' SH. AHMAD FAROOQ, J.---Through the instant petition, under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner company has prayed for declaring the letter, dated 8-9-2010, as illegal and void, whereby the respondent No,2 has ordered the refund the whole amount, deposited by accused/Naseer Ahmad in the name of his wife, namely, Mrs. Lubna Naseer for purchase of a House No,2, Street No,16, measuring 5.46 marlas in "Eden Palace", situated in Moza Rakh Khumba, Tehsil and District Lahore, to the Chairman, NAB, through a pay order.
2. The learned counsel for the petitioner submitted that Mrs. Lubna Naseer entered into an agreement with Eden Developers (Private) Ltd./petitioner on 10-8-2006 for purchase of a house in consideration of Rs,45,44,184, in addition to payment of other utility connection charges, and the said amount was to be paid in instalments. The learned counsel for the petitioner company further submitted that so far Mst. Lubna Naseer has paid an amount of Rs,43,52,036 in instalments and a sum of Rs,2,27,148 is still payable by the said Mst. Lubna Naseer, prior to the delivery of the house in question. He maintained that the instalments, paid by the client to the company, are appropriated towards the cost and development of the land in the form of streets, electrification, sui-gas connections etc. And construction of building thereon. He claimed that, in fact, it was a sale price of a property, which could not be equated as a deposit of money in a Bank or any financial institution and as such, cannot be refunded to the Chairman, NAB. The learned counsel for the petitioner company argued that the amount, paid for purchase of a property, does not fall under the definition of "assets" or the "property", as given in the National Accountability Bureau Ordinance, 1999. Lastly, he argued that the NAB is only entitled to step into the shoes of respondent No,3/Mrs. Lubna Naseer in respect of the house for which the amount in question was deposited.
3. Conversely, the learned Special Prosecutor for NAB opposed the instant petition on the plea that the petitioner company is estopped from instituting the instant petition, as they earlier did not raise any objection to refund of the amount, paid by Mrs. Lubna Naseer, as and when ordered by the NAB subject to the clearance from the client and in accordance with the terms of the agreement, while respondent to letter of Director (IW-II) NAB, Punjab, dated 21-7-2010. He further submitted that Mrs. Lubna Naseer is wife of an accused namely, Naseer Ahmad, who has been found to have invested part of his crime proceeds with the Eden Developers through booking the house in dispute in the name of his wife/Lunba Naseer. He maintained that the accused/Naseer Ahmad has applied for plea bargain and his wife has voluntarily surrendered the amount, deposited by her with the petitioner company, as part payment of the liability of her husband.
4. Arguments heard. Record perused.
5. No doubt, Mrs. Lubna Naseer/respondent No,3 booked House No,2 in one of the schemes of the petitioner company, known as "Eden Palace", vide agreement dated 10-8-2006, in consideration of Rs,45,44,184, in addition to payment of other utility connection charges. It is also an admitted fact that the respondent No,3 has so far deposited an amount of Rs,43,52,036 in instalments against the cost of the house. However, during investigation by the NAB against the husband of said Lunba Naseer, it has transpired that the accused/Naseer Ahmad has invested part of his crime proceeds in the name of his wife/Lubna Naseer with Eden Developers/present petitioner, through booking of a house. The said accused/Naseer Ahmad has offered to enter into plea bargain and his wife/Lunba Naseer has voluntarily surrendered the amount, which he has deposited with the petitioner company for purchase of a house, and in this connection, she has submitted an affidavit.
The objection of the petitioner company that a sale price, paid by a customer, cannot be returned to a third party, i,e, NAB, is devoid of any legal force as the present respondent No,3 had only entered into an agreement to sell, which could not be equated with a sale deed. Needless to mention here that agreement to sell does not confer .Any right or title in the property and this condition is also specifically mentioned at serial No,16 of the agreement between the present petitioner and respondent No,3, dated 10-8-2006. Secondly, the NAB has not forced Mrs. Lubna Naseer to withdraw the amount, which she has deposited with the petitioner company, rather, Lubna Naseer herself voluntarily offered to pay the said amount as part payment of the liability of her husband for the purpose of entering into a plea bargain. Hence, it is not a case of freezing of the property by the Chairman, NAB, under section 12 of the National Accountability Bureau Ordinance 1999. Furthermore, the definition of "assets", as given in the National Accountability Bureau Ordinance, 1999, include the property held "benami" in the name of the spouse or relative, for which the accused cannot reasonably account for. It would be advantageous to reproduce hereunder the definition of "assets" as provided in section 5(c) of the National Accountability Bureau Ordinance, 1999:-- "Assets" means any property owned, controlled by or belonging to any accused, whether directly or indirectly, or held benami in the name of his spouse or relatives or associates, whether within or out side Pakistan, or for which [he] cannot reasonably account [for], or for which [he] cannot prove payment of full and lawful consideration. [Underlining is for Emphasis].
' Additionally, a "benamidar" has also been defined in the National Accountability Bureau Ordinance, 1999 as a person who ostensibly holds or is in possession or custody of any property of an accused on his behalf for the benefit and enjoyment of the accused.
6. In this case prima facie, the respondent No,3 had no known sources of income for depositing a huge amount of Rs,43,52,036 with the petitioner company in respect of booking of a house. The NAB Authorities not only found during the investigation that the house was booked by an accused/Naseer Ahmad in the name of his wife but also the amount, which has been so far deposited by the said wife of the accused, namely Lubna Naseer, is a part of the crime proceeds, acquired by the accused through cheating the public at large.
7. In view of above, the petitioner company cannot refuse to refund the amount, which has been deposited with them by respondent No,3, as the same has been declared a part of the crime proceeds. Likewise, the petitioner company cannot compel the NAB Authorities to step into the shoes of Mrs. Lubna Naseer, regarding her rights qua the house, which she booked vide agreement dated 10-8-2006.
8. The upshot of the above discussion and observation is that the letter, dated 8-9-2010, issued by respondent No,2, does not suffer from any illegality. Consequently, the instant petition is without any merit and the same is according dismissed.
9. However, the petitioner company, after refunding the amount to the Chairman, NAB in compliance with the letter, dated 8-9-2010, may take necessary legal proceedings against respondent No,3/Mrs. Lubna Naseer for the recovery of any amount, which they are entitled to claim from her in the light of clause 2(e) of the agreement, dated 10-8-2006.