1. ' KHAWAJA MUHAMMAD SAEED, J.--- Facts relevant for the decision of this appeal, briefly stated are that accused-appellants are facing trial in a reference against them under Ehtesab Act, since 26- 3-1998. They challenged the correctness of an order passed on 8-9-2000 by the Ehtesab Court in a revision petition before the High Court. In the same revision petition they also made a request that the case pending against them before Ehtesab Court may be transferred from the said Court to any other Court of competent jurisdiction. Their revision petition to the extent of this request was dismissed. They assailed this decision before this Court through a petition for leave to appeal. For the early disposal of this case the same has been converted by us into appeal.
2. Raja Muhammad Hanif Khan, the learned counsel for the appellants, argued that his clients have got reasonable apprehension about the conduct of the Presiding Officer of Ehtesab Court No,1, as they were deprived of the copies of those documents which were tendered in evidence against them by the prosecution, resultantly they were compelled to seek the indulgence of the High Court and this Court and further that appellant No,1, Col. (Retd.) Muhammad Farooq is a Cardiac patient who was admitted in A.F.I.C. Due to heart ailment. His client could not inform him, as such he failed to submit any application before the Court seeking exemption of his client from personal appearance in the Court on 11-6-2001, the date fixed for the presence of his client before the Court.
2. The Ehtesab Court issued a warrant of arrest against appellant No,1. On 17-7-2001 his client appeared in the Court and requested that warrant of arrest issued against him be withdrawn. He also submitted before the Court that he has already submitted two applications in this regard through his counsel. The appellant No,1 was directed by the Court to bring his counsel. On the direction of the Court, the appellant No,1 left the Court room in order to bring his counsel for arguments. But outside the Ehtesab Court's premises his client was arrested by the Police. His client, therefore, has got reasonable apprehension that he will not get fair trial from said Court. The learned Chief Justice in the High Court, in the light of these facts, was not justified in rejecting his transfer application. In support of his contention he relied on the following cases:-- ' In Ghulam Nabi v. The State and 5 others PLD 1979 Kar. 182, the transfer application was moved by accused-appellant who was undergoing trial in a murder case. He had engaged Mr. Allandino Advocate, as defence counsel, who sought adjournment on the ground that he was not feeling well. The adjournment was refused by the Court whereupon the said counsel withdrew his Vakalatnama. On the adjourned date one Ghulam Rasool, Advocate who was junior partner of Mr Allandino, Advocate appeared before the Court as defence counsel. He was directed to file fresh Vakalatnama in his individual capacity. This was done by the said Advocate. However, he was not allowed to represent the accused on the ground that he was a member of the firm of Messrs Allandino, therefore, the power once withdrawn could not be filed again. The accused-appellant moved an application for the transfer of the case before Karachi High Court. The application was allowed and case was transferred from the said Court by observing that even though the action of Judicial Officer was susceptible of explanation yet calculated to create in the mind of accused an apprehension that he may not have fair and impartial trial.
3. ' In Abdul Rashid and others v. Chiragh Din and others 1985 PCr.LJ 2824, the application for transfer was moved on two grounds. Firstly that even though the petitioners were allowed bail by Superior Court, despite this fact they were got arrested by the Magistrate. The second grievance was that they have filed a suit for damages against the said Court and have also moved an application seeking contempt proceedings against the Magistrate. These grounds were found sufficient to raise genuine apprehension in the mind of the petitioners that they will not get justice from the said Court.
4. ' In Liaquat Ali Butt v. Ahmed Nasim, Senior Superintendent of Police, Lahore and others 1986 PCr.LJ 2846, the transfer application was moved on the ground that Presiding Officer was just an Assistant Commissioner whereas one of the accused persons before him was the Senior Superintendent of Police, Lahore and the other was S.P. Cantt., Lahore and remaining were also Police officials. The learned Judge allowed the transfer of the case observing that justice should not only be done but should appear to have been done. As accused persons are high officials of the Police Department, therefore, it was felt proper that their trial should be conducted by a senior Judicial Officer, having the status of Sessions Judge. The case was accordingly transferred.
3. On the other hand Ch. Muhammad Ibrahim Zia, Chief Prosecutor, Ehtesab Bureau, argued that the challan was filed against the accused persons in 1998. They by their conduct have unnecessarily prolonged the trial by obtaining adjournments on one pretext or the other. The trial Court always allowed them adjournments on their request. The appellants, according to learned counsel, have got no genuine excuse for the transfer of the case merely on the basis of an order which according to them is not in accordance with law. In support of his contention he relied on the following cases:-- ' In Imdadullah and 12 others v. The State and others 1981 PCr.LJ 1161 the transfer of case was requested on four grounds that Judge
(1) has asked for written arguments;
(2) has issued show-cause notice for cancellation of bail;
(3) has passed a wrong order which was set aside by the High Court.
(4) has refused to allow the accused-petitioner to see police statements in police diary.
5. ' The application was rejected on the ground that mere wrong exercise of jurisdiction is not sufficient for the transfer of the case.
6. ' In Gulzar Ahmed and others v. The State 1994 PCr.LJ 634, the transfer of the case was requested on the ground that accused were not provided reasonable opportunity to defend themselves simply due to the reason that the trial Court wanted to conclude trial hurriedly. While rejecting this application the Court observed that an illegal, erroneous, or improper order is not sufficient to disclose prejudice or bias in the mind of the Court passing such order and, therefore, are not valid grounds for transfer of the case.
4. We have considered the arguments of the learned counsel for the parties and gone through the record of the case. Admittedly the accused-appellants are facing trial in the reference, since 1998.
7. According to the learned Chief Justice of High Court most of the interim orders of the trial Court show that appellant No,1 has been requesting for adjournments on one pretext or the other.
8. Appellant No,1, himself has admitted that on account of his ailment, he had to get treatment in A.F.I.C. And failed to intimate his counsel, therefore, on 11-6-2001, date fixed for securing presence of appellant No,1, warrant of arrest was issued against him. The Presiding Officers of the Courts are bound to ensure that all proper and necessary steps are taken in accordance with the law to arrive at the A truth. Under law all Presiding Officers of the Courts are required to participate actively in the proceedings of the case with their full consciousness. In this case the trial Court had no option on 11-6-2001 but to issue warrant of arrest against appellant No,1 to ensure his presence before it.
9. The prosecuting agency which under the scheme of law, was bound to comply with the orders of the Court, was duty bound to arrest appellant No,1 and produce him before the Court in the light of the warrant of arrest issued against him by the Court having competence under law. We are not convinced that the warrant of arrest was signed by the Court when he was sent to bring his counsel to argue the application moved for the suspension of warrant of arrest issued against him.
10. The Presiding Officers of the Courts perform these functions in the early hours of the day before performing their judicial functions. The other ground raised by the learned counsel for the appellants for transfer of the case is that despite request his clients were not provided free of cost copies of the documents which were tendered in evidence against them by the prosecution. In our view even this ground is not sufficient to render the Presiding Officer of the trial Court disqualified from hearing the case. Repeatedly it is laid down by this Court that wrong order passed by a Court in good faith would not furnish a ground for holding such Court biased against the affected party.
11. We are conscious of the fact that it is our duty to ensure fair and impartial trial of the accused persons before the Courts in order to maintain their confidence in the system. Therefore, it has been repeatedly held that transfer of a criminal case is justified only if the superior Court is convinced there is a reasonable apprehension in the mind of any party to the trial that the trial Court would not act fairly and impartially in the case.
12. ' We find no merit in this case, it is hereby dismissed.