Capt. (R) NAYYAR ISLAM vs LEARNED JUDGE ACCOUNTABILITY NO. III and others

ORDER

Tassaduq Hussain Jillani, J.--We were inclined to grant leave after hearing the petitioner's learned counsel. However, before we could sign the order, we thought that it requires further assistance and learned counsel was asked to assist.

2. Learned counsel for the petitioner has been heard at length. He contends that the petitioner's constitutional petition seeking transfer of the NAB Reference from the Special Judge; Accountability Court No, III, Rawalpindi has been dismissed for reasons not sustainable in law; that the learned High Court has not properly construed the import of Section 16-A of the National Accountability Bureau Ordinance, 1999, inasmuch as while this provision creates a right for the Chairman NAB and the Prosecutor General to seek transfer of a reference pending before the Court, it does not exclude the application of the general law i,e, Section 526 of the Criminal Procedure Code which inter alia stipulates the right of the complainant of the party to seek transfer of a case, Learned counsel also referred to Section 17 of the NAB Ordinance which specifically mandates that notwithstanding anything contrary contained in any other law, the provisions of Criminal Procedure Code, 1898, shall mutatis mutandis apply to the proceedings under the NAB Ordinance. A harmonious interpretation of the afore-referred two provisions, he further added, would lead to the conclusion that the right of the interested person/complainant who moved the National Accountability Bureau for filing a reference remains intact as to this extent, Section 526 Cr.P.0 is not inconsistent with the provision of the special law referred to above.

3. Having heard learned counsel for the petitioner at some length, we find that it is by now a settled principle of interpretation of statutes that the provisions of special law exclude the application of general law in the context in which the former provision has been enacted. In the instant case, a bare reading of the various. provisions of NAB Ordinance reflect that the law makers intended to provide a special dispensation/legal framework for investigation, trial and otherwise dealing with the cases under the NAB Ordinance. For instance, Section 25 of the NAB Ordinance provides for voluntary return and plea bargain; Section 25-A stipulates payment of loans .by the defaulter and Section 26 authorizes the Chairman NAB to grant pardon in circumstances envisaged in the said provision. There are no analogous provisions in the general law. Similarly, in the case in hand, the insertion of Section 16-A brought about by Ordinance No, IV of 2000 dated 3.2.2000 was intended to lay down a special procedure and thereby provide a right to the Chairman NAB as also to the Special Prosecutor General Accountability and the accused in a given case to seek transfer on grounds stipulated therein. The rationale or the intent appears to limit this right to those who are directly involved in a case so as to prevent and avoid vexatious proceedings and frivolous petitions. If petitioner feels strongly about the grounds agitated in the constitutional petition, he can always move the Chairman NAB and the latter has to proceed as mandated in law.

4. For what has been discussed above, we do not find the impugned judgment to be exceptionable, warranting interference. The petition lacking in merit is accordingly dismissed and leave refused.