P L D 2002 Supreme Court 408 (PLP)

MUNIR A. SHEIKH, J.

By this common judgment, we propose to decide Civil Appeals Nos.328 to 338 of 2000 involving common questions of law and facts.

2. The facts of the case briefly stated are that one Abdul Sattar Dero who was said to be Director-General (Operations), Port Qasim Authority, Karachi was proceeded against on corruption allegations under the N.A.B. Ordinance against whom a Reference bearing No.15 of 2000 under section 18 of the N.A.B. Ordinance, 1999 was made. In order to ascertain as to what were the nature of charges against him which are very material for determination of questions of controversy involved in these appeals, it would be appropriate to reproduce the same framed by Accountability Court No.IV, Sindh Karachi where disposal of this reference is pending, in extenso which is as follows:--

1. Muhammad Jawaid Alam, Judge, Accountability Court No. IV, Sindh, Karachi, do hereby charge you:-- Abdul Sattar Dero son of Ghulam Haider Dero as under:

That you being public servant, in the year 1994 declared, in the declaration of your assets, only one House No.DSB/783, Kamber Ali Khan, Larkana, Sindh and cash and prize bonds worth Rs.50,000 but in the subsequent years up to 31-12-1998 you added movable, immovable and agricultural properties in your declaration forms:-- (a) Plot in Gulshan-e-Qasim value of Rs.16,800. (b) Plot Nos.100/1 and 11 measuring 2000 sq.yards in Defence Housing Authority, Karachi of value of Rs.17,30,000. (c) Prize bonds of Rs.35,00,000 ending 31-12-1997. (d) Agricultural land at Larkana measuring 98.35 acres. (e) Tractors and equipments, etc. Above properties as declared by you have been quite disproportionate to. your known sources and have been obtained through corruption and corrupt practices by using your official position and could not have been acquired through legal means. That further you being public servant by using corrupt practices and corruption also accumulated movable, immovable and agricultural properties worth Rs.204.830 million which you obtained by misusing your official position; in your name and in the names of your spouses, dependents, and other relatives and benamidar and thereby you have owned, possessed, domain movable immovable and agricultural properties disproportionate to your known sources of income and means, and have been obtained by you by corruption and dishonest sources and not declared the same in your wealth statements:-- (i) Agricultural land 1012 acres in Tando Allahyar, Sindh of Rs.151.8 million. (ii) Total value of infrastructure, Buildings, Dairy Farm/Cattle Farm Structures, Shopping Centre, Weigh Bridge and Atta Chakkies etc. of value of Rs.131.373 million. (iii) Livestock including Buffaloes, Bullock, Cows and He-Buffaloes plus value of machineries of Atta Chakkies and Weigh bridge of value of Rs.23.157 million. (iv) Agri-machines including 6 Tractors with Trollies. plough, saw machine and pick-up etc. of value of Rs.1.5 million. (v) Single-storeyed bungalow No.114/11, Street No.31, Phase 6 D.H.A., Karachi of value of Rs.5 million. (vi) Bungalow No.53/11, 15th Street Khayaban-e-Mujah: P.H.A., Karachi in the name of Mrs. Zahida Dero of value Rs.10 million. And thereby you have committed an offence corruption and corrupt practices as defined under section 9 National Accountability Ordinance, 1999 punishable under section 10 of National Accountability Ordinance, 1999 within cognizance of this Court. And I hereby direct that you by tried by this Court on the aforesaid charges. "

3. These properties stand in the names. of the appellants in the appeals.

4. The relationship of the appellants with Abdul Sattar Dero, accused is as follows:-- Mrs. Zahida Sattar: Wife (Appellant in C.A. 328/2001). Roshan Ali Dero Ashraf Ali Dero] Real brothers Abdul Hameed Dero (Appellants in C.As.331, 332, . and 338 of 2001. Fawad ] Sons Fahad (Appellants in C.As. 335 and 337/2000 Tufail Ahmad Chandio Humzulf (Appellant in C.A.330/2001) Muhammad Akram Not related but (Appellant in C.A.329/2001) uncle of Tufail Ahmad Chandio Fauzia Anwar Daughter (Appellant in C.A.334/2001). Hakim Khatoon Mother (Appellant in C.A.333/2001). Tehmina Chandio Sister-in-taw i.e. (Appellant in C.A. 336/2001) wife of Tufail Ahmad Chandio

5. The appellants feeling aggrieved of inclusion of these properties in the charge-sheet, on 10-7-2000 filed civil suits before the Sindh High Court at Karachi on the original side for declaration that they were the real owners of the properties and not benamidars of Abdul Sattar Dero. On 17-7-2000, they made an application for issuance of temporary injunction in which order for maintenance of status quo was passed. Subsequently, however, on 3-8-2000, the Chairman, N~B under section 12 of the NAB Ordinance, 1999 issued an order--of freezing the said properties treating the same of Abdul Sattar Dero, accused as the real owner thereof. On behalf of the Chairman, NAB, who had been impleaded as defendant No.2 in these suits, an application was filed in each suit under Order VII; rule 11, C.P.C. for rejection of the plaints on the ground that jurisdiction of the Civil Court to proceed with the suits was barred by virtue of section 13 of the NAB Ordinance.

6. The appellants on the other hand independently also challenged the order of the Chairman, NAB of freezing the said properties through Constitutional petitions before the Sindh High Court on 19-8-2000. Since the life of the order passed under section 12 of the NAB Ordinance was only one month as per terms of this section, therefore, on 25-2-2001, the Sindh High Court dismissed the said Constitutional petitions by observing that the order impugned in those petitions ceased to have effect and that the petitioners had already filed civil suits which are pending before the Court.

7. The learned Judge in Chamber of the High Court took up application trade by the Chairman, NAB seeking rejection of plaints of the said suits filed by the appellants. The said applications through order dated 15-9-2000 were rejected by holding that civil suits were maintainable. Temporary injunction was, however, declined and the said Court framed the following issues and fixed the case for recording of evidence:-- "(i) Whether the property o? the plaintiff is benami and if so, its effect? (ii) Whether a benami property owned by the relatives of the accused can be attached and ultimately sold if the charge against accused is proved?"

8. This order was assailed by the respondents before the Division Bench of the High Court. The appeals have been accepted through the judgment dated 26-1-2001 impugned in these appeals and the plaints of the suits filed by the appellants rejected under Order VII, rule 11, C. P.C. It has been held that normally the determination of the dispute between alleged real owner and ostensible owner or alleged benamidar where former denies latter's title is triable by a Civil Court being dispute of a civil nature but in the present case, this question being subject-matter of the charge against Abdul Sattar who was being tried in the Criminal Court for criminal offences, the jurisdiction of the Civil Court in such matters was ousted. These appeals by leave are directed against the said judgment.

9. Sub-clauses (iv) and (v) of section 9(a) of the NAB Ordinance define corruption and corrupt practices for which holder of a public office can be tried, which are reproduced below for facility of ready reference:-- "(iv) if he by corrupt, dishonest, or illegal means, obtains or seeks to obtain for himself, or for his spouse and/or dependents or any other person, any property, valuable thing, or pecuniary advantage; or (v) if he or any of his dependents or benamidars own, possess, or has (acquired) right or title in any movable or immovable property or pecuniary resources disproportionate to his known source of income, which he cannot reasonably account for. "

10. A perusal of charge reproduced in para. 2 framed against Abdul Sattar Dero also shows that he was being tried for accumulation of movable, immovable and agricultural properties obtained by him by misusing his official position in his own name and in the names of his spouses, dependents: and other relatives and benamidars, as such, he had owned or possessed A movable and immovable agricultural properties disproportionate to his known sources of income and means.

11. A comparison of the said definition of corruption and corrupt practices as reproduced above and the allegations subject-matter of this charge on the one hand with Issue No.2 framed in the suits on the other han4 show that they are the same.

12. The question arises whether a Civil Court is vested with the jurisdiction to entertain a suit to try an issue which is subject-matter of a criminal charge for which an accused is being tried in a Criminal Court under special law i.e. NAB Ordinance. The answer: to this question revolves around the decision on the question whether the Civil Court can try a criminal charge which is exclusively triable by a criminal Court under the special law. The answer cannot be, but in the negative. If it had been a dispute between the real owner and the ostensible owners who were alleged to be the benamidars arising from-denial of latter's right for former, certainly it would have been a dispute of civil nature and only the Civil Court could B take cognizance of the same under section 9, C.P.C. which provides that a Civil Court shall (subject to the provisions herein contained) have jurisdiction to try all suits of civil nature except the suits of which their cognizance is either expressly or impliedly barred. In a case where accused holder of public office is being tried for accumulation of wealth acquired by him by illegal and corrupt practices by misusing his official capacity in the name of his spouses and other relatives, the dispute is not of a civil nature between two private parties, for there is no dispute between the accused i.e., the alleged real owner and his other relative spouses i.e. ostensible owners/alleged benamidars regarding title qua properties in question inter se which could be decided as a dispute of civil nature by the Civil Court.

13. The trial of Issue No.2 framed in these suits by the Civil Court would amount to trial of a criminal charge by the Civil Court which is k subject-matter of criminal proceedings the cognizance of which has been taken by the Court of exclusive jurisdiction created under the special law; therefore, it can safely be held that jurisdiction of the Civil Court stands expressly or impliedly barred from entertaining the suits.

14. Learned counsel for the appellants submitted that in case the jurisdiction of the Civil Court is ousted, the ostensible owners/alleged benamidars shall be rendered without any remedy in case their properties are ultimately confiscated in the said criminal proceedings and sold treating the same as properties of the accused person even if such ostensible owners are in a position to prove that they acquired the properties from their own resources which could be explained, for under NAB Ordinance, such persons have no remedy as such they would be condemned unheard which is against the principles of natural justice as laid down by the superior Courts.

15. This contention has engaged our serious consideration. A -scrutiny of the NAB Ordinance reveals that in the case of an interim order passed by the Chairman, NAB under section 12 of the Ordinance for freezing the assets of such ostensible owners/benarnidars, the latter have remedy to file objections and prove that the assets were acquired by them from their own sources but against the final judgment of the special Court holding after trial that the properties were owned by the accused and not by ostensible owners/benamidars and an order of confiscation and sale of such properties made, the ostensible owners/benamidars have no remedy, for appeal against the final judgment of the special Court can be maintained only by the State or the accused person. Availability of remedy of revision petition provided under the Criminal Procedure Code is also not free from doubt, for Ordinance provides that provisions of Criminal Procedure Code shall be applicable to these proceedings excepting those the applicability of which has been expressly excluded.

16. The law by now is firmly settled that no person can be condemned unheard as regards any matter in which he has any interest. It has also been laid down as principle of law by the superior Courts that in every statute, principle of natural justice of hearing a person before condemning him as to his rights shall be deemed to have been embodied unless application thereof has been expressly or impliedly done away with. In the absence of any express provision to exclude the applicability of principles of natural justice of hearing of a person adversely affected by an order or judgment of the Court under NAB Ordinance, we would hold that he (benamidar) has a right to approach the said Court during the trial and before final judgment is passed that he should be heard. We may also observe that in all such cases, where the properties are alleged to have been purchased by an accused person in the names of his spouse, relative and others as benamidars, the Court F should itself summon those persons and give them opportunity to produce evidence in support of their claim as to ownership in their own right to substantiate that they had sufficient sources of their own to acquire the properties and thereafter decide the case. As regards remedy of appeal, it being a substantive right cannot be availed by a person unless conferred by the statute. Under the relevant provisions of NAB Ordinance as regards appeal against final judgment of the Accountability Court, it can only be maintained by the State or the accused person. This being so, the ostensible owners or benamidars if heard by the Accountability Court and findings recorded against them, may invoke any other remedy in such situation including remedy under Article 199 of the Constitution.

17. In the present cases, it has been brought to our notice by Mr. M. Ibrahim Satti, learned counsel for the respondent that the appellants of their own approached the special Court during the trial alleging that they were the real owners of the properties and had acquired the same with their own sources. He has placed on record judgment of the special Court which shows that the appellants were given full opportunity of not only hearing but also to substantiate their pleas. Whatever material, documentary etc. they produced before the said Court, the merits of the same has been discussed in detail and it was found that they had failed to prove or substantiate that they had sufficient sources of their own to acquire such huge properties against which they appealed before the Sindh High Court and their petitions have been treated as revision petitions against the final judgment in its opinion, for the provisions of the Criminal Procedure Code as regards revision petition against final judgment were not barred, for as observed above, the provisions of the NAB Ordinance only bar a revision petition against, an interim order. Even if ultimately it is decided that those revision petitions are maintainable, they may make a request for considering their case under Article 199 of the Constitution, therefore, even if there is no provision of appeal in the NAB Ordinance in such a situation for them, they are not rendered remediless.

18. Before parting with this judgment, we shall recommend the Federal Government to consider the desirability of making amendments in the NAB Ordinance providing that in a case in which holder of public office is sent for trial of charges of corruption for acquiring assets beyond his means in the names of other persons as benamidars, such other persons/ostensible owners should necessarily be summoned by the Accountability Court to provide them opportunity during the trial to prove that the said assets were acquired by them from their own resources and in case, finally it is decided that the charges against the accused person had been proved, and such persons had failed to prove acquisition of assets from their own sources, they should be provided remedy of appeal in the same manner as is available to the accused persons in order to avoid any further litigation or complication which would advance the ends, of justice.

19. For the foregoing reasons, the impugned judgment does not suffer from any illegality or other legal infirmity calling for interference. Resultantly, these appeals must fail which are hereby dismissed with no order as to costs. (Sd.) MUNIR A. SHEIKH, J. (Sd. ) MUHAMMAD BASHIR JEHANGIRI, J. I have appended my separate note. (Sd.) RANA BHAGWANDAS, J. RANA BHAGWANDAS, J.

I have had the privilege to peruse the proposed judgment authored by my learned brother Munir A. Sheikh, J. I am entirely in agreement with the conclusion drawn by my learned brother, whom I hold in high esteem and reverence. However, I would like to add a few lines of my own to reinforce the view taken by my learned Brother.

2. The facts leading to these appeals by leave have been elaborately incorporated in the narrative part of the judgment, therefore, I need not reiterate the same. There can be no cavil with the proposition that in terms of section 9 of the Code of Civil Procedure, 1908, the Courts have jurisdiction to try all suits of a civil nature, excepting suits of which their cognizance is either expressly or impliedly barred. The well-recongized maxim "ubi jus ibi remedium" i.e. where there is a right there is a remedy can also be referred to in this behalf. By virtue of provisions of the aforesaid section, Civil Courts have been conferred with the general jurisdiction to try all suits of a civil nature.

3. Question arising for determination in these appeals precisely is whether the jurisdiction of Civil Courts to try declaratory suit with regard to title to property, which is claimed to be held benami on behalf of the real owner, extends to the cause when acquisition of such property by the real owner in the name of his spouse, relatives or friends is alleged to be a corrupt practice. Section 9 of the National Accountability Bureau Ordinance, 1999 (hereinafter referred as the Ordinance), deals with the subject of corruption and the corrupt practices. Sub-clauses (iv) and (v) of sub section (a) of section 9 of the Ordinance postulate that holder of a public office or any other person, is said to commit or to have committed the offences of corruption and corrupt practices if he, by corrupt, dishonest or illegal means obtains or seeks to obtain for himself or for his spouse and/or dependents or any other person any property, valuable thing or pecuniary benefit; or if he or any of his dependents or benamidars owns, possesses or has any right or title in any movable or immovable property or pecuniary resources disproportionate to his known sources of income, which he cannot reasonably account for. In the case in hand, charge against accused Abdul Sattar Dero is that he, being a public servant, acquired various properties disproportionate to his ostensible means of income in the names of his dependents and near relatives.

4. Precise grievance expounded by Mr. Mushtaq Ahmad Memon, learned Advocate Supreme Court for the appellant is that their properties were wrongly included in the charge framed against the accused, without any legal justification. Main thrust of the argument of the learned counsel is that though the appellants claimed to be the real owners of the property, they were shut out by the Accountability Court and, thus, were left with no remedy except to approach the Civil Courts for declaration of their title to property. As would be seen from the narration in the proposed judgment, while the learned Judge in Chambers of the High Court found that the issues raised by the appellants could be heard and decided by the High Court in the exercise of its Original Civil Jurisdiction, in High Court Appeal from such finding, at the behest of the respondents, the Division Bench expressed its view to the contrary. I agree and concur with the view that in the event of a dispute as to right and interest in the property between the obstensible owners and the real owner, Civil Court shall have unfettered jurisdiction to decide such issues but the position would be different if such properties are E the subject-matter of a criminal charge under a special enactment, provisions whereof have overriding effect notwithstanding anything contained in any other law for the time being in force within the contemplation of sections 3 and 33 of Ordinance.

5. Adverting to the remedy against the findings of the Accountability Court as against the ostensible owners of the property, it has been urged that, no right of appeal is available to an ostensible owner and such owner cannot be left without any remedy. Indeed a right of appeal being a substantive right cannot be conferred by implication and I have also not been able to persuade t myself to agree with the views of the Division Bench that the appellants had the right to challenge an adverse finding or order made against them by invoking the principle laid down in H.M.Saya & Company v. Wazir Ali Industries PLD 1969 SC

65. The above precedent extended the right of appeal to persons who were not parties to the original proceedings but were adversely affected by a judgment or order on account of the fact that no prohibition could be spelt out from the relevant provisions of the C.P.C. in that behalf. In the instant case, however, the right of appeal has been conferred by special law i.e. NAB Ordinance, which overrides the provisions of any other law including the C.P.C,

6. The argument, however, overlooks the scheme of the Ordinance. Section 13 of the Ordinance lays down that notwithstanding the provisions of any law for the time being in force, the Accountability Court shall have exclusive jurisdiction to entertain and adjudicate upon all claims or objections against the freezing of any property under section 12 of the Ordinance. Indeed, clause (c) of section 13 of the Ordinance as originally enacted, provided that no appeal shall lie against an order made under section 13 (ibid) or any interlocutory order, but original section 32 of the Ordinance conferred a right of appeal against the final judgment and order upon "any party to the proceedings". Since third parties were allowed to raise claims or objections with regard to the freezing of their properties in terms of section 12 (ibid), exclusive jurisdiction had been conferred to Accountability Courts, which would include right of hearing and production of evidence that may be necessary for a just and effective adjudication of such claims and objections. The objectors could not be treated as mere strangers and, in my opinion, were party to the proceedings entitled to prefer appeals against final judgment and order under the original section 32 (ibid).

7. Indeed, through Ordinance IV of 2000 promulgated on 3-2-2000 the right of appeal under section 32 was further confined only to persons convicted by the Accountability Court or the Prosecutor-General and, therefore, an objector to a freezing order lost such right. The original position, however, appears to-have been restored by the substituted clause (c) of section 13 effected through Ordinance XXXV of 2001, dated 10-8-2001 which stipulates that the accused or any other aggrieved party, whose claim against freezing of property has been dismissed by the Accountability Court, may file an appeal against such order before the High Court. Under the new dispensation, his right to file an appeal becomes available from the passing of a freezing order or rejection of objections and the person aggrieved is not even required to wait till final judgment of the case. Therefore, it was only during the interregnum between 3-2-2000 and 10-8-2001 that a person M affected by a freezing order did not have a right to appeal and I am of the view that he could even invoke the Constitutional jurisdiction of the High Court under Article 199 of the Constitution. Furthermore, it is well recognized that no person can be deprived of his fundamental right to hold and acquire property save in accordance with law. In the case in hand, since the accused has by now been convicted by the Accountability Court and the appellants have also preferred appeals against such judgment which have been entertained as criminal revisions, I am of the further view that even if such appeals or revisions be not maintainable, the High Court, in exercise oil its jurisdiction, is competent to treat such appeals as writ petitions under Article 199 of the Constitution.

8. Reverting to the question of jurisdiction of a Civil Court to try an issue exclusively triable by Accountability Court, there can be no cavil with the proposition that trial of such issue would be impliedly barred as otherwise proceedings before special forum created under the special law would be set at naught. In this view of the matter, it would neither be just P nor proper for this Court to lay down a general proposition that the jurisdiction of Civil Courts extends to the trial of suits of the instant nature as it has already been held that such owners shall be summoned by Accountability Court while adjudicating upon a Reference involving the properties in the name of third parties.

9. Powers of the Court to freeze property and disposal of claims or objections against freezing by Accountability Court have been dealt with in sections 12 and 13 of the Ordinance. Section 12, inter alia, reads as under:-- "

12. Power of the Court to freeze property.--(a) The Chairman, NAB or the Court trying a person for any offence as specified under this Ordinance, may, at any time, if there appear reasonable grounds for believing that the accused has committed such an offence, order the freezing of his property, movable or immovable, or part thereof, whether in his possession or in the possession of any relative, associate or person on his behalf. (b) ... ... ... ... ... (c) If the property ordered to be frozen is immovable, the freezing shall, in the case of land paying revenue, be made through the Collector of the district in which the land is situated, and in all other cases

(i) by taking possession; or (ii) by appointment of receiver; or (iii) by prohibiting the payment of rent or delivery of property to the accused or to any other person on his behalf; or (iv) by all or any of such methods as the Chairman, NAB or the Court may deem fit: Provided that any order of seizure, freezing, attachment or any prohibitory order mentioned above by the Chairman, NAB, shall remain in force for a period not exceeding 30 days unless confirmed by the Accountability Court, where the Reference under this Ordinance shall be sent by NAB: Provided further that notwithstanding that the order of NAB or the Court shall be effective from the time of passing thereof or proclamation thereof in a newspaper, widely circulated and dispatched at the last known address of the accused. (d) ... ... ... ... .... (e) ... ... ... .. ..... (f) That the order of freezing mentioned above in section 12(a) to (e) shall, as the case may be, remain operative until final disposal by the Accountability Court or the Appellate forum, notwithstanding filing of or pendency of an appeal under this Ordinance. " Section 13 of the Ordinance postulates that notwithstanding the provisions of any law for the time being in force, the Accountability Court shall have exclusive jurisdiction to entertain and adjudicate upon all claims or objections against the freezing of any property under section 12 (ibid). It further lays down that such claims or objections shall be made before the Accountability Court within 14 days from the date of the order freezing such property. Under clause (b) of section 12 (ibid) the Court may for sufficient cause extend the time for filing such claims or objections for a period not exceeding additional 14 days. Clause (c) of this section was substituted by National Accountability Bureau (Amendment) Ordinance (XXXV of 2001) with effect from 10th August, 2001 and it provides that the accused or any other aggrieved party, whose claim or objection against freezing of property has been dismissed by the Court may within 10 days file an appeal against such order before the High Court. In view of the latest amendment made in the Ordinance, I am of the view that there may now be no occasion for suggesting any amendment in law by making a provision for an appeal at the instance of a person aggrieved by the judgment or order relating to his rights in the property by the Accountability Court. S.A.K./Z-96/S Appeals dismissed.