of Abbottabad, in the Province of North-West-Frontier, to the said Family Court of Lahore, in the Province of the Punjab. This plea was repelled by me for the following reasons:- "(3) Section 25-A of the said Act empowers a High Court to transfer a suit from one Family Court to another Family Court in the same District or from a Family Court in one District to a Family Court of another District. The High Court referred to in section 25-A is obviously, the High Court the territorial jurisdiction whereof extends to the District in which the suit sought to be transferred is pending.
Section 25-A does not contain a provision allowing a High Court to transfer a suit from a Family Court of one Province to the Family Court of another Province. Such a provision could not possibly be made in the said Act which is a Provincial Law. I am, therefore, unable to agree with the learned counsel for the petitioner that under section 25-A of the said Act, this Court can withdraw a suit from a Family Court of another Province and entrust the same to a Family Court of the Province of the Punjab.
(4)Article 175 of the Constitution contains provisions relating to establishment and jurisdiction of Courts. It is to the following effect:- '175.--(1) There shall be a Supreme Court of Pakistan, a High Court for each Province and such other Courts as may be established by law.
(2) No Court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law.
(3) The Judiciary shall be separated progressively from Executive within five years from the commencing day.'
It is evident from clause (1) of Article 175 of the Constitution that a High Court has jurisdiction within the territorial limits of the Province for which it is constituted .......................... I am, therefore, clear in my mind that in view of the existing state of law this Court has no jurisdiction in regard to a suit pending in another Province."
4.It is also noteworthy that if the view expressed by the learned counsel is accepted, it will give rise to ugly situations. For instance, what would happen if today the respondent's suit is transferred by this Court from the Family Court of Karachi to the Family Court of Sheikhupura in order to accommodate the petitioner but thereafter it is transferred by the High Court of Sind from the Family Court of Sheikhupura to that of Karachi at the instance of the respondent. I am, therefore, not inclined to place such interpretation on section 25-A I of the Family Courts Act as would bring the High Courts into conflict with each other.
5. As for the case of Shamas-ud-Din, relied upon by learned counsel for the petitioner, it may be pointed out that it was decided by the erstwhile High Court of West Pakistan. In the said case, Shams-ud-Din, a resident of Karachi, instituted a criminal complaint against Captain Gohar Ayub, at Karachi. When the Magistrate, who was seized of the complaint, proceeded to examine the complainant, he made an application for adjournment saying that he intended to move the High Court for transfer of the case to its original side. Subsequently, Captain Gohar Ayub made a petition, at Lahore, under section 526 of the Code of Criminal Procedure, praying that the complaint case be transferred to original side of the High Court but be tried at Lahore. It was submitted by him that the atmosphere at Karachi was highly tense and his life was in danger. The matter was placed before Mr. Justice Abdul Aziz Khan, who was then the Chief Justice of the High Court of West Pakistan. He directed that the case be heard on the original side of the High Court, at Lahore.
Relevant portion of his order reads as follows:- "3. 1 have heard Mr. Naqvi, learned counsel for the petitioner (Shamsuddin). He has raised the following two objections regarding the transfer of the case to Lahore. According to the learned counsel his client is not in a position to pay the travelling expenses of the witnesses from Karachi to Lahore. I do not see any force in this contention. If the case is tried by the High Court on its original side it will be a "trial", and according to law and the rules Government will have to pay the travelling expenses and the daily allowance of the prosecution witnesses. The second argument of the learned counsel is that the financial position of Shamsuddin does not permit him to engage a counsel at Lahore. I see no force in this contention as well. As I have already stated it will be a "trial" like a Sessions trial on the original side of the High Court and the State will be a party to it and the Public Prosecutor will have to conduct the case for the prosecution. In the interest of justice I have asked Shamsuddin to name a counsel whom he wants to engage to conduct the case on behalf of the prosecution. He has stated that he would like Mr. Ali Mukhtar Naqvi, Advocate, to appear for the prosecution. The request is reasonable. I, therefore, direct that Mr. Ali Mukhtar Naqvi, Advocate, Karachi, be appointed as a Special P.P. To conduct this case at Lahore on behalf of the prosecution at Government expenses. Mr. Naqvi undertakes to put in a list of the prosecution witnesses within a week. He can hand over the list to the Additional Registrar at Karachi who will forward it to Lahore.
4. For the reasons given above, I direct that this case be heard on the original side of the High Court at Lahore. The Judge who will hear the case ,will be nominated by me after the list of the witnesses reaches Lahore and a date is fixed in the case,"
Territorial jurisdiction of the High Court of West Pakistan extended to all places in the Province of West Pakistan, including Karachi and Lahore. The said High Court had its permanent Benches at Karachi and Peshawar and Circuit Benches at Quetta and Bahawalpur. As noted by the Honourable Chief Justice, he could transfer the case from one Bench to another. The present state of affairs is, however, altogether different. High Court of West Pakistan no longer exists. Territorial jurisdiction of this Court does not extend to Karachi which is within the territorial limits of the High Court of Sind.
Sitting at the Principal Seat of this Court, namely, Lahore, I can transfer a case from any subordinate Court within territorial limits of a Bench of this Court to such other Court functioning within territorial limits of another Bench of this Court but I cannot exercise this power in relation to a subordinate Court which is not subject to the jurisdiction of this Court. The case of Shams-ud-Din, being, therefore, distinguishable, is of no help to the petitioner.
6. I do appreciate the submission of learned counsel for the petitioner that the two matrimonial cases between the parties herein would involve common questions of law and fact and if they are allowed to be heard and decided by the Courts now seized of them it may culminate in judgments of variance; but, unfortunately, in the existing state of law, this cannot be helped. I entirely agree with the learned counsel that Article 186-A of the Constitution empowers the Supreme Court to transfer a case from one High Court to another but not from a Court subordinate to one High Court to a Court subordinate to another High Court. In my humble opinion, therefore, it will be appropriate to suitably amend Article 186-A so as to confer jurisdiction upon the Supreme Court to transfer a case, appeal or other proceedings from one of the D said subordinate Courts to another.
Alternatively, desirability of making arrangement like to the one reflected in section 527 of the Code of Criminal Procedure, reproduced below, may be considered:- "527.--(1) The Provincial Government may, by notification in the official Gazette, direct the transfer of any particular case or appeal from one High Court to another High Court or from any Criminal Court subordinate to one High Court, to any other Criminal Court of equal or superior jurisdiction subordinate to another High Court, whenever it appears to it that such transfer will promote the ends of justice, or tend to the general convenience of parties or witnesses: Provided that no case or appeal shall be transferred to a High Court or other Court in another Province without the consent of the Provincial Government of that Province.
(2) The Court to which such case or appeal is transferred shall E deal with the same as if had been originally instituted in, or presented to, such Court."
7. What emerges from the above discussion is that, as things now stand, this Court has no jurisdiction to transfer the respondent's suit from Karachi. Petition in hand is, therefore, not entertained. It is, accordingly, dismissed in limine.
8. A copy of this order shall be sent to the Secretary, Ministry of Justice and Parliamentary Affairs, Government of Pakistan, Islamabad; and the Secretary, Government of Punjab, Law Department, Lahore, for such action as they deem proper.