' These six transfer applications were originally filed under the signatures of Zubaida Mairaj wife of the petitioner. The petitions were all the same entertained in the office and the fact of the petitioner not having signed the applications or having instructed the counsel to file the same came to my notice during the hearing of the cases. However, Mr. Tariq has filed vakalatnama on behalf of the petitioner in each one of these cases.
2. The facts in these cases are that the petitioner had on various dates and at several places made speeches and according to the prosecution such speeches either infringed the provisions of section 124-A, P. P. C. Or Rules 42-43 of the Defence of Pakistan Rules. Separate cases were registered at various Police Stations of Karachi and the petitioner was arrested on 30-5-1974, and the cases were pending in the Court of Sub-Divisional Magistrate, Nazimabad, Karachi.
Subsequently, these six cases by a notification issued by the Government of Sind were transferred for trial by Mr. Ashfaq Abbasi, the Additional District Magistrate at Hyderabad. Although the notification does not indicate any reasons for the transfer of these cases but on a reading of the order of the Additional District Magistrate dated 17-7-1974, it appears that the venue of the trial was hanged because there were demonstrations in the Karachi Courts at the time the petitioner was produced in Court. Be that as it may, the cases have been competently transferred by the Government of Sind for trial before Mr. Ashfaq Ahmed Abbasi, and the learned Advocate for the petitioner has not challenged the vires or the validity of the notification.
3. In the original application that was submitted in this Court on 11-7-1974, the main grievance of the petitioner was that he was a political opponent of "persons in power" who wanted to harass the petitioner and create hindrance in fair defence of the cases. Additionally, it was alleged that the transfer of the cases to a Court at Hyderabad has resulted in unnecessary inconvenience and expenses to the petitioner and for such reason the request was for trial at Karachi. This petition was placed before my learned brother Abdul Kadir Shaikh, J. On 15-7-1974 and my learned brother passed a short order which reads as follows:- "It is only appropriate that the request for the hearing of the case at Karachi should be made in the first instance to the Magistrate who is seized of the case before I should entertain it. The learned counsel stated that he would act accordingly. The consideration of this application is therefore postponed. The case will be fixed for hearing again in case the petitioner shows that the request made by him has been turned down by the trial Magistrate."
' After this order was made, an application was moved before the Additional District Magistrate, Hyderabad. What was stated in the application is not known because no copy of the same has been placed on record but the Magistrate by his order dated 17-7-1974, dismissed this application on the ground that it was not feasible or convenient to proceed with the cases at Karachi, because the learned Magistrate, agreeing with the Special Counsel appearing for the prosecution, also held the view that a possibility of apprehension of breach of peace or a law and order problem was likely to arise if the cases were tried at Karachi. It seems that in the same application grievances were made in regard to inadequacy of opportunities for defence and the learned Magistrate has in that context stated that all the necessary facilities had been provided to the petitioner at the Central Prison, Hyderabad.
4. After this order was passed by the Additional District Magistrate, Hyderabad, a second application was submitted in this Court on behalf of the petitioner on 26-7-1974 wherein it was stated that for the grounds that have been stated by the Magistrate in rejecting the application of the petitioner for trial of the cases at Karachi, a doubt has arisen in the mind of the petitioner that the Magistrate was influenced by the Government and for such reason the petitioner would not get a fair or impartial trial. / On such aversions a prayer was added in the application to the effect that these cases may be withdrawn from the Special Magistrate to this Court for trial on the original side.
5. When these cases came up for hearing before me on 20-8-1974, I was informed by Mr. Tariq that the Magistrate who at the time of issuance of notification was posted as an Additional District Magistrate at Hyderabad, had in the meantime been transferred to Karachi. Since the Government of Sind Notification conferred jurisdiction in regard to trial of the cases relating to the District of Karachi on the Magistrate who was otherwise the Additional District Magistrate at Hyderabad, a possibility, therefore, existed that in spite of the Magistrate having been transferred to Karachi, he may proceed with the cases at Hyderabad so that the ground for inconvenience as stated in the original application might still be available to the petitioner. On such state of facts Mr. Zafar Hussain Mirza, the learned Advocate-General sought time to enable him to seek instructions on the point whether the Magistrate would proceed with these cases at Karachi or at Hyderabad. The learned Advocate-General has made a clear statement before .Me that these cases against the petitioner shall be proceeded with at Karachi. In such view of the matter I am clear in my mind that the original application dated 11-7.1974 in which the only relief sought was for transfer of these cases from the Court of the Special Magistrate to a Court at Karachi and mainly on the ground of convenience, has become infructuous.
' However, in the original application it was raised as a ground that the petitioner was a political opponent of the "persons in power" who had implicated him in these cases for the purpose of harassing the petitioner and that these cases had been transferred to Hyderabad so that the petitioner's defence may be hindered. It would seem that one of the grounds on which the petitioner had sought transfer of the cases from Hyderabad to Karachi was that the petitioner being the political opponent of the persons in powers was being victimized. However, in the second application dated 26-7-1974, a ground has been raised in regard to the Magistrate not being fair or impartial. It would be of benefit to reproduce the paragraph in which such allegations against the Magistrate have been made :- "That the grounds given in the order of the trial Court have aroused a doubt in the mind' of the accused that the learned Magistrate is influenced by the Government and the accused apprehends that he will not get a fair and impartial trial from the said Magistrate and any other Magistrate for that matter."
6. Although in the original application no ground for bias of the Government had been raised the arguments that have been advanced before me by Mr. Tariq today, mainly center around that ground. Mr. Tariq has stated that the petitioner is a political opponent of the Prime Minister of Pakistan. The learned Advocate has further re-in forced his arguments by stating that the petitioner was until late a Minister in the Federal Government but had ceased to hold office and for such reason the learned Advocate for the petitioner has claimed an assumption that the Prime Minister of Pakistan must be hostile to the petitioner. To say the least no affidavit of any person has been filed to support such an assertion. Confronted with that situation Mr. Tariq has made an application in Court today requesting that the petitioner may be called by this Court for the purpose of swearing and filing an affidavit in support of the transfer application. The prayer is indeed novel and extraordinary. I cannot overlook that the original application too was not signed by the petitioner nor was the vakalatnarna signed by the petitioner. This belated application which is in manuscript appears to have been written in Court while the arguments were being heard. In any case all that is-alleged in the application is that the petitioner was a political opponent of the persons in power and that the petitioner had a doubt in regard to impartiality or fairness of the trial.
No further particulars have been stated in the application. I am afraid I cannot allow the petitioner to be called to this Court for the purposes of swearing an affidavit which could have been obtained earlier. On a pointed question Mr. Tariq has admitted before me that the petitioner had been produced in Court on 24-7-1974. On these dates the petitioner could have sworn an affidavit and I see no reason why an affidavit was not sworn earlier.
' The learned Advocate for the petitioner has invited my attention to the case of tlohammad Nawas v. Ghulam Kadir Bhutto and 3 others (1) a case decided by the Supreme Court. In that case proceedings under section 145, Cr. P. C. Were filed by Muhammad Nawaz, a servant of Air Marshal Asghar Khan and in spite of such proceedings pending before the Magistrate, no order had been passed by the Magistrate to initiate proceedings. However, in the transfer application that was filed by Muhammad Nawaz before this Court it was clearly stated that for some reason the Chairman of the Pakistan People's Party was hostile to Air Martial Asghar Khan and therefore, the case would not be tried in a fair manner. The application for transfer was rejected in the High Court so that an appeal was carried to the Supreme Court and their Lordships while dealing with the principles governing fair trial of case, stated as follows:- "We fully endorse the summing up of these principles by the High Court in the case of Rahim Bakhsh mentioned above, namely, that 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 anti fairly and impartially in the matter. It is of paramount importance that parties arranged before Court should have confidence in their impartiality. It is one of the important duties of a High Court to create and maintain such 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 as being prejudiced against him. What is a reasonable apprehension, must be decided in each case with reference to the incidents and the surrounding circumstances; and the Court must endeavour, as far as possible, to place itself in the position of the applicant seeking transfer, and look at a matter from his point of view, having due regard to his state of mind and the degree of intelligence possessed by him. Nevertheless, it is not every incident regarded as unfavourable by the applicant which would justify the transfer of the case. The test of reasonableness of the apprehension must be satisfied, namely, that the apprehension must be as a reasonable man might justifiably be expected to have."
' It would seem that the test of fairness as laid down by their Lordships of the Supreme Court was in reference to the state of mind of the accused and circumstances in each case. It is needless to state that in order to succeed in obtaining the transfer of a case the accused has to establish circumstances to show that he has no chance of having a fair and impartial trial in the Court where his case is pending. That being so, I have looked at this case from all possible angles.
Coming to the conduct of the {{FOT NOTE}}
(1) PLD 1973 SC 327 {{FOT NOTE}} ' Additional District Magistrate, I have been informed that he has not proceeded with the cases so far. The learned Advocate for the petitioner, has however, pointed out a passage appearing in the order of the Magistrate and has sought to infer bias or prejudice of the Magistrate. The said passage runs as follows:- " The learned Special Counsel for the State informs that huge demonstrations and slogans were raised in the premises of the City Courts, Karachi where the accused was produced for remand in these cases and there is imminent apprehension of breach of peace and law and order problem. It is further informed that there is every likelihood of the accused being decoited or taken away by the crowd forcibly as the former is a 'B' Class prisoner and is always produced before the Court without handcuffs. Due to the above reasons, it has been desired by the Government to try these cases at Hyderabad avoiding use of force which might be resorted to should such occasion arise at Karachi."
' The learned Advocate has urged before me that the above passage shows that the Magistrate is influenced by the Government and for such reason a fair and impartial trial was not obtainable. On a reading of the above passage it would appear that the Magistrate had declined the request of a trial at Karachi for the reason that the prosecutor had apprehended that there might be demonstration or slogans in the Court if the case proceeds at Karachi and that there was a likelihood of such a situation which might result in the petitioner being "decoited" away. These were good reasons for the Magistrate to refrain from trying the case at Karachi. I am conscious that the present position is that the Magistrate would proceed with the cases at Karachi and for such reason that portion of the order stating the reasons for the Magistrate declining to proceed with the cases at Karachi, do not hold good, but it cannot be overlooked that this situation has arisen on account of transfer of the Magistrate to Karachi. In any case the recital of the reasons, for which the Magistrate declined to proceed with the cases at Karachi, cannot by itself lead to a conclusion that the Magistrate was biased or under the influence of the Government. On the other hand if the Government had an intention of perpetuating harassment of the petitioner it is not easily conceivable as to how the magistrate having season of the case would be transferred to Karachi, especially at the time when these transfer applications were pending. Such circumstances tend to negative any inference of bias whether in the Magistrate or the Government. An argument was raised by the learned Advocate that the Magistrate had expressed that the Government had "desired" the trial of the cases at Hyderabad and such expression indicated that the Magistrate was under the influence of Government. I do not think such an argument advances the case of the petitioner because the fact of the matter is that Government had ordered the cases to be tried by the Magistrate who was posted at Hyderabad and if the Magistrate had used the word "desired" it could not be said that the Magistrate was under the influence of Government.
7. I must state with clarity that in the original application the prayer of the petitioner was that the cases may be transferred to Karachi for trial by any Magistrate of competent jurisdiction or in the alternative the Special Magistrate may be directed to proceed with the trial at Karachi. To such extent it may be stated that the original petition has become infructuous as the Magistrate is posted at Karachi and would proceed with the cases at Karachi. A subsequent application was made praying that the cases be tried by the High Court. No circumstances of any gravity are stated for transfer of this case to the High Court in the application itself. However, it was argued by Mr. Tariq Ali that since prosecutions arose out of criticism of the Prime Minister of Pakistan, this Court was the only desirable venue. I must state that it is not so stated in the application but even if it were so stated it would not be a valid ground A for transfer, because, so conceding, would invariably lead to the inference that any person criticising the Prime Minister should have a choice of the Court. In any case there is no material on the basis whereof it can be stated that the Prime Minister has any personal interest in this case. The Supreme Court in the case of Muhammad Nawaz v. Ghulam Kadir and others expressed that the question of apprehension has to be determined having regard to the state of mind of applicant. In the present case the applicant has not filed any affidavit and there is nothing before me to indicate that the petitioner had any apprehension that he would not get a fair trial. In fact the original application was only aimed at a change in venue of trial from Hyderabad to Karachi and all that was stated was that the petitioner was victimised by "persons in power", which allegation is indeed much too vague.
8. In the result I see no substance in these applications which are hereby dismissed.