2001 PLP 3317 (YLR)

Allowed R&P be sent to the NAB Court No.6. Hyderabad. (Sd.)-- 11-7-2001 Special Judge Anti-Corruption (P) Hyderabad. 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. The section 16-A of the National Accountability Bureau Ordinance, 1999 (Ordinance No.XVIII of 1999) is reproduced hereinbelow for the convenience sake. "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. (b) ............................ 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. It is well-settled that no man should be condemned unheard. The Principle of (audi alteram partem) is enshrined in our judicial system. 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. 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. 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. 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 partein which in fact, stems out from the principle of Islamic Law. 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." 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. 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. 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 seasonable opportunity of hearing to concerned parties in the case: The petition stands disposed of alongwith listed application in terms stated above. H.B.T./A-258/K Order accordingly.