Sardar AHMED SIYAL and others vs NATIONAL ACCOUNTABILITY BUREAU

' RANA BHAGWANDAS, J.---This judgment shall dispose of identical petitions for leave to appeal, which are directed against the judgments of the Sindh High Court dated 31-10-2001 and 24-12-2001 dismissing petitioners' writ petitions impugning the vires of orders dated 11-7-2001 and 30-7-2001, whereby cases pending against the petitioners before the Court of Special Judge, Anti-Corruption, Hyderabad and Sukkur respectively were transferred to the Accountability Court, Hyderabad on the application of Chairman, National Accountability Bureau within the contemplation of section 16- A(a) of the National Accountability Bureau Ordinance (No,XVIII of 1999) (hereinafter referred to as the Ordinance).

2. It appears that Deputy Prosecutor-General, NationalAccountability Bureausubmitted an application duly signed by theChairman, National Accountability Bureau requesting for transfer ofthe cases pending against the petitioners to the Accountability Court as the offences alleged against them were scheduled offences. Learned Special Judge, Hyderabad passed an order directing the office to send the record and proceedings of the cases to the Accountability Court, as prayed. On his part Special Judge, Sukkur passed a detailed order of transfer with reasons.

3. Petitioners impugned the validity and correctness of the aforesaid orders through respective Constitutional petitions before a Division Bench of the Sindh High Court, Hyderabad Circuit Court, which have been dismissed giving rise to the instant petitions for leave to appeal.

4. For the sake of convenience and ready reference, it would be advantageous to reproduce section 16-A of the Ordinance, which reads as follows:-- "16-A. Transfer of cases.---(a) Notwithstanding anything contained in any other law for the time being in force, the Chairman,National Accountability Bureau may apply to any Court of law or Tribunal that any case involving a scheduled offence under this Ordinance pending before such Court or Tribunal shall be transferred to a Court established under this Ordinance, then such other Court or Tribunal shall transfer the said case to any Court established under this Ordinance and it shall not be necessary for the Court to recall any witness or again to record any evidence that may have been recorded.

(b) In respect of any case pending before a Court, the Prosecutor-General Accountability or any Special Prosecutor authorized by him in this behalf, having regard to the facts and circumstances of the case and in the interest of justice and for the protection and safety of witnesses, considers it necessary that such case is transferred for trial, he may apply, for the transfer of the case from any such Court in one Province to a Court in another Province or from one Court in a Province to another Court in the same Province-- -(i) xxxxxxxxxxxxxxxxxxxxxxx (ii) xxxxxxxxxxxxxxxxxxxxxxx

(c) xxxxxxxxxxxxxxxxxxxxxxx "

5. Main thrust of the argument of the learned counsel for the petitioners is that the learned trial Courts passed the impugned orders without issuance of any show-cause notice to the petitioners- accused in the cases pending before the said Courts.

6. We have examined the provisions of clause (a) of section 16-A of the Ordinance reproduced hereinabove, which clearly tends to show that notwithstanding anything contained in any other law for the time being in force, the Chairman, National Accountability Bureau may apply to any Court of law or Tribunal for transfer of the case involving a scheduled offence pending before such Court or Tribunal and, on receipt of such application, such Court or Tribunal shall transfer the said case to any Court established under the Ordinance. It would appear that the object of the special law is to expedite the disposal of cases involving corruption, corrupt practices, misuse of power,, misappropriation of property and matters connected thereto under the Ordinance and to avoid procedural delays and technicalities. The language of the provision unequivocally reflects the intention of the Legislature that the provisionis self-contained and self-executory leaving no option for the Court before whom cases involving scheduled offences are pending but to transfer the same. It is rather imperative to accede to such request unless it can be shown to the satisfaction of the Court that the offence against the accused does not fall amongst the offences included in the Schedule. On no other ground can a Court turn down a request for transfer of a pending case to Accountability Court on an application made by the Chairman, National Accountability Bureau under the Ordinance. This being the position in law, and the object of the Legislature, we are not impressed by the submission that the transferor Court in all fairness and reasonableness ought to have given notice of transfer to the petitioners. It may, however, be observed that it is not the requirement of law under the Ordinance that such order can be passed only after notice to the accused. Intention of the Legislature is rather patently clear and certain from the non obstante clause at the commencement of the provision. In fact the provision has the overriding effect over general law.

7. Learned counsel submitted that the provisions of the Code of Criminal Procedure are applicable to the proceedings before the Accountability Court, by virtue of section 17 of the Ordinance but he has ignored to point out section 3 of the Ordinance, which categorically declares that the provisions of this Ordinance shall have effect notwithstanding anything contained in any other law for the time being in force. It would thus be seen that the provisions of the Ordinance have overriding effect to the extent of any inconsistency and provisions of the Ordinance shall prevail over the procedure provided in Criminal Procedure Code.

8. Mr. Abdul Rahim Qazi, learned Advocate Supreme Court relied upon a judgment in C.P. No,525 of 2001 authored by a Division Bench of the Sindh High Court on 31-7-2001 to the effect that the order of transfer of the case to Accountability Court without notice to the accused is invalid. Submission of the learned counsel is that this judgment was placed before the Division Bench, which heard C.P.

No,D-558 of 2001 impugned in C.P.L.A. No,44-K of 2002. Learned counsel contended that if the Division Bench of the High Court did not agree with the reasoning and the conclusion arrived at in the earlier case, it should have referred the case for decision by a larger Bench according to the principle laid down in Multiline Associates v. Ardeshir Cowasjee (PLD 1995 SC 423).

9. Be that as it may, the question involved in the petitions relatingto change of forum, and the conclusion arrived at by the High Court in the impugned judgments is neither arbitrary nor inconsistent with the settled principles of law. The argument that the Division Bench should have referred the case to the learned Chief Justice for constitution of a larger Bench may not be untenable but the fact remains that, that courseof action was not adopted. Nevertheless, conflict of opinion would not vitiate the inipugned judgment or alter the legal position. Learned High Court has already dealt with the submissions with regard to change of forum and deviation from the principle of rules of natural justice, which does not call for any interference by this Court.

10. For the aforesaid facts and reasons, both the petitions are without any substance, which are accordingly dismissed and leave to appeal is declined.