IRFAN SAADA T KHAN, J.---This High Court Appeal has been filed against the judgment dated 17.07.2019 passed by the learned Single Judge in Suit No. 1808/2016.
2. Briefly stated the facts of the case are that the appellants claimed to have purchased Bungalow No. 72/1, Khayaban-e-Hafiz, Phase VI, measuring 983.32 Square Yards, Defence Housing Authority Karachi from its joint owners namely , Hina Raza wife of Muhammad Raza and Shabnam Raza wife of Ghulam Raza through a registered conveyance deed dated 16.09.2006. That the appellant No.2 in addition the above mentioned property has also purchased an adjacent property bearing Bungalow No.75/II, Khayaban-e-Hafiz, Phase-VI, measuring 983.33 Square Yards, Defence Housing Authority , Karachi from its joint owners, namely Muhammad Raza and Ghulam Raza, vide conveyance deed dated 11.11.2006. It is also stated that in purchasing these two properties all codal and legal formalities were fulfilled by both the appellants. The appellants after purchasing the said properties approached the respondents Nos. 2 and 3 for mutating the same in their names. However , they were informed that since certain legal proceedings are pending against the previous owners of these properties by the Customs and NAB authorities hence the said properties could not be mutated in their names. A dispute then arose between the appellants and the present respondents. However when the appellants came to the conclusion that the respondents Nos.1 to 3 are not agreed to transfer the properties in their names; thereafter Suit bearing No.1808/2016 was filed for declaration, directions and injunction. The matter proceeded before the learned Single Judge, who heard the matter , however concluded the same vide decision dated 17.7.2018 having no jurisdiction under section 9, C.P.C. to decide the instant matter . The learned Single Judge dismissed the suit along with the listed applications. It is against this order that the present High Court appeal has been filed.
3. Mr. Khawaja Shamsul Islam, advocate has appeared on behalf of the appellants and submitted that the appellants prior to purchasing the two properties had inquired from the department that whether there was any clog or restriction in purchasing these propertie s. However when they found out that there was neither any clog nor any restriction in purchasing these two properties, only thereafter they entered into purchase of these properties through the conveyance deed with the previous owners by paying hefty amounts to them as sale consideration and other duties/taxes/charges necessary in this behalf. He stated that no objections were raised from any of the department with regard to purchase of these properties and it was only when the appellants requested the respondents Nos.1 to 3 for mutation of the properties in their names then they were informed that since there was a clog/restriction on these two properties hence could not be transferred in their names. He stated that if there was any clog or restraining order , the same pertained to the previous owners of these properties and hence non- mutation of the properties in the name of the appellants is uncalled for and illegal hence the respondents may be directed to mutate these two properties in the name of the appellants. He stated that whatever documents and legal requirements were asked for by the respondents Nos.1, 2 and 3 for purch asing the subject properties the same have duly been fulfilled.
4. The learned counsel stated that neither the Customs Act, 1969 nor the NAB Ordinance, 1999 can put an embargo or a clog on transfer of the properties purchased by the appellants in their names. He stated that if there were certain cases against the previous owners, what it has got to do with the present appellants. He invited our attention to sections 12, 13 and 23 of NAB Ordinance, 1999 to show that no inquiry , investigation or reference is pending against the present appellants.
5. In the alternative, the learned counsel stated that even if some references were pending against the previous owners they had been acquitted in a number of references against them. He stated that had there been any inquiry or reference against the appellants they would have approached the NAB authorities for clearing the clog but when there is neither any inquiry nor any investigation or reference pending against the present appellants hence there is no fun in approaching the NAB authorities for getting clearance so far as the appe llants are concerned. He stated that the appellants came to know that some References are pending against the previous owners when they came across the case of Raja Muhammad Zarat Khan v. Federation of Pakistan (PLD 2007 Karachi 597). He stated that the appellants have the right to purchase these properties as their rights are protected under sections 41, 53, 105 of the Transfer of Property Act. He stated that only a Civil Court has the jurisdiction to issue directions to the respondents Nos.1, 2 and 3 for mutating the properties in the names of the appe llants since the appellants have got nothing to do with the NAB authorities or to approach the Customs authorities for clearing a clog imposed upon the previous owners, if any. Hence as per the learned counsel, the learned Single Judge was not justified in directing the appellants to approach the NAB authorities for redressal of their grievance. He also stated that NAB authorities filed an application under Orde r VII, Rule 11, C.P.C. bearing C.M.A. No.12656/2016 before the learned Single Judge which was dismissed. In the end the learned counsel submitted that the matter may be remanded to the learned Single Judge with directions to hear the matter on merits of the case and thereafter to decide the same in accordance with law by giving directions to the respondents to mutate the properties in the name of the appellants. In support of his above contentions the learned counsel has placed reliance on the following decisions:
(i) PLD 2018 Sindh 696 (Ehsanullah Sirazi and another v. Director General (Karachi) National Accounta bility Bureau and another).
(ii) 2010 YLR 2766 [Karachi] (Chaudhry Muhammad Akram Warraich and another v. Chairman, National Accountability Bureau, Islamabad).
(iii) PLD 2001 Karachi 48 (Muhammad Akram and 10 others v . Federation of Pakistan) .
(iv) 2010 PCr .LJ 579 Kar (Khan Muhammad Mahesar v . National Accountability Bureau (Sindh) and another)
(v) 2017 PCr .LJ 691 Sindh (Mirza Sardar Bain v . M. Akmal Paul and 6 others)
(vi) 2012 PCr.LJ 1950 Balochistan (Dr. Muhammad Azam Kasi v. The State through Deputy Prosecutor General Accountability Court No.1, NAB Quetta)
(vii) PLD 2012 SC 610 (Corruption in Pakistan Steel Mills Corporation)
(viii) PLD 2001 Kar . 256 (National Accountability Bureau v . Mst. Zahida Sattar and others)
(ix) PLD 2005 SC 86 (The State v . Nasir Javed Rana, Civil Judge 1st Class/Magistrate Section 30, Rawalpindi)
(x) PLD 2002 SC 590 (Hakim Mumtaz Ahmed and another v . The State)
(xi) 2013 PCr .LJ 1797 Peshawar (Ghulam Basit v . The State and another)
(xii) PLD 2011 Islamabad 25 (Shuja Khan Baluch v. Capital Development Authority , Islamabad through. Chairman and 3 others)
(xiii) PLD 2014 Balochistan 33 (Gen. (R) Syed Pervez Musharraf v . The State and another)
(xiv) 201 1 PCr .LJ 104 (Syed Azmat Hussain v . Chairman NAB and others)
6. Mr. Muhammad Akram Javed, advocat e has appeared on behalf of the NAB authorities i.e. for respondent No.4 and stated that there were a number of FIRs registered against the previous owners, namely Muhammad Raza and Ghulam Raza the accused persons and that their properties were attached by the NAB authorities in various references pending against them. He stated that though in a number of references they were acquitted but a number of references are still pending and until and unless these references are finally decided and the above two properties are cleared these properties could not be released. He stated that transaction of sale and purchase between the appellants and the abovenamed two persons is sham and has been made to avoid attachment of these properties in case it is proved that these properties were obtained by these two persons by way of corrupt practices, corruption and by way of fraud with the exchequer . He stated that the appellants are nothing but benamidar and relatives of the above two persons and since a clog has been attached by the NAB authorities only the NAB has the power to remove the same and until and unless the said clog is cleared these properties could not be transferred in the name of the appella nts. He stated that some of the FIRs registered against the above named two persons were prior to the conveyance deed hence the appellants cannot claim any lease in this behalf. He stated that the appellants have come to the court with unclean hands and stated that the suit was rightly dismissed by the learned Single Judge since the jurisdiction to clear the clog only rests with the NAB authorities and no civil court has the jurisdiction to deal with such matters. He stated that NAB Ordinance is a special law and special courts have been assigned the duty to deal with NAB matters. He stated that the appellants can approach the NAB authorities under sections, 12, 13 and 23 of the NAB Ordinance. In support of his contention the learned counsel has relied upon the decision given in the case of Mst. Zahida Sattar and others v. Federation of Pakistan and others (PLD 2002 SC 408 ).
7. Mr. Abdullah Munshi, advocate has appeared on behalf of respondent No.3 and has adopted the arguments of Mr. Muhammad Akram Javed, advocate for the NAB. He stated that NAB Ordinance is a special law and the matters pertaining to NAB are to be dealt with as per the NAB law. In support of his contention he has placed reliance on the cases of Khan Asfandyar Wali and others v. Federation of Pakistan through Cabinet Division, Islamabad and others (PLD 2001 SC 607), Mst. Zahida Sattar and others v. Federation of Pakistan and others (PLD 2002 SC 408). Sardar Ahmed Siyal and others v. National Accountability Bureau (2004 SCMR 265). He stated that the respondent No.3 has no objection in mutating the properties in the name of the appellants if the appellants are able to produce "No Objection Certificate" from the NAB authorities in this regard. He stated that the respondent No.3 has refused to transfer these two properties in the name of the appellants only due to the clog imposed by the NAB authorities and stated that the respondent No.3 within one month's time can mutate the properties in the name of the appellants if the appellants are able to produce documentary evidence from the NAB authorities that there is now no restriction or condition imposed by the NAB authorities and have no objection in transferring these two properties in the name of the appellants. He stated that the learned Single Judge has quite rightly found out that since an embargo has been imposed by the NAB authorities and only the NAB authorities can remove the said clog and can give No Objection in this behalf and in absence of this No Objection the respondent No.3 is not in a position to mutate the properties in the name of the appellants. He finally submitted that the instant High Court Appeal is not maintainable and the same may be dismissed.
8. Mr. Asif Rasheed advocate has appeared on behalf of the respondent No.1 and has adopted the arguments advanced by the counsel for responden t No.4 and respondent No.3 respective ly and has further stated that whatever order are passed by this Court would be complied with in letter and spirit.
9. Ms. Durdana Tanveer , Assistant Attorney General has appeared on behalf of respondents Nos.2 and 5 and has adopted the arguments advanced by the counsel for respondent No.4 and respondent No.3.
10. Ms. Nigar Afaq Hussain, State Counsel has appeared on behalf of respondent No.6 and has also adopted the arguments advanced by the counsel for respondent No.4 and respondent No.3.
11. We have heard all the learned couns el at considerable length and have also perused the record, the law and the various decisions relied upon by them.
12. Before proceeding any further it would be advantageous if the provisions of law as relied upon by the learned counsel are reproduced herein under:- NATIONAL ACCOUNT ABILITY BUREAU ORDINANCE, 1999
12. Power to freeze property: a) The Chairman NAB or the Court trying an accused 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 , or part thereof, whether in his possession or in the possession of any relative, associate or person on his behalf. b) If the property ordered to be frozen under subsection (a) is a debt or other movable property , the freezing may be made:
(i) by seizure; or
(b) by appointment of receiver; of
(iii) by prohibiting the delivery of such property to the accused or to anyone on his behalf:- or
(iv) by all or any of such or other methods as the Court or the Chairman NAB as the case may be deem fit.
(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 fifteen days unless confirmed by the Court, where the Reference under this Ordinance shall be sent by the Chairman NAB: Provided further that notwithstanding anything to the contrary contained herein, that the order of Chairman NAB or the Court shall be effective from the time of passing thereof or proclamation thereof in a newspaper , widely circulated and dispatch at the last known address of the accused either by registered post A.D. or courier service or any other mode of electronic media as the Court may deem proper having regard to the facts and circumstances of the case.
(d) If the property ordered to be frozen consists of livestock or is of a perishable nature, the Chairman NAB, or the Court may, if it deems proper and expedient, order the immediate sale thereof and the proceeds of the sale may be deposited with the Chairman NAB or the Court, or as either may direct as appropriate.
(e) The powers, duties, and liabilities of a receiver , if any, appointed under this section shall be the same as those of a receiver appointed under Order XL of the Code of Civil Procedure, 1908 (Act V of 1908).
(f) The order of freezing mentioned in subsections (a) to (e) shall remain operati ve until the final disposal of the case by the Court, and in the event of the acquittal or release of the accused, , shall continue to remain operative for a period of ten days after receipt of certified copy of the order of acquittal or release by NAB, where after it shall be subject to an order by the Court in which an appeal, if any , is filed.
NATIONAL ACCOUNT ABILITY BUREAU ORDINANCE, 1999
13. Claim or objection against freezing:
(a) Notwithstanding the provisions of any law for the time being in force, the Court shall have exclusive jurisdiction to entertain and adjudicate upon all claims or objections against the freezing of any property under section 12 above. Such claims or objections shall be made before the Court within 14 days from the date of the order , freezing such property .
(b) The Court may for sufficient cause extend the time for filing such claims or objec tions for a period not exceeding additional 14 days.
(c) The accused or any other aggrieved party , whose claim or objection against freezing of property has been dismissed by the Court, may , within ten days file an appeal against such order before the High Court.
NATIONAL ACCOUNT ABILITY BUREAU ORDINANCE, 1999
23. T ransfer of property void:
(a) Notwithstanding anything contained in any other law for the time being in force after the Chairman NAB has initiated an inquiry or investigation into any offence under this Ordinance, alleged to have been committed by an accused person, such accused or any relative or associate of such accused or any other person on his behalf, shall not transfer by any means whatsoever or, create a charge on any property owned by him or in his possession, while the inquiry , investigation or proceedings are pending before the NAB or the Court; and any transfer of any right, title or interest or creation of a charge on such property shall be void.
(b) Any person who transfers, or creates a charge on properly in contraven tion of subsection (a) shall be punishable with rigorous imprisonment for a term, which may extend to three years and shall also be liable to fine not exceeding the value of the property involved.
Provided that such transfer of any right, title or interest or creation of a charge on such property shall not be void if made with the approval of the Court, subject to such terms and conditions as the Court may deem fit.
NATIONAL ACCOUNT ABILITY BUREAU ORDINANCE, 1999
36. Indemnity: No suit, prosecution, or any other proceedings shall lie against the Federal Government, Provincial Government, Chairman NAB, or any other member of the NAB or any person exercising any power or performing any function under this Ordinance or the Rules made hereunder for any act or thing which has been done in good faith or intended to be done under this Ordinance or the Rules thereof.
CODE OF CIVIL PROCEDURE
9. Courts to try all civil suits unless barred . The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.
Explanation.- --A suit is which the right to property or to an office is contested is a suit of a civil nature, notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies.
13. From the pleading of the parties, the only point which requires determination is whether under the given circumstances, a civil Court has the jurisdiction to declare the action taken by the NAB Authorities, with regard to freezing of the properties claimed by the appellants as owners as justified or not? The main thrust of the arguments of the learned counsel for the appellants was that the appellants were the bona fide owners/purchasers of the properties under question and the NAB Authorities were not justified in giving directions to the respondents Nos.1, 2 and 3 for not mutating the properties in their names. It is also the contention of the learned counsel for the appellants that if the NAB Authorities were required to take any action against Muhammad Raza and Ghulam Raza, the accused persons, the said action should not effect the transfer of the properties in the name of the appellants.
14. The record reveals that the proceedings against Muhammad Raza and Ghulam Raza were initiated by the NAB Authorities upon a complaint received by the Directorate of Customs on 08.11.2016. It is an admitted position that the Bungalow No.75/1, was purchased by the appellants from Mst. Hina and Shabnam Raza, who were the joint owners of the properties and were the wives of Muhammad Raza and Ghulam Raza respectively on 16.9.2006.
Whereas the property bearing Bungalow No.75/2, was purchased from Muhammad Raza and Ghulam Raza directly on 11.11.2006 by the appellants. It is also an admitted position that the NAB Authorities had given directions to the respondents Nos.1, 2 and 3 for not transferring and mutating the properties in the names of the appellants, since these properties were the subject matter of certain References against the above named two persons. It has been averred that subsequently Muhammad Raza and Ghulam Raza were acquitted in some of the References but at the time when directions were issued by the NAB Authorities to the respondents Nos.1, 2 and 3, proceedings against the above named two persons were pending adjudication before the NAB Authorities and some References against these two persons are pending even today .
15. Perusal of section 9 of the C.P.C. reproduced above clearly reveals that the said section empowers a civil Court to deal with civil suits unless barred. There is no cavil to the proposition that NAB is a special law. It has been mentioned under section 9 of the C.P.C. that the civil Courts shall have jurisdiction to deal with cases of civil nature except which are expressly and impliedly barred. Here a question would arise whether action with regard to the embargo imposed on transfer of the properties by the NAB Authorities could be considered to be an action of civil nature? The obvious answer to this question would be in negative. The matters concerning NAB are always considered to be criminal in nature and have to be dealt with in accordance with NAB laws. Hence, it could safely be presumed that the matters concerning NAB neither could be considered to be cases of civil nature nor could be dealt with by Civil Courts. Since a Civil Court is required to decide the matters concerning civil disputes until and unless the said jurisdiction is taken away by implied or expressed legislation.
16. Perusal of the NAB Ordinance 1999, reveals that the said law was promulgated for speedy disposal of the cases involving corruption and corrupt practices and the same is a special law having an overriding effect on other laws. Section 3 of the said Ordinance, clearly provides that the said Ordinance has an overriding effect on other laws and the matters pertaining to NAB are to be dealt with by specially designed Courts defined under section 5(g) of the said Ordinance.
17. There is no cavil to the proposition that it was on the communication of the NAB Authorities to the respondents Nos.1, 2 and 3 that the properties were refused to be mutated in the name of the appellants. Now could it be said that the appellants were aggrieved with the decision of the respondents Nos.1, 2 and 3 for not mutating the properties in their names or they were aggrieved against the decision taken by the NAB Authorities by giving directions to the respondents Nos.1, 2 and 3 for not mutating the properties in their names? In our view the answer to this question would be that the appellan ts ought to have been aggrieved by the directions of the NAB Authorities as the respondents Nos.1, 2 and 3 simply acted as per the directions of the NAB authorities; meaning thereby that the appellants in the given circumstances appear to be aggrieved against the action, whether directly or indirectly , taken against them by the NAB Authorities through respondents Nos.1, 2 and 3 for not mutating the properties in their names.
18. Perusal of sections 12 and 13 of the NAB Ordinance, reproduced supra, gives the power to the NAB Authorities for freezing the properties of the accused, which are in possession of any person on his behalf and the said order of freezing would remain operative till it is finally disposed of by a Court of law. It is an admitted position that in some References the accused persons have been exonerated but some Reference s are still pending against them.
Hence it could not be inferred that the matters against the accused persons have finally been disposed of, as per the provisions of the above section and the properties in our view would remain frozen till their matters are finally disposed of in this behalf. In our view, the NAB Authorities are fully empowered under the provisions of the NAB law to order for freezing of the properties in possession of a person believed to be holding the said property on behalf of the accused, which includes their benamidar also. Now, in case a person who does not accept that he is or she is a benamidar of an accused, what is the remedy available to that person to challenge freezing of the properties by the NAB Authorities? It is a settled proposition of law that where is right, there is a remedy (ubi jus ibi remedium). The answer to this question, in our view is available under Section 13 of the NAB law giving remedy to the "aggrieved person" in this behalf.
19. We do not agree with the contention raised by the learned counsel for the appellants that since no action was taken against the appellants by the NAB Authorities or by the Chairman, hence the appellants are unable to challenge the order of the NAB Authorities regarding freezing of the properties. The appellants, in our view, surely fall within the definition of the term "aggri eved person" since when they claim themselves to be the owners of the properties, which according to them have illegally been frozen by the NAB Authorities, before whom would they agitate against an action of the NAB authorities. Again the answer of this question in our view is given under section 13 of the NAB Law. The remedy of a person aggrieved with an action taken by the NAB Authorities cannot be with a civil Court which has the jurisdiction to deal with civil cases only as the same is expressly and impliedly barred under section 9 of the C.P.C. Peru sal of section 23 of the NAB Ordinance clearly stipulates the transfer of properties void to any other person on behalf of the accused. This section starts with non-obstante clause and for all practical purposes has to be given preference over other laws for the time being in force. The appellants, as observed supra, in our view, fall under the term "aggrieved person" and their remedy lies with the NAB Court. The veracity , legality and propriety of the actions taken by the NAB Authorities, whether directly or indirectly against the appellants, could only be decided by the NAB Authorities since an impedimen t with regard to transfer of the property has been imposed by the NAB Authorities and the NAB Court alone has the authority to remove this stigma/clog attached on these properties, therefore the appellants should agita te their matter before the NAB Court.
20. It has been held in the decision given by the Hon'ble Supreme Court of Pakistan in the case of Sardar Ahmed Siyal and others, noted supra, that provisions of NAB laws would have an overriding effect on other laws. In the case of Mst. Zahida Sattar , noted supra, the 'Hon'ble Supreme Court of Pakistan while dealing with the case that some properties of an accused persons alleged to have been acquired by way of corruption or corrupt practices held by his wife, observed that as the accused Abdul Sattar was being tried for criminal offences as such the jurisdiction of the civil Court is ousted. In the present case also though no proceedings directly were initiated against the appellants by the NAB authorities however , since the properties claimed to be owned by them were subject matter of certain References against Muhammad Raza and Ghulam Raza, if not directly but indirectly became aggrieved by such action of the NAB Authorities and thus can agitate their matter before the competent Court of law , which surely is not a civil Court.
21. There can be no two opinions on the fact that the matters concerning NAB can only be tried by a special Court designed for the said purpose. Had this matter been a dispute between the real owner and the ostensible owner or a benamidar; the matter definitely would fall under the jurisdiction of a civil Court but here the appellants seems to be aggrieved with the directions issued by the NAB Authorities to the respondents Nos.1, 2 and 3 for not mutating the properties in their names. The Hon'ble Supreme Court of Pakistan in the case of Zahida Sattar has further observed the matter concerning illegal and corrupt practices by a person is not a civil dispute as the same is a criminal charge. In the instant matter the NAB Authorities have exercised their authority/power under sections 12 and 13 of the NAB law for freezing the same till the matter is finally decided, which in our view amounts to an order by them and the appellants who claim themselves to be the owner of the properties, if aggrieved, for de-freezing of their properties as claimed by them could only appear the NAB Court and that they are not remediless, as opined by the learned counsel for the appellants. The word "any other aggrieved person" used under section 13 of the NAB Law, in our view, has to be given widest possible meaning so as to provide an "aggrieved person" a remedy if any action is taken against them by the NAB authorities whether it is a direct or indirect action. The decisions relied upon by the learned counsel the appellants thus are found to be distinguishable as in most of the cases freezing of the assets was challenged by the accused person himself, which is not the case in hand.
22. Hence in view of what has been observed supra, we agree with the observations made by the learned Single Judge in Suit No.1808/2016 on 17.7.2018 that the jurisdiction of the Civil Court under the provisions of section 9, C.P.C. is ousted in the instant matter . As a result thereof the instant High Court Appeal being not maintainable is hereby dismissed along with the listed application.