RIAZ AHMAD KHAN, J.---This judgment is directed to dispose of Writ Petition No, 260 of 2011.
2. Brief facts of the case are that one Asad Ali Malik was extended home loan finance facility by Standard Chartered Bank Ltd. On 30-6-2007. The said Asad Ali Malik defaulted the facility, as a result, suit was filed against him and decree for recovery of Rs,21,750,000 with cost and cost of funds was passed against him by the learned Banking Court, Rawalpindi. Since the said facility was extended against the mortgage of House No,9, Street No,95, Sector 1/8-4, Islamabad. In execution, the mortgaged property was put to auction. The petitioner participated in the auction proceedings held on 6-3-2010 and after acceptance of his bid and depositing the initial bid amount, was declared as successful bidder. On depositing the balance consideration in the learned Banking Court, the Judge Banking Court confirmed the auction. Sale certificate was issued in favour of the petitioner and vacant possession of the house was delivered through bailiff of the Court. The petitioner thereafter, filed application before Judge, Banking Court for transfer of property in his name in the C.D.A. Record. The C.D.A. Authorities refused to do so and asked for N.O.C. From police as well as from NAB authorities. It afterwards transpired that the NAB authorities had place an embargo on the transfer of the house. The petitioner thereafter, filed an application before the learned Accountability Court No,III, Rawalpindi/ Islamabad, but no effective order was passed by the learned Accountability Court. The petitioner thereafter, filed present writ petition with the prayer that respondent No,1 be directed to transfer the property into the name of the petitioner and any embargo by NAB be declared as null and void.
3. The contention of the petitioner is that he had purchased the property in open auction and consequent to the auction, sale certificate was issued to him by the learned Banking Court.
Possession was also delivered to him by the said Court. The NAB authorities had no right to place embargo on the property of the petitioner.
4. On the other hand, learned D.P.G.A, NAB contended that under section 23 of National Accountability Bureau Ordinance, 1999 the transfer of property into the name of petitioner was void and the petitioner could not be declared as owner of the disputed house.
5. Learned counsel for the respondent-Bank accepted the averments made by the petitioner as true and correct.
6. We have heard the learned counsel for the parties and have also perused the record.
7. Admitted position in the present case is that the petitioner purchased the suit house in open auction and is in possession of the same as lawful owner. The only objection is that of NAB. The case of the NAB is that after initiation of inquiry by the NAB authorities, the suit house could not be transferred into the name of the petitioner. The N.A.B. Authorities in this respect relied upon section 23 of the National Accountability Ordinance, 1999. For the sake of convenience, the said section is reproduced below:-
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 investigation into the offences under this Ordinance, alleged to have been committed by an accused person, such person or any relative or associate of such person or any other person on his behalf, shall not transfer by any means whatsoever, create a charge on any movable or immovable property owned by him or in his possession, while the inquiry, investigation or proceedings are pending before the NAB or the Accountability Court; and any transfer or 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 subsection (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.
8. The bare perusal of the said section shows that if an enquiry or investigation is initiated by the Chairman, NAB, then the accused person or any relative or associate of the accused or any other person on his behalf shall not transfer any property owned by the accused or in his possession. In the present case, the disputed property was neither transferred by the accused nor possession was delivered by the accused nor by any other person on his behalf: In fact, by virtue of mortgage created on 26-6-2007, the Bank had become owner/mortgagee of the property and the property was put to auction by the learned Banking Court. The learned Banking Court had not effected the sale or delivery of possession on behalf of the petitioner, rather the Court had acted on behalf of the Bank.
9. It is also to be noted that section 23 of the National Accountability Ordinance, 1999 by itself creates an offence, which provided that if transfer of property is effected during the pendency of enquiry or investigation, the same would amount to an offence and the punishment for the same would be 3 years. It has further been provided that transfer also would be void. It obviously means that if the accused person owns property, which is not in the knowledge of Chairman, NAB or Accountability Court and the same is transferred during the pendency of enquiry or investigation, then the transfer of such property would be void and the transfer of property would also amount to an offence under section 23 of Ordinance ibid. On the other hand, if the property belonging to accused is in the knowledge of Chairman, NAB and enquiry is initiated, then Chairman, NAB would be obliged to act under section 12 of National Accountability Ordinance, 1999 and order freezing of the property. In the instant case, no freezing order was passed by the Chairman, NAB or Accountability Court. The Chairman, NAB had only informed C.D.A. Authorities that the property of the accused may not be transferred into the name of any other person. It obviously means that Chairman, NAB was in the knowledge of property, but no order under section 12 was passed for freezing of property. Since no order was passed, so presumption would be that NAB Authorities knew that the property did not belong to the accused or for the reasons best known to them, they did not want to take any action regarding the suit property. Since no freezing order was in field regarding the suit house, so it cannot be said that the property in dispute was under investigation by NAB authorities. It may also be added that the Chairman, NAB has the authority to pass any order in respect of the property of the accused as long as the Court has not taken cognizance of the case, but the moment B the Court takes cognizance of any matter under the National Accountability Ordinance, 1999, then Chairman NAB becomes functus officio and only the Accountability Court can pass any order regarding the property of the accused. In the present case, it is admitted that no order was passed by the learned Accountability Court in respect of the suit house. As such, the Chairman NAB has no authority to place any embargo on the transfer of the suit house.
10. C.D.A. Being custodian of the record, is under obligation to transfer the property into the name of purchaser in accordance with law and rules. In the above said circumstances, this writ petition is accepted and C.D.A. Authorities are directed to transfer his suit property into the name of petitioner in accordance with law and rules.