' RAUF AHMAD SHEIKH, J.---The above mentioned two appeals mentioned at Serial Nos.1 and 2 and the writ petition mentioned at Serial No,3 arise out of order dated 3-5-2011 passed by learned Judge, Accountability Court No,IV, Lahore. Although the petitioner in W.P. No,16688 of 2011 besides a prayer for setting aside of the said order has also assailed the vires of order dated 30-4-2008 and has further prayed that the registered sale-deed dated 16-12-2006 in favour of respondent No,3 be declared as void and he be directed to deposit the profit earned from the property from the date of possession yet the basic questions requiring adjudication in all these matters are interlinked and intermingled so are being taken up together.
2: The facts, in brief, as emerge on perusal of the record are that on a complaint made by eight claimants, an inquiry was initiated against Muhammad Ayub, Chief Executive/Director, AGLAM Global Limited, under the orders of the Chairman, NAB, for carrying on illegal forex business. Finally Reference No,39 of 2007 was submitted in the court of the Administrator Judge, Accountability Courts, Lahore. The precise . Allegation was that they had deprived the people of a sum of more than 1.38 billions. It was stated in the Reference that during investigation, it transpired that respondent No,1 had entered into five agreements to purchase Property bearing No,1-E-III, Gulberg- III, Lahore, commonly known as `Kasr-e-Zauk' from its original owners in 2004 and general powers of attorney were executed in favour of respondent No,2. In the year 2006, respondents Nos.1 and 2 got the property alienated in favour of Asian Gas (Pvt.) Limited through its Chairman Aamer Ahmad Khan (respondent No,3) in violation of section 23 of the National Accountability Ordinance, 1999 and order dated 30-11-2011 passed by this Court in R.F.A. No,583 of 2006 so the sale was void ab initio. Vide order dated 15-4-2008, the Judge Accountability Court No,IV, Lahore, passed an order to freeze the property by affixation of notice thereon. The appellant i,e, NAB in Criminal Appeal No,1073 of 2011 moved an application for taking over the possession of the property and appointment of the receiver. The appellant i,e, Asian Gas (Pvt.) Limited in Criminal Appeal No,893 of 2011 moved am application for de-freezing the said property, whereas Shahzad Mahmood and Abdul Munm Karak claimants/affectees of the scam also submitted an application for taking over possession and appointment of the receiver. The learned trial Court vide impugned order dated 3- 5-2011 proceeded on to dismiss all the three applications. The appellant has prayed that the receiver be appointed and possession of the property be given to him, whereas Messrs Asian Gas (Pvt.) Limited appellant in Criminal Appeal No,893 of 2011 has contended that they are bona fide purchasers for valuable consideration and as such there is no clog on their title so the freezing order should be withdrawn and the impugned order be accordingly varied to this extent. The petitioner Rana Humayun in W.P. No,16688 of 2011 has prayed that not only the impugned order be set aside and the possession of the property be taken by appointing a receiver but the sale-deeds in favour of respondent, No,3 be also declared as illegal and void and he be directed to deposit the total income arising from the disputed property w,e,f, taking over the possession till date.
3. The arguments advanced by learned counsel for the parties have been heard at length and the record has been minutely perused.
4. Learned counsel for the appellant in Criminal Appeal No,893 of 2011 has contended that the appellant was not party to the proceedings before the learned Senior Civil Judge and this Court so was not aware of the order dated 30-11-2006 passed in R.F.A. No,583 of 2006; that the prohibitory injunction does not take effect without service of notice and even otherwise the violation of the same does not render the sale-deed void and the only action, which could be taken is provided under Order XXXIX, Rule 2(3). C.P.C.; that the property was transferred by Lahore Improvement Trust through a registered sale-deed dated 3-10-1965 in favour of Mst. Khurshid Akhtar and her heirs/lawful owners have executed the sale-deeds in favour of respondent No,3 for valuable consideration; that S11. Muhammad Ayub had cancelled the agreements executed in his favour. On l: 1-2006 and thereafter he had no right over the property and as such the same could have not been considered as the case property in the Reference and there was no justification in freezing the same; that at the most if the alleged agreements to sell in favour of Sh. Muhammad Ayub are considered as genuine, the same do not operate to create any title. If so desired, he may file a suit for specific performance of the contract and the said property did not vest in him under the law; that the learned trial Court rightly held that it was not vested with the power to review order dated 15-4-2008 although the same is not sustainable in view of the above submissions and that the appellant has paid a sum of Rs,17,61,70,000 in cash and also transferred plots worth Rs,29,50,67,000 to different claimants, who had invested money with Sh. Ayub, etc. And thus is a bona fide purchaser for valuable consideration and without notice. In support of the contentions raised, reliance is placed on Beli Ram and Brothers v. Ram Lal and others (AIR 1925 Lahore 644(2)), Lal Chand v. Sohan Lal and others (AIR 1938 Lahore 220), Karam All and others v. Raja and others (PLD 1949 Lahore 100), Muhammad Rashid v. Iyaz Khan and others (PLD 1978 Lahore 919), Mst. Saeeda Akhtar and others v. Lal Din and others (PLD 1981 Lahore 623), Messrs Haydari Construction Co. Ltd. v. Bank of Credit and Commerce International Overseas, Limited and another (1991 CLC 149 (Karachi)), Shadi Muhammad and others v. Abdul Rashid and others (1994 MI,D 1856) (Lahore) and Fazal Karim v. Fateh Begum and 6 others (2004 CLC 365 (Lahore)).
5. Learned DPG for NAB (appellant) in Criminal Appeal No,1073 of 2011 has contended that the inquiry was authorized in this case on 10-12-2006, the caution notice was issued on 6-12-2006 and this Court had also granted an injunction on 30-11-2006 in R.F.A. No,583 of 2006 so the sale-deeds executed on 16-12-2006 were void ab initio; that the property worth more than Rs,600 million was taken by respondent No,5 for a sum of Rs,600,000 only and the remaining price was shown to have been paid in clandestine manner through transfer of the plots to the persons whose claims were not even verified; that respondent No,3 had full knowledge of the litigation and issuance of the injunction by the learned Senior Civil Judge at the initial stage and by this Court subsequently so the respondents Nos.1 to 3 cannot claim that they had no notice; that the insufficient consideration by itself proves that it was a fake transaction, which was made in order to deprive the lawful claimants of the benefits of the action of the NAB under the orders of the August Supreme Court of Pakistan; that the order dated 15-4-2008 was vague, ineffective and against the provisions of the law so it did not deprive the learned trial Court of the jurisdiction to pass the fresh order for appointment of the receiver and assumption of the possession of the demised property.
6. Learned counsel for the petitioner in W.P. No,16688 of 2011 has adopted the arguments of the learned DPG for NAB and added that not only respondents Nos.1 to 3 had full knowledge about the legal proceedings but were also aware of the injunction of the Court; that the sale was void under section 23 of the National accountability Ordinance, 1999 and as such the impugned order recarding dismissal of the application for appointment of receiver is ill al; that respondent No,3 has been receiving the profits from the bus ness being run and the income arising out of the valuable property without depositing the same with NAB and as such he be directed to deposit the same with the NAB; that large number of people have been deprived of their life-time savings and that the mutual conspiracy hatched up by respondents Nos.1 to 3 with the help of some influential persons behind the curtain should not be allowed to succeed as no money was paid to the actual owners of the property and, in fact, all proceedings were fake and carried out to deprive the lawful claimants including the petitioner. In support of the contentions raised, reliance is placed on Naya Daur Motors (Pvt.) Ltd. v. Federal Investigation Agency, C.B.C., Karachi and another (2000 MLD 1384)
(Karachi), Global Securities Pakistan Ltd. v. Muslim Commercial Bank (2007 MLD 1957) (Karachi) and Mst. Sharifan Bibi and another v. Allah Bakhsh (1996 SCMR 1823).
7. Learned counsel for the appellant in Criminal Appeal No,893 of 2011 has vehemently urged that agreement to sell does not operate to create any title and as such Sh. Ayub had no vested right in the property and even otherwise he has divested himself of all the rights, if any, through cancellation deed dated 1-11-2006 so the owners were at liberty to sell the property and they alienated it to respondent No,3 with free will and valuable consideration. There is no cavil to this proposition that an agreement to sell does not operate to create, transfer or extinguish the proprietary rights but the matter was not so simple and straightforward in the instant case. The fact of the matter remains that Malik Muhammad Qayyum and Tikka Muhammad Iqbal Khan had given guarantee to Gulzar Ahmad Khan, father of respondent No,3 that they would ensure transfer of the demised property for a sum of Rs,60,00,00,000 in his favour from the original owners Muhammad Ayub and Mohsin Ayub respondents Nos.1 and 2. Allegedly respondent No,3 had transferred 233 plots in two private Societies established by him to different persons, who are statedly claimants against respondents Nos.1 and 2. If respondents Nos. 1 and 2 are only holder's of agreements to sell and general powers of attorney, there was no need to transfer 233 plots to the so-called claimants against them, so this contention that Muhammad Ayub had no vested right in the property is devoid of any force. Respondent No,1 was full owner for all intents and purposes and in spite of payment of money, he had not got the property transferred in his name in order to avoid the payments to the lawful claimants. The heirs of the original allottees after receipt of the money were only Benamidars' within the meanings of section 5(da) of NAO, 1999, as they had also delivered the possession to him after receiving the consideration.
8. The contention that the injunction of this Court was not binding and as such the sale in favour of the appellant in Criminal Appeal No,893 of 2011 is not void is also without force because on 13-11- 2006 a notice was issued to Justice (Rtd.) Malik Muhammad Qayyum, whereby the pendency of the suit was clearly. Mentioned and he was required to get the sale-deed executed in favour of father of the appellant (respondent No,3 of this appeal). At this stage, the original agreement in his favour, wherein Justice (Rtd.) Malik Muhammad Qayyum and Tikka Muhammad Iqbal Khan stood guarantors is also to be kept in mind. It is surprising that there was an offer of Rs,60,00,00,000 for sale of the property by father of the appellant but subsequently the sale-deeds were executed in his favour at the ostensible price of Rs,6,20,75,000. The payment of the remaining amount of Rs,11,00,00,000 in cash and Rs,29,00,00,000 in form of plots is also not established. It is not proved that, in fact, the persons to whom the plots were allegedly transferred were lawful claimants against respondents Nos.1 and 2 because they had never come forward and filed the claims with NAB. This was a sham transaction completed through underhand and behind the curtain negotiations, undertakings and dealings between respondents Nos.1 and 2, Gulzar Ahmad Khan and Tikka Muhammad Iqbal Khan, etc. Apparently this was in violation of the provisions of section 23 of the National Accountability Ordinance, 1999 and the injunction granted by this Court. The prayer of the appellant in Criminal Appeal No,893 of 2011 that the freezing order be recalled is, therefore, without force. The case law cited by the learned counsel for the appellant at the bar is not applicable on the facts of the instant appeal.
9. As observed above, a serious doubt exists as to genuineness of the transaction in favour of respondent No,3. The order dated 15-4-2008, whereby the then learned Judge Accountability Court No,IV, Lahore, had ordered that the property be freezed and the notice be affixed thereon was meaningless and devoid of effectiveness to say the least. Section 12(c) of the National Accountability Ordinance, 1999, provides following modes to freeze the immovable property other than the land paying revenue:--
(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 any such methods as the Chairman NAB may deem fit."
' It does not appear to be the intention of the law makers that an embargo simpliciter on transfer be imposed because on initiation of inquiry or investigation this restriction is automatically imposed under section 23 of the Ordinance ibid and as such there was no need to enact the provisions of section 12. The courts while passing the order must keep in view the intention of the law makers and if the law provides a specific mode for doing an act, it must be done strictly in the same manner. Any mode provided under section 12(c)(i) to (iii) could have been adopted or any other method could have been resorted to under clause (iv) in order to protect the property and safeguard the interests of the claimants. This order did not preclude the learned trial Court to pass fresh orders because it was fully competent to pass appropriate orders in terms of the provisions of section 12(c). Such vague orders without any concrete substance may be rectified/clarified by subsequent orders, which of course are not prohibited under section 369, Cr.P.C. The learned trial Court could have easily resorted to one of the modes prescribed from clauses (i). To (iii) in section 12(c) to safeguard the property from misappropriation in order to ensure that the rights of the claimants are not adversely affected. The impugned order, therefore, is not sustainable under the law. It is necessary to, secure the ends of the justice that the possession of the property be taken from respondent No,3 and a receiver be appointed, who should deposit the income arising from it in the Government Treasury, which could ultimately be utilized in meeting the claims of the lawful claimants.
10.. In W.P. No,16688 of 2011 the prayer regarding declaring the impugned order illegal is full of merits in view of findings recorded in para No,9. However, the contention that the disputed sale-deeds be declared as void can neither be accepted nor the order for recovery can be passed at this stage.
However, the learned trial court on conclusion of the trial would be at liberty to pass appropriate orders in this regard on appraisal of the evidence of the parties brought on the file during the trial.
11. For the reasons supra, Criminal Appeal No,1073 of 2011 is accepted and the impugned order is accordingly modified. The learned trial Court is directed to appoint a receiver, who should take the possession with the help of law Enforcing Agencies. The receiver be given reasonable remunerations and he be directed to deposit all income derived from Kasr-e-Zauk' in Government Treasury. The statement of income and expenditures be got verified through a firm of renowned Chartered Accountants. Criminal Appeal No,893 of 2011 is without merits and the same is hereby dismissed. W.P. No,16688 of 2011 is partly accepted to the extent of the impugned order, which stands set aside as ordered above. The remaining prayers made by the petitioner are disallowed.