1. ' By this Constitutional petition, the petitioner Abdul Jabbar has sought following relief:--- (a)Declaration that the impugned order, dated 11-7-2001 passed by respondent 3, allowing the transfer application moved by respondent 1 and transferring the case of the petitioner to respondent 2, is without lawful authority and it is of no legal effect since it offends against the ...Principles of natural justice enshrined in 'audi alteram partem'.
2. (b)Direction to respondent 2 to send back the record and proceedings of Special Case No,25 of 2000 of State v. Abdul Jabbar Abbasi and others to the respondent 3, for passing appropriate orders after hearing the petitioner and all other concerned parties; (c)Direction to the respondent 3 to afford reasonable opportunity of hearing to the petitioner and thereafter pass an-appropriate order in accordance with law; (d)Any other further/additional relief which this Honourable Court deems fit and proper in the circumstances of this case.
3. The brief facts of the case as disclosed in the petition are that the petitioner is one of the accused in Special Case No,25 of 2001 which was sent up for trial in the Court of Special Judge Anticorruption (P) Hyderabad Sindh for offences under sections 409, 420, 467, 468 and 471, P.P.C.
4. Read with section 34, P.P.C. Further read with section 5(2) of Act II 1947. The case of the petitioner and other accused was fixed in the Court of respondent No, 3 on 21st instant. The petitioner came to know that the above case was transferred by respondent No,3 and respondent No,2 without hearing the petitioner and the other co-accused.., The petitioner was orally informed that the above case stood transferred to respondent No,2.
5. ' It is further stated that the order of the trial Court is without lawful authority and of no legal effect.
6. ' We have heard learned counsel appearing on behalf of the parties.
7. ' Mr. Hidayatullah Abbasi learned counsel appearing on behalf of the petitioner has placed reliance upon the case of Nazim Hussain v. The State, etc. Reported in 1999 PCr.LJ 42 and unreported D.B.
8. Order of this Court in case of Muhammad Ishaque Lashari v. National Accountability Bureau and others (Constitutional Petition No,1534 of 2001).
9. ' Mr. Hakim Ali Siddiqi learned Standing Counsel opposed the prayer of the petitioner and has placed reliance upon section 16-A of the National Accountability Bureau Ordinance, 1999 (Ordinance No,XVIII of 1999).
10. ' Mr. Masood A. Noorani learned A.A.-G. Sindh stated that he believes in the maxims of the natural justice, but in the present matter no prejudice was caused to the petitioner due to non-issuance of the notice.
11. ' It will be pertinent to reproduce hereinbelow the statement of Deputy Prosecutor General Accountability sent to the respondent No, 3 and order thereon.
12. Before the Honourable Court of Special Judge Anti-Corruption(P.) Hyderabad.
13. SPL. Case No,25 of 2001.
14. ' The State v. Abdul Jabbar Abbasi and 6 others.
15. ' F.I.R. No,GO-25 of 2000. Dated, 15-5-2000. STATEMENT.
16. ' It is submitted as under:--- ' That in exercise of power vested-with the Chairman NAB under section 16-A(a) formed under the NAB Ordinance, 1999 he has been pleased to make a request to this Honourable Court for the transfer of the case to the Accountability Court No, 6 at Hyderabad vide the above said F.I.R. Which is pending trial before this Honourable Court.
17. ' The request made by the Chairman NAB is enclosed herewith as such, the case to be transferred without notice to the accused. The process will be issued, a fresh from the Court for the next date.
18. Karachi Dated: 11-7-2001 (Sd.)
19. (Muhammad Anwar Tariq)
20. Deputy Prosecutor General Accountability.
21. Order
22. ' Allowed R&P be sent to the NAB Court No,6. Hyderabad.
23. (Sd.)-- 11-7-2001 ' Special Judge Anti-Corruption
(P) Hyderabad.
24. The plain reading of the statement and order thereon reproduced hereinabove shows that the Deputy Prosecutor General Accountability has directed the respondent 3 that the case be transferred without notice to the accused. The respondent 3 i,e, learned Special Judge Anti- Corruption (P.) Hyderabad passed a sketchy order thereon without assigning any reasons.
25. ' The section 16-A of the National Accountability Bureau Ordinance, 1999 (Ordinance No,XVIII of 1999) is reproduced hereinbelow for the convenience sake.
26. "16-A. 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 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.
27. (b)
28. The plain reading of the above provision of law shows that it is nowhere mentioned that the Court without hearing any party to the proceedings can transfer the case.
29. It is well-settled that no man should be condemned unheard. The Principle of (audi alteram partem) is enshrined in our judicial system.
30. ' The apex Court has held time and again that the order affecting the rights of a party cannot be passed without providing opportunity of hearing to that party.
31. ' In the case of Muhammad v. The State reported in PLD 1961 Karachi 709 it was observed by this Court that no man shall be condemned unheard applies to judicial as well as administrative bodies; specially where the proceedings taken may affect the person or property or other rights of the parties concerned in the dispute.
32. ' Again in the case of Ghulam Mustafa Jatoi v. Returning Officer and others reported in 1994 SCMR 1299, it was held by the Honourable Supreme Court that the maxim audi alterm partem embodies one of the settled principles of law. And such a principle will be read into the relevant law unless its application is excluded by express words.
33. ' In yet another case of Shaukat Ali v. The State reported in 1980 PCr.LJ 718 it was observed by the Honourable Supreme Court of Azad Jammu and Kashmir as under:--- "The latin maxim, audi alteram partem which in fact, stems out from the principle of Islamic Law.
34. This Court has already observed in Muhammad Shafique v. The State PLD 1977 SC (AJ&K) 1, at page 6, that, 'thus', from what has been said therefore, it would appear that this rule of natural justice stems from Islamic jurisprudence. In a Muslim society it is to be complied with as a command like any other 'Quaranic Laws'. We reiterate the above view and hold that an order passed by any Court without complying with this principle is liable to cause miscarriage of justice."
35. Thus, the arguments of the learned Standing Counsel as well as of learned Additional Advocate- General are not tenable in law as the right of a party to the proceedings is not expressly taken away by section 16-A of the National Accountability Ordinance, 1999.
36. ' The upshot of the above discussion is that the impugned order passed by respondent No,3 is set aside and the prayer of the petitioner stands allowed.
37. ' Resultantly the respondent No,2, is directed to send the R&P of the instant case to respondent No,3 for passing appropriate order in accordance with law after affording proper and reasonable opportunity of hearing to concerned parties in the case: ' The petition stands disposed of alongwith listed application in terms stated above.