One Farid-ud-Din Masood filed on the 27th of June 1973, -a complaint under section 497/498, Pakistan Penal Code, against his wife Mrs. Tahira Masood and Air-Marshal (Retired) M. Asghar Khan, in the Court of Rana Shaukat A.I, Magistrate Ist Class, Lahore. Although the process was issued, yet no proceedings had been taken till the 2nd of July 1973, when Air-Marshal (Retd.) M.
Asghar Khan moved this petition under section 526(l)(b)(iii) of the Code of Criminal Procedure, against Farid-ud-Din Masood, with the prayer that the complaint be transferred to the High Court and tried by itself in its criminal original jurisdiction. The following grounds have been taken in the transfer application :---- "(1) That the petitioner is a former Commander-in -Chief of the Pakistan Air Force and since 1968 has been in the forefront of national polities and presently is the President of the Tehrik-e-Istiqlal Party;
(2) That the petitioner has been an outspoken critic of the party in power with reference to its policies in all matters of national importance;
(3) That unnerved, it appears by the increasing popularity of the Tehrik-e-Istiqlal, a false and defamatory criminal complaint has been manipulated through the respondent charging the petitioner with adultery with his wife and enticement. On this complaint, it appears process has been issued. Immediately following the day when process was issued, the Pakistan Times prominently displayed this news with a sensational caption on the back page of its issue of the 29th June 1973. The independent Press of Pakistan did not publish this news in the manner in which the National Press Trust papers and the Peoples Party organ displayed it. The object was sheer character assassination ; and
(4) The petitioner has reason to believe that the complaint by the respondent and the publicity that has been given to it have been made the avowed object of ruining the public image of the petitioner and to arrest the further progress of the Tehrik-e--Istiqlal."
The allegations are supported by an affidavit sworn by Air-Marshal (Rtd.) M. Asghar Khan.
2. Farid-ud-Din Masood, respondent, filed the written statement on the 11th of July 1973, taking the following preliminary objections:-
(i) That since the petitioner was seeking transfer of the case from the Court of Rana Shaukat A.I, Magistrate Ist Class, Lahore to the High Court in exercise of its original jurisdiction, the State was a necessary party ; and
(ii) That in the complaint filed by the answering-respondent, Mrs. Tahira Masood was one of the accused and it was, therefore, necessary to implead her also as a party in the transfer application.
Counsel for the petitioner did not controvert this position and at his request Mrs. Tahira Masood and the State were impleaded as respondents.
3. Mr. M. B. Zaman, learned Advocate-General, filed a written statement on behalf of the State. The precise position taken up by him was in the following terms : -- "That this is a private complaint by Fariduddin Masood against his wife. The State is not a party to these proceedings nor has any interest in this affair. The allegation in the petition with regard to the interest of the Government is wholly denied as incorrect and baseless. The Government has nothing, to do with the matter which is a private affair between husband and wife and the Government as such has no interest in it. It is unfortunate that this private complaint has been given a political twist and the Government is being roped in unnecessarily without any foundation or any evidence."
4. Farid-ud-Din Masood, respondent, has, in his written reply, emphatically denied the allegations contained in the transfer application. He has stated as follows :- "(a) The answering-respondent is a non-political person having no association or affiliation with any political party existing in the country
(b) The complaint filed by the answering-respondent has not at all been manipulated as widely alleged in this paragraph. The answering-- respondent belongs to a very respectable family of Bahawalpur . . . . . . . . ... . . . . . . . Keeping in view the family background and the financial position enjoyed by the answering-respondent, the allegations levelled by the Air-Marshal (Rtd.) M. Asghar Khan in this paragraph that a false and, defamatory criminal complaint has been manipulated through the respondent is nothing but tissues of lies. Very crude attempt has been made by the Air-Marshal to create defence and some justification for making out the case for transfer. It has not been indicated as to how and in what manner, the answering respondent was influenced by tile party in power or any of its functionaries. The answering respondent has got no connection whatso--ever with the party in power. None of his family members was ever associated or affiliated - in any manner with the party in power at any stage or at any time; and
(c) The news item appeared in various newspapers was nothing but the faithful reproduction of the Court proceedings. Every newspaper published the news in accordance with its own policy."
Mr. D. M. Awan, Advocate, who appeared on behalf of Farid-ud-Din Masood, vehemently opposed the application.
5. The case of Mrs. Tahira Masood was that the complaint had been motivated by political considerations, and the complainant had also the intention to grab her property. Mr. Dilawar Mahmood who appeared on her behalf made a statement at the Bar that he had no objection to the transfer of the case and would rather support the application.
6. Whether or not the allegations of one party or those of the other, are true will depend on the evidence which is yet to be recorded. It is not competent for me to examine the correctness of the allegations in these proceedings under section 526, Cr. P. C. The simple question before me, at this stage, is whether the case should be transferred from the Court of the learned trial Magistrate.
7. Ordinarily, a case is not transferred from a Court which has otherwise plenary jurisdiction to try the same, simply because one of the persons who are parties to it, happens to be, or has been, well-stationed in life. Political background for which the party in power at a particular time may not like him is also no good a reason to beget doubts about the impartiality of a Judicial Officer to do justice in accordance with law. Moreover, the feeling that the moment such a person files an application before the High Court the case shall ipso facto be transferred from a subordinate Court which otherwise has ample power to deal with the same is misconceived. I trust that a Judicial Officer against whom personally nothing is suggested to ascribe a lack of judicial detachment and impartiality will try a case pending before him uninfluenced by any attempt which may be made by any of the parties to prejudice his mind. Judicial Officers are well. Aware that their decisions are subject to examination in appeal and revision, as the case may be. The High Court also enjoys adequate powers of superintendence and control over them, and if the admitted facts of a case are apt, or at least capable of being used, to destroy the confidence of the people in the administration of justice, this Court is bound not to allow the ordinary course of justice to be left untouched, and to transfer such a case to itself for trial. But, as observed by their Lordships of the Supreme Court in Muhammad Nawaz v. Ghulam Kadir ( PLD 1973 SC 32 the transfer of a case from a Court of competent jurisdiction is justified only if there is a reasonable apprehension in the mind of the party concerned that the Court would not be able to act fairly and impartially in the matter.
8. Learned counsel for the petitioner contended that the learned Magistrate has conducted himself in such a manner as is not expected a Judicial Officer of his experience. The complaint was filed against the petitioner and Mrs. Tahira Masood under section 497/498, P. P. C. After recording the statement of the complainant, the Magistrate issued bailable warrants against both the accused. It was argued that the learned trial Magistrate exercises powers under section 30, Cr. P. C. Which clearly means that he has sufficient judicial experience inasmuch as in order to qualify himself for investiture of these powers he had to put in at least six years of service, out of which for at least three years he must have exercised 1st Class Magisterial powers, and that in that view of the matter he could not be said to be ignorant of the well-established position of law that a woman could not be accused of any of the offences provided for in sections 497 and 498, P. P. C. The application under section 561, Cr. P. C. Of Mrs. Tahira Masood has since been accepted by order dated the 17th of August 1913, quashing the proceedings against her on the ground that a woman cannot be made an accused person in a complaint under section 497/498, P. P. C.
The learned Magistrate in issuing the process against Mrs. Tahira Masood may not have acted in bad faith or with any dishonesty but it is vehemently urged on behalf of the petitioner that this conduct of the learned Magistrate has made him feel that he will not be able to get a fair and impartial trial before him; that in -view of the known facts of his political estrangement with the party in power the Magistrate would be influenced in his approach, and that he or any other Magistrate would have a lurking fear to decide the case objectively.
It is well-established by law that the woman cannot be an accused person in a case under section 497 or section 498, P. P. C. The Magistrate is presumed to know law, and his ignorance of this fundamental principle cannot be justified on any reasonable grounds. It is required of him to apply his mind to the facts of the case and the law before issuing any process, and in particular in offences under sections 497 and 498 ' P . P .C which have an element of immorality also. The fact that he issued process for summoning Mrs. Tahira Masood shows that he did not apply his mind at all. It may be due to ignorance of law, but the question is what effect it has on the susceptibilities of the accused. His apprehension is that if be can act mechanically in issuing process, he can also endanger his liberty by convicting him without applying his mind. It seems to me that, in view of the facts and circumstances of the case, it cannot be said that this feeling on the part of the petitioner, though it may be mistaken, is not reasonable or justifiable. A long line of cases shows that it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly seem to be done. In this behalf, the following observations of his Lordship the Chief Justice of the Supreme Court of Pakistan in Muhammad Nawaz v. Ghulam Kadir are also worth special notice :- "It is of paramount importance that parties arraigned before Courts should have confidence, and this can be done only by ensuring that, so far as practicable, a party will not be forced to undergo a trial by a Judge or Magistrate whom he reasonably regards being prejudiced against him."
Therefore, if there are circumstances which raise a reasonable apprehension in the mind of the person applying for transfer that he would not receive fair dealings at his trial, or, in other words, that he may not have a fair and impartial trial, and may not get justice in the Court where the case is pending, the case should be transferred. In order to decide whether the facts and circumstances are sufficient to raise such a reasonable apprehension in the mind of the party applying for transfer, the Court should put himself in such a party's position and the same situation in which the party himself stood, with the knowledge of all the facts with which the party was acquainted, and, then only the Court can see and judge, for himself how these facts would have affected the party's mind, and if they are sufficient to raise the reasonable apprehension complained of in the mind of even a reasonable person, the case has to be transferred. The petitioner, in the circumstances, when the Magistrate had mechanically issued process against one of the accused and which was highlighted in the National Press could reasonably entertain an apprehension in his mind that the learned trial Magistrate will not maintain an unprejudiced judicial mind in the trial of the case. The petitioner could understandably feel some lack of confidence in the Magistrate. The fountain of justice must not only remain unsullied from within but it must also, even on the surface and outside, appear and actually remain unpolluted, so that the confidence of the citizens of the country in the judicial administration may remain unshaken. Confidence in the Court administering justice on the part of both parties and of the public is a vital element in the administra--petition of justice. In a case of, this description, it will be desirable and would promote the interest of the administration of justice, which is all important, that it should be transferred from the Court of the Magistrate.
9. The next question before me is as to where this case should be transferred. There is an allegation by the petitioner that it is a false case and has been bolstered up by the persons in authority who are opposed to him and wanted him to suffer in his reputation and character. The stand of the Government is that they have no connection whatsoever with the case. The complainant's plea is that he would not have brought such a serious charge against ~is wife un-less it was true; that she was also hi ' s first cousin and a mother of his children, and that the allegation that he filed the complaint at the instance of the Government was false and was made with a view to divert public attention. In these circumstances, when there is an allegation that the complaint was filed for character assassination, the Advocate-General has repudiated the allegation of the petitioner as incorrect, and the complainant is asserting that the petitioner is guilty of the offence alleged, it is just and proper that the case should be tried by the High Court. Accordingly, I would transfer the case to the High Court for trial in its extraordinary criminal original jurisdiction. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.