Asma Chishty (Petitioner) VS NAb and Ors (Respondent)

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rN T'EIE HIGH COUR? OF SINDH, I{ARACHI Before:- Mr. Justice Ahmed Aii M. Shaikh, C.J.

Mr. Justice Mohammad Karim Khan Agha, J Fetitione r numb er. name of the 'a etitioner and his counsel.

C.P."No,D-7a66 of 2OtZ Asma Chishty V. NAB through its Chairman & another. L"*" Chishty W/o Shaheryar Arshad Chishry (petitioner) Through Mr. Faisal Zaffx. Advocate.

Counsetr fo r the Reso ondents

Mr. Mohammed Altaf, Special prosecutor, NAB. itlr. Asif Rasheed, Advocate for DHA Respondent No.2 Date of hearing: 1i.0i.2018.

Date of order: 19.01.20ig.

ORP^ER

Mohammad Karim Khan Agha. J: By this order, we propose to dispose of the above petition filed on behalf of the petitioner against the respondents with the following prayers:

PRAYERS

a. Declare the "caution" marked by the Respondent No.2 vide letter dated OB.O2.2O1O in the light of Respondent I{o.1/NAB, Sindh letter dated Dec. 17, 2009 and the regretted letter dated August lB, 2017 issued by the R.espondent No.1 as unlar,vful, unjust, illegal, unlvarranted, not born out of iaw and without any force having been vested with NAB.

b. Direction be given to the respondents to act fairly, justly, in accordance with larv and Respondents shall be restrained from interfering in the lawful possession and ownership of the petitioner's property and remove the "caultion" marked in respect of the property measuring

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100 sq. ft. yards (Approx.) bearing No'107-C, Kh-e- Shaheen Street, Phase-VIII, situated at Pakistan Defence Officers Housing Authority (DHA)' Karachi' may C Grant such further or additiona-i relief as this Court

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d.eem appropriate in the circumstances'

2.Brief facts of the petitioner's case as per contents of the in petition are that the petitioner and her family is engaged different businesses. 'lhat the petitioner is bona fide and

(Approx') larvful owner of the plot measuring 1OO Sq' Yards bearing No.1O7-C, Kh-e-Shabeen Street, Phase VIIi' situated

(the at Pakistan Defence officers Housing Authority, Karachi property) and the Property was legaIly Purchased bY the

petitioner for a total consideration of Rs'26'600'000/

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Shop through M/s. Kashni Estate, Real Estate Consultant' no.A-1, F1-4, Abdullah apartment block 16' Gulistan-e- Jauhar, Karachi. That the petitioner on account of business after reasons often spends time outside of Pakistan anC returning on one occasion, to hei- horror' found through a

had Ietter from the DHA dated lO-O2-2010 that the property vide been cautioned by the DHA on the instructions of NAB NAB's letter dated 17-12-2OOg a-fter she had purchased the

propertlr

Learned counsel for the pet'itioner submitted that she

carried out was a bora fide purchaser of the property' and had fuil due diligence before purc"iasing the same and under to have these circumstances the NAB had no lawful authority the :he property caurttoned; the petitioner approached k-

respondent no.1 for removal of "caution" but the same was

prayer declined vide letter dated 18.08'2017 and as such her reproduced above should be allowed and the concerned authorities ordered to remove any caution which had l- been

itlegally placed over the property'

NAB

4.On the other harrd learned Special Prosecutor opposed the' lifting of the caution from the property'

as it was According to him the property had been cautioned property which was subject to NAB Reference No'24/2000 against accused Choudhry Muhammad Sharif and

sources of IViuhammad Haneef in an assets beyond known had not income case' He further submitted that the matter been hit by the NRO and relied on the case of Dr' Mobashir

1)in this Hassan V Federation of Pakistan (PLD SC 2010 respect.

We have considered the submissions of learned counsel

record and for the parties, perused the materiai available on the case law cited by them at the bar' initiaily

6.It would seem that the property in question was NAB reference' cautioned pursuant to the above referred getting to the However a time line of events are significant in -t accused in bottom of the matter. lt is not disputed that the by the the aforesaid reference stood acquitted on 11-09-2008 concernedaccountabilitycourtafterpromulgationoft}re NRO. Thus in our view on that date any caution over the was even property 'cy NAB ceased to exist' The property

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the released by the court on 15-01-2009' It then appears from record tl:at after carrying out the necessary due diligence including advertising her intent to purchase the property in the news papers and informing the DHA and obtaining an NOC from the concerned authorities that the petitioner purchased the property free from all encumbrances as a bona fide purchaser for valuable consideration on 19-05-2009' There is no material on record to suggest that she was

related to the accused or even knew that the property had been the subject matter of a NA}S reference or had been

cautioned by the NAB. The NRO was struck down by the

Hon'ble Supreme Court in the case of Dr' Mobashtr Hassan

(Supra) on 16-12-2009 (after the property had been released purchased by the accountability court and after the petitioner the property) and in effect the references u'hich had been subject to the NRO were revived to the position which they

had been prior to the promulgation of the NRO' Based on the above time iine and the particular facts

why and circumstances of this case however we see no reason a bona the petitioner should suffer on account of her being fide purchaser of the property after carrying out her due

and d.iligence when the property was free from encumbrances even released by the court during the period when the NRO

was in operation. Even othet'wise during the course of

arguments learnecl special prosecutor for the NAB very

candidli,- conceded that NAB cioes not possess any material to

previous caution ' show that the petitioner was aware as to the

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marked on the property. Thus, it is crystal ciear that the petitioner seems to have been unaware that the property was originally subject to a NAB reference and was at one time + cautioned and furthermore she would not have been aware that cases under the NRO rvould have been revived in the future after her purchase of the property. In addition it appears that the accused in the aforesaid reference have been acquitted under Section 265-K Cr.P.C. by the Accountability Court No.1, Karachi vide judgment dated March 09, 2OiO after the revivai of the reference once the NRO had been struck down and in our view simply because NAB had filed an appeal against acquittal it would not give it the right to again caution a property which now belonged to the petitioner and had been purchased in her capaciry as a bona fide purchaser.

In our view it would not have been the intent of the Supreme Court in the Dr. Mobashir Hassan case (Supra) to penalize persons such as the petitioner who were unwittingly caught in the period of the NRO being promulgated and it being struck down and to continue with the caution over the property in the particular facts and circumstances as narrated above would in our considered view not serve the ends of justice.

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g. As such rve al1ow the petition and its prayer clause and order that any caution against the roperty be immediatelY removed by the respondents

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