' NAEEM AKHTAR AFGHAN, J.---This order disposes of Constitution Petition No,306 of 2011, wherein the following relief has been claimed by the petitioner:--
(A) Declaring that the act of the respondent No,2 in issuing the letter dated 22nd February, 2011; freezing the property of the petitioner known as Hassan Plaza, situated at Sirki Satellite and Saryab Road Chowk, Quetta, is totally, illegal, improper, unjust, unconstitutional, based with mala fide intention, in excess and misexercise of authority and jurisdiction vested in him under the provisions of NAB Ordinance, 1999, therefore, is of no legal consequence.
(A-1) Further declaring that the Order dated 27-5-2011, passed by learned respondent No,1, confirming the freezing order of the respondent No,2 is not only illegal, improper, in excess and mis- exercise of authority vested in him under the provisions of NAB Ordinance, 1999 but is also contrary to the guarantees available to the petitioner under the provisions of Constitution of Islamic Republic of Pakistan, 1973, therefore, is of no legal consequences.
(B) After granting the relief Clauses-A and A-1 above, to set aside the Order dated 22-2-2011, passed by respondent No,2 and Order dated 27-5-2011, passed by respondent No,1.
(C) Permanently suspending the order dated 22-2-2011, passed by respondent No,1 and order dated 27-5-2011, passed by learned respondent No, 1.
(D) Any other relief which this Hon'ble Court deems fit and appropriate may also be granted in favour of the petitioner, in the interest of justice. "
2. Facts of the case are that with regard to the compensation and allotment of land at Sirki Road'
Quetta letter dated 23-5-2006 was issued to the petitioner by Director Estate Quetta Development Authority ("QDA") which reads as follows:-- ' To ' Messrs Fateh Muhammad and Haji Mardan RIO 255-N/B3 Satellite Town, Quetta.
' Subject:- COMPENSATION AND ALLOTMENT OF LAND-ISSUANCE OF SITE PLAN/ HANDING OVER PHYSICAL POSSESSION OF PLOT SITUATED AT SIRKI ROAD, QUETTA ALLOTMENT OF ADDITIONAL LAND.
' Reference your application dated 29-12-2005. As per approval granted by Governing Body vide its meeting held on 28-1-2006 and subsequent confirmation by it dated 27-4-2006 and approved by the Competent Authority. You are allotted / compensated an area of 4940 sq.Ft. As per following detail in addition to the land already allotted to you: -
(a) An area of 1040 sqft. Of land in lieu of your squeezing land coming for widening of Road in front of main Sirki Road of 1040 sq.Ft already allotted is allowed at the back side of the plot.
(b) An area of 600 sq.Ft. Of land as free of cost in lieu of land mentioned (a) above.
(c) An area of 3300 sq.Ft. Land Rs,438 per sq.Ft
2. As a result of this allotment, the total area of your plot will now become 8840 sq.Ft and you should deposit the cost of extra piece of land measuring 3300 sq.Ft. Rs,438 per sq.Ft. Which come to Rs,14,45,400 in National Bank of Pakistan Satellite Town, Quetta. Within 30 days from the date of issuance of this letter, failing which a surcharge at the rate of 15% shall be recovered by the QDA.
3. The actual demarcation and measurement of extra piece of land will be determined by the Town Planning Branch QDA as per rule/policy while handing over its possession and issuance of site plan as the case may be."
3. The petitioner got approved plan for construction of shops, flats with basement and stores. After completion of superstructure, completion Certificate dated 25-7-2007 was issued by the Building Inspector Zarghoon Town Quetta.
4. In the meanwhile, on the basis of a complaint, cognizance was taken by the National Accountability Bureau ("NAB") and letter dated 21-5-2007 was written by respondent No,2 to the Chairman Governing Body QDA to charge Rs,4000 per sq.Ft. From the petitioner for the allotted plot and to recover the amount from the petitioner.
5. The petitioner applied for voluntary return which was accepted by respondent No,2 vide letter dated 15-8-2008 which reads as follows:-- "Subject: Acceptance of Voluntary Return Application Mr. Fateh Muhammad.
' Reference: your application for voluntary Return dated nil.
' I Your case for Voluntary Return has been approved for Rs,2.1846 Million. You are directed to deposit the agreed amount through Bank Draft/Pay Order in the name of "Chairman NAB" account No,186- 3 NBP, Prime Minister Secretariat Branch, Islamabad and deliver the same in this Bureau as per schedule:
(a) Down payment Rs,0.78624 Million by 10 Aug 08
(b) 1st installment Rs, 0.69918 Million by 10 Nov. 08
(c) 2nd installment Rs,0.69918 Million by 10 Feb 09
2. In case of default, the deposited amount will be confiscated and the original case will be re- opened."
6. Subsequent to deposit of entire amount of voluntary return, the letter dated 15-6-2009 was issued by the NAB which reads as follows:-- "Subject: Acceptance of VRApplication of Mr. Fateh Muhammad Agha (ODA Governing Body).
' Reference: letter No,1-2086/88 (QDA) Estate/C. 589 dated 14 Apr 09.
1. It is intimated that the subject individual has deposited entire amount of Voluntary Return and no other liability is pending against the subject individual. Hence, original file of QDA No,1-2086/88
(QDA) Estate is hereby returned as desired.
2. Forwarded for further necessary action, please."
7. Subsequently, in July 2009, letter was issued by NAB Balochistan to Director General, QDA for issuing NOC in favour of the petitioner, which is reproduced herein below:-- "Subject: Issuance of NOC-case No,291.
' Reference: this Bureau letter No,2009/291/ IW-1/ NAB (B)/Quetta/384 dated 15 Jun 09
1. A case against Fateh Muhammad Agha (QDA Governing. Body) was investigated by this Bureau, in which, the individual had deposited his liability through Voluntary Return. The NOC to the individual was not being issued by QDA on the pretext that case is with this Bureau as mentioned vide your officer letter No,1-2086/88 (QDA) Estate/C.589 dated 14 Apr 09. It was intimated to your office vide this Bureau letter under reference that he had cleared all his liabilities through VR.
2. As in instant case individual has discharged his outstanding liability therefore now no justification exists to deny him the NOC. Whereas QDA has already issued him other relevant certificates/documents i,e, Site Plan, Allotment letter, Handing Over of Possession, Transfer order, NOC to Zarghoon Town for Approval of Building, Building Permit and Completion Certificate issued by Zarghoon Town, Quetta.
3. It is requested that NOC be issued to the individual under intimation to this Bureau by 4 July 09."
8. Consequent to the above, Sale Deed was also executed between the petitioner and QDA on 1-10- 2009, which was also registered with the Sub-Registrar Quetta on 18-12-2009.
9. The Deputy Director, Land Management QDA also issued NOC dated 31-3-2010 for mutating the above property in the name of the petitioner. In pursuance of the same, mutation was also entered in the name of the petitioner in the revenue record and Non-Encumbrance Certificate dated 1-4- 2010 was also issued by Tehsildar/Assistant Collector Quetta.
10. Subsequently, the respondent No,2 freezed the above property of the petitioner under section 12 of the National Accountability Ordinance, 1999 (hereinafter "the Ordinance") vide order dated 22-2- 2011 (hereinafter "the impugned order") which reads as follows:-- "Subject: Order under Section 12 of the National Accountability Ordinance 1999 for Freezing of Immovable Property of Accused Fateh Agha Situated at Sirki, Satellite and Saryab Road Chowk (Hassan Plaza) (Case No,291).
' Whereas, during the process of Investigation at NAB Balochistan against Quetta DevelopmentAuthority (Governing Body) on following allegations:- ' Irregularities in allotment of Govt. Land at Satellite Town Quetta and causing a loss of Rs, 15.00 million.
' Illegal allotment of land on Zarghoon Road near Over head Bridge.
' Allotment of land in Block-3 Satellite Town Quetta at Very low rate ' Change in location/numbers of plots of bus Adda allotted during 2002 for their mala fide intention.
2. It was established from the relevant record that the accused persons from QDA by misusing their authority, illegally allotted subject land to accused beneficiary Fateh Agha at lower than market rate, and caused heavy loss to Govt exchequer. On the above allotment following plaza has been constructed:-- ' Hassan Plaza, Situated at Sirki, Satellite and Saryab Road Chowk, Quetta.
3. It is mostly likely that the accused may dispose off or sublet the aforesaid identified property (assets) for frustrating/subverting any process of law initiated against him.
4. I am satisfied that freezing of above said property is necessary and I, therefore, in exercise of powers vested on me by the Chairman NAB vide Gazette Notification S. R .O. 731 (1)/2006 dated 13 Jun 06 under section 12 of the NAO 1999, hereby order the freezing of said property. The said property shall stand frozen thus prohibiting the payment of rent or delivery to the accused person or to any other person on his behalf until matter is decided in accordance with law."
11. The Deputy Prosecutor General ("DPG") NAB submitted an application to the Accountability Court-I Quetta ("respondent No,1") for confirmation of the impugned order' dated 22-2-2011 with regard to freezing of immovable property of the petitioner. No objections were filed by the petitioner against freezing of his immovable property. However, the application submitted by DPG NAB for confirmation of the freezing order dated 22-2-2011 passed by respondent No,2 was contested by the petitioner by filing reply praying therein to dismiss the application on the ground that the petitioner has already discharged his outstanding liability and NAB Balochistan itself has issued letter to QDA for, issuing NOC to the petitioner; that deposit of entire amount as agreed in voluntary return was acknowledged by the NAB and in such view of the matter, the freezing of immovable property of the petitioner is unjustified and the application for confirmation of the same be dismissed.
12. Before disposal of the above application, the petitioner approached this Court by filing instant constitution petition challenging the impugned order dated 22-2-2011 passed by respondent No,2.
13. During pendency of the petition, respondent No,1 passed the order dated 27-5-2011 (hereinafter "the impugned order") whereby the application for confirmation of the freezing of the immovable property of the petitioner was allowed and the freezing order dated 22-2-2011 passed by respondent No,2 was confirmed in the following words:- "I have heard the learned Special Prosecutor for NAB (B) Mr. Irshad Ali Khan as well as defence counsel Mr. Ayaz Zahoor Advocate and also perused the record which reveals, that earlier during course of inquiry and before filing this application respondent/accused Fateh Agha interred (sic) into Voluntary Return with NAB authorities for a peace (sic) of land measuring 3300 sq.Ft. However, the subject property Hassan Plaza was illegally constructed on a land measuring more than 3300 sq.Ft. There is no justification for allotment of remaining land 1040+600+1140 sq.Ft. Respectively to respondent/accused Fateh Agha, more over encroachment was also made on a peace (sic) of land measuring 1812 sq.Ft. By accused/ respondent Fateh Agha without any justification.
' For the reason discussed herein above application is allowed and the freezing order dated 22-2- 2011 passed by the DG NAB Balochistan is confirmed.
' Given under my hand seal of the court this 27th day of May 2011."
14. The petitioner filed C.M.A. No,1425/2011 for amending the petition to challenge the above order of respondent No, 1 . The same was allowed on 14-6-2012 by this Court, whereafter amended Constitution Petition was filed on 1-8-2012.
15. Learned counsel for the petitioner stated that freezing of immovable property by respondent No,2 and subsequent confirmation of the same by respondent No,1 is unlawful as previously, in consequence of voluntary return, the petitioner had paid 2.1846 Million to the NAB Balochistan with regard to the market rate of the disputed plot; that after issuance of letter dated July 2009 by NAB Balochistan to Director General QDA for issuing NOC to the petitioner, there was no occasion for respondent No,2 to freeze the property of the petitioner or for respondent No,1 to confirm the freezing of the property; that since passing of the impugned orders, till date, no reference under the Ordinance has been filed against the petitioner; that the property of the petitioner cannot be kept freezed for indefinite period.
16. Learned Senior Prosecutor NAB stated that deposit of 2.1846 Million by the petitioner as result of voluntary return has no concern with the impugned orders as the same was only to the extent of 3300 sq.Ft. And the plaza has illegally been constructed on the land exceeding 3300 sq.Ft; that the petitioner has illegally been allotted pieces of land measuring 1040+600+1140 sq.Ft. And has also made encroachment over a piece of land measuring 1812 sq.Ft; that reference has been forwarded to the Chairman NAB and there is likelihood of approval of the same in near future; that in order to preserve the subject matter and to avoid creation of any third party interest/ alienation of the property by the petitioner, the impugned orders have been passed with lawful authority and jurisdiction and same are not suffering from any illegality or irregularity warranting interference by this Court in its constitutional jurisdiction.
' It was further objected by the learned Senior Prosecutor NAB that instead of filing appeal under section 13 (c) of the .Ordinance against the impugned orders, the petitioner has filed constitution petition, which is not maintainable.
17. Heard the learned counsel and perused the available record. Perusal of record reveals that the immovable property of the petitioner measuring 8840 sq.Ft. Was in question during the inquiry proceedings before the NAB which resulted into mutual decision between respondent No,2 and the Chairman QDA for determination of the market rate. The petitioner applied for voluntary return which was accepted. The petitioner deposited 2.1846 Million in three installments, in acknowledgement whereof, NAB issued letter dated 15-6-2009. Subsequently, NAB also issued letter dated July 2009 to DG QDA to the effect that the petitioner has discharged his outstanding liability and there exists no justification to deny him the NOC and it was directed that NOC be issued to the petitioner under intimation to NAB. In compliance of the same NOC was issued by QDA and registered sale deed of land measuring 8840 was also executed by QDA with the petitioner. On the basis of NOC dated 31-3-2010 issued by QDA, the said land has also been mutated in the name of the petitioner in the revenue record. The Tehsildar/Assistant Collector Quetta has also issued non-encumbrance certificate dated 1-4-2010.
18. There is nothing on record to show that the settlement of the market rate and deposit of 2.1846 Million by the petitioner as Voluntary Return was related only to 3300 sq.Ft. Nor it was ever the case that the petitioner has illegally been allotted 1040+600+1140 sq.Ft. Pieces of land or has encroached upon 1812 sq.Ft. Of land. Even the same has not been mentioned in the impugned order dated 22- 2-2011 issued by respondent No,2 while freezing the immovable property of the petitioner. The contents of the impugned order dated 27-5-2011 passed by respondent No,1 are not supported by any document.
19. It appears that while passing the impugned orders the respondents Nos.1 and 2 have badly fallen into error of facts as well as law. In view of deposit of 2.1846 by the petitioner as voluntary return, subsequent to issuance of NOC by the NAB Balochistan as well by QDA and after execution of registered sale deed by QDA with the petitioner, the impugned orders with regard to freezing of the same property of the petitioner amount to double jeopardy which is prohibited under Article 13 of the Constitution of Islamic Republic of Pakistan.
' Till date no reference has been filed against the petitioner. Even no copy of the reference, allegedly transmitted to Chairman NAB for approval, has been placed on record. The property of the petitioner cannot be freezed for indefinite period.
20. With regard to objection of learned Senior Prosecutor NAB about maintainability of constitution petition against the impugned orders, it is observed that remedy of filing appeal within ten days has been ,provided under section 13(c) of the Ordinance to an aggrieved party whose claim or objection against freezing of property has been dismissed by the Court. No appeal has been provided under section 13 of the Ordinance against an order passed under section 12 of the Ordinance. In the case in hand no objections have been filed by the petitioner against freezing of his property. The impugned orders have been passed under section 12 of the Ordinance, against which, no appeal has been provided under section 13 of the Ordinance. In the case of Khan Asfand Yar Wali v. Federation of Pakistan, PLD 2001 Supreme Court-607 it has been held as follows:-- "Clause (c) of section 13, which relates to claim or objection against freezing, also denies the right of appeal against an order made under section 12 of the Ordinance. In Pakistan through Secretary, Ministry of Defence v. The General Public (PLD 1989 SC 6) it was held by the Shariat Appellate Bench of this Court, as under: "The Federal Shariat Court in its impugned judgment has also held that the right of appeal was recognized by the Holy Prophet (Peace be upon him) as well as by the Khulafa-e-Rashideen and discussed this question in great detail. Nothing has been shown to us in refutation thereof. The plea, thus, that barring the right of appeal does not offend against the Injunctions of Islam, cannot be accepted."
' The purported denial of the right of appeal is violative not only of Article 2A of the Constitution but also power of the Superior Courts to correct such orders through exercise of their Constitutional jurisdiction. Clearly, the denial of right of appeal is contrary to the norms of justice as also violative of principles of natural justice. Also refer Messrs Chenab Cement Product (Pvt.) Ltd. And others v.
Banking Tribunal, Lahore and others (PLD 1996 Lahore 672). Thus, section 13(c) which denies the right of appeal is violative of the principles of the Islamic Injunctions and the same needs to be suitably amended so as to allow right of appeal to the accused as well as to the non- accused/third party whose claim or objection against freezing of property is dismissed by the Accountability Court."
21. The petitioner being an aggrieved person having no remedy of appeal provided against the impugned orders has rightly invoked the constitutional jurisdiction of this Court under Article 199 of the Constitution. According to settled principles of law, powers of the superior Courts under Article 199 of the Constitution remain available to them to their full extent notwithstanding anything contain in any legislative instrument. Reliance in this regard is placed on the case of Javed Hashmi v. Federation of Pakistan, 2003 PCr.LJ 266 and the case of Khan Asfand Yar Wali v. Federation of Pakistan PLD 2001 Supreme Court 607.
' In view of the above, the objection of learned Senior Prosecutor NAB with regard to maintainability of constitution petition against the impugned orders is overruled.
22. For the above reasons, the Constitution Petition is accepted, the impugned orders dated 22-2- 2011 passed by respondent No,2 and impugned order dated 27-5-2011 passed by respondent No,1 are declared null, void and of no legal effect and the property of the petitioner i,e, Hassan Plaza situated at Sirki Road, Satellite Town/Sariab Road Chowk Quetta stands de-freezed.