1. ANWARUL HAQ, C. J.-This petition for special leave to appeal under Article 185 (3) of the Constitution has arisen in the following circumstances.
2. On 11-11-1974, a case was registered at police station, Ichhra, Lahore, by Mr. Ahmed Raza Kasurl, M. N.
3. A., regarding the death of his father Nawab Mohammad Ahmed Khan alleging, inter alia, that the murder had been committed at the instance of the present petitioner Mr. Zulfikar A.I Bhutto who was then the Prime Minister of Pakistan. It appears that not much progress was made in the investigation of this case. However, Mr: Bhutto was arrested in this connection on the 3rd of September 1977, and an incomplete challan was presented in the Court of a local Magistrate at Lahore on the 12th of September 1917. Mr. Bhutto applied for bail in the Lahore High Court, which application was allowed by Mr. Justice K. M. A. Samadanl on the 13th of September 1977.
4. Dissatisfied with the progress of investigation on the allegations made by him in the first information report registered on the 11th of November 1974, Mr. Ahured Raza Kasuri filed a private complaint against the accused persons including Mr. Zulaikar A.I Bhutto, and this care was transferred to be tried on the original side of the High Court under an order made by Mr. Justice Shafi-ur-Rehman. It appears that the matter was entrusted for disposal to a Division Bench comprising K. M. A.. Samadani and Mazharul Haq, JJ. But the Division Bench concerned had not issued any process for the appearance of the accused persons by the time the present petition was filed in this Court.
5. The State filed an application for cancellation of bail allowed to Mr. Bhutto by Mr. Justice K. M. A.
6. Samadani, and the same was fixed for disposal before a Full Bench of the High Court on the 24th of September 1977. It is stated that on the lath of September 1977 the learned Acting Chief Justice of the Lahore High Court had made an order, on an application presented in this behalf by the State, that the challan case shall be transferred trial on the original side of the High Court, and for this purpose a Full Bench of five Judges, presided over by the learned Acting Chief Justice himself was also constituted.
7. The petition further avers that the complaint case already fixed before the Division Bench of the High Court has also been withdrawn from that rich by the learned Acting Chief Justice and ordered to be placed before the Full Bench constituted for trying the challan case.
8. Mr. Yahya Bakhtiar, learned counsel for the petitioner, contends that :----
(a) The Lahore High Court is not properly constituted within the meaning of Article 192 (1) of the Constitution as there is no Chief Justice at resent in office, for the permanent Chief Justice has relinquished his office temporarily on this appointment as Acting Governor of the Punjab, and Mr. Justice Mushtaq Hussain has not been appointed as Acting Chief Justice by any Constitutional Authority;
(b) In any case the Acting Chief Justice has not taken the oath prescribed by the Constitution and for that reason also his appointment is invalid; even if Mr. Justice Mushtaq Hussain be deemed to have been validly appointed as the Acting Chief Justice of Lahore High Court, be ceased to hold his appointment when ire assumed charge as Chief Election Commissioner on the 17th of July 1977, as under Article 216 of the Constitution the Chief Electron Commissioner, cannot hold any other office of profit in the Service of Pakistan.
(c) The learned Acting Chief Justice is biased against the petitioner for the reason that that Central Executive of the Pakistan Peoples Patty had at a meeting, held at Karachi on the 2nd of August 1977 and presided over by the petitioner, criticised his appointment as Chief Election Commissioner, and
(d) she order of transfer of the challan case from the Sessions Court w to the original side of the High Court is, in any event, vitiated by the fact that it was made without notice to the petitioner in contravention of the statutory provisions of section 526, Cr. P. C.:- On the basis of these submissions, it is prayed that-----
(i) It may be declared that Mr. Justice Mushtaq Hussain is not a duly appointing Acting Chief Justice of the Lahore High Court under the constitution and as such, the Lahore High Court is not legally constituted within the meaning of Article 192 of the Constitution ;
(ii) It may further be declared that being the Chief Election Commissioner, Mr. Justice Mushtaq Hussain is prohibited by Article 216 of the Constitution to hold the office of the Acting Chief Justice of the Lahore High Court:
(iii) The orders made by Mr. Justice Mushtaq Hussain as Acting Chief Justice of the Lahore High Court, transferring the challan case to the High Court and entrusting it to a Full Bench presided over by himself be set aside ;and
(iv) Similarly, the order made by the learned Acting Chief Justice withdrawing the complaint case from the Division Bench and entrusting it to the same Full Bench be also set aside.
9. Mr: Riaz Ahmed, the Warned Assistant Advocate. General, Punjab, appearing for the State, submits that the first two relief sought in this petition are in the nature of quo warranto, and do not, therefore fall within the ambit of the appellate jurisdiction of this Court, as provided for in clause (3) of Article 185 of the Constitution. Ho furthers submits that subsection (3) of section 526 of the Cr. P.
10. C. Permits the High Court to transfer, on its own initiative, a criminal case from ore subordinate Court to another or to itself, and such an order is to be deemed to have been passed in an administrative capacity, requiring no nonce to the parties, and not being amenable to the appellate jurisdiction of the Supreme Court. He contends that it is in the discretion of the learned Chief Justice or Acting Chief Justice of the High Court to constitute Benches, as he thinks fit for the disposal of cases pending in the High Court, and there is no precedent for the Supreme Court's interference in such matters. Finally, the learned Assistant Advocate-General points cut that the plea of bias should appropriately be raised in the first instance before the learned Judge concerned, se laid down by this Court in M. H. Khondkar v. State (PLD1966SC140).
11. After considering the submissions made by both sides at some length, we are of the view that no justification is at all made out for our interference in the matter at this stage.
12. It will be seen that the question relating to the constitution of the Lahore High Court and the capacity of the learned Acting Chief Justice to act as such are indeed matters more appropriate for consideration by way of quo warranto, rather than by way of a petition for special leave to appeal under Article 185 of the Constitution. In any case, it is also clear to us that they must be raised before the Full Bench concerned in the first instance, so that this Court has the benefit of the opinion of the Judges concerned as to their capacity to act in the matter. Consisting, as it does, of five Judges of the High Court, the Full Bench is obviously competent to determine all questions having a bearing on its own capacity or validity to act in the case or cases pending against the petitioner. The appellate jurisdiction of this Court would be attracted only when an adverse order is made against the petitioner by the High Court in appropriate proceedings.
13. As to the grievance that the challan case could not have been transferred by the High Court for trial on its original side without notice to the petitioner, we observe that subsection (3) of section 526, Cr. P. C. Does vest fn the High Court the power to act in this behalf either on the report of the lower Court or on the application of a party interested, or on its own initia--tive. The specific requirement of notice, as contained in subsection (6) of the section, refers only to a case when the application for transfer is made by the accused person. However, we do not wish to express any final opinion in the matter, as we consider that even this grievance, namely, the lack of notice to the petitioner before the order transfer was made should have been agitated in the High Court in the first instance. It may still open to the petitioner to do so, if so advised.
14. Finally, as to the question of bias, it is well established that any objec--tions in this behalf must be raised before the Judge concerned, and ordin--arily the matter must be left to him to decide according to his conscience and the circumstances of the case. The Supreme Court does not have any power of ordering transfer of a case from the file of a Judge of the High Court.
15. For the foregoing reasons, the petition is dismissed.