Muhammad Ahsan Bhoon, J.--This appeal is directed against the judgment dated 02.11.2007 passed by the learned Judge, Accountability Court, Lahore vide which the application under Section 17 of the NAO 1999 for the return of vehicles and jewellery etc. has been accepted.
2. Precisely the facts giving rise to this application are that Babar Ali Kharal, respondent herein, an Assistant in LDA was indicted and incarcerated on 22.03,2007. The allegation against him was that he defrauded members of public at large by selling forged and fictitious LDA files. On the same day an application under Section 96/98 Cr.P.C. was moved to the learned trial Court by the NAB authorities for issuance of search warrant. On the same day the learned trial Court directed the Special Judicial Magistrate, Model Town, Lahore to Issue search warrant authorizing Lt. Col. (R)
Tallat Rashid Mir. Senior Investigation Officer, NAB, Lahore to conduct search of House No, 286B/H; A. Johar Town, Lahore. Consequently search was conducted which led to the recovery of some vehicles, golden ornaments, cash etc. from the house of the accused. After the completion of Investigation Reference No, 34/2007 against the Respondent No,1 and his co-accused was filed which was entrusted to Accountability Court No,IV, Lahore. But in the aforesaid reference no reference was made to the aforesaid recovery. The accused filed an application for the return of the aforesaid articles etc. to the aforesaid learned Court, which was dismissed on the ground that the reference pending in that Court had no nexus with the aforesaid recovery, which was subject matter of another inquiry.
3. Learned counsel for the appellant contends that the impugned order passed by the learned Administrative Judge Accountability Court, Lahore is illegal, as the import of Section 12 of NAO vis- a-vis, the relevant provisions of Sections 516-A to Section 525 Cr.P.0 were not appreciated as the above said provisions of law were only applicable to the instant case; the learned Judge Accountability Court passed the order, which was beyond his jurisdiction. He further contends that the application filed by respondent was not maintainable as the learned Judge Accountability Lahore dismissed previous similar application of respondent.
4. On the other hand, learned counsel for the respondent contends that the appeal is not maintainable against interlocutory order and has also supported the order passed by the learned Administrative Judge, Accountability Court, Lahore,
5. We have heard the learned counsel for the parties and gone through the relevant provisions of law. For facility of reference provisions of Section 12 of the NAB Ordinance is re-produced below:-- Power to freeze property. (a) The Chairman NAB or the Court trying 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 sub-Section (a) is a debt or other moveable property, the freezing may be made:-- (i)..................................................
(ii)..................................................
(iii)..................................................
(iv) ..................................................
(c) ..................................................
(i).....................................................
(ii) by all or any 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 Order shall be sent by Chairman NAB: Provided further that notwithstanding (anything to the contrary contained therein) 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 (* * *) electronic media as the Court may deem . proper having regard to the facts and circumstances of the case.)
(d) ..........................................................
(e) ..........................................................
(f) The order of freezing mentioned in sub-sections "a" to "e" shall remain operative 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 by NAB, whereafter it shall be subject to an order by the Court in which an appeal, if any, is filed.)
The above said provisions would show that same are self sufficient and exhaustive provisions of law which confer powers to the NAB authorities for the purpose of freezing/seizing, attachment etc., of property of an accused or any part thereof, whether in his possession or in possession of his relative, associate or person on his behalf but at the same time, provision of Section 12 ibid place certain obligations on the authorities to keep a check and balance to avoid misuse of authority. It is mandatory that if any property is frozen/seized by the NAB authorities the order has to be passed by the Chairman, NAB for freezing/seizure of the same, which is non-existent in the present case.
Secondly, even if an order of seizure/frozen. attachment or prohibition is passed by the Chairman NAB that shall remain enforce for a period not exceeding 15 days unless confirmed by the Court where the reference against the accused was sent but there is no confirmation by the Court concerned regarding the above claim/seizure by the NAB authorities, so there retaining property of respondent is absolute violation of proviso to Section 12(W) of National Accountability Ordinance, 1999. We observe here that it cannot be left at the discretion of NAB authorities that they may choose according to their wishes any provision of law and can apply the same for their own benefit or justify their illegal actions to deprive an individual from his property and keep with them as impending sword for the purpose of blackmailing. Rather they should being a statutory Agency of the State must be more careful in process of accountability while using their powers and any departure from law would pollute the whole system which may shake the confidence of public at large.
6. Admittedly, the impugned order is an interlocutory order in the Reference under NAB Ordinance, which was being investigated, and Proviso to Section 32 (a) places complete bar for filing of appeal against an interlocutory order. Proviso to sub-section (a) of Section 32 is reproduced below for facility of reference:-- "(a) Any (person convicted or the Prosecutor General Accountability, if so directed by the Chairman NAB) aggrieved by the final judgment and order of the Court under this Ordinance may, within ten days of the final judgment and order of the Court prefer an appeal to the High Court of the Province where the Court is situated.
(Provided that no appeal shall lie against any interlocutory order of the Court.)
We observe that the legislature in its wisdom had prohibited right of appeal against an interlocutory order, the interpretation of the above said provision cannot be construed otherwise, as per the wishes of National Accountability Bureau authorities. Because the order impugned is not even final in nature as Reference is still pending with NAB.
The above said provision show that appeal filed by the appellant/NAB is in competent.
7. As far as contention of the learned counsel for the appellant qua earlier dismissal of the application is concerned, the same was filed by Respondent No,1 in the NAB Court, which was seized with another Reference Bearing No,34 of 2007 in which the learned Court observed that the subject matter of the application was not relevant with Reference aforementioned, due to this reason the earlier application was dismissed and thereafter,. Respondent No, 1 filed instant application before the learned Administrative Judge, Accountability Court, Lahore, who after considering pros and cons of the case passed the impugned order which is in accordance with law.
8. For what has been discussed above, this appeal having no merit is dismissed.