MUHAMMAD MUJEEBULLAH SIDDIQUI, J.---The petitioners have sought the following relief in this petition:-
(a) Declare that orders dated 4-10-2000 and 7-10-2000 passed by the Accountability Court are illegal and without jurisdiction.
(b) Declare that the Accountability Court had no jurisdiction to adjudicate in respect of petitioners' properties as mentioned in para.3 of the petition and trial in respect thereof is illegal, without jurisdiction and violative of Articles 23 and 24 of the Constitution read with Articles 4 and 25 and is further violative of rules of natural justice.
(c) Declare that sections 5(c), 9(a)(v) and sections 12 and 13 of the N.A.B. Ordinance are unconstitutional and void.
(d) Restrain the Accountability Court-IV/respondent No,3 from proceeding with the trial to the extent of the petitioners' properties and render any finding in respect thereof.
(e) Restrain the respondent Nos.2 and 3 from taking any adverse action against the petitioners' properties mentioned in para. 3 of the petition and or dispossessing them therefrom and from creating any third party right, title and interest in the referred properties.
(f) Any other relief/(s) this Hon'ble Court deems fit in the circumstances of the case.
2. The facts giving rise to this petition as contained in the memo. Of petition are that they are related to one Abdul Sattar Dero who is being tried by the respondent No,3 under the National Accountability Bureau Ordinance, 1999 (hereinafter referred to as the Ordinance). The trial has commenced on Reference under section 18(G) of the Ordinance by the Chairman, National Accountability Bureau. The trial Court has framed charge against accused Abdul Sattar Dero on 8- 4-2000 for offence of corruption and corrupt practice as defined under section 9 of the Ordinance punishable under section 10 of the Ordinance which is reproduced below:-- CHARGE I, Muhammad Jawaid Alam, Judge, Accountability Court No, IV, Sintth, 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,D.S.B./783, Kumber Ali Khan, Larkana, Sindh and cash and Prize Bonds worth of Rs,50,000 but in the subsequent year up to 31-12-1998 you added movable, immovable and agricultural properties iii your declaration forms:--
(a) Plot in Gulshan-e-Qasim value of Rs,16,800.
(b) Plot No,100& 1 &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 equipment's 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 land 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, immovableand 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,131.3373 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-machine 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/II, Street No,31, Phase-6, D.H.A. Karachi of value of Rs,5 Million.
(vi) Bungalow No,53/II 15th Street Khayaban-e-Mujahid, D.H.A. Karachi in the name of Mrs. Sahida Dero of value of Rs,10 Million: And thereby you have committed an offence of corruption and corrupt practices as defined under section 9 of National Accountability Ordinance, 1999 punishable under section 10 of National Accountability Ordinance, 1999 within the cognizance of this Court. And I hereby direct that you be tried by this Court on the aforesaid charge.
(Sd.)
(Muhammad Jawaid Alam), Judge, Accountability Court No,IV, Sindh, Karachi. Dated 8-4-2000."
3. The grievance of the petitioners is that the properties shown in second part of the charge which have been alleged to be properties acquired by accused Abdul Sattar Dero, in the name of petitioners is incorrect. According to them the properties belong to them and the reference to their properties in the charge-sheet dated 19-2-2000 and the charge dated 8-4-2000 is illegal, mala fide and without notice to the petitioners. They have contended that simply because the petitioners are related to accused Abdul Sattar Dero, their properties cannot be presumed to be his properties when all the properties are in the name of petitioners. They have further contended that the petitioner Nos.1 to 4 and 9 to 11 were never dependent on accused Abdul Sattar Dero, nor the properties in the name of petitioners ever remained in possession, domain or control of Abdul Sattar Dero and that the accused has not contributed any amount for acquiring the above properties. They have further contended that they have been declaring their properties for the purpose of Income-tax and Wealth tax assessments. They have taken plea that all the said properties were acquired by the petitioners from their own independent source of income and no one else including accused Abdul Sattar has any interest, right and title whatsoever in the said properties. They have further stated that in order to safeguard their right, title and interest in the above properties, they instituted suits in the High Court being Suits Nos.877 to 885, 887 and 1012 of 2000 which are pending adjudication seeking declaration and injunction that the properties exclusively belong to the petitioners. During the pendency of the suits the respondent No,2 froze the petitioners' properties vide order dated 3-8-2000 under section 12 of the Ordinance and moved application under Order 7, Rule 10, C.P.C. Read with Order 7, Rule 11, C.P.C.
For rejection of the plaint. The said application was heard by Single Judge of this Court, who dismissed the same and held that the issue of Benami was a civil issue and was to be decided by the High Court. The respondent No,2 assailed the said -order in High Court Appeal being H.C.A.
No,281 of 2000 (PLD 2001 Kar. 256) and others, on which orders have been reserved by the Division Bench of this Court (The High Court Appeals have been decided during the pendency of this petition. All the Appeals have been allowed and it has been held that this Court has no jurisdiction to entertain the suits). During the pendency of High Court Appeals, the respondent No,2 moved an application before respondent No,3 for confirmation of the order of freezing dated 3-8-2000 and the same was dismissed by the respondent No,3 vide order dated 7-9-2000, holding that once the matter was sub judice before the Accountability Court, the Chairman, N.A.B. Had no authority to freeze property. The respondent No,3 has further observed that the respondent No,2 is at liberty to file proper fresh application under section 12 of the Ordinance for seeking order of freezing the property if reasonable material was available. The grievance of the petitioners is that assumption of jurisdiction over the petitioners' properties by the respondent No,3 when the issue is sub judice before High Court was unlawful and without jurisdiction. The petitioners have further stated that they filed C.P. No,1235 of 2000, inter alia, challenging the freezing order dated 3-8-2000. However, during the pendency of petition the counsel of respondent No,2 filed a statement before a Division Bench of this Court stating that the petition had become infructuous as the order dated 3-8-2000 was not confirmed within 30 days by the Accountability, Court. On the basis of such statement the said petition was dismissed in limine. It was held by the Division Bench of this Court that the question of Benami could not be decided in a Constitutional petition and that it was a civil matter for which purpose the suits were already pending. The petitioners have complained in the memo.
Of petition that despite order passed by this Court in Suit No,877 of 2000 on 15-9-2000 to the effect that the issue of property being Benami could only be decided by a Civil Court and similar finding by Division Bench of this Court in C.P. No,1235 of 2000, the Accountability Judge, the respondent No,3 has continued with the trial of accused Abdul Sattar Dero on the charge of acquiring properties by using corrupt practices including the properties held by the petitioners. It is submitted that the petitioners are neither accused nor witnesses before the Accountability Court and no opportunity was provided to them to refute the allegations that their properties actually belonged to accused Abdul Sattar Dero. It is further stated in the petition that, "The issue of Benami is yet to be decided by this Hon'ble Court and the continuation of the trial vis-a-vis the petitioners' properties by the Accountability Court is illegal and without jurisdiction. The Accountability of Abdul Sattar Dero cannot amount to deprivation of the petitioners from their properties. Hence this petition". The petitioners have submitted that they have no other efficacious remedy available under law except to file this petition.
4. Heard Mr. S.Abid Zuberi, learned counsel for the petitioners and Mr. Amer Raza Naqvi, learned counsel for the respondent No,2.
5. At the very outset, the learned counsel for the respondent No,2 has submitted that the grievances of the petitioners to the effect that the respondent No,3 is proceeding with the trial of accused Abdul Sattar Dero for the charge in which reference has been made to the properties held by the petitioners and that the High Court Appeals are pending, have been rendered infructuous for the reason that the High Court Appeals stand disposed of and the suits have been held to be not maintainable. In the High Court Appeals it has been held further that the High Court has no jurisdiction to entertain the issues pertaining to the source of money involved in acquiring the properties which are alleged to have been acquired by the accused Abdul Sattar and ostensibly owned by the petitioners.
6. Mr. Abid Zuberi, learned counsel for the petitioners, has not denied the above contention of Mr. Amer Raza Naqvi. He has, however, submitted that the petitioners have no forum to agitate their grievance and therefore, they can invoke the writ jurisdiction of this Court. The attention of learned counsel for the petitioners was drawn to the following passages in Division Bench Judgment of this Court in H.C.As. Nos.281 to 291 of 2000 (PLD 2001 Kar. 256): "Appearing for the private respondents Mr.Abid S. Zuberi's main argument is that the said respondents are not parties before the learned Accountability Court and hence they are not in a position to protect their interest before it since their plea is that they are the owners of the properties in their own right, which have been frozen and these have been obtained through legitimate means and bona fide from their own sources. He has further submitted that on the properties of these private respondents up-to-date income-tax and wealth tax have been paid.
Consequently, as per learned counsel, section 42 of the Specific Relief Act would squarely apply to the facts of the matter as the private respondents are seeking a declaration as to the ownership and title of the properties, which have been frozen. In this regard, he has referred to Clauses B and C of the plaints in the various suits. Furthermore, as per learned counsel, section 9 of the C.P.C., applies to the case which provides that all suits of a civil nature shall be tried by the Courts established by law unless their cognizance is either expressly or impliedly barred by any law. Next learned counsel has submitted that vide the Accountability Court's Order dated 7-10-2000, the freezing order imposed by the National Accountability Bureau had been set aside, which would thus mean that as the Accountability Court is no longer seized with the freezing order, consequently, no objections could be filed by the respondents in the said Court as regards the properties in question. Continuing in this vein, learned counsel has further submitted that after the passage of the order dated 7-10-2000, the applications filed by the appellant under Order VII, Rule 11, C.P.C. Had become infructuous and so as the present Appeals. We have heard both the learned counsel and our conclusions are as follows:-- It would be seen that the main objection of the private respondents to the proceedings before the learned Accountability Court as regards the freezing Order dated 13-8-2000, which concerns the respondents' properties, is that they are neither witnesses nor the accused before the said Court and consequently not in a position to protect their rights. A short answer to this objection is that as per section 13 of the Accountability Ordinance, the Accountability Court has been given the exclusive jurisdiction to entertain and adjudicate upon all claims/objections against the freezing of any property. The provisions of this section, in our view, essentially contemplate that the persons who are the ostensible owners of the property would be given notice of the said freezing order so that they would be enabled to file objections, which thereafter would be tried and adjudicated by the Accountability Court. This is also in keeping with the well-recognized maxim of law that nobody can be condemned unheard and has been endorsed by the Hon'ble Supreme -Court in a number of cases whereby it has been held that it should be read in every statute, although not specifically provided therein. With regard to Mr. Zubairi's contention that in view of the Accountability Court orders dated 7-10- 2000, the Chairman, NAB's order dated 13-8-2000 freezing the private respondents' properties is no more in existence and hence no objections could be filed by the private respondents under section 13 of the Ordinance, our view is that keeping in mind the settled law, these respondents would have the right to challenge any adverse finding or order, if made against them, by filing appeals in view of the observations made by the Supreme Court in the case of H.M. Saya &Co., Karachi v. Wazir Ali Industries Ltd., Karachi reported in PLD 1969 SC 65. They may also be provided an opportunity of defending themselves as per law before the learned Accountability Court as by virtue of the mere fact that their properties have been mentioned in the Reference and charge against the accused, the respondents would come within the definition of an aggrieved person as is envisaged in the case of H.M. Saya & Co., Karachi v. Wazir Ali Industries Ltd., Karachi (supra). Secondly, it would be seen that as per the Scheme of the Ordinance, the Accountability Court has been given exclusive jurisdiction to hear and adjudicate all issues arising out of the references made to it by the Chairman of the National Accountability Bureau in which event, in our view, no exception can be taken to the freezing order dated 13-8-2000 with which the private respondents are aggrieved. In this regard, reference can be made to Khalid Mehmood v. Collector of Customs (1999 SCMR 1181), wherein the Hon'ble Supreme Court has held that where an exclusive Tribunal or Court has jurisdiction in a matter but the legislation creating such Court or Tribunal or conferring jurisdiction on the same also ends up by providing the Appellate or Revisional jurisdiction to the High Court against the final judgment/decision then the High Court would normally not entertain proceedings challenging the legality of such final judgment/decision or any interlocutory order passed therein except in very rare and exceptional circumstances. Applied to the facts of the present matter, therefore, we are of the opinion that where the Ordinance provides for complete adjudication of the rights of the accused as well as those whose properties have been frozen, the suits, which were filed in order to legitimize the Private Respondents' title over such properties were misconceived. It would also be seen that the title of the Private Respondents to the properties in question is not in issue as the same has never been challenged before the learned Accountability Court but, on the other hand it is the case of the . Prosecution that money invested in acquiring these properties was obtained through ill-gotten means by the accused and provided to the Private Respondents for acquiring properties in their names. In this regard we also seriously doubt whether any declaration/injunction can be given under the Specific Relief Act to legitimize the means of acquiring title over immovable property. Finally, it would also be seen that the assumption of jurisdiction by the learned Single Judge specifically militates against the scheme of the Ordinance which provides for a procedure whereby Accountability Courts have been established throughout the country to bring corrupt persons to book and the moneys which they have made unlawfully, recovered, for the general good of the country. Such a procedure essentially contemplates the eradication of corruption and corrupt practices and as provided in section 12 of the Ordinance gives the power to the Chairman of the National Accountability Bureau or the Accountability Court to freeze the property of any person being tried for an offence before it which is either in his possession or in the possession of any relative or any other person on his behalf. This in our view is a salutary provision of law because given the present state of our society and the rampant corruption which exists at all levels, there was no other option but to create such a machinery so that an accused could not avoid the reach of the law by transferring his assets/properties in the names of his close relatives and associates or acquiring the same in the name of his relatives and/or associates from ill-gotten money. So also it would be seen that adequate provisions have been made in the Ordinance whereby those persons who are aggrieved by such freezing orders can file their objections before the Court as provided in section 13 of the Ordinance. Thus, in our opinion, where the Accountability Court is seized with the precise issue of determining the source of money involved in acquiring the properties in question and whether they are ostensibly owned by the Private Respondents or actually by the accused, this Court would not have any jurisdiction to entertain these issues through a civil suit and to that extent we were of the opinion that the suits are misconceived. To hold otherwise would thwart the accountability process itself because obviously where the title to such properties is being adjudicated by a Civil Court, or more precisely the means of acquiring such title, the Accountability Court would be prevented from proceeding on this issue, which is the main issue before it. We have already observed that the main concern of the private respondents seems to be their non-existence before the learned Accountability Court either as accused or witnesses. In this regard, as adverted to earlier we have no doubt that the learned Accountability Court would accord a proper opportunity to the Private Respondents before passing of final orders in keeping with the well-established principle of audi alteram partem, earlier referred to. Similarly, the Private Respondents, if aggrieved by the final orders of the learned Accountability Court shall have the right to appeal against the same. Order accordingly. For all the foregoing reasons, we would allow the Appeals and set aside the impugned orders. We would also dismiss the suits as not being maintainable. A copy of this order shall be circulated amongst all the Accountability Courts in the Province of Sindh for compliance. "
7. Mr. Abid Zuberi, learned counsel for the petitioners was specifically confronted on the point of maintainability of this petition after all the issues raised in this petition at the instance of petitioner pertaining to the same properties have been considered by a Division Bench of this Court in the High Court Appeal cited above. He was further asked to show from the impugned orders dated 4- 10-2000 and 7-10-2000 passed by the Accountability Court, respondent No,3, as to how they gave a fresh cause of grievance to the petitioners. He submitted that the petitioners are aggrieved with the following findings of respondent No,3: Order dated 4-10-2000.
"On the reasons discussed above, I came to the conclusion that this Court is not debarred from hearing the application for freezing the properties involved in this reference. The preliminary objection raised by the learned defence counsel has no merit. The pleas raised by the learned defence counsel shall be considered at the time of disposal of the application under section 12, N.A.B. Ordinance, 1999."
Order dated 7-10-2000.
"However, National Accountability Bureau is at liberty to file proper fresh application under section 12, N.A.B. Ordinance, 1999 to this Court for seeking orders of freezing the properties, if the reasonable grounds and material are available." It was pointed out to Mr. Abid Zuberi that the impugned order dated 4-10-2000 has disposed of preliminary objection raised by the defence counsel to the hearing of application under section 12 of the N.A.B. Ordinance, 1999 and impugned order dated 7-10-2000 is the final order whereby the application made by the Special Prosecutor was dismissed and the freezing order passed by the Chairmen, N.A.B. Was not confirmed, thereby finally disposing of the application seeking confirmation of the order of Chairman under section 12 of the NAB Ordinance, 1999. The same final order dated 7-10-2000 was considered by another Division Bench of this Court while deciding the High Court Appeals referred to earlier and a comprehensive finding was given. The learned Division Bench of this Court has considered the points raised in this petition and has laid down the proposition that notwithstanding, the fact that the petitioners are neither accused nor witnesses before the respondent No,3, the rights of the petitioners are fully protected. The learned Division Bench of this Court has clearly held that the provision of section 13 of the Ordinance essentially contemplates that the persons who are the ostensible owners of the property would be given notice of the said freezing order so that they would be enabled to file objections and thereafter the issue shall be adjudicated upon by the Accountability Court. Mr. Abid Zuberi was not able to deny that at the instance of petitioners, all the issues raised in this petition have been considered by a Division Bench of this Court in respect of the same properties in the High Court Appeals referred to above. He, however, submitted that he would try to persuade and convince us that certain issues and aspects have not been considered by the learned Division Bench of this Court while deciding High Court Appeals, and therefore, the issue may be referred to the larger Bench. However, Mr. Abid Zuberi was not able to advance any convincing reasons for referring the issue to larger Bench for re-consideration of the findings contained in the judgment of Division 'Bench of this Court deciding the High Court Appeals. Mr. Abid Zuberi insisted with all vehemence at his command that the petitioners have been denied the right of hearing and raising objections to the freezing of their properties. We are, however, not impressed with the submission for the reason that in the Division Bench judgment of this Court in High Court Appeals, including the same issue at the instance of petitioners in respect of the same properties, as elaborately discussed above, it has been held in unambiguous terms as follows:
(a) The Accountability Court has exclusive jurisdiction to entertain and adjudicate upon all claims/objections against the freezing of any property.
(b) The persons who are ostensible owners of the properties would be given notice of the said freezing order so that they would be enabled to file objections and thereafter Accountability Court would adjudicate upon the issue.
(c) The well-recognized maxim of law that nobody can be condemned unheard shall be adhered to in the proceedings relating to freezing of properties.
(d) The ostensible owners would have the right to challenge any adverse finding or order, if made against them, by filing appeals.
(e) Where an exclusive Tribunal or Court has jurisdiction in a matter, but the legislation creating such Court or Tribunal or conferring jurisdiction on the same also ends up by providing the Appellate or Revisional jurisdiction to the High Court against the final judgment/decision, then the High Court would normally not entertain proceedings challenging the legality of such final judgment/decision or any interlocutory order passed therein except in very rare and exceptional circumstances.
(f) Where the Accountability Court is seized of the precise issue of determining the source of money involved in acquiring the properties ostensibly owned by the private persons and alleged to be actually held and financed by the accused, the High Court would not have any jurisdiction to entertain these issues through a civil suit.
8. We would like to state that the appeal against conviction of any person by the Accountability Court lies to the High Court of the Province where the Court is situated, under section 32 of the Ordinance.
9. For the forgoing reasons we are of the considered opinion that another Division Bench of this Court has already decided all the issues raised in this petition, which was filed before the announcement of judgment by the Division Bench of this Court in High Court Appeals. The fears and apprehensions of the petitioners on the point of lack of opportunity of being heard and the forum for redressal of grievance have been comprehensively allayed in the above judgment, and therefore, this petition raising the same issues by the same persons in respect of the same properties and assailing the same order of respondent No,3 is not maintainable which stands dismissed in limine. The petition was dismissed by a short order on 9-2-2001. This judgment contains detailed reasons.