' SAIDUZZAMAN SIDDIQUI, ACTG. C.J.---We disposed of the abovementioned seven petitions by the following short order announced on 14-12-1998:- "We have heard the learned counsel for the petitioners as well as the learned Attorney-General at length in the abovementioned. 7 petitions and for reasons to be recorded later, these are disposed of as follows:
(1) We hold that 'the Court' as defined in section 2(f) of the Ehtesab Act, 1997 (hereinafter to be called 'the Act') hearing an Ehtesab Reference, acts as a Bench of the High Court and not as a Special Court.
(2) That the Court hearing Ehtesab Reference being a High Court, an application for transfer of a pending Reference before it to another High Court would be competent under Article 186-A of the Constitution of Islamic Republic of Pakistan (hereinafter to be referred as 'the Constitution' );
(3) That on the basis of the averments made in the two References, which are subject-matter of Criminal Petitions for Leave to Appeal (Cr.Ps. 166 and 167 of 1998), it cannot be said that the Ehtesab Bench trying References Nos.26 and 27 of 1998, has no territorial jurisdiction. We, accordingly, uphold the order of the Ehtesab Bench dated 6-7-1998 and reject Petitions Nos. 166 and 167 of 1998 wherein the territorial jurisdiction of Ehtesab Bench has been challenged.
(4) That in Ehtesab Reference No,26 of 1998, which is subject-matter of Criminal Petition No,166 of 1998 and Constitution Petition No,28 of 1998, the prosecution has cited as many as 25 witnesses.
Similarly, in Ehtesab Reference No,27 of 1998 which is subject-matter of Criminal Petition No,167 of 1998, and Constitution Petition No,29 of 1998, about 25 witnesses are proposed to be examined by the prosecution. During the course of hearing of these petitions before this Court, the learned Attorney-General made a statement on behalf of the Chief Ehtesab Commissioner/prosecution that in Ehtesab Reference No,26 of 1998 out of 25 witnesses cited in the calendar of witnesses, 11 witnesses have already been examined by the prosecution and out of them cross-examination of 7 has been completed while cross-examination of remaining 4 is to be completed. In addition to 11 witnesses already examined in Ehtesab Reference No,26 of 1998, the prosecution proposes to examine only 4 more witnesses which include one Manager of the Hotel Marriot, one Inspector of Prime Minister House and 2 Investigating Officers while the remaining witnesses have been given up. Similarly, the Attorney-General has stated that in so far Reference No,27 of 1998 is concerned, out of about 25 witnesses mentioned in the calendar of witnesses, the prosecution proposes to examine only 15 witnesses and the rest have been given up. Out of 15 witnesses, the learned Attorney-General states that statements of 7 have already been recorded and only 8 more witnesses are to be examined in the case including the two Investigatidh Officers. Keeping in view the above statement of learned Attorney-General,and the progress already made in the 2 References before the Ehtesab Bench, we do not consider transfer of Ehtesab References Nos. 26 and 27 of 1998 to another High Court in the interest of justice. Subject to these observations, the requests for transfer of these 2 References from Lahore High Court to High Court of Sindh, Karachi, are declined for the present;
(5) At present, two Ehtesab References are pending against the petitioners at Rawalpindi Bench of Lahore High Court (Ehtesab Reference No,32 and 33/98) while five References against the petitioners are pending at principal seat of Lahore High Court (References Nos.26, 27, 29, 30 and 31/98). As the petitioners, inter alia, have their residence in Islamabad, it is directed that References Nos.26, 27, 29, 30 and 31 of 1998 which are being heard at principal seat of Lahore High Court, will henceforth be heard at the Rawalpindi Bench of Lahore High Court where two Ehtesab References are already pending against them;
(6) It is admitted before us on behalf of the Ehtesab Commissioner that besides the References which are pending before the Lahore High Court and which henceforth will be heard at the Rawalpindi Bench of Lahore High Court, there are some other References pending before the High Court of Sindh at Karachi against the petitioners. As the petitioners will be defending the References both in the Lahore High Court (Rawalpindi Bench) and High Court of Sindh, at Karachi, it is directed that in consultation with the learned Judges of the Ehtesab Benches, the dates of the References are to be so fixed that the petitioners get at least 2 days break between the date of hearing at Rawalpindi and Karachi.
' The petitions stand disposed of in the terms stated above."
2. The detailed reasons for the above order are as follows. A preliminary objection has been raised in all the abovementioned petitions to the effect that Ehtesab Benches functioning in various High Courts and dealing with the cases arising under the Act being Special Courts, the proceeding under Article 185 (3) or Article 186-A of the Constitution are not maintainable before this Court. The learned Attorney-General contended that if the Legislature intended to treat the Court as defined in section 2(f) of the Act, as a "High Court" it could have referred it as "High Court" instead of defining it as "a Bench of one or more Judges of the High Court nominated by the Chief Justice of the High Court". To support his contention the learned Attorney-General took us through various ' sections of the Act wherein the Benches dealing with Ehtesab cases have been referred as "Court" instead of "High Court". On the above premises, the learned Attorney-General argued that by mentioning the Benches trying the Ehtesab cases as "Court" in contradistinction to "High Court", the Legislature intended that the "Court" as defined in section 2(f) was to be treated distinct and separate from the "High Court". The learned Attorney-General specifically referred to the explanation to subsection (5) of section 3 of the Act wherein Advocate-General is defined as the "Prescribed Law Officer" in relation to an application before "the Court" while the Attorney-General has been mentioned in that context as the "Prescribed Law Officer" of the Supreme Court. The learned Attorney-General contended that the Legislature by referring the Supreme Court by its Constitutional name and the Benches of the High Court trying the "Ethesab" cases as "the Court" instead of "High Court" made their intention clear that "the Court" is not to be treated as "the High Court". In support of the above contention, the learned Attorney-General relied on an unreported decision of one of us (Saiduzzaman Siddiqui, J.) passed in Criminal Appeal No,8-Q of 1994 wherein the Special Appellate Court constituted under Act XII of 1997 presided over by a Judge of the High Court, was held to be a "Special Court."
3. Mr. Aitzaz Ahsan, the learned counsel for the petitioners, on the other hand, contended that the fact, that cases under the Act are to be tried by a Bench of one or more Judges of the High Court to be nominated by the Chief Justice of the High Court, indicates that the trial under the Act is to take place before the High Court and not before a "Special Court". Elaborating his above contention, Mr. Aitzaz Ahsan, argued that nomination of a Bench of the High Court by the Chief Justice to try a case under the Act is similar to the situation where a Judge of High Court is nominated by the Chief Justice to perform the functions of a 'Company Judge" under the Companies Ordinance, 1984 or three Muslim Judges of a High Court are constituted as a Shariat Bench of the High Court, under Shariat Benches of Superior Courts Order, 1978 (P.O. 22 of 1978). In all such cases, it is contended by Mr. Aitzaz Ahsan, the Judges function as a High Court and not as a "Special Court". Mr. Aitzaz Ahmsan submitted that Article 175 of the Constitution provides for establishment of the Supreme Court at the level of Federation and a High Court in each of the federating unit. The learned counsel contended that clause (2) of Article 175 of the Constitution provides that the jurisdiction on the Courts may be conferred either by the Constitution or under any law. It is accordingly, urged by Mr. Aitzaz Ahsan that by exercising powers conferred on it under any law, the High Court does not cease to be a High Court. The learned counsel very vehemently argued that it is only when a new or a distinct entity apart from the High Court is created, under any statute and it also performs functions assigned to it under the Act, such a Tribunal or Court which is created, though may be presided over by a Judge of the High Court, may not fall within the definition of the High Court Mr. Aitzaz Ahsan also relied on the judgment dated 5-11-1998 in Criminal Appeal No,8-Q of 1994 in support of the contention that the Ehtesab Benches functioning under the Act, possess none of the attributes which are mentioned as the attributes of the Special Court in the aforesaid judgment. Mr. Aitzaz Ahsan took us almost through all the provisions of the Act in order to demonstrate that the Benches functioning under the Act dealing with Ehtesab cases are merely Benches of the High Court which are nominated by the learned Chief Justice and under no circumstance they can be treated as Special Court created under the Act apart from the High Court. Mr. Abdul Hafeez Lakho, the learned counsel for the petitioner in Criminal Petition No,187 of 1998, while adopting the contention of Mr. Aitzaz Ahsan contended, that to determine whether the High Court while exercising power under a Special Act, acts as a High Court or as a Special Court, it is necessary to find out whether the Legislature by conferring jurisdiction on a Judge of the High Court to exercise jurisdiction under the legislation, intended to create a new Court or Tribunal or the power is conferred on the Court which is already existing. If it is found that the jurisdiction is conferred on a Court or Tribunal, which did not exist before, then notwithstanding the fact that the Court or Tribunal is presided over by a Judge of the High Court, it will be considered a "Special Court" but if the jurisdiction is conferred on an existing Court, then that Court retains its identity notwithstanding conferment of a new jurisdiction.
4. After hearing the learned counsel for the petitioners and the learned Attorney-General on the preliminary objection, we are of the new that the "Court" as defined in section 2(f) of the Act while dealing with the cases arising under the Act, does not act as a Special Court but acts only as a Bench of the High Court. Section 2 (f) of the Act, which defines the "Court", reads as follows:-- "2.......................
(a)
(f) 'Court' means a Bench of one or more Judges of the High Court nominated by the Chief Justice of the High Court:"
5. The Act repealed P.O. No,16 of 1977 and P.P.O. 17 of 1977. The abovementioned two Presidential Orders (16 and 17 of 1977) were promulgated on 25-11-1977 to try and punish the holders of representative offices for their misconduct. These two Acts provided for establishment of Special Courts to be presided over by the serving Judges of the High Courts. It is, however, to be noted that the Special Courts under the abovementioned two Presidential Orders were established through notifications issued under the aforesaid P.Os. By the President of Pakistan which also specified the territorial limits and the class of cases to be tried by such Special Courts. It was specifically provided in the said Presidential Orders that the Special Court constituted thereunder shall have the power of a High Court to punish its own contempt. It is, therefore, quite clear that the predecessor legislation of the Act contemplated creation of 'Special Courts' apart from the High Court and Judges of the Special Courts were nominated by the President of Pakistan. In contradistinction to the provisions of the predecessor legislation, the Act provided for nomination of the Benches of the High Court by the Chief Justice of the High Court concerned to try the offences arising under the Act and the territorial limits of these Benches are coextensive to the territorial limits of the High Courts wherein the Benches function. It is rightly pointed out by the learned counsel for the petitioner that although an offence is exclusively triable by the Bench to be nominated by the Chief Justice of the High Court concerned to act as "the Court" under the Act but a reference, under the Act, by the Ehtesab Commissioner cannot be filed by it before a Bench so constituted. The reference by the Ehtesab Commissioner has to be filed before the Chief Justice of the High Court concerned and it is for the Chief Justice of the High Court to assign the reference to any of the Benches so nominated by him, for trial. It is also significant that the Chief Justice in its discretion may change the constitution of an Ehtesab Bench constituted by him at any time. The constitution of a Bench by the Chief Justice to hear the case/cases arising under the Act, therefore, in our view does not amount to creation of a new Court different from the High Court for the trial of cases under the Act. The fact that the Bench nominated by the Chief Justice to try the case under the Act, is vested with the exclusive jurisdiction, is similar to the situation where a Judge is nominated by the Chief Justice to act as the Company Judge. In Criminal Appeal No,8-0 of 1994, which is relied by the learned counsel for the petitioners as well as learned Attorney-General while highlighting the features of Special Court, it was observed by one of us (Saiduzzaman Siddiqui, J.), as follows:-- "9. The Special Appellate Court is constituted under Act, XII of 1977. The constitution of Special Appellate Court is provided in section 46 of Act, XII of 1977 as follows:-- '46. Constitution of Special Court.- --(1) The Federal Government may by notification in the official Gazette, constitute as many Special Appellate Courts as it may consider necessary each consisting of a person who is a Judge of a High Court, to be appointed by the Federal Government in consultation with the Chief Justice of the High Court of which he is a Judge.
(2) The Federal Government shall specify in a notification issued under subsection (1) the headquarters Jf the Special Appellate Court and, where it constitutes more than one Special Appellate Court, the territorial limits within which, or the class of cases in respect of which, each Special Appellate Court shall exercise jurisdiction.
(3) If for any reason a vacancy occurs in the said Court, the Federal Government shall appoint another person in accordance with subsection (1) to fill the vacancy and the proceedings may be continued before the Court from the stage the vacancy occurs.
(4) The Special Appellate Court constituted under this Act shall exercise the powers conferred by or under this Act in accordance with the provisions of this Act, and the powers conferred by or under the Customs Act, 1969 (IV of 1969), in accordance with the provisions of that Act.
(5) When the Judge of a Special Appellate Court is, for any reason, temporarily unable to perform his duties, he may inform the Chief Justice of the High Court of which he is a Judge and the Chief Justice shall nominate another Judge to perform the functions of Special Appellate Court so long as such Judge is unable to perform his duties.
(6) The Federal Government may, on the request of the Judge of a Special Appellate Court, transfer any appeal or revision and entrust the same to the Judge of another Special Appellate Court for disposal and such Judge shall dispose of such appeal or revision in accordance with law,"
10, The Special Appellate Court created under section 46 of Act XII of 1977 hears appeals only against the order of a Special Judge appointed under section 44 of Act XII of 1977 or a Special Judge appointed under section 185 of the Customs Act, 1969. The Judge of a Special Appellate Court though appointed by the Federal Government in consultation with the Chief Justice of the High Court of which he is a Judge, but his headquarters and territorial limits within which he exercises jurisdiction and the class of cases in respect whereof he will have jurisdiction, are determined by the Federal Government. In case of vacancy in the office of Special Appellate Court, it is to be supplied by the Federal Government, The Federal Government upon a request from a Special Appellate Court, may transfer any appeal or revision pending before it to any other Special Appellate Court. A Court with the above attributes cannot be described as a High Court".
6. After considering various provisions of the Act, we are of the view that a Bench nominated by the Chief Justice of the High Court to hear the cases arising under the Act, does not possess the attributes of the Special Court as highlighted in the Criminal Appeal No,8-Q of 1994. We, therefore, overrule the preliminary objection and hold that a Bench of Judge or Judges of the High Court nominated by the Chief Justice of the High Court to hear a case arising under the Act though having exclusive jurisdiction to try and punish the offences under the Act, performs functions as a High Court and not as a Special Court.
' Having dealt with the preliminary objection in the case, we have separated Criminal Petition No, 187 of 1998 at the request of Mr. Abdul Hafeez Lakho to be heard alongwith Criminal Appeal No,166 of 1998 and Criminal Petition No,202 of 1998. We, therefore, now turn to the controversies raised in the abovementioned remaining petitions.
7. Before proceeding further, we may mention that in Constitution Petitions Nos.28, 29, 34, 35 and 36 of 1998 which are filed under Article 186-A of the Constitution, the petitioners have made prayer for transfer of the References pending against them at the principal seat of the Lahore High Court and at the Bench of the Lahore High Court at Rawalpindi, to the High Court of Sindh. In Criminal Petitions Nos.166 and 167 of 1998 the petitioners have challenged the order of the Ehtesab Bench, dated 6-7- 1998 whereby two Criminal Miscellaneous Applications filed by the petitioners before the Court challenging its territorial jurisdiction were dismissed.
8. We will first take up Criminal Petitions Nos. 166 and 167 of 1998 wherein the petitioners have questioned the order of learned Ehtesab Bench, dated 6-7-1998, rejecting the applications moved by the petitioners challenging territorial jurisdiction of the Ehtesab Bench at the principal seat of Lahore High Court to try them in Ehtesab References Nos.26 and 27 of 1998. Mr. Atzaz Ahsan, the learned counsel for the petitioners very vehemently argued that one of the petitioners, who is former Prime Minister of Pakistan, was elected as a Member of National Assembly from a constituency in Sindh and that she has her permanent residence also In Karachi, apart from the fact that the properties which are subject-matter of the references are also situated within the Province of Sindh. On the above premises, it is contended by Mr. Aitzaz Ahsan, the learned counsel for the petitioners, that only the Ehtesab Bench of High Court of Sindh at Karachi, has jurisdiction in the matter and not the Ehtesab Bench hearing the cases at Lahore. The learned Attorney-General opposing the above two petitions for grant of leave to appeal, on the other hand, contended that the fact that petitioner was elected from Sindh as a Member of National Assembly or that she has permanent residence in Sindh, does not make any difference as the allegations against the petitioner relate to the alleged corruption and corrupt practices committed during her tenure as Prime Minister of Pakistan which office yielded authority throughout the territory of Pakistan. The learned Attorney-General further contended that the allegations against the petitioner as Prime Minister of Pakistan were that she committed corruption and corrupt practices and acquired properties, and therefore, the jurisdiction of Ehtesab Benches is to be determined with reference to her functions as Prime Minister and not the properties held by her in any part of the country.
Section 3 of the Act which defines corruption and corrupt practices, reads as follows:-- "3. Corruption and corrupt practices:---(1) A holder of a public office, or any other person covered hereby, is said to commit the offence of corruption and corrupt practices--
(a) if he accepts or obtains from any person any gratification, other than legal remuneration, as a motive or reward such as is specified in section 161 of the Pakistan Penal Code (Act XLV of 1860), for doing or forbearing to do any official act, or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person, or for rendering or attempting to render any service or disservice to any person; or
(b) if he accepts or obtains any valuable thing without consideration, or for a consideration which he knows to be inadequate; from any person whom he knows to have been, or to be likely to be, concerned in any proceeding or business transacted or about to be transacted by him, or having any connection with his official functions or from any person whom he knows to be interested in or related to the person so concerned; or
(c) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use, or for the use of any other person, any property entrusted to him, or under his control as a holder of a public office or wilfully allows any other person so to do; or
(d) if he, by corrupt, dishonest, or illegal means in abuse of his position as a holder of public office, obtains or seeks for himself, or for (his any other person) any property, valuable thing or pecuniary advantage; or
(e) if he or any of his dependents or benemidars own, possess, or have any right or title in any movable or immovable property or pecuniary resources, disproportionate to his known sources of income, which he cannot reasonably account for; or
(f) if he commits, or causes, or is involved in the rigging of an election.
(2) All offences under this Act shall be non-bailable and, notwithstanding anything contained in sections 497, 498 and 561-A or any other provision of the Code, or any other law for the time being in force, no Court other than the Court defined in clause (f) of section 2 shall have jurisdiction to grant bail.
(3) A holder of a public office or any other person accused of an offence under this Act shall not be released on bail by the Court if there appear reasonable grounds for believing that he has been guilty of such an offence.
(4) Where a holder of public office or any other person accused of an offence under this Act is released on bail, the amount of bail shall be fixed having regard to the gravity of the charge against such person and, where the charge specifies any amount in respect of which the offence is alleged to have been committed shall not be less than the said amount: ' Provided that the Court may direct that the amount be deposited in Court.
(5) No Court shall release an accused person on bail unless the Chief Ehtesab Commissioner and the prescribed law officer have been given notice of the bail application and been given an opportunity of being heard.
Explanation:-- -In this subsection, "prescribed law office" means--
(a) in relation to an application before the Court, the Advocate-General; and
(b) in relation to an application before the Supreme Court of Pakistan, the Attorney-General."
Section 10 of the Act which confers jurisdiction on an Ehtesab Bench to take cognizance of the offences under the Act is in theses terms:- "10. Trial of offences: ---(1) Subject to the provision of subsection (2), and notwithstanding anything contained in any other law for time being in force, no person shall be prosecuted for the offence of corruption and corrupt practices by the Chief Ehtesab Commissioner save and except before a Bench of the High Court defined in clause (f) of section 2 and the case shall be heard from day to day and disposed of within sixty days.
(2) Where inure Benches than one have been constituted in a High Court, the cases referred to the High Court shall be assigned to various Benches by the Chief Justice of the High Court.
Explanation.-- -In this section, ' High Court' means the High Court within the local limits of whose jurisdiction the offence is alleged to have been committed."
9. The explanation to clause (2) of section 10 of the Act provides that the local limits of the jurisdiction of an Ehtesab Bench nominated by the Chief Justice under the Act, is same as that of the High Court where the Ehtesab Bench is constituted/nominated. We are, therefore, in no doubt that only the Ehtesab Bench of that High Court, within whose local limits the offence of corruption or corrupt practices have been committed has the jurisdiction to try the cases under the Act. We have already reproduced section 3 of the Act which defines "corruption and corrupt practices". Clauses
(a) to (f) of subsection (1) of section 3 define various offences of corruption and corrupt practices Clause (a) of subsection (1), (ibid), refers to the acceptance and obtaining of any gratification by holder of the public office, other than legal remuneration, as a motive or reward, for doing or forbearing to do any official act, or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person. Clause (b) relates to acceptance by the holder of public office, any valuable thing without consideration or for a consideration which is inadequate, from any person whom he knows to have been or to be likely to be concerned in any proceedings to be transacted by him. Clause (c) refers to the dishonest or fraudulent misappropriation by the holder of public office for himself or for any other person any property entrusted to him or under his control. Clause (d) refers to adoption of corrupt or dishonest and illegal means to acquire or obtain any property, valuable thing or pecuniary advantage for himself or for any other person. Clause (e) refers to the acquisition of any movable or immovable property or pecuniary resources, disproportionate to the known sources of income either by the holder of public office or by his/her dependent or benamidar or for which he/she is unable to explain or reasonably account for.
Clause (f) refers to the commission of an act of rigging of an election. The offence of corruption or corrupt practices is said to have been committed under clauses (a) to (d) and (f) of section 3 of the Act, when any of the acts mentioned in these clauses is committed by the holder of the public office, while under clause (e) the existence of the ownership, possession, right, title or interest of the holder of a public office, his dependent or benamidar in any movable or immovable property, or pecuniary resources, disproportionate to his known income or which he cannot reasonably account for, constitute the offence of corruption or corrupt practices. We are, therefore, of the view that in so far clauses (a) to (d) and (f) are concerned, the jurisdiction of the Court is to be determined or fixed with reference to place where the act, or acts mentioned in these clauses, are committed by the holder of the public office, while the jurisdiction of the Court in relation to the offences falling under clause (e), ibid is to be fixed with reference to the place where the property/properties mentioned in this clause, are acquired by the holder of the public office, his dependent or benamidar. We have gone through the contents of the References Nos. 26 and 27 which are in the nature of a complaint. We find that these references mention properties, allegedly acquired by the petitioners disproportionate to their known income or resources, not only in the Province of Sindh but also situated outside the territorial jurisdiction of Pakistan, including one immovable property situated within the territorial jurisdiction of "the Court" where these references are pending. The jurisdiction of the Court is to be determined with reference to the allegations contained in the complaint or F.I.R. In a criminal case and with reference to the averments in the plaint in a case of civil nature. If more than one Court are found to have territorial jurisdiction in respect of the alleged offence/offences, the prosecution of the accused can be initiated in any of such Courts. Since in the two references before the learned Division Bench of Lahore High Court, the allegations are not only in respect of acquisition of properties at Sindh but also in the Province of Punjab, apart from various other alleged properties situated outside Pakistan, it cannot be said that the Bench at Lahore did not possess territorial jurisdiction to try the cases. We, accordingly, hold that on the basis of the allegations made in References Nos. 26 and 27 of 1998, the Ehtesab Bench at the principal seat of Lahore High Court did possess jurisdiction to try these references. We, therefore, find no ground to interfere with the order impugned in these two petitions. Criminal Petitions Nos. 166 and 167 of 1998 are, accordingly, dismissed.
10. We now turn to the remaining petitions filed by the petitioners (Petitions Nos.28, 29, 34, 35 and 36 of 1998) under Article 186-A of the Constitution. The main grounds urged by Mr. Aitzaz Ahsan, the learned counsel for the petitioners in support of the above petitions, are as follows:--
(i) Tha tthe petitioner (Benazir Bhutto) has been elected as Member of National Assembly from Province of Sindh, Larkana Constituency and has her permanent residence in the Province of Sindh at Karachi;
(ii) That except for one property mentioned in the References, all other properties alleged to have been acquired by the petitioner through corruption and corrupt practices are situated in the Province of Sindh and the entire evidence relating to these properties is to be produced through witnesses from the Province of Sindh;
(iii) That the petitioner is mala fidely prosecuted at three different places which has caused colossal financial expenditure to her besides prejudicing her defence in the above cases;
(iv) That the petitioner is not likely to get a fair trial; if she is prosecuted simultaneously at three different places as she is unable to brief her counsel properly with regard to these cases which on some occasion, are heard simultaneously at more than one place;
(v) That one of the petitioner (Asif Ali Zardari) is in custody in a criminal case in Sindh and has to be produced at Lahore or Rawalpindi during the course of hearing of References against him which besides causing great inconvenience to the petitioner, has greatly prejudiced his defence in the references;
(vi) That even if it is held that the Court at Lahore also has jurisdiction to proceed with the Ehtesab References filed against the petitioners, it is in the interest of justice and fairplay that all the References be tried at one place in order to facilitate a proper defence by the petitioners.
11. The learned Attorney-General opposing the above petitions filed under Article 186-A of the Constitution, on the other hand, contended that the Federal Government is prepared to accommodate and provide reasonable facilities to the petitioners in making their defence in all the above Ehtesab References and that mere inconvenience to defend the cases would not be a legitimate ground for transfer of references from Lahore High Court to the High Court of Sindh. In the course of proceedings, the learned Attorney-General made a statement before us that in Reference No,27 although prosecution has cited as many as 25 witnesses, the prosecution is giving up 10 witnesses. It is further stated by the learned Attorney-General that out of 14 witnesses to be examined in Reference No,26, 11 witnesses have already been examined by the prosecution and out of them the cross-examination of 7 has already been completed while only cross-examination of 4 witnesses remains to be completed. The remaining 4 witnesses to be examined in Reference No,26 of 1998 consist of one Manager of Marriot Hotel, Islamabad, one Inspector of Prime Minister's House and two Investigating Officers. The learned Attorney-General made a similar statement regarding Reference No,27 of 1998. He stated that although the prosecution has cited 25 witnesses in the calendar of witnesses but now it proposes only to examine 15 witnesses out of them. The learned Attorney-General went on to state that out of 15 witnesses, 7 have already been examined by the Court and 8 more are to he examined which include two Investigating Officers. The learned Attorney-General on the basis of the abovestated circumstances, contended that it is neither just nor in the interest of justice that at this stage, the two References, which are nearing completion, be transferred to the learned Ehtesab Bench at Karachi. With regard to other References it is stated that the entire evidence in these References against the petitioners is available in the Province of Punjab and therefore, it will not be at all convenient either to the prosecution or to the accused if these cases are transferred from Ehtesab Bench at Lahore to Ehtesab Bench at Karachi. The learned Attorney-General also contended that the petitioners have their residence both at Karachi and Islamabad, and therefore, their assertion that they are greatly prejudiced in defending the cases before the High Court of Lahore, on account of their permanent residence at Karachi, is without any justification. The learned Attorney-General also argued that it is common knowledge that petitioner Benazir Bhutto frequently travels between the Provinces of Sindh and Punjab being the Chairperson of a party which has its flowers both in the Provinces of Sind and Punjab, and therefore, she cannot legitimately complain that on account of pendency of cases before Lahore High Court, she is undergoing financial strain and is being prejudiced in her defence in these cases.
12. The power of this Court to transfer a case from one High Court to another High Court, is contained in Article 186-A of the Constitution, which reads as follows:-- "186-A. The Supreme Court may, if it considers it expedient to do so in the interest of justice, transfer any case, appeal or other proceedings pending before any High Court to any other High Court."
The power vested in this Court to transfer a case from one High Court to another High Court is an extraordinary power which is used only for meeting the ends of justice. It may be mentioned here that in Presidential Order 17 of 1977, a provision was added subsequently in 1990 authorising transfer of pending references against the holders of public office from one Special Court to another Special Court on the ground of general convenience of parties or witnesses or for the ends of justice. No such parallel provision exists in the Act.
' There was also no provision for transfer of pending cases from one High Court to another High Court in the Constitution as originally enforced in the year 1973. Article 186-A of the Constitution was added in the Constitution by P.O. 14 of 1985 at a time when there was .No elected Assembly in existence and therefore, we did not have the advantage of going through the legislative debate which led to the insertion of Article 186-A (ibid) in the Constitution. Number of cases were cited at the bar relating to transfer of cases from one Court to another but majority of these cases relates to the question of transfer of cases from subordinate Court to another Court on the ground of convenience of parties or bias of the Judge. These cases are not relevant here as under Article 186- A of the Constitution a party cannot seek transfer of a case from one High Court to another High Court on the ground of bias on the part of a Judge of the High Court. Even otherwise, no petition lies for disqualifying a Judge of the superior Court from hearing a case on the ground of bias or for transferring a case pending before him to, another Judge on this ground. In all such cases, it must be left to the Judge concerned whether in the stated circumstances, he would like to hear the case or not. See Malik Asad Ali and others v. Federation of Pakistan, PLD 1998 SC 161; Federation of Pakistan v. Muhammad Akram Shaikh, PLD 1989 SC 689; Ms. Benazir Bhutto v. President of Pakistan 1992 SCM R 140; Mujeeb-ur-Rehman v. Federal Government of Pakistan 1988 SCM R 897; Zulfiqar Ali Bhutto v. State PLD 1978 SC 125; Islamic Republic of Pakistan v. Abdul Wali Khan PLD 1976 SC 57; The President v. Mr. Justice Shoukat Ali PLD 1971 SC 585 and M.H. Khondkar v. State (PLD 1966 SC 140).
13. The power to transfer a case from one High Court to another contained under Article 186-A
(ibid) is an extraordinary power to be exercised by this Court only in cases of extreme hardship to avert failure of justice. The power exercised by this Court under Article 186-A of the Constitution cannot be equated or brought at par with the power conferred on the Courts under section 24 of the Code of Civil Procedure or section 526 of Criminal Procedure Code. We are therefore of the view that the considerations relevant for transfer of a case under section 24, C.P.C. Or under section 526, Cr.P.C. Are neither relevant nor can be made the basis for transfer of a pending case from one High Court to another. The learned counsel for the petitioners, however, contended that transfer of cases pending against them in the Lahore High Court to High Court of Sindh is not only convenient for them but will advance the cause of justice in the circumstances of the case.
' Before considering whether the circumstances urged by the petitioners justified transfer of cases pending against them at the principal seat of Lahore High Court to the High Court of Sindh, at Karachi, it would be advantageous to refer some of the cases cited at bar wherein question relating to transfer of a case pending before a High Court to another High Court under Article 186-A of the Constitution, came up for consideration.
14. In Ms. Benazir Bhutto v. President of Pakistan (1992 SCM R 140) the transfer of a case pending before a Special Court constituted under P.O. 17 of 1977 presided over by a Judge of Lahore High Court (as he then was) to another Special Court at Karachi, was sought under Article 6-A of P.O. 17 of 1977. Article 6-A of P.O. 17 of 1977 conferred power on this Court to transfer a case pending before Special Court to another Special Court on grounds of convenience of the parties or witnesses or for ends of justice. This Court held that the second ground of transfer namely, for the ends of justice is independent of the first ground which related to connivance of parties and the witnesses. It appears that in that case, the main thrust of the argument of the learned counsel for the petitioner was that the Presiding Officer of the Special Court at Lahore (a serving Judge of the High Court of Lahore) was biased against the petitioner. This Court rejected the contention with the observation that against the Judge of a superior Court an application on the ground of bias would not lie.
' In Constitution Petition No,9 of 1990 and 5 other connected matters (Federation of Pakistan v.
Khalid Malik, Advocate, Quetta), the Federation of Pakistan filed application under Article 186-A of the Constitution before this Court seeking transfer of 6 petitions arising out of the order of the President passed under Article 58(2)(b) of the Constitution dissolving the elected Government, pending in the four Provincial High Courts of Pakistan to any one High Court. This Court while allowing the petitions ordered transfer of these six petitions to two Provincial High Courts for the following reasons:- "7. After hearing the learned counsel for both the parties at some length, we find that the expeditious disposal of these and such petitions demands that the Federation be not left to defend them in the four High Courts separately but that it is expedient and in the interest of justice to have the cases transferred so that two High Court deal with these matters and that there are more than one considered judgments, from the High Courts, on the subject."
' In Muslim Commercial Bank Limited Employees' Union, Islamabad, Rawalpindi and Wah Zones v.
Muslim Commercial Bank Ltd (1994 SCM R 1031), the petitioners sought transfer of a petition filed under Article 199 of the Constitution before the High Court of Sindh at Karachi, to Rawalpindi Bench of Lahore, High Court, on the ground that the petitioners were registered as a Union at Islamabad and were certified as C.B.A. For Islamabad, Rawalpindi and Wah Zones and that Sindh High Court had otherwise no jurisdiction in the matter. The contentions were repelled as follows:-- "2. There is no doubt that under Article 186-A of the Constitution, which reads as follows:-- '186-A. The Supreme Court may, if it considers it expedient to do so in the interest of justice, transfer any case, appeal or other proceedings pending before any High Court to any other High Court."
' This Court has jurisdiction to transfer any case, appeal or other proceedings pending before any High Court if it considers it expedient to do so in the interest of justice.
3. However, the above provision cannot be equated with section 24 of the Civil Procedure Code. An application under the above Article cannot be entertained as a matter of course but a very strong case is to be made out to demonstrate that the transfer sought will advance the cause of justice.
Simpliciter inconvenience to a party or the factum that the Court where the case has been instituted has no jurisdiction, will not be sufficient. The proper course for the petitioner is to take up the plea of jurisdiction before the High Court of Sindh and in case the above plea is decided against the petitioner, it may approach this Court."
' In Liaqat Ali Jatoi v. The State (1995 SCM R 1082) the petitioner applied for transfer of his pre-arrest bail application pending before the High Court of Sindh to any other High Court on the ground of serious apprehension of his arrest and danger to his life if he entered the Province of Sindh. The prayer for transfer of case from the High Court of Sindh was not granted but petitioner was granted protective bail by this Court for two weeks or till his surrender, with direction to appear before the High Court of Sindh to pursue his application.
15. From a review of the above cases, it follows that the power vested in this Court under Article 186- A of the Constitution cannot be invoked for transfer of a case competently filed before a High Court to another High Court on the ground of convenience or inconvenience of a party or witnesses simpliciter. The power enjoyed by this Court under Article 186-A of the Constitution is also not akin to the power available to the Courts under section 24 of the C.P.C. Or section 526, Cr.P.C. And, therefore, considerations relevant for transfer of a pending case under these provisions of law are not applicable to the transfer of a case under Article 186-A of the Constitution. A superior Court having jurisdiction to hear a case cannot be deprived of its jurisdiction through exercise of ordinary power of transfer of a case from one Court to another. The power vested in this Court under Article 186-A of the Constitution is of an extraordinary nature and is exercised sparingly only in the interest of justice. The expression "in the interest of justice" is, however, not capable of being defined with precision. What may appear to be in the interest of justice in the given circumstances of a case, may not be found so in another set of circumstances. Therefore, whether a particular case falls within the scope of the expression "in the interest of justice" would depend on the totality of the facts and circumstances of each case.
16. Mr. Aitzaz Ahsan, the learned counsel for the petitioners while interpreting the expression "interest of justice" in Article 186-A of the Constitution relied on the observations of Lord Templeman and Lord Goff in the case of Spiliada Maritime Corporation v. Cansulex Ltd. (1986) 3 AllER 843). The learned Judges in the above case held that the fundamental principle applicable both to stay of English proceedings on the ground that some other forum was appropriate forum and also for grant of leave to serve proceedings out of jurisdiction, was that the Court would choose that forum in which the case could be tried more suitably for the interest of all the parties and for the ends of justice. The doctrine of forum non-convenience propounded by the English Court, in the above- cited case, in our humble opinion cannot be relied as a guide for interpretation of Article 186-A of the Constitution. The question of convenience or inconvenience of parties and witnesses may be a relevant factor for transfer of a case from one subordinate Court to another but these considerations simpliciter as earlier pointed out by us, are not relevant for exercise of jurisdiction under Article 186-A of the Constitution.
17. In the case before us, the petitioners have their residences both in the Province of Sindh as well as Islamabad. Petitioner Benazir Bhutto, being a national leader, frequently travels between the Provinces of Sindh and Punjab. The two Ehtesab References (References Nos. 26 and 27) wherein the witnesses and the material are to be produced from the Sindh are now at an advance stage of proceeding and are likely to conclude soon, in view of the statement made before us by the learned Attorney-General. In the other five references, the witnesses and material are all available within the Province of Punjab. We have already held as indicated above, that reference filed before the Lahore High Court were competent in law and that Court has the jurisdiction to try these cases, and therefore, for ordering transfer of these cases from Lahore High Court to Sindh High Court in the interest of justice, existence of some exceptional circumstances was necessary which, in our opinion, did not exist in the present cases. In these circumstances and keeping in view the fact that the Act contemplates expeditious disposal of the cases, we do not consider the transfer of the References pending against the petitioners at Lahore High Court and its Rawalpindi Bench, to the High Court of Sindh at Karachi in the interest of justice.
18. However, as the petitioners are being prosecuted in two references at Rawalpindi and 5 References at Lahore and it is admitted before us that the petitioners have their residence, besides having their permanent residence at Karachi, in Islamabad also, we are of the view that it will meet the ends of justice if all the References pending against the petitioners are tried at one place. Since the petitioners have their residence at Islamabad, we are of the view that it will be in the interest of justice if all the 7 References against them proceed before the Rawalpindi Bench. We, accordingly, direct that the 5 References pending against the petitioners at the principal seat of Lahore High Court will henceforth proceed at Rawalpindi Bench of Lahore High Court where two References against the petitioners are already pending and proceeding.
It is admitted before us that besides these seven References, which are pending against the petitioners at the principal seat of Lahore High Court and Rawalpindi Bench, petitioners are also being prosecuted in some references filed against them in the High Court of Sindh. As the petitioners will have to defend all these References, it is further directed that the dates of hearing in these References at Rawalpindi and Karachi should be fixed in consultation with the learned Judges trying these cases in such a way that between the dates of hearing of References at the two places, the petitioners are allowed 2 days' time in-between these dates. The petitions stand disposed accordingly, in terms stated above with no order as to costs.