' SHAHID ANWAR BAJWA, J.---The facts giving rise to this petition, as stated in the petition, are that petitioners are Directors of a Company by the name of Privilege Farms (Pvt.) Limited. M/s. National Insurance Company Limited (NICL) invited proposals for purchase of land for development of Housing Colony/ Commercial Estate through public notice printed in newspapers on 13-12-2009.
M/s. Privilege Farms (Pvt.0 Ltd. Submitted a bid along with site plan offering 803 Kanal of land for sale. NICL Negotiated the price and the price was ultimately settled between the parties.
Consequently NICL got published a public notice in newspapers on 1-2-2010 inviting objections to the purchase of the land offered by M/s Privilege Farms (Pvt.) Ltd.. After codal formalities Board of Directors of NICL approved the purchase, sale-deed was executed and an amount of Rs.1686.3 Million was paid by NICL to Privilege Farms (Pvt.) Ltd. On May 7, 2010 a letter was written by Additional Director (Staff) of National Accountability Bureau (NAB) to Manager of Dubai Islamic Bank, Gulberg Branch Lahore, where amount of sale consideration paid by the NICL to Privilege Farms (Pvt.) Ltd. Was lying deposited in various accounts. The letter reads as under: "Subject: Inquiry Against Officials of National Insurance Company Limited (NICL) and others.
1. ' It is informed that during the process of inquiry it came on record that an amount of Rs.1686 Million was transferred in the Account of M/s Privilege Farms (Private) Limited maintained at Dubai Islamic Bank Gulberg Branch, Lahore against purchase of 803 Kanal 19 Marla land by NICL.
2. In order to maintain the current status till the finalization of inquiry and decision by the Competent Authority, cautioned be imposed under section 23 of NAO 1999 on the accounts of M/s. Privilege Farms (Pvt.) Limited, as well as on the personal/joint accounts of its Directors maintained at your Branch."
2. This letter was followed by another letter dated May 11th 2010. This letter reads as under:- "1. The continuation to the Bureau letter No,1182/IW-ICO-A/TNAB Sindh/2010/1061 dated 7 May 2010 it is directed that the amount lying in the accounts of M/s Privilege Farms (Pvt.) Limited along with personal and joint accounts of its Directors maintained at Dubai Islamic Bank Gulberg Branch, Lahore shall not be transferred as defined in section 23 of NAO 1999, till the finalization of inquiry proceedings and decision of competent authority."
3. This Constitutional Petition has been filed to challenge and impugn these two letters issued by NAB. Comments were filed by NAB. It was stated in the comments that on an application by one Asif Ahmed submitted before the Hon'ble Chief Justice of Pakistan, the Hon'ble Chief Justice of Pakistan ordered that the matter be referred by the Chairman NAB to Director General NAB Punjab and Sindh, with direction to conduct discreet enquiries in this matter and submit report to the Supreme Court. It is further stated in the comments that on receipt of the letter the Chairman NAB forwarded the case to the Director General NAB Sindh for compliance of the order passed by the Hon'ble Supreme Court and a formal inquiry was ordered by Director-General Nab Sindh, The Investigating Officer submitted his report in which he pointed out various irregularities and it was in view of such a situation that after approval by the Chairman NAB two letters impugned in this petition were issued.
4. Learned counsel for the petitioner firstly contended that no approval has been granted by the Chairman NAB. Consequently vide order dated 16-6-2010 Deputy Prosecutor General NAB was directed to place on record a copy of the order of the Chairman on the basis of which impugned letters are said to have been issued. In compliance of this order documents were placed on record and from the documents it prima facie appears that Chairman NAB has granted approval for "freezing of the said accounts".
5. When confronted with this situation learned counsel for the petitioner submitted that assuming that the approval has been given by the Chairman NAB, the Chairman did not have any such power under section 23 and if at all he could have issued an order under section 12 and that order would ensure for a maximum 15 days unless confirmed by the Court where reference under the National Accountability Ordinance, 1999 shall be sent by the Chairman NAB. Learned counsel submitted that no reference has so far been sent. He, therefore, prayed that two letters in this petition be set aside and the bank accounts be de-frozen and amounts lying therein be released.
He relied upon Khan Muhammad Mahesar v. National Accountability Bureau, 2010 PCr.LJ 579, Khan Asfandyar Wali and others v. Federation of Pakistan through Cabinet Division, Islamabad and others, PLD 2001 SC 607, Ghulam Hussain Baloch and another v. Chairman, National Accountability Bureau, Islamabad and 2 others, PLD 2007 Karachi 469.
6. Mr. Muhammad Aslam Butt learned DPG NAB defended two letters and submitted that huge amount of public fund is involved and the order has been passed in accordance with the usual practice of NAB.
' Both the learned counsel however agreed that there is no case law on the point where the provisions of both sections 12 and 23 of the National Accountability Ordinance, 1999 (hereinafter called the Ordinance of 1999) have been considered. He however relied upon First Pak Modarba v.
NAB, Chief Executive Secretariat II, Constitution Avenue, Islamabad and another, PLJ 2005 Kar. 96 (DB).
7. We have considered the submissions made by learned counsel and have also gone through the record as well as the case law cited at the Bar.
8. Relevant provisions of the Ordinance of 1999 are reproduced as below:- Section 12. Power of the Court to freeze property.---
(a) The Chairman NAB or the Court trying an accused for any offence as specified under this Ordinance may at any time, if there appear reasonable ground 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)..
(c)..
' 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 Ordinance shall be sent by NAB Chairman."
' Section 23. Transfer of property void.---(a) Notwithstanding anything contained in any other law for the time being in force after the Chairman NAB has initiated an inquiry or investigation into any offence under this Ordinance, alleged to have been committed by an accused person, such accused person or any relative or associate of such person or any other person on his behalf, shall not transfer by any means whatsoever, or create a charge on any property owned by him or in his possession, while the inquiry, investigation or proceedings are pending before the NAB or the Court and any transfer are pending before the NAB or the Court and any transfers are pending before the NAB or the Court and any transfer of any right, title or interest or creation of a charge on such property shall be void.
(b) Any person who transfers or creates a charge on property in contravention of sub-section (a) shall be punishable with rigorous imprisonment for a term, which may extend to three years and shall also be liable to fine not exceeding the value of the property involved: ' Provided that such transfer of any right, title or interest or creation of a charge on such property shall not be void if made with the approval of the Court, subject to such terms and conditions as the Court may deed fit."
9. A combined reading of the above two provisions indicates the position in law to be as under:--
(1) Under section 12 power available to the Chairman NAB as well as the Court trying an accuse( for an offence under the Ordinance of 1999 to order freezing of his property or a part thereof whether in the possession of the accused a any of his relatives or associates a any person on his behalf.
(2) Under the first proviso if such freezing order is passed by the Chairman NAB that order can enure for a period of maximum of 15 days unless it is confirmed by the Court where the reference under the Ordinance shall be sent by the Chairman NAB.
(3) Section 23 bars transfer by any means whatsoever or creation of charge on property when an inquiry or investigation or proceedings are pending before NAB or the Court.
(4) If in violation of section 23 any person transfers any property or create a charge over it he shall be liable to be prosecuted and if found guilty shall be liable to be punished to imprisonment which may extend to three years as well as fine.
(4A) However, if transfer etc., is made with the permission of the Court it shall be a valid transfer.
(5) There appears to be no power available to Chairman NAB to pass any order under section 23.
Section 23 is a self-executing section and it creates an offence.
' Therefore, any person who violates the provisions of section 23 renders himself liable to prosecution and if found guilty, to punishment. But that is different from saying that Chairman NAB has any power under section 23 to freeze any account. We have not been able to discover any such power in section 23. The power of Chairman NAB to freeze any property does not flow out of section 23. It flows out of section 12 and the section clearly specifies a maximum period of 15 days for the life of such an order of freezing passed by the Chairman NAB. Such order of Chairman NAB can go beyond 15 days only and only if it is confirmed by the Court where reference shall be filed by the Chairman NAB.
(6) The question before Division Bench of this Court in Khan Muhammad Mahesar's case (supra) was that reference was against one accused who was shown Benami owner of properties of the petitioner. On intimation by the NAB authorities concerned, Registrar refused to allow the petitioner to alienate or otherwise deal with the properties. Petitioners application under section 23 was dismissed by the NAB Court. The High Court observed that there was nothing on the record which at least prima facie could establish link or connection between the accused and properties of the petitioner. The question involved in the reported case, is not germane to the question involved in the present case. The question in the present case is whether Chairman NAB can issue freezing order for an indefinite period under section 23. In Khan Asfandyar Wali's case (supra) it was held that the prohibition contained in section 23 is not in violation of Articles 2-A, 23, 24 and 25 of the Constitution. It was further held that section 23 is of inter locatory nature and the Supreme Court directed Government to make suitable amendments in sections 23 to permit transfer of property with the permission of the Court. Such was subsequently done through Ordinance XXXV of 2001 by insertion of proviso to section 23. In Ghulam Hussain Baloch's case (supra) what was under consideration of the Court was, primarily, provisions contained in section 19 of the National Accountability Ordinance.
(7) On the other hand, case of First Pak Modarba was relied upon by the DPG NAB. In this case by consent it was ordered that the petitioner company would be allowed to operate its accounts with the respondent bank. However, it was also ordered that since rights of individuals are involved the NAB authorities shall move Accountability Court for obtaining freezing order.
(8) There is clear and marked distinction between the provisions contained in section 12 and those of section 23. Section 12 authorises the Chairman, acting on his own to freeze the property of an accused person. Obviously such freezing of property is for a maximum period of 15 days unless confirmed by the Court. So there is power to freeze: not a drop can enter and not a trickle can escape. On the other hand, section 23 declares "transfer by any means whatsoever or create a charge on any property owned" by the accused person or in his possession. Thus, what falls within the mischief of section 23 is `transfer' and 'creation of a charge'. Thus, if an amount is held in a bank account section 23 does not freeze that bank account. That bank account can be operated, both in terms of deposits made in it and withdrawals from it but for legitimate and bona fide needs, in the case of the present context, of the company. Thus, the company, Privilege Farms (Pvt.) Ltd., can B withdraw money from the account for the purpose ofmeeting its expenses and other legitimate needs but it cannot transfer the fund or create a charge on them. Concomitantly an obligation is also created in respect of the Bank: it must satisfy itself before allowing any withdrawal that the withdrawal is not for the purpose of a transfer. Therefore, the scope of prohibition under section 23 though automatic and without any order by the Chairman NAB or the Court is of a far more limited extent than the order of freeze under section 12 which order is a complete and total bar of any movement into and or any withdrawal from the bank account in question.
(9) In the present case the first letter cautioned the bank under section 23. The second letter which is dated 11th May, 2010 merely reiterated the first. But if a direction was given to the bank that it shall not "transfer" the funds in the account till finalization of inquiry proceedings and decision of competent authority. It may be pointed out that even the second letter merely talked of "transfer" and did not say that the account be frozen. As far as caution is concerned, since an inquiry is pending in the NAB no wrong can be ascribed if the NAB informs the bank that inquiry in respect of amount in a particular account is pending in the NAB. Thereafter, section 23 shall suo motu kick in and if any transfer is allowed or charge is allowed to be created on it, the bank, who could but for conveying of this information, otherwise have claimed that it had no knowledge of the pending inquiry, stands informed of a particular inquiry. Therefore, note of caution as conveyed in the letter dated May 7, 2010 does not only inform the Bank, of pendency of a investigation and inquiry and does nothing more.
10. As far as, letter dated 11th May, 2010 is concerned, the Chairman NAB has no authority to direct the bank or any person not to do a particular act or to freeze an account except in exercise of powers conferred upon Chairman NAB under section 12. As we have stated above such power is available to the Chairman NAB only for a period of 15 days and order passed by the NAB comes to an end latest upon expiry of 15 days except when it has been confirmed by the Court having jurisdiction. However section 23, independent of any order or direction by Chairman NAB, imposes an obligation on "any person", which obviously includes a bank where the money in question is parked, not to transfer etc. Therefore, by using the word 'direction' in letter dated May 11, 2010, though NAB official might have resorted to a 'terminological inexactitude' (to borrow a phrase from Churchill) but had not made any difference in any material sense.
11. Since substantial sum of money of public fund is involved in this matter, this petition is disposed in the following terms:-
1. Letters dated 7th May, 2010 and 11th May, 2010 are merely in the nature of caution under section 23 and the Bank stands informed of E existence of an inquiry.
12. However since an inquiry is pending it will be available to the Chairman NAB to pass an order under section 12 and that order if passed shall enure only and only in accordance with the provisions contained in that section.