2010 PLP 1692 (MLD)

On 18-4-2001 the Chairman, National Accountability Bureau filed a Reference against Choudhry Nazar Muhammad alleging therein that he had accumulated various properties disproportionate to his known sources of income. Details of the properties were shown in the Reference. One of them was the Property bearing No.1-L, Block-2, PECHS, Karachi. It was alleged that the accused Choudhry Nazar Muhammad had acquired the said property and gifted the same to Messrs Karachi Charitable Association (the appellant) on 15-4-1989. The appellant contested the matter by alleging that the said property should not have been included in the Reference as it was not the property of Choudhry Nazar Muhammad but the property belonged to the appellant. In order to redress his grievance the appellant filed a Constitution Petition bearing No.D-578 of 2002 with a prayer that the said property might be excluded from the Reference. Before the constitution Bench the appellant took a plea that the said property was frozen under section 12 of National Accountability Bureau Ordinance, 1999, therefore, the said Bench directed the appellant to move an application under section 13 of the said Ordinance before the trial Court for redress of his grievance. In fact, the property was never frozen by any competent authority under section 12 of the said Ordinance as admitted by the learned Advocate for the appellant and DPGA for NAB. However, the appellant moved an application under section 13 of the said Ordinance before the trial Court on 6-5-2002. The trial Court after hearing the parties' counsel formed opinion that the application under section 13 of the Ordinance was not maintainable. Consequently, the said application was dismissed under the impugned order, dated 27-6-2002. The appellant was dissatisfied with the said order, therefore, he has filed the present appeal.

2. After hearing the parties counsel at some length it was found that the appellant did not place the true facts before the constitution Bench as the property was never frozen by any competent authority. In such a situation the constitution Bench directed the appellant to file application under section 13 of the Ordinance before the trial Court.

3. It was alleged in para. 3 of the Reference that the accused Chaudhry Nazar Muhammad after acquiring the property gifted the same to the appellant on 15-4-1989. Therefore, the Chairman NAB treaded the said transaction as benami hence the same was included in the Reference.

4. In the application before the trial Court the appellant made the prayer that the property might be excluded from the Reference. There was no allegation in the said application which was made under section 13 of the said Ordinance that the property was frozen by competent authority under section 12, therefore, the section 13 of the said Ordinance was not applicable hence a wrong section was quoted in the application. It is well settled principle of law that if a wrong section is quoted in the application then it will not debar the Court from passing legal order which is permissible under the law.

5. In the present case the prayer made in the application was quite different from the provisions of section 13 of the Ordinance, therefore, the trial Court should have concentrated on the prayer and not on section 13 of the said Ordinance, therefore, the trial Court had not considered the application in its true perspective and went in wrong direction.

6. The learned DPGA NAB has frankly conceded to the above position and has no objection if the matter is remanded to the trial Court for deciding the application in accordance with law.

7. Consequently, the impugned order is set aside. The trial Court is directed to consider the prayer clause of the application and then decide the same in accordance with law. The said application shall be deemed to be pending. The appeal is disposed of in the above terms. H.B.T./K-25/K Order accordingly.