1. SARMAD JALAL OSMANY, J.---The subject appeals impugn the orders dated 15-9-2000 passed by a learned Single Judge of this Court in Suit Nos.877, 878, 879, 880, 881, 882, 883, 884, 885, 887 and 1012 of 2000 whereby the applications filed by the Respondent No, 1/Plaintiff under Order 39, Rules, 1 and 2, C.P.C. Praying that the said respondents be allowed to enjoy the peaceful possession, use and ownership of their properties and the appellants be restrained from forcibly dispossessing them from the same without due process of law was disposed of by framing issues on the reliefs sought by the plaintiffs and ordering evidence thereon. Earlier on 17-7-2000, the learned Single Judge had ordered status quo to be maintained between the parties on the said Application. Since the facts and issues raised in the abovementioned Appeals are common, we propose to dispose them of through this common judgment as well. The brief facts of the matter are that one Abdul Sattar Dero is being proceeded against before the learned Accountability Court No,IV at Karachi in Reference No,15 of 2000. The substance of the charge against the accused is that being a public servant he owns properties disproportionate to his known sources of income. A further charge against him is that these properties were acquired through corrupt practices and dishonest means and are being held by him in the names of his spouse, dependents, relatives and other Benamidars and consequently, the accused has been charged with the offence of Corruption and Corrupt Practices under section 9 of the National Accountability Ordinance, 1999. Subsequently, the said properties were frozen under section 12 of the Ordinance vide order dated 13-8-2000 passed by the Chairman National Accountability Bureau. The Private Respondents who are the alleged ostensible owners of the suit properties had filed the abovementioned suits for declarations, inter alia, that they are the lawful and exclusive owners of the suit properties and that inclusion of the said properties in the Reference filed by the appellants against Abdul Sattar Dero is unlawful and finally an injunction directing the appellants to delete the plaintiffs property from the said Reference and charge framed by the Accountability Court. As observed above, the applications under Order 39, Rules 1 and 2 were also filed alongwith the suit, which were disposed of by the learned Single Judge, vide the impugned orders and hence the appeals. In support of the appeals Mr. Muneer A. Malik, Advocate for the appellants, has referred to the provisions of the National Accountability Ordinance, 2000 and submitted that as per the Scheme of the Ordinance, the onus to prove that the wealth possessed by the accused is lawful and bona fide is upon him. Similarly, as per learned counsel the Accountability Court has exclusive jurisdiction in the matter placed before it including the claim/objection against freezing of the assets, which allegedly belong to the accused and which have been acquired through unlawful and corrupt means. In support of these contentions, learned counsel has referred to the definition of the word "Asset" given in section 5(c) of the Ordinance to mean any property owned, controlled or belonging to any accused whether directly or indirectly or held Benami in the name of his spouse or relatives or associates whether in or outside Pakistan for which the accused cannot reasonably account or for which he cannot prove payment of full and lawful consideration. So also the definition of word "Freezing" as per the section 5(1) of the Ordinance includes attachment, sealing, prohibition, holding control and/or managing any property either through a Receiver or otherwise as may be directed by the.Court or Chairman National Accountability Bureau. Next learned counsel has referred t.) the provisions of section 12 of the Ordinance, which authorizes either the Chairman of the National Accountability Bureau or the Court to freeze the property in question whereafter as per section 13 of the Ordinance any claim or objection against the freezing order is to be exclusively decided by the Court. In view of the foregoing provisions of the National Accountability Ordinance, learned counsel has submitted that the Accountability Court has exclusive jurisdiction in the matter including the decision regarding objections filed by an aggrieved person as to the freezing of any property. Next learned counsel has submitted that the Reference against Abdul Sattar Dero was filed on 19- 2-2000 and the charge framed on 8-4-2000 whereas the impugned freezing order was passed on 3-8-2000. Learned counsel says that all these actions were in accordance with the Ordinance and since no appeal could lie against any freezing order under section 13, therefore, to that extent this Court would not have jurisdiction. Moreso, since a final appeal against any order passed by the Accountability Court has been provided to this Court as per section 32 of the Ordinance. Further learned counsel has submitted that the issue before the learned Accountability Court is not the Private Respondents' title to the properties in question but as to the means through which such title was acquired-allegedly through the ill-gotten wealth of the accused. Consequently, the declaration sought by the Private Respondents in the Suits as per the Prayer Clause "A." of the Plaints could not be granted in terms of section 42 of the Specific Relief Act since such prayer pertains to the lawful acquisition of the properties, which have been frozen by the Court. Finally, learned counsel has submitted that section 56(e) of the Specific Relief Act, which provides that no declaration can be given to stay proceedings in any criminal matter is a complete bar to the filing of the suitsand consequently, they should have been dismissed on this short ground alone. In support of his submissions learned counsel has relied upon Naya Daur Motors (Pvt.) Ltd. v.
2. Federal Investigation Agency, C.B.C., Karachi and another 2000 MLD 1384, Burewala Textile Mills Ltd., Burewala v. Zeenat Textile Mills Ltd., Lyallpur and 2 others PLD 1978 SC 305, National Petrocarbon (Pvt.) Ltd. And 2 others v. Registrar of Trade Unions and 6 others 1989 CLC 1975 and PLD 1971 SC 677.
3. 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.
4. 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. Secondly, learned counsel has referred to the application under Order VII, Rule 11, C.P.C. Filed by the appellant, which was also apparently not allowed vide the impugned order. Per learned counsel as a copy of the freezing order dated 13-8-2000 was filed alongwith the said application, the plaint could not be rejected on this basis as the said order was not a part of the plaint. 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 also the present appeals. In support of his propositions learned counsel has relied upon Central Cooperative Bank Ltd.
5. Sargodha v. Ahmed Bakhsh PLD 1970 SC343. As regards the other authorities cited by Mr. Munir A.
6. Malik appearing for the appellants on the issue whether any criminal proceedings can be challenged by virtue of a Civil Suit, learned counsel has submitted that those cases are distinguishable as the facts are different. Mr: S. Tariq Ali appearing for the Federation of Pakistan and Mr. Muhammad Sarwar Khan, learned Additional Advocate-General, have adopted and supported the arguments of Mr. Muneer A. Malik. 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 would be read in every statute, although not specifically provided therein.
7. 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 may 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. Next it would be seen that section 56(e) of the Specific Relief Act specifically enjoins that an injunction cannot be granted to stay proceedings in any criminal matter. By virtue of the impugned order although the proceedings before the learned Accountability Court have not been stayed, however, the learned Single Judge has upheld the maintainability of the suits and decided to investigate the issue before him viz. Whether the property is benami and if so whether it can be attached and ultimately sold if the charges against the accused are proved. In our opinion, these are the issues which the learned Accountability Court would be called upon to answer once the matter went to trial before it, in so far as the properties of the Private Respondents are concerned.
8. Thus, assumption of jurisdiction in the matter virtually amounts to usurping the jurisdiction of the trial Court regarding the issues of ostensible ownership of the properties and the sources of money by which such properties were acquired because obviously both the Courts cannot proceed to decide this issue simultaneously. Consequently, we are of the opinion that embarking upon an inquiry as to the ostensible ownership of the properties and the source of money would be in violation of section 56(e) of the Specific Relief Act, which particularly prohibits grant of any injunction to stay proceedings in a criminal matter. Reference in this connection can be made to National Petrocarbon (Pvt.) Ltd. And 2 others v. Registrar of Trade Unions and 6 others 1989 CLC 1975 and Burewala Textile Mills Ltd., Burewala v. Zeenat Textile Mills Ltd., Lyallpur and 2 others PLD 1978 Lahore 305. '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 statutory 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 relative 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. A somewhat similar provision was enacted by virtue of section 7 of the Offences in Banks (Special Courts) Ordinance, 1984 which provides that after the Special Court has taken cognizance of a scheduled offence alleged to have been committed by an accused person such person or any relative of such person or other person on his behalf shall not without the previous permission in writing by the Special Court, transfer, or create a charge on any immovable or movable property owned by him or in his possession while proceedings- are pending before the Special Court. In Naya Daur Motors (Pvt.) Ltd., v. Federal Investigation Agency, C.B.C., Karachi and another 2000 MLD 1384, a learned Single Judge of this Court while considering section 7 of the aforementioned Ordinance had come to the conclusion that the said section read with section 8 of the Ordinance contemplates that the mere possession of any property by the accused or by his relatives/associates would give rise to the presumption that such property was ill-gotten and proving otherwise would lie upon the accused or his relatives/associates. In our view, section 7 of the Offences in respect of Banks (Special Courts)
9. Ordinance, 1984 is in para materia with sections 12 and 13 of the National Accountability Bureau 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 be to 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 proceedings on this issue, which is the main issue before it.
10. ' 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 the same. Order accordingly.
11. 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.