ORDER
SHEET
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Date Order
with signature of Judge
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PRESENT: MR.
JUSTICE SYED HASAN AZHAR RIZVI
MR. JUSTICE SALAHUDDIN PANHWAR_
DATE OF HEARING 02.08.2012
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Mr. Shoukat H. Zubedi, Advocate for the Petitioner.
Mr. Dilawar Hussain, Standing Counsel for Respondent
No.1.
Mr. Noor Mohammad Dayo, Spl. Prosecutor NAB.
Mr. Ch. Hameed Ahmed, Advocate for the Respondent
No.3.
Syed Hasan Azhar Rizvi J;
By the instant petition,
petitioner has impugned the order dated 21.05.2012 passed by the Accountability
Court No.IV Sindh at Karachi in Reference No.20/2005 declining the release of
the plots of the petitioner on the ground that said plots are not the part and
parcel of the reference and they have not been mentioned in the charge.
Precisely
the facts of the case are that on 18.04.1997 Inspector Mushtaq Ahmed Saheto
registered FIR No.05/1997 against several persons excluding the present
petitioner for offences under section 409/420/218/468/471/34 PPC read with
Section 5(2) of Act II of 1947. After completion of investigation of the case,
twenty challans were submitted on 31.08.1998 for various offences against the
accused persons in the Court of Special Judge Anti-Corruption, Central-I. The
said Court had taken cognizance but before recording of evidence the Chairman
NAB vide Application dated 19.07.2005 applied for transfer of the said cases to
the Accountability Court, Karachi under section 16(A) of the NAB Ordinance
whereupon the said cases were transferred to the Accountability Court vide
order of Special Judge dated 13.09.2005. Present Petitioner was shown as
accused in Challan No.30/1998 and 23/1998, which were subsequently amalgamated
and numbered as Reference No.20/2005 which included all the twenty
challans/references.
In
the year 1979/1980 the Petitioner had purchased 2 plots in the Defence Officer
Co-operative Housing Society, Karachi, which also transferred the said plots
bearing No.29, 32nd A Street, Phase-B VI and Plot No.128, 29th
Street Phase V/I. The said plots were purchased 17 years prior to registration
of the FIR while the incident is shown to have taken place in the year 1990
which is 10 years after the purchase of said plots, therefore, by any stretch
of imagination, the said plots cannot be the subject matter of any offence. On
promulgation of NRO (National Reconciliation Ordinance) the case of the
Petitioner was terminated by the Accountability Court and also ordered for
release of all the plots as mentioned in the letter of Respondent No.3 dated
22.04.2009 addressed to the Petitioner. After release of the said three plots,
the Respondent No.3 illegally assumed jurisdiction and re-freezed the said
three plots by observing that said plots have been “caution marked” in other
words, the Respondent No.3 has totally deprived the Petitioner from disposing
her plots in any manner including sale, gift, lease, mortgage, etc without any
Court Order or direction for re-freezing the same.
It
is contended by the learned Counsel for the Petitioner that neither the NAB Authorities
nor DHAhad any authority to prevent the Petitioner from dealing with her plots.
He further contended that action of the NAB Authorities is in violation of
Article 23 of the Constitution of Pakistan, which provides that every citizen
shall have the fundamental right to acquire, hold and dispose of property in
any part of Pakistan. He urged that three plots of the Petitioner are not
involved in any case, nor subject matter of any NAB Reference nor any direction
was given by any Court to the Respondent No.3 for freezing the same. It is
further contended that depriving the Petitioner of her plots is also violative
of Article 24 of the Constitution. Learned Counsel for the Petitioner further
contended that acts of the NAB Authorities and Respondent No.3 are illegal,
ultra vires and without lawful authority and liable to be set-aside by this
Court in exercise of its constitutional jurisdiction with exemplary costs. He
has relied upon Chaudhry Aamir Ali versus the State reported in 2002 YLR 1902.
Mr.
Noor Muhammad Dayo, Senior Prosecutor NAB has vehemently opposed the
submissions made by the learned Counsel for the Petitioner and submitted that Petitioner
is an accused in the NAB Reference. He further submitted that the case of Petitioner
being Reference No.20/2005 is outcome of FIR No.05/1997. The cases of all the
accused persons have already been merged/consolidated/amalgamated in Reference
No.2O/2005. Petitioner was absconder and declared proclaimed offender vide
order dated 16.04.2010. However, after obtaining bail on 04.05.2011 in C.P.
No.D-1342/2011 Petitioner is appearing before the Accountability Court in the
aforementioned Reference.
Mr.
Dilawar Hussain learned Standing Counsel appearing for Respondent No.1 has
adopted the arguments of learned Senior Prosecutor NAB.
Learned
Counsel for the Respondent No.3 in compliance of the direction of this Court
produced letter dated 07.01.2010 whereby Respondent No.2 informed the
Petitioner that in pursuance of the orders passed by the Hon’ble Supreme Court
of Pakistan the NRO 2007 was declared void and ab-initio therefore, three plots
of the Petitioner refered to above have been declared “caution marked”.
We
have heard Mr. Shoukat H. Zubedi, Advocate for the Petitioner, Mr. Dilawar
Hussain learned Standing Counsel for Respondent No.1, Mr. Noor Muhammad Dayo,
Senior Prosecutor NAB, Mr. Ch. Hameed Ahmed, Advocate for the Respondent No.3
and perused the material available on record with their assistance.
It
is apparent from the face of record that plots No.29, 32nd A Street,
Phase BV-I measuring 800 square yards was mutated/transferred in the name of
Mrs. Nighat Majeed vide letter dated 11.03.1980, so also Plot No.128, 29th
Street, Phase-VI, measuring 1000 square yards was mutated/transferred in favour
of the Petitioner vide letter of Respondent No.3 dated 21.07.1980 whereas third
Plot bearing No.156, 26th Street, Phase-VIII, DHA admeasuring 2000
square yards was transferred on 22.07.1988 by the Respondent No.3. Transfer
orders are enclosed as Annexures “F/1, F/2 and F/3 at pages 63, 65 and 67 with
the Memo of Petition. In the case of Chaudhry Aamir Ali versus the State reported
in 2002 YLR 1902, it is held that:-
“Any property acquired by a
person before 1.1.1985 cannot form subject-matter of a charge an Accountability
Court under the NAB Ordinance, 1999”.
We
have found no document to the extent that aforementioned plots are the subject
matter of any Reference before the NAB and no freezing order in respect of the
aforesaid plots was placed on record or referred to by learned Senior
Prosecutor NAB. It is an admitted position that Plots No.29, 32nd A
Street, Phase-B VI measuring 800 square yards in DHA Karachi and Plot No.128,
29th Street Phase V-I, DHA Karachi admeasuring 1000 square yards
were mutated by the Respondent No.3 on 11.03.1980 and 21.07.1980 respectively
and no material has been brought on record by the Respondents No.2 and 3 by
which any order for freezing three plots of the petitioner was passed by the
Chairman NAB. Respondent No.3 in its letter dated 07.01.2010 enclosed as
Annexure “I” at page 73 with the Memo of Petition without any basis or material
available with Respondents No.2 and 3 mentioned the properties of the
Petitioner “caution marked” thereby deprived the Petitioner from dealing with
the said plots in any manner including sale, gift, lease, mortgage etc.
Respondent No.2 without the order of any Court has no right or authority to
freeze or defreeze the plots of the Petitioner only at the request of the NAB
Authorities without any sufficient material on record. The action, on the part
of the Respondents No.2 and 3 by declaring the plots of the Petitioner
specially two plots which were purchased by the Petitioner in the year 1980, is
in violation of Article 23 and 24 of the Constitution of Islamic Republic of
Pakistan.
For
the reasons and grounds discussed above, we, by our short order dated
02.08.2012, set-aside the impugned order dated 21.05.2012 passed by the
Accountability Court-IV Sindh at Karachi in Reference No.20/2005 and have
declared that two plots of the Petitioner bearing No.29, 32nd A
Street, Phase-B VI, DHA admeasuring 800 square yard and Plot No.128, 29th
Street Phase VI, DHA, Karachi admeasuring 1000 square yards, which were
allotted to the Petitioner on 11.03.1980 and 21.07.1980 and are not subject
matter of Reference No.20/2005. The Petitioner is at liberty to deal with the
said properties/plots without any interference of Respondent No.2 and 3 subject
to furnishing personal bond in the sum of Rs.10 Million to the satisfaction of
the Nazir of this Court.
J U
D G E
Karachi
Dated : _______________ J
U D G E