Through this writ petition, the prayer has been made that the order dated 19-4-2007 passed by the NAB authorities for freezing the bank account of the petitioner be declared as illegal and without lawful authority and that respondents Nos.4 to 6 be directed to let the petitioner operate his accounts freely; further that the impugned notice dated 2-6-2010 for appearance of the petitioner before the NAB authorities in the capacity of a Benamidar' be also declared as illegal, without lawful authority and respondent No.3 be restrained from harassing the petitioner.
2. Brief facts of the case, as stated in the writ petition, are that the petitioner is a proprietor of duly registered firm known as "Syed Construction Company" and mainly deals with "A-Class Construction"; that the petitioner's firm enjoys a great deal of respect in the field of construction due to commitment to excellence; that the petitioner on his credit has also successful completion of various projects with governmental and semi governmental agencies; that the petitioner is maintaining an Account.
No.01000620 at Alfalah Bank, Gujrat for the last many years; that the petitioner also procured the facility of running finance against valuable and tangible securities in the above said account and average transaction is above Rs.14 Crores per annum; that the petitioner is also maintaining another Account No.01012666 at Alfalah Bank, Sialkot Branch; that at one stage, the petitioner invested an amount of Rs.292,65,000 with Syed Sibt-ul-Hassan Gillani alias Double Shah in the following manner:--
(i) Rs.30,00,000 through Cheque No. 756431 dated 13-1-2007 of Account No.01012666 drawn on Alfalah Bank, Sialkot Branch.
(ii) Rs.50,00,000 through Cheque No..534127 dated 13-2-2007 of Account No.01000620 drawn on Alfalah Bank, Gujrat Branch.
(iii) Rs.1,50,00,000 through Cheque No.756431 dated 24-3-2007 of Account No.01012666 drawn on Alfalah Bank, Sialkot Branch.
(iv) Rs.62,65,000 vide receipt/token in favour of Saadat Nawaz.
In addition to the above, another postdated cheque was also given but the same was not got encashed.
3. It is further stated in the writ petition that the petitioner was in dire need of money due to which reason the aforesaid amount was sought to be returned whereupon Syed Sibt-ul-Hassan Gillani told that since demand for return is being made before the date of maturity, hence only original and actual amount could be paid back which was accepted by the petitioner as such; that the above said actual amount was paid back vide Cheque dated 24-3-2007 worth Rs.3,00,00,000 deposited in the account of nephew of the petitioner and the aforesaid amount stood ultimately transferred to the above said account of the petitioner maintained at Bank Alfalah, Gujrat Branch; that on 19-4-2007, the petitioner came to know that the NAB authorities had issued an order for freezing of aforesaid bank accounts of the petitioner through the impugned order; that pursuant to inquiry, it transpired that the above said Syed Sibt-ul-Hassan alias Double Shah has been arrested by the NAB and an investigation has been authorized against him and his associates and on contact the officials of the NAB directed the petitioner to submit explanation qua the aforesaid transaction, which was submitted accordingly; that thereafter, the petitioner had been summoned time and again and interrogated at great length and on each such occasion, respondent No.3/I.O.
Assured that the impugned order dated 19-4-2007 would be withdrawn shortly but the same was never withdrawn due to which the petitioner suffered huge financial loss; that during this period of over three years, nothing came on record to suggest any foul play on the part of the petitioner qua the above transaction, rather the petitioner has been treated as an effectee and cited as witness in the calendar of witnesses in the Accountability Reference filed against Syed Sibt-ul-Hassan Gilani alias Double Shah; that during this long span of time, the grievance of the petitioner has not been redressed despite lapse of more than three years, rather respondent No.3 has issued the impugned notice dated 2-6-2010 to the petitioner in the capacity of a Benamidar' of Syed Sibt-ul-Hassan alias Double Shah.
4. Learned counsel for the petitioner submits that admittedly, the petitioner is neither an accused in any Accountability Reference nor any investigation has been authorized against him and there is no evidence even to suggest any act on the part of the petitioner falling within the mischief of any provision of NAO, 1999. Further submits that no order of freezing the Account has been passed either by the Chairman, NAB or the Accountability Court in terms of Section 12 of NAO,. 1999, hence freezing of the above accounts by respondent No.3/I.O. Is an unjust and illegal action; that entire career of the petitioner has been probed into during this period of three years yet no evidence has come on record to suggest that the petitioner was an associate or Benamidar' of the accused Syed Sibt-ul-Hassan alias Double Shah and the allegation of `Benami' is false as the requisite ingredients of 'Benarni' character are badly missing in this case. Learned counsel also submits that more than hundreds of hundreds have been examined as witnesses, but none of them has made any incriminating statement against the petitioner, rather he has been treated as a witness, hence there is no evidence to suggest any nexus of the petitioner with the business of the accused Syed Sibt-ul-Hassan Gillani; that the petitioner has just received back the amount of his actual investment and has not received the promised profit thereon. Lastly submits that right to acquire, hold and enjoy the property is a fundamental right guaranteed by the Constitution of Islamic Republic of Pakistan, 1973, it is also inalienable right of every citizen to be treated in accordance with law, therefore, the impugned order as well as the notice are violative of the fundamental rights enshrined in the Constitution.
5. Report and parawise comments in this case have been submitted on behalf of the NAB authorities, wherein it has been mentioned that the accused Syed Sibt-ul-Hassan Gillani alias Double Shah was arrested on 13-4-2007 and was taken into custody of NAB on 28-4-2007; he along with others is facing trial in Accountability Reference No.50 of 2007 on the allegation of cheating public at large and misappropriation of Rs.5.4431 Billion approximately; an investigation was authorized by D.G, NAB Punjab vide letter dated 12-6-2007 against the accused Syed Sibt-ul- Hassan Gillani and others; that in phase-I, after necessary verification, the NAB has disbursed 2 x installments to direct affecters of Syed Sibt-ul-Hassan Gillani @ 10% of their total verified claimed amounts for each installment; the claims of indirect affecters (through agents) have also been scrutinized/verified; that in Phase-II, after necessary verification, NAB is disbursing 1st installment to these claimants @ 20% of their verified claimed amounts, now a days, and by this way all the claimants of this case whether they are direct or indirect affecters would get their proportionate share of recovered amount. It is further mentioned that interim Reference against the accused Syed Subtil-Hassan Gillani was filed in Accountability Court, Lahore on 8-8-2007 and supplementary' Reference against the accused Chan Pir alias Intezar Shah and Shahid Jamil has been filed in the Accountability Court on 30-1-2008; final Reference against all the accused has been filed on 13-12-2008 and another supplementary Reference has also been filed in Accountability Court on 8-5-2009 against the co-accused Fazeelat Akmal; that Account No.01000620 of Bank Alfalah, Gujrat maintained by the petitioner Syed Azmat Hussain was cautioned by operation of law vide section 23(a) of NAO, 1999, which is covered under the law; that an amount of Rs.30 Million was found transferred to Account No.01000620 from the accounts of accused Syed Sibt-ul-Hassan Gillani out of crime proceeds of his illegal Doubling Business and during the course of investigation, it was revealed that the said accused has transferred Rs.30 Million to the account of Syed Construction Company as 'Benami', owned by the petitioner with the intention to conceal the crime proceeds, looted from simpletons of the area through dishonest and deceitful acts, hence the trailing was established and resultantly the NAB authorities froze the said account for debit.
6. Learned Special Prosecutor for the NAB assisted by the Investigating Officer, submits that the petitioner himself admitted that he had invested with the accused Syed Sibt-ul-Hassan Gillani but he has failed to provide any documentary evidence in support of his version; that the investigation conducted so far reveals that the accused Syed Subtil-Hassan Gillani did not return any amount to the petitioner before maturity of his investment because the petitioner never ever invested any amount with Double Shah for doubling purpose; the amount transferred to the account of the petitioner belongs to crime proceeds which was kept to conceal the crime proceeds in connivance with the principal accused; that the petitioner visited NAB office several times and each time he gave gesture to return crime proceeds kept in his account only to save his skin and then disappeared from the vision and now he has filed the instant writ petition to mislead the Court and to deface the facts; that an amount of Rs.30 Million was found transferred to Account No.01000620 from the accounts of accused Syed Sibt-ul-Hassan Gillani out of crime proceeds of his illegal Doubling Business; during the course of investigation, it was revealed that the accused Syed Sibt- ul-Hassan has transferred Rs.30 Million to the account of Syed Construction Company as 'Benami', owned by the present petitioner with the intention to conceal the crime proceeds, looted from simpletons of the area through dishonest and deceitful acts; that the petitioner never filed any reply in writing establishing the fact that amount kept in the petitioner's account has no concern with Double Shah's crime proceeds rather every time he laid a great stress for de- freezing of his account for his own benefits; that respondent No.3 never made any promise regarding withdrawal of caution imposed on the bank account of the petitioner rather the petitioner was given time to deposit 'Benami' amount with the NAB authorities and every time he made apparently promise to return the same very shortly; that accentually the petitioner is included in the list of witnesses because he is eye-witness of deal between the accused Zia-ulHassan Gillani and Mr. Ijaz Ahmad Cheema, Advocate for handing over the bribe to get released the accused Syed Sibt-ul-Hassan Gillani who is real brother of the accused Zia-ul-Hassan Gillani; that the NAB is making all out efforts to meet the challenges of this Scam; Double Shah Scam is mega financial Scam of the country and is complex in nature involving more than 40000 affecters and demands intensive investigation; there is no example of this type of Scam in history; that the petitioner was summoned just from the inception of case against Syed Sibt-ul-Hassan Gillani/arrest of the accused, but the petitioner avoided to return the crime proceeds on one pretext or the other; that cautioning of accounts of the accused and their associates is provided for in section 23(a) of NAO, 1999 and as such the act of cautioning the accounts of associates of the accused is covered by law.
7. Heard. Record perused.
8. The "power to freeze the property" has been defined in Section 12 of the National Accountability Ordinance, 1999, which reads as under:--
(12) Power 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 appears 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 subsection (a) is a debt or other movable 'property, the freezing may be made:--
(i) by seizure; or
(ii) by appointment of receiver; or
(iii) by prohibiting the delivery of such property to the accused or to anyone on his behalf; or
(iv) by all or any of such or other methods as the Court or the Chairman, NAB as'the case may be, deem fit;
(c) If the property ordered to be frozen is immovable, the freezing shall, in the case of land paying revenue, be made through the Collector of the district in which the land is situated, and in all other cases:--
(i) by taking possession; or
(ii) by appointment of receiver; or
(iii) by prohibiting the payment of rent or delivery of property to the accused or to any other person on his behalf; or
(iv) by all or of 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 iti force for a period not exceeding [fifteen] days unless confirmed by the Court, where the Reference under this Ordinance shall be sent by [Chairman] NAB: Provided further that notwithstanding [anything to contrary contained therein], that 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 despatch at the last known address of the accused [either by registered post A.D. Of courier service or electronic media as the Court may deem proper having regard to the facts and circumstances of the case.]
(d) If the property ordered to be frozen consists of livestock or is of a perishable nature, the Chairman NAB, or the Court may, if it deems proper and expedient, order the immediate sale thereof and the proceeds of the sale may be deposited with the Chairman NAB or the Court, or as either may direct as appropriate.
(e) The powers, duties, and liabilities of a Receiver, if any, appointed under this section shall be the same as those of a Receiver appointed under Order XL of the Code of Civil Procedure, 1908 (Act V of 1908).
[(0 The order of freezing mentioned in subsections 'a' to 'e' shall remain operative until the final disposal of the case by the Court, and in the event of the acquittal of the accused, shall continue to remain operative for a period of ten days after receipt of certified copy of the order of acquittal [or release] by NAB, whereafter it shall be subject to an order by the court in which an appeal, if any, is filed.] While dealing with the provisions of Section 12 of NAO, 1999, a Division Bench of this Court in the judgment reported as The State through Prosecutor General Accountability, NAB, Islamabad v.
Babar Ali Kharal (PLD 2008 Lahore 347) has held: "Provisions of section 12, National Accountability Ordinance, 1999 dealing with freezing of property, were self-sufficient and exhaustive provisions of law which had conferred powers on NAB Authorities for the purpose of freezing/seizing, attachment etc. Of property of accused or any part thereof, whether in his possession or possession of his relative, associate or person on his behalf.
Said provision however had placed certain obligations on the Authorities to keep a check and balance to avoid misuse of the authority and it was mandatory that if any property was frozen/seized by the NAB Authorities, the order had to be passed by the Chairman NAB for freezing/seizure of the same, which was non-existent in the present case. Even if an order of seizure/frozen, attachment or prohibition was passed by the Chairman, NAB, that would remain enforced for a period not exceeding 15 days unless confirmed by the court where the reference against accused was sent, but in the present case, there was no confirmation by the court concerned regarding the said claim/seizure by the NAB Authorities."
Section 23 of National Accountability Ordinance, 1999 prescribes "Transfer of property void", and is reproduced' below:
(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 other person on his behalf, shall not transfer by any mean 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 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 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: [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 deem fit.] In the judgment reported as Khan Muhammad Mahesar v. National Accountability Bureau (Sindh) and another (2010 PCr.LJ 579) it has been held that "The purpose of section 23 of the National Accountability Ordinance, 1999 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 thereunder by transferring out his properties or assets during the pendency of any investigation, inquiry or trial."
9. From the plain reading of the above, one can see that associate is a person/accused who is connected in crime with main accused and nexus to the offence is established through investigation highlighting therein any transaction or crime proceeds, the trial of which leads to an irresistible conclusion that the accused is associate and privy to the offence. In this case, so far the following three facts needs elaborations:--
(i) As to for how many days/months/years the present accused was since joining NAB investigation.
(ii) Whether in References filed against the main accused the present petitioner was arrayed as an accused.
(iii) Whether in the instant case freezing of Account is legal under section 12 or section 23 of NAO, 1999.
We see that the NAB is probing and investigating this matter for the last about three years and there is not an iota of evidence against the present petitioner; hundreds of hundreds claimants appeared and made their statements, but none of them implicated the present petitioner in any manner. Let us suppose the accused/petitioner was not appearing before the NAB authorities as claimed, even then the petitioner could be proceeded against as P.O., therefore, we find that there is so far no material against the present petitioner as investigation is to be proceeded and material collected, whether the petitioner appears before the I.O. Or not.
10. Now we advert to point No.(ii). During this course i.e. Period of three years, as many as four Accountability References were filed against different accused on different allegations, but name of the petitioner does not find mention in any one of them. In fact, in one of the References the present petitioner is a P.W. And now to term him as "Benamidar" even without qualifying the same would be stretching the law too much, which is not warranted. This shows that how somebody sleeps over a fact and when adverse party agitates about its rights, Investigating Agency is awaked up and works in panic. The petitioner is neither accused nor "Benamidar" but simply a P.W.
Against Syed Sibt-ulHassan alias Double Shah.
11. The language of both the aforementioned sections is couched in very clear terms regarding freezing the accounts or putting caution on accounts qua the accused and nobody other, but for doing the same the NAB has to establish trail against an "Associate".
For what has been discussed above, this petition is allowed, but only to the extent of lifting of any caution on the account of the petitioner and de-freezing his account as prayed for.