' JAVED IQBAL, J.--Criminal Miscellaneous Application bearing No, 53 of 2001 has been preferred on behalf of petitioners under Order XXXIII, Rule 6 of the Supreme Court Rules, 1980 seeking permission to file criminal petition for leave to appeal. At the outset Mr.Muhammad Munir Peracha, learned Advocate Supreme Court who entered appearance on behalf of applicants was asked to show how this criminal miscellaneous application was competent as no reference was ever sent against the petitioner under National Accountability Ordinance (No,XVIII), 1999, the petitioner was never tried and convicted by the Accountability Court No,1, Peshawar and more so, the petitioner was neither party before the Accountability Court nor High Court and besides that no attempt whatsoever was made by the petitioner to get himself impleaded as a party. No satisfactory answer could be given by Mr. Muhammad Munir Peracha, learned Advocate Supreme Court and rightly so in view of the provisions as contemplated under section 32 of the National Accountability Ordinance, 1999 (herein after referred to as the "NAB Ordinance, 1999") concerning appeal which is reproduced herein below for ready reference:-- "32. Appeal:
(a) Any (person convicted or the Prosecutor-General Accountability, if so directed by NAB) aggrieved by the final judgment and order of the Court under this Ordinance may, within ten days of the final judgment and order of the Accountability Court prefer an Appeal to the High Court of the Province where the Court is situated: (Provided that no appeal shall lie against any interlocutory order of the Court;)
(b) All Appeals against the final judgment filed before the High Court will be heard by the Bench of not less than two Judges constituted by the Chief Justice of the High Court shall be finally disposed of within thirty days of the filing of the Appeal.
(c) No revision shall lie against any interlocutory order of the Court unless the Court has exercised a jurisdiction not vested in it by law or has failed to exercise a jurisdiction so vested or has acted in the exercise of its jurisdiction illegally: ' Provided that where a person makes an application for revision under this subsection, he shall, in support of such application, furnish copies of the reference, documents and order of the Court and the High Court shall dispose of such application within thirty days without calling for the record of the Court: ' Provided further that such application shall be made within ten days of the decision of the Court, which shall provide a copy of such decision within three days thereof."
2 . We have carefully examined the provisions as enumerated in section 32 of the NAB Ordinance, 1999 as reproduced hereinabove which have been couched in a very plain and unambiguous language. The right of appeal has been conferred upon any person who is convicted or the Prosecutor General Accountability, if so directed by National Accountability Bureau against the final order. The right of appeal cannot be availed unless it is conferred in a clear manner by some enactment or A statute or the rules having the sanctity of some law. It may not be out of place to mention here that the words "party to the proceedings" were substituted with "any person convicted or the Prosecutor General Accountability", which means that the scope of appeal was made limited B and confined in a specific sphere by conferring the right of appeal only upon a convicted person or the Prosecutor General Accountability at the direction of National Accountability Bureau. There is no cavil with the proposition that "a right of appeal is to be specifically provided for and the same cannot arise by implication". (Wahid Bus v. Afzal Transport Co. Ltd. PLD 1966 Lah. (W.P.) 684, Emperor v. Nim AIR 1932 Sind C 88. It is well-established by now that "right of appeal is not a mere matter of procedure but is a vested right of a party from the commencement of the action in the Court of first instance". Daulat Singh v. State AIR 1950 Madh.
B.112 (FB). It is an admitted feature of the case that no reference was sent against the applicants and therefore, they cannot be considered as party in the proceedings conducted by the learned Accountability Court pursuant to reference which was never sent against the petitioner. The prime contention of Mr. Muhammad Munir Peracha, learned Advocate Supreme Court seems to the fallacious that the National Accountability Bureau should have no objection for impleading the petitioner as a party for the simple reason that right of appeal cannot be conferred upon the petitioner merely on the ground that the National Accountability Bureau Authorities would have no objection because their consent would be totally immaterial even if so conveyed. It is well- entrenched legal proposition "that right of appeal is a creature of statute. An appeal is competent only if the relevant statute so provides D and not otherwise. It is equally well-established principle that parties by agreement cannot confer jurisdiction upon a Court. A fortiori any mission to raise objection against jurisdiction where none exists, will not confer jurisdiction by estoppel as it were.
See monograph 1178 Helsbury's Laws of England, 2nd Edn. Vol. 8, which for the relevant purpose reads:- "Where, by reason of any limitation imposed by statute, charter or commission, a Court is without jurisdiction to entertain any particular action or matter, neither the acquiescence nor the express consent of the parties can confer jurisdiction upon the Court, nor can consent give a Court jurisdiction if a condition which goes to the jurisdiction has not been performed or fulfilled. Where a Court takes upon itself to exercise a jurisdiction it does not possess, its decision amounts to nothing."
' Bahadur v. Mirza Abdul Qayyum PLD 1969 Lah.
636.
3. The words "any person convicted or the Prosecutor General Accountability if so directed by NAB" as employed in clause (a) of section 32 of the NAB Ordinance, 1999 are to be interpreted in the ordinary dictionary meaning that "any person" means "a person convicted for any offence under the NAB Ordinance, 1999 or the Prosecutor General NAB". By no stretch of imagination in view of the language as used in section 32 of the NAB Ordinance, 1999, right of appeal can be conferred to anyone else except as mentioned in the section itself. As mentioned herein above "the right of appeal can only be conferred upon by statute and it depends upon the language as used in it and if the words of the statute are precise and unambiguous they must be held to have their natural and ordinary meaning". Kaluram v. Gopal AIR 1951 Madh-B 67. An order passed by any Court irrespective of the fact whether it is ordinary Criminal Court or Accountability Court, there would be no appeal unless it is provided for by the statute. The right of appeal cannot be assumed unless expressly given by the statute. In this regard we are fortified by the dictum laid down in the following authorities:--
(i) Superintendent and Rememb. Of Legal Affairs, Government of East Pakistan v. Bazlur Rahman PLD 1960 Dacca 200.
(ii) Province of Assam v. Lakhi Nayak AIR 1950 Assam 43.
(iii) Wahid Bus v. Afzal Transport PLD 1966 (W.P.) Lahore 684.
(iv) Surendra Das v. Bhola Prasad Kairi AIR 1950 Assam 22.
(v) Salim-ud-Din Ahmad v. Rahim Shaikh AIR 1926 Cal.
1113.
4. A similar proposition was discussed by. This Court in case titled Zahida Sattar v. Federation of Pakistan PLD 2002 SC 408 wherein the dictum laid down in H.M. Saya and Company v. Wazir Ali Industries PLD 1969 SC 65 heavily relied upon by Mr. Muhammad Munir Peracha, learned Advocate Supreme Court for applicants has been discussed in a similar position, relevant portion whereof is reproduced herein below for ready reference:-- "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/benamidars, 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 onstensible 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 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 name of his spouse, relative and others as benamidars, 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. 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.
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."
5. It was also held in case titled Zahida Sattar v. Federation of Pakistan (supra) as under:-- "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 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 that 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 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 of its jurisdiction, is competent to treat such appeals as writ petitions under Article 199 of the Constitution."
6. In sequel to above mentioned discussion the controversy regarding confiscation of property by the Accountability Court has been set at naught by this Court in the case of Zahida Sattar (supra).
By as it may, the main criminal petition for leave to appeal is pending adjudication before this Court and the question qua the confiscation of the property is subjudiced which shall be decided in accordance with law and on its own merits. The applicant has absolutely no right to file an appeal because no such right has been conferred upon him under the NAB Ordinance, 1999. The Criminal Miscellaneous Application bearing No,53 of 2001 being meritless is dismissed.