' IJAZ AHMED CHAUDHRY. J.---This appeal by leave of the Court has been directed against the judgment dated 4-10-2002 passed by the learned High Court of Sindh, Karachi, whereby the Constitutional Petition No. D-76 of 2002 filed by the appellant was dismissed and the order of the learned Special Judge, Anti Corruption Central, Karachi dated 12-1-2002 was maintained vide which the application filed by the Chairman NAB under section 16-A(a) of the National Accountability Ordinance, 1999, was allowed and the case against the appellant registered vide FIR No.1/1998 under section 161, P.P.C. Read with section 5(2) of the Prevention of Corruption Act, 1947, at Police Station FIA State Bank Circle, Karachi, pending before the Special Judge Anti Corruption (Central-I) Karachi was transferred to Accountability Court No.2, Karachi.
2. Briefly stated the facts of the matter are that the appellant was facing trial in the case registered vide FIR No. 1/1998 under section 161, P.P.C. Read with section 5(2) of the Prevention of Corruption Act, 1947, at Police Station FIA State Bank Circle, Karachi, before the learned Special Judge, Anti Corruption (Central-I), Karachi, On 19-7-2001 the Chairman NAB filed an application before the said Court that the case be transferred from the said Court to Accountability Court at Karachi. The learned Special Judge, Anti Corruption vide order dated 12-1-2002 allowed the application and transferred the case to the Accountability Court. Being aggrieved, the appellant filed Constitution petition before the learned High Court of Sindh which also met the same fate. The appellant then filed Civil Petition No. 1775 of 2002 before this Court in which leave was granted on 29-10-2002 out of which has arisen this appeal.
3. Learned counsel for the appellant has contended that the Special Judge, Anti Corruption Central, Karachi, could not transfer the proceedings to Accountability Court, Karachi; that the incident took place in the year 1996-1997 and the NAB Ordinance was brought on book in the year 1999 and it cannot have retrospective effect and that the appellant at the time of commission of offence could have been convicted under section 161, P.P.C. And sentenced to imprisonment for 3 years and under section 5(2) of the Prevention of Corruption Act, 1947, he could have been sentenced to 7 years and under the NAB Ordinance, he can be convicted for 14 years, which cannot be imposed.
Learned counsel in support of the contentions has relied upon Khan Asfandyar Wali v. Federation of Pakistan (PLD 2001 SC 607), Mehranz Ali v. Federation of Pakistan (PLD 1998 SC 1445), CBR v. Seven- up Bottling Company (1996 SCM R 700), Jibendra Kishore Acharaya Chaudhry v. Province of East Pakistan (PLD 1957 SC 157), Tariq Aziz ud Din's case (2010 SCM R 1301), Nabi Ahmed v. Government of West Pakistan, Lahore (PLD 1969 SC 599).
4. Learned Prosecutor General, NAB, on the other hand has contended that according to section 16- A(a) of the NAB Ordinance, the Chairman NAB can apply to any court or Tribunal for transfer of any case; that the Ordinance was promulgated with retrospective effect and, therefore, the appellant cannot claim benefit of the same; that the NAB Ordinance is a special law which is promulgated with a view to provide for effective measures for the detection, investigation, prosecution and speedy disposal of cases involving corruption, corrupt practices, misuse or abuse of power or authority, misappropriation of property, taking of kickbacks etc. And that the impugned judgment is unexceptionable. In support of the contentions raised, learned Law Officer relied on Amjad Qadoos v. Chairman NAB (2014 SCM R 1567), The State v. Nasim Amin Butt (2001 SCM R 1083), Capt.
(R) Nayyar Islam v. Judge Accountability Court No. III (2012 SCM R 669), Sardar Ahmed Siyal v. NAB (2004 SCM R 265).
5. We have heard learned counsel for the appellant as also learned Prosecutor-General NAB and have gone through the impugned judgments as also the case-law cited at the bar.
6. The issue involved in this appeal is two fold. First is whether the Chairman NAB can apply for transfer of case from Anti-Corruption Court to Accountability Court and the second is whether the Accountability Court can decide the case of the appellant which took place in the year 1996 whereas the NAB Ordinance was promulgated in the year 1999?
7. To examine the first issue, it would be relevant to read section 16-A of the NAB Ordinance, 1999, which is as follows:- "16A. Transfer of cases:
(a) Notwithstanding anything contained in any other law for the time being in force, the Chairman NAB may apply to any court of law or tribunal that any case involving any 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 be deemed to be a reference under section 18 of the 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, if 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) to the Supreme Court of Pakistan in case the transfer is intended from a Court in a Province to a Court in another Province; and
(ii) to the High Court of the Province in case the transfer is intended from one Court in a Province to another Court in the same Province; and the Supreme Court or the High Court, as the case may be, if it is in the interest of justice, transfer the case from one court to another court, and the case so transferred shall be tried under this Ordinance without recalling any witness whose evidence may have been recorded.
8. From a bare perusal of the above-quoted provision, the Legislative intent is very clear that the Chairman NAB may apply to any Court of law which includes the Special Judge, Anti-Corruption for transfer of case to a Court established under the said Ordinance. The object of this provision is also reflected from the very Preamble of the NAB Ordinance which is to the effect that "an Ordinance to provide for the setting up of a National Accountability Bureau so as to eradicate corruption and corrupt practices and hold accountable all those persons accused of such practices and matters ancillary thereto."
9. In Khan Asfandyar Wali supra case while attending to the question as to whether the provisions relating to transfer of cases qua the Provincial Courts within the territories of a Province and from one Province to another, suffer from excessive delegation this Court has held as follows:-- "237. Article 203 of the Constitution provides that the supervision and control over the subordinate Judiciary exclusively vests in the High Court concerned. It comprehends all supervisory powers both judicial as well as administrative as to the working of the subordinate courts including the disciplinary matters. Any provision in any law, direction or order empowering any executive functionary to have administrative supervision and control over the subordinate Judiciary either directly or indirectly, would militate against the concept of separation of powers and independence of Judiciary as envisaged under Article 175 and the Objectives Resolution as laid down by this Court in the case of Sharaf Faridi (PLD 1994 SC 105). It would thus be seen that even under the general law, the power to order cases to be tried at different places falls within the domain of executive authority, which could not be termed as violative of judicial independence. Be that as it may, Mr. Abid Minto rightly contended that Article 203 of the Constitution is applicable to the courts under the NAB Ordinance and such courts are subordinate to the High Courts and therefore the power of superintendence vested in the High Court prevails over these courts within the hierarchy of the courts of the country and for the purposes of the Constitution. We are also of the considered view that the High Court, in appropriate proceedings whenever it is made to appear to it that a fair trial cannot be held before any Accountability Court at a particular place and it is expedient for the ends of justice that any offence under the NAB Ordinance be tried by any Accountability Court other than the court seized of the matter, may transfer the case accordingly."
10. One of the issues raised by learned counsel for the appellant is that this Court in the case of Khan Asfandyar Wall v. Federation of Pakistan (PLD 2001 SC 607) had declared Section 16-A of the NAB Ordinance to be ultra vires of the Constitution but the Legislature did not incorporate and properly apply the principles laid down in the said judgment. We have noted that this Court in Khan Asfandyar supra case had directed as follows:- "241 Resultantly, in the matter of transfer of cases from one court to another, either within a Province or from one Province to another, as contemplated under section 16A the prosecutor and the accused must be placed on equal footing. To this extent section 16A is declared ultra vires the Constitution and needs to be suitably amended." (Emphasis is supplied)
11. A bare look at the above-reproduced direction reveals that this Court had directed for amendment in the NAB Ordinance so as to place both accused and the. NAB on equal footing and after the directions of this Court Section 16-A has duly been amended vide Ordinance No.XXXV of 2001 dated 10-8-2001 and clause 'C' was added, which reads as under:-- "16A. (c) The accused may also make an application to the Supreme Court for the transfer of a case from a Court in one Province to a Court in another Province and to the High Court for transfer of a case from one Court in a Province to another Court in the same Province and the Supreme Court or the High Court, as the case may be, if it is in the interest of justice, transfer the case from one Court to another Court, and the case so transferred shall be tried under this Ordinance without recalling any witness whose evidence may have been recorded."
12. A reference to the newly added provision is also found in Capt. (R) Nayyar Islam v. Judge Accountability Bureau No.III, Lahore (2012 SCMR 669) wherein this Court has observed as under:7 "(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." (Emphasis is supplied)
13. In view of the above, the apprehension of learned counsel for the appellant is misconceived. So far as the contention of learned counsel that such power granted to Chairman NAB or the Special Prosecutor General NAB to transfer cases is an unguided and unstructured discretion, we have found that it is specifically mentioned in section 16-A that it is for the Court (Supreme Court or the High Court as the case may be) to transfer the case if it finds the same in the interest of justice. This apprehension of learned counsel is also misconceived.
14. So far as the issue that the incident took place in the year 1996-1997 whereas the NAB Ordinance was promulgated in the year 1999 and the Accountability Court cannot decide the case of the appellant is concerned, section 2 of the NAB Ordinance clearly stipulates that the Ordinance shall be deemed to have come into force from the 1st of January, 1985. The said Section reads as under:- - "2. Commencement.---This Ordinance shall come into force at once and shall be deemed to have come into force from the 1st day of January 1985."
15. In Jamshaid Gulzar v. Federation of Pakistan (2014 SCM R 1504), this Court has specifically held that where the legislature had given an enactment retrospective effect with clear intendment spelt out from its language, then no protection to the alleged vested rights of a party could be offered contrary to it and that the Legislature had the authority to promulgate or amend a law with retrospective effect by intendment. Even otherwise, we have noted that the trial has still not been concluded and in such a situation the quantum of punishment or that the appellant would surely be convicted cannot be presumed. The possibility that the appellant might be acquitted or convicted to a lesser sentence could not be ruled out. For what has been discussed above, the case-law relied upon by learned counsel for the appellant is distinguishable.
16. In view of the foregoing reasons, we do not find any merit in this appeal, which is dismissed accordingly.