1. ' S. ALI ASLAM JAFRI, J--- This is the second round of litigation before this Court. The petitioner who claims to have purchased a Plot bearing No.D-235 in K.D.A. Scheme No.1, Karachi, admeasuring 650 sq. Yds. From one Anil Kanti Barua through his attorney Mr. Abdul Monem Khan, Advocate of Karachi on 28th October, 1981 through a registered sale-deed is seeking relief that impugned order dated 6th January, 2001 of respondent No.1 be declared to be void ab initio, ultra vires, without lawful authority and of no legal effect and as such the sale of the said property in favour of the petitioner stands confirmed. Petitioner has also prayed that Notification (Annexure "C") issued under section 11 of the Abandoned Properties (Management) Act XX of 1975 declaring previous owner as "specified person" and the referred property as "abandoned property" be also declared to be of no legal effect and be struck down. Petitioner has further prayed that she be declared as the owner of the said property and respondents be directed not to interfere with her rights in respect of the same. Declaration has also been sought that the Abandoned Properties (Management) Act, 1975, or such provisions thereof which deprive the petitioner to hold and enjoy the said property, is/are unconstitutional and do not conform with the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah and as such of no legal effect. Petitioner has also prayed for grant of special, compensatory and exemplary costs, as well as any other relief as deemed fit and appropriate by the Court.
2. ' It is the case of the petitioner that she has purchased the plot in question from Mr. Anil Kanti Barua through his attorney Mr. Abdul Monem Khan, Advocate on 28th October, 1981. The said Mr. Anil Kanti Baura was domiciled in the then East Pakistan while serving as Additional. Director in Karachi Development Authority on or before 16-12-1971. Through Notification dated 26th June, 1983 the property in question belonging to him was notified to be an abandoned property under Act XX of 1975. This fact according to the petitioner came to her knowledge when she approached K.D.A. For effecting mutation of the plot in question in her'favour in the relevant record, while declining her request for mutation, she was orally informed on 30-10-1985 to approach the Administrator Abandoned Properties and get the transfer confirmed under sections 13 and 14 of the Abandoned Properties Act, 1975, before getting it mutated in her name in K.D.A. Record. The petitioner, thereafter approached the concerned Authorities and filed such application before respondent No.2. In response to a notice received from respondent No.2 the counsel for the petitioner appeared on 19- 1-1989. On 23-2-1989 respondent No.1 announced the order holding therein that claim of the petitioner under section 13 of the Act is not well-founded and she has failed to establish her claim hence the application was dismissed. However, the petitioner was allowed to seek remedy under section 15 of the Act. It is the case of the petitioner that during the pendency of appeal before respondent No.2 by way of abundant caution she filed C.P. No.D-498 of 1989 in this Court which was heard and decided on 15-4-1992. The impugned order was declared to have been passed without lawful authority and of no legal effect. A direction was issued to respondent No.2 to hear the case of petitioner afresh after giving full opportunity to establish her claim while considering the issues raised by petitioner regarding treatment of Anil Kanti Barua as "specified person" illegally and unlawfully.
3. ' After remand, the matter was taken up by respondent No.2 (Mr. Altaf Hussain Mughal) who after hearing the learned counsel for the petitioner came to the conclusion that the record of K.D.A.
4. Clearly shows that Mr. Anil Kanti Barua had left for Bangladesh which is evident from the Letter No.KDA/LS-I/Sch-I/Ex/D-235/840, dated 19-3-1974 sent to the District Registrar, Karachi, by K.D.A.
5. That Mr. Anil Kanti Barua who was employed in K.D.A. As Town Planner has proceeded to Bangladesh without any intimation. It was also found to have been established from K.D.A's record that Mr. Anil Kanti Barua had furnished his particulars on 3-4-1958 wherein he mentioned his permanent address as "377. Momin Road, Nadankanan, Chittagong (former East Pakistan)". Such documentary evidence of K.D.A. Was brought on record and copy was provided to the petitioner for rebutting the same. But the petitioner failed to rebut the said documents except by way of two affidavits dated 15-2-1996 and 10-3-1996 filed by the petitioner and Mr. Abdul Monem Khan, Advocate claiming him as attorney of Mr. Anil Kanti Barua respectively, and without any documentary evidence in rebuttal of the under-mentioned documents:--
(i) Letter No.3(29) Admn-I/62, dated 24-10-1962 of the Deputy Secretary, Planning Division, Government of Pakistan, wherein it is clearly mentioned that Mr. A.K. Barua belongs to East Pakistan.
(ii) Application dated 20-7-1963 of Mr. A.K. Barua addressed to Secretary, K.D.A., wherein he mentioned that this house in Chittagong has been destroyed by floods and requested for leave and T.A. Concession to leave for East Pakistan.
(iii) Letter No.3-I/CTP/63-36, dated 6-1-1971 of the Director, Master Plan Department K.D.A. Wherein the application for extension of leave of Mr. A.K. Barua was sent to the Joint Secretary, K.D.A.
(iv) Application dated 13-12-1970 of Mr. A.K. Barua for extension of leave from Chittagong (former East Pakistan).
(v) Application of Mr. A.K. Barua dated 10-12-1970 for leave, addressed to Director, Planning, Master Plan Department, wherein his permanent address of former East Pakistan has been mentioned.
(vi) Minutes of the Allotment Committee dated 10-3-1969 wherein Mr. A.K. Barua was allotted accommodation on the East Pakistan Quota.
6. ' In view of the documents referred to above which remained unrebutted respondent No.2 reached at a conclusion that Mr. A.K. Barua was a East Pakistani National and having migrated from Pakistan after A 16-12-1971 clearly comes within the definition of "specified person" as laid down in section 2(1) of the Act XX of 1975, which is reproduced hereunder:-- "Specified person" means a person who, at any time before the sixteenth day of December, 1971, was a citizen of Pakistan domiciled in the territories which before the said day constituted the Province of East Pakistan and who on or after that day, has ceased or ceases to be a citizen of Pakistan, and includes a company registered in the said territories the registered office of which has not been shifted in pursuance of the Companies (Shifting of Registered Office) Ordinance, 1972."
7. ' Mr. Abdul Monem Khan, Advocate who claimed to be the attorney of Mr. A.K. Barua was asked by respondent No.2 to produce the copy of Pakistani Passport of Mr. A.K. Barua along with the copy of its pages showing the date of his exit from Pakistan as well as the NIC but he failed to produce any such document. Record of K.D,A. Further revealed that in the year 1973 an enquiry was made through local police as Mr. A.K. Barua was not attending the office since 18-11-1.973 and it was confirmed by the local police that Mr. A.K. Barua had left for Bangladesh. In view of such overwhelming documentary evidence respondent No.2 came to the conclusion that status of Mr. A.K. Barua was of "specified person" and his property was "abandoned property" for which subsequently a Gazette Notification was issued on 26-6-1983.
8. ' The plea that it was a bona fide transaction was also repelled by the respondent No.2 for the reasons amongst others that transaction took place in the year 1981 i.e. Long after the promulgation of the Abandoned Properties (Management) Act XX of 1975 and that petitioner failed to produce the attorney of the "specified person" in support of her case to confirm the transaction despite the said attorney having been summoned by the Deputy Administrator. Signature of Mr. A.K. Barua on the power of attorney executed in favour of Mr. Abdul Monem Khan, Advocate, Karachi also according to the respondent No.2 did not tally with the signatures available on record with K.D.A. Referring to sections 2(a) and 3 of the Act the respondent No.2 came to the conclusion that any property belonging to a "specified person" includes any such property sold or transferred to or placed under the supervision or control of any other person on or after 16-12-1971 shall vest and shall be deemed always to have vested in the Federal Government on or from 16-12-1971. While dealing with the nature of transaction being bona fide, the respondent No.2 came to the conclusion that the same could not be taken into account for the fact that the transaction allegedly took place between the parties in the year 1981 i.e. Long after the promulgation of Act XX of 1975.
9. ' An appeal was filed before the Board of Trustees/respondent Nol. Under section 15 of the Act. The Chairman of the Board after hearing the learned counsel for the petitioner and the legal advisor A.P.O. Karachi remanded the case to the Deputy Administrator to verify as to whether the purchase was made in good faith and adequate price of the plot was paid by the purchaser with reference to the prevailing market at the time. The case was dealt with by another Deputy Administrator A.P.O. (Mr. Muhammad Ishaq Soomro), who proceeded with the matter, heard the petitioner and while summing up the evidence brought on record, passed an order dated 22-9-1998 expressing his opinion that the price of the plot under dispute was reasonable and within the prevailing market price in the vicinity during the year 1981. He found the transaction to be valid and covered under sections 7 and 54 of the Transfer of Property Act and further opined that the sale consideration was passed on the specified person through his constituted attorney Mr. Abdul Monem Khan, Advocate. After recording his opinion, the Deputy Administrator referred the case to the Board of Trustees as required under section 13(4) of the Act.
10. ' The Board did not agree with the findings/opinion of respondent No.2 came to the conclusion that the transaction was not bona fide and in good faith. Furthermore, it was found to be against the provisions of the Act XX of 1975 with an observation that ignorance of law could not be taken as an excuse. The observations/recommendations of the Deputy Administrator, A.P.O., Karachi dated 22- 9-1998 were, thereafter, not confirmed and the appeal dated 22-5-1996 was dismissed, whereas decision/order of Deputy Administrator (Mr.. Altaf Hussain Mughal) dated 23rd April, 1996 was restored. Thereafter the petitioner has invoked the extraordinary Constitutional jurisdiction of this Court under Article 199 of the Constitution of Pakistan 1973 and sought the relief as referred to above.
11. ' We have heard Mr. Qazi Faez Isa, learned counsel for the petitioner, and Mr. S. Tariq Ali, Federal Counsel. With their able assistance we have examined the record made, available in this petition.
12. ' The main thrust of the arguments of learned counsel for the petitioner is that the petitioner is a bona fide purchaser for consideration having purchased the property after taking due care and caution which can be seen from the fact that before the purchase, notices were published in various newspapers as abundant caution but nobody came forward to object the transaction.
13. Learned Counsel has further argued that the former owner of the property Mr. Anil Kanti Barua cannot be deemed to be a "specified person" within the meaning of section 2(t) as he was serving as a responsible officer in K.D.A. Much prior to 16-12-1971 as a citizen of Pakistan and there is nothing on record to show (sic) suggest that he surrendered his Pakistani citizenship or lost the same in accordance with the law and every Pakistani Citizen is deemed to be a Pakistani till death unless proved otherwise. Learned counsel further argued that the respondent No.2 (Mr. Muhammad Ishaq Soomro') after the remand of the case dealt with the matter at length and replied both the points for determination as framed by respondent No.1, in favour of the petitioner holding that purchase was made by her in good faith and adequate price of the plot was paid by the purchaser with reference to prevailing market price at that time hence there is no justification for respondent No.1 to have declined to accord approval as required under section 13(4) of the Act.. Lastly Mr. Qazi Faez Isa, learned counsel urged that the impugned order which deprives the petitioner of the property purchased by her in good faith through her hard-earned money is un-Isiamic and the relevant provisions of Act XX of 1975 are against the Injunctions of Islam. In support of his plea that confirmation of sale transaction was declined unlawfully and illegally by respondent No.1, learned counsel has referred to Ilyasib Minhas v. Board of Trustees Abandoned Properties and 2 others 1990 CLC 862.
14. ' Mr. S. Tariq Ali, learned Federal counsel, has vehemently opposed to the grounds urged by the learned counsel for the petitioner and argued that the petitioner cannot take plea of ignorance of law and despite Act XX of 1975 being in field and the separation of the eastern wing of the country and creation of Bangladesh being a matter of common knowledge, nobody can plead ignorance thereof, and everybody knew well that persons serving in various departments in the western part of the country against the quota of East Pakistan had left/migrated to Bangladesh or some other country and abandoned their properties for which it was necessary to legislate a proper law for control, management and disposal. Referring to the order, dated 23rd April, 1996 passed by the respondent No.2 (Mr. Altaf Hussain Mughal, learned Federal counsel urged that the petitioner who claims to have purchased the property in question through Mr. Abdul Monim Khan, Advocate so- called attorney of Mr. Anil Kanti Barua the "specified person", failed to produce the said attorney before respondent No.2 at the relevant time. He also referred to a number of documents from the record summoned from the Karachi Development Authority where Mr. Anil Kanti Barua was serving to show that Mr. Barua did not attend his duties/office since 18-8-1973, hence being domiciled in the then East Pakistan he stands fully covered under the definition of "specified person" and in view of Notification, dated 26th June, 1983 issued under section 11 of the Act the property was lawfully treated as "abandoned property" and since the petitioner has failed to establish her claim as asserted, hence the confirmation under section 13(4) of the Act was rightly declined.
15. ' We have considered the arguments of the learned counsel for the parties. From the documents available on record and in the absence of any rebuttal to such overwhelming documentary evidence that Mr. Barua who was domiciled in the then East Pakistan before 16-12-1971 and is no more present in Pakistan, we have found that the order, dated 23rd April, 1996 was passed by respondent No.2 after remand the case by this Court in C.P. No.D-498 of 1989 by judgment dated 15-4-1992, after providing full-dress hearing to the petitioner to establish her claim and she had failed to prove her case. Relevant record from office of Karachi Development Authority where Mr. Anil Kanti Barua was serving leaves no room for doubt that he was an East Pakistani having his house in Chittagang. His permanent address and domicile in his service record is also shown that of the then East Pakistan. He was allotted accommodation on East Pakistan Quota and that after creation of Bangladesh he failed to attend his office w.e.f. 18-11-1973. The power of attorney relied upon by t' petitioner purported to have been executed by Mr. Anil Kanti Barua in favour of Mr: Abdul Monim Khan, Advocate of Karachi also shows that at the relevant date he was residing in Singapore. Thus, status of Mr. Anil Kanti Barua stands covered within the definition of "specified person" as defined under section 2(f) of the Act which means a person who, at any time before the sixteenth day of December, 1971, was a citizen of Pakistan domiciled in the territories which before the said day constituted the Province of East Pakistan and who on or after that day, has ceased or ceases to be a citizen of Pakistan. Abandoned property has been defined in section 2(a) of the Act which includes movable or immovable property belonging to a specified person and includes any such property sold or transferred to, or placed under the supervision of control of any other person on or after the sixteenth day of December, 1971. Section 11 of the Act is again relevant which authorises the Administrator to publish by Notification in the official Gazette a list of abandoned property in the area. Hence the date of publication is not relevant for declaring a property as abandoned property as it is by operation of law that a property belonging to a specified person stands covered under section 2(a) of the Act. Furthermore, it is necessary under section 13(4) to obtain approval from the Board for confirmation of transfers by specified persons which has not been accorded in this case for valid reasons. We also do not find any force in the contention of Mr. Qazi Faez Issa that Act XX of 1975 or any of its provisions are unIslamic, as nothing has been demonstrated to justify such contention. The case-law cited by the learned counsel for the petitioner also does not stand attracted to the facts of the case in hand as the impugned order passed by respondent No.1 declining to confirm/approve the transaction discarding the recommendations made by respondent No.2 (Mr. Muhammad Ishaq Soomro) through his order dated 22-9-1998 which does not appear to be based on sound reasonings, and maintaining the order dated 23rd April, 1996 passed by respondent No.2 (Mr. Altaf Hussain Mughal) after providing an opportunity of hearing at length to the petitioner, is based on proper appreciation of law and facts and does not call for any interference particularly in exercise of the extraordinary constitutional jurisdiction of this Court.
16. ' By a short order, dated 4-5-2005 we had dismissed this petition in limine along with the listed application and above are the reasons for the same.