1. ' MUNIB AKHTAR, J.--- By means of the short order dated 6-1-2010, which reads as follows:--- "For the reasons to follow, impugned order dated -3-9-2009 passed by the Accountability Court No,IV Karachi in NAB Reference No,16 of 2008 on miscellaneous application for the release and exclusion of the petitioner's property is set aside, however subject to furnishing personal bond in the sum of Rs,25,00,000 to the satisfaction of the Nazir of this Court. Subject to above, petitioner is at liberty to deal with the property. Petition stand disposed of."
2. ' We had allowed the instant petition in terms as stated in the said order, above. The following are our reasons for having done so.
3. ' The petitioner, who is an Advocate by profession, is the owner of the two properties listed in para-2 of the petition, namely, Shops Nos.3 and 6 on Plot No,11-C, Badar Commercial, Defence Housing Authority Phase-V, Ext. Karachi. The said properties were acquired by the petitioner in 1997, and the sub-leases were registered in his name in April 1998. The properties stand in the petitioner's name from that day till to-date. It appears that a Reference No,16 of 2008 has been filed against one Abdul Baqi Mehar, under the NAB Ordinance, 1999, and in that reference, the accused is shown as the Benami owner of the two properties referred to hereinabove along with other properties as stated in the reference. The concerned Registrar has been notified by the NAB authorities of the pending reference, which is now under trial before Accountability Court No,IV, Karachi and the Registrar is refusing to allow the petitioner to alienate or otherwise deal with the said properties in such manner as he may deem appropriate. It is stated that the petitioner wishes to dispose of either or both the properties as he needs money for some urgent personal engagements and that the intimation given to the Registrar by the NAB Authorities in terms of the aforesaid reference is causing him hardship and inconvenience.
4. ' Learned counsel for the petitioner submitted that the petitioner had nothing whatsoever to do with the accused Abdul Baqi Mehar and that the properties in question were the sole ownership of the petitioner and the accused had nothing whatsoever to do with the same He strongly contended that the petitioner was not holding the properties as Benami for the accused. He stated that the Investigating Officer had recorded the statements of not less than 20 witnesses under section 161, Cr.P.C. And that there was nothing whatsoever in the said statements as would in any manner link or implicate the petitioner or his properties with the accused, whether in the manner as claimed by the NAB Authorities or otherwise. He referred to section 12 of the NAB Ordinance and submitted that there was not, and had never been, a freezing order in terms of that section in respect of the properties in question. However, he then referred to section 23 of the NAB Ordinance in terms of which, once an investigation or inquiry has been launched against any person, any transfer or property owned by him or in his possession, shall be void and this bar extends to any transfer of properties by any relative or associate of the accused in respect of any property held by the latter on behalf of the accused. Learned counsel submitted that section 23 provides that any violation thereof is an offence punishable with rigorous imprisonment for a term that may extend to three years and is also liable to fine. However, the proviso to the said section 23 provides that any property that may come within the ambit thereof may be transferred with the approval of the Accountability Court and subject to such terms and conditions as that Court may deem fit to impose. He submitted that an application was made by the present petitioner to the Accountability Court No,IV (without prejudice to the petitioner's conditions that the accused had nothing to do with the said properties) seeking the release/exclusion of the same in terms of the proviso to section 23 of the NAB. However, by means of the order dated 3-9-2009, impugned herein, the Accountability Court dismissed the application. Learned counsel for the petitioner submitted that the Accountability Court had erred in law in dismissing the petitioner's application for the reasons already set forth hereinabove. He accordingly prayed that the impugned order be set-aside and that the petitioner be permitted to deal with his properties in such manner as he deemed fit.
5. ' Learned counsel appearing on behalf of the NAB, strongly opposed the present petition. He submitted that the impugned order was lawful and had been made the Accountability Court on due consideration of all the relevant facts and materials. He submitted that the reference specifically listed the two properties and stated that the same were held by the petitioner Benami for the accused Abdul Baqi Mehar. However, on a specific query from the Court, he could not point out any statement made by any of the prosecution witnesses in their statements under section 161, Cr.P.C. Referred to hereinabove. It was also brought on record that the proceedings before the Accountability Court are at the initial stage and not even the charge has been framed in respect of the reference in-question.
6. In our view the Accountability Court has erred in law in dismissing the petitioner's application and refusing to release properties in terms of the proviso to section 23. The learned Accountability Court seems to be overly impressed by the allegations made against the accused Abdul Baqi Mehar in the reference, which purport to show that the accused had accumulated assets, greatly disproportionate to his known sources of income. The learned trial Court failed to appreciate that the issue before it was much narrower and related only to the question whether there was any reasonable basis on which the allegations that the two properties in question were held Benami for the accused by the petitioner could be regarded as prima facie correct, and if so, whether any ground existed for the exercise by the Court of the discretion conferred upon it by the proviso to section 23. In this regard, learned trial Court referred on to only one fact, which was that the petitioner had introduced the accused to the Alamgeer Road Branch of the National Bank of Pakistan and that a cheque No,4337505 for Rs,100,000 had been issued there from by the accused in favour of the petitioner. On a query from the Court, it was brought on record that the said cheque was dated as of 13-5-2005. This fact was on the trial record and ought to have been noted by the learned Accountability Court. Quite obviously, a cheque issued on 13-5-2005, can hardly be regarded as indicating that the properties acquired many years prior thereto were held Benami for the accused. Furthermore, the cheque could have been issued for any number of plausible reasons and the mere fact that the petitioner had introduced the accused to the N.B.P. Branch aforesaid is also not something that (at least prima facie) would indicate that the petitioner had acquired properties for the benefit of the accused in 1997. Nothing else was on the record nor adverted to by the learned Accountability Court or in the submissions made before us.
7. In our view, therefore, the learned Accountability Court clearly erred in law in refusing and failing to exercise its jurisdiction under section 23 of the NAB Ordinance, 1999. The purpose of the said section is to ensure that an accused person who, having committed an offence under the said Ordinance, does not defeat any punishment to which he may be liable there-under by transferring out his properties or assets during the pendency of any investigation, inquiry or trial. However, that purpose cannot obviously be extended to include any third party who may have had some dealings with the accused and prevent such a person from dealing with his properties and assets in such manner as he may deem fit. In this context, it is important to keep the provision of Article. 23 of the Constitution in mind, which confers a fundamental right on every citizen to acquire, hold, or dispose of his property subject to any reasonable restriction imposed by law in the public interest.
8. The language of section 23 of the NAB Ordinance, 1999, if read and applied literally, is quite draconian and must-be construed in a manner that is consistent with and subject to the mandate of Article 23 i.e. That any restrictions imposed thereby are to be interpreted and applied in a reasonable manner. In the present case, there is nothing on the record which at least prima facie and at this stage of the proceedings would establish any reasonable link or connection between the accused and the aforementioned properties of the petitioner. Therefore, we are of the view that in the facts and circumstances of the present case, the learned Accountability Court ought to have exercised the jurisdiction vested in it under the proviso to section 23 and its failure to do so requires appropriate action by this Court in constitutional jurisdiction.
9. ' For the foregoing reasons the impugned order was set-aside by means of the short order dated 6-1-2010.