Per Munir A. Sheikh, J.(a) Constitution of Pakistan (1973) Art. 185-
R/w S. 42 of Specific Relief Act (I of 1877)
S.9 & O. VII, R. 11 of Civil Procedure Code (V of 1908)
Ss. 3,9(a)(iv)(v), 12,13,18 & 33 of National Accountability
Bureau Ordinance (XVIII of 1999)-
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 movable and immovable agricultural properties disproportionate to his known sources of income and means.
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 hand show that they are the same.
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 take cognizance of the same under section 9, C.P.C. which provides that a Civil Court shall (subject t 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.
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 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.
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.
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 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.
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 nor proper for this Court to lay down a general proposition that the jurisdiction of Civil Courts extends tot he 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. [p. 415,418,419,421] A,B,C,,I,K & P
(b) Constitution of Pakistan (1973) Arts. 23 & 24-
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. [p. 420] N
(c) Constitution of Pakistan (1973), Art. 185-
R/w Ss. 9, 12, 13 & 18 of National Accountability
Bureau Ordinance (XVIII of 1999)-
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 judgement 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 benamidar, the Court 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. [p. 416 & 417] F
(d) Constitution of Pakistan (1973) Art. 199-
R/w Ss. 12, 13(c) [as amended by National Accountability
Bureau (Amendment) Ordinance (IV of 2000) & National
Accountability Bureau (Amendment) Ordinance (XXXV of 2001)]
& 32 of National Accountability Bureau Ordinance (XVIII of 1999)-
Therefore, it was only during the interregnum between 3-2-2000 and
10-8-2001 that a person 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. [p. 420] M
(e) Constitution of Pakistan (1973), Art. 199-
R/w S. 32 of National Accountability Bureau
Ordinance (XVIII of 1999)-
Under the relevant provisions of NAB Ordinance as regards appeal against
final judgement 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 Art 199 of the Constitution. [p. 417] H
(h) Constitution of Pakistan (1973), Art. 199-
R/w S. 439 of Criminal Procedure Code (V of 1898)
Ss. 12, 13, 18 & 32 of National Accountability Bureau
Ordinance (XVIII of 1999)-
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 of its jurisdiction, is competent to treat such appeals as writ petitions under Article 199 of the Constitution. [p. 420] O
Mushtaq A. Memon, Advocate Supreme Court,
Abid Zubairi, Advocate Supreme Court and
Mrs. Majida Razvi, Advocate-on-Record for
Appellants (in all Appeals).
M. Ibrahim Satti, Advocate Supreme Court and
Ejaz M. Khan Advocate-on-Record for Respondent no.2 (in all Appeals).
Date of Hearing : 15th October, 2001.