FAQIR MUHAMMAD KHOKHAR, J.---By means of this application under clause (c), section 16A of the National Accountability Bureau Ordinance (XVIII of 1999), hereinafter referred to as the Ordinance, the petitioners seek the transfer of Reference No,16 of 2002 titled The State v. S. Barkatullah and others from Accountability Court, Attock Fort to the Accountability Court, Karachi.
2. The petitioners are accused Nos.3 and 4 in Reference No,16 of 2002 filed by the Chairman, NAB, before the Accountability Court at Attock Fort under the provisions of sections 18(g) and 24(b) of the Ordinance. It was alleged in the Reference that accused Sh. Barkatullah, Ex-Chairman, Employees' Overseas Old Age Benefits Institution, Karachi, hereinafter referred to as the Institution, connived with petitioner No,1, Ex-General Manager (Finance) of Prudential Commercial Bank Limited, Karachi and other co-accused. They allegedly committed the offences of corruption and corrupt practices and other scheduled offences by dishonest and deceitful means. They deprived the Institution of FIBS of the face value of rupees 1040 millions by deriving benefits. They allegedly caused a colossal loss of Rs. 1,618,842,672 (one billion six hundred eighteen million eight hundred forty-two thousand six hundred seventy-two) approximately to the Institution. The misappropriated amount was reportedly funneled into various companies controlled and owned by petitioner No,1 besides being converted to the use of the accused persons.
3. Mr. Abid Hassan Minto, learned Senior Advocate Supreme Court for petitioners argued that the petitioner No,1 was a businessm an against whom the investigation had already been completed.
There was no allegation that the petitioners or any other co-accused had hampered the course of investigation in any manner. An offer for plea of bargain under section 25 of the NAB Ordinance was made to the NAB on behalf of Messrs Interworld Securities (Pvt.) Ltd., Republic Securities Ltd., the petitioners and all other co-accused which did not receive any consideration by the NAB for the reason that the same was unaccompanied by an admission of guilt. It was further submitted that another Reference No,33 of 2001 was already pending before the Accountability Court at Karachi against petitioner No,1 and others. The NAB had not expressed any apprehension that the petitioner No,1 and and other accused had obstructed the Court of justice in the trial of the said reference.
Various other proceedings against NAB and the State Bank of Pakistan were pending adjudication at Karachi. The learned counsel argued that the entire investigation in the present case had been conducted at Karachi where the alleged transactions had taken place. All the witnesses of the prosecution as well as of the defence belonged to Karachi. There was nothing on record to show that there could be any problem of law and order or tampering with the prosecution evidence in case the reference was tried elsewhere than Attock Fort. There were no peculiar facts and circumstances of the case warranting the trial of the reference by an Accountability Court at Attock Fort which was sine qua none for invoking the exceptional provisions of clause (d) of section 16 of the Ordinance for filing the Reference before the Accountability Court at Attock Fort which had become non-functional on account of elevation of its Presiding Officer as a Judge of the Lahore High Court.
4. On the other hand, Raja Muhammad Bashir, learned ASC/the Prosecutor-General, NAB vehemently opposed the transfer of the case.
' He submitted that the case had some unusual features which necessitated the institution of the Reference at the Accountability Court at Attock Fort. One of the co-accused namely Saeed Haroon had died in mysterious circumstances of having committed suicide. The NAB and the Institution had not succeeded in recovering the huge misappropriated amount as the accused were wielding enormous influence. The production of prosecution evidence was likely to be obstructed by the accused, their associates and relatives thereby seriously prejudicing the trial of the case. The prosecution witnesses would not be feeling safe and protected if the trial of the reference was not conducted at Attock Fort. The learned counsel relied on the judgment of Mohtarma Benazir Bhutto and another v. The State through Chief Ehtesab Commissioner, Islamabad (1999 SCM R 759) in which this Court had declined the transfer of an Ehtesab Reference from the Court of a learned Judge of the High Court on ground of bias.
5. We have heard the learned counsel for the parties at length. We are not oblivious of the fact that the Reference contains serious allegations of corrupt practices, misapplication and misappropriation of huge amount of public revenues. We are not called upon to decide the question of legality and propriety of filing the reference before the Accountability Court at Attock Fort in terms of non obstante clause (d) of section 16 of the Ordinance. The same has already been filed and is pending there. Only a limited matter of transfer of the Reference from the Accountability Court, Attock Fort for its trial before the Accountability Court at Karachi is involved in these proceedings. Clause (c) section 16A of the Ordinance entitles an accused to make an application before this Court for the Inter-Provincial transfer of a case from one Accountability Court to another in the interest of justice. We find that prima facie the entire investigation was carried out at Karachi. The accused, prosecution and defence witnesses belong to Karachi where the alleged offence has taken place. The trial of the accountability cases is required by law to be concluded expeditiously, whereas the Accountability Court at Attock is no longer functional for the time being.
6. The power of transfer of a case from one Court to another has to be exercised with circumstances and caution. But at the same time this Court may not hesitate to act in an appropriate case if the ends of justice so demand. One of the common circumstances, relevant for the transfer of a case from one Court to another is the evidence of substantial prejudice to a party or witnesses on account of logistic or such-like factors especially when alternative venue of the trial will not seriously handicap the State and rather will mitigate the serious difficulties of the accused to have a fair and impartial trial in a more congenial atmosphere.
7. The application for transfer of this case has been made by the petitioners at the earliest available opportunity when the trial of case is at still its nascent stage. The prosecution has not brought any tangible material on the record to demonstrate that the petitioners or their co- accused or other associates and relatives had attempted to tamper with or stultify the prosecution evidence by intimidating or otherwise suborning the prosecution witnesses necessitating the trial of the Reference at Attock Fort. At present, there is no reasonable basis for the apprehension of the prosecution of tampering with the prosecution evidence by or at the behest of the accused. The NAB is at liberty to bring to the notice of the appropriate Court if and when there are good reasons to support such a plea.
8. In these circumstances, despite hypersensitivity of the matter, it will be in the interest of justice and fair and expeditious trial of the case if the Reference is transferred from Accountability Court, Attock Fort for trial by the Accountability Court at Karachi. The Court and the authorities are always in a position to tike necessary measures in accordance with law for the safety of the witnesses if the same is put in peril on account of any pathological conditions. Needless to mention that no allegation as to the obstruction of the course of justice was made by the prosecution against the petitioners in the context of the other Reference pending against the accused before the Accountability Court at Karachi.
9. The reliance by the learned counsel for NAB on the case of Mohtarma Benazir Bhutto (supra), seems to be misplaced as it involved the transfer of a case from the Court of a learned Judge of the superior Court in the exercise of the jurisdiction under Article 186-A of the Constitution. It was held that a petition for disqualifying a Judge of the superior Court from hearing or for transfer of a case on the ground of bias did not lie. It was, however, observed in the precedent case that the question of convenience or inconvenience of the parties and witnesses might be a relevant factor for transfer of a case from one subordinate Court to another but those considerations simpliciter were not relevant for exercise of jurisdiction under Article 186-A of the Constitution for the transfer of case from one High Court of a Province to another.
10. For the foregoing reasons, we allow this application and order the transfer of the Reference No,16 of 2002 titled The State v. S. Barkatullah and others from the Accountability Court Attock Fort to the Administrative Judge of the Accountability Courts at Karachi who may either try the same himself or assign it for trial to any other Accountability Court at Karachi. The State shall, however, be at liberty to move the appropriate Court for re-transfer of the Reference in case the grounds mentioned under clauses (a) and (b) of section 16A of the D Ordinance become available.
Reference transfered.