IJAZ-UL-AHSAN, J. --- Through this single judgment, we propose to decide Civil Petition No 1834 of 2016 and Criminal Petition No, 615 of 2016, as both arise out of the same judgment of Lahore High Court, Lahore, dated 10.03.2016 (impugned judgment).
2. The petitioner Razia Begum impugns the judgment of the High Court through which a criminal appeal bearing No, 1238 of 2010 and a Constitution petition (Writ Petition No, 10824 of 2010) filed by her challenging orders of Accountability Court, Lahore, dated 06.04.2010 and 15.05.2010 were dismissed. Vide order dated 06.04.2010, the Accountability Court had on an application moved by the Respondents directed the concerned authorities to transfer title and possession of a property claimed to be owned by the petitioner to them. Vide order dated 15.05.2010, the Accountability Court had dismissed an objection petition filed by the petitioner against freezing of her properly on an application of the Respondents.
3. The necessary facts for decision of this is are that the National Accountability Bureau (NAB) filect a reference beating No, 62 of 2008 against Sheikh Afzal and his son Haris Afzal before the Accountability Court, Lahore. During tendency of the Reference, the NAB moved an application under Section 12 of the National Accountability Ordinance, 1999 (NAO) seeking an order for freezing of certain properties including a house measuring 10 Marlas bearing Khewat No, 60, Khatooni No, 762, Khasra No, 298, situated at Usma n Park, Devi Pura, Lahore Cantt. The Accountability Court passed an order freezing the properties on 21.10.2009 and also issued notices to all persons interested in the properties in question calling upon them to file objections, if any, against the said order. The petitioner, on receipt of said notice, filed an objection petition.
4. It appears that while the objection petition filed by the petitioner was pending, Haris. Afzal one of the accused entered into a Voluntary Return Agreement (VRA) with NAB surrendering his movable and immovable assets. The above-noted property which was in the name of the petitioner was also a part of the list of the properties surrendered. The petitioner also moved an application seeking deletion of her property from the said list. The application as well as the objections filed by her were dismissed by the Accountability Court. However, the application of the NAB for transfer of title and possession of the properties surrendered by Hans Afzal was allowed. Both the said orders were challenged before the High Court through a criminal appeal and a Constitution petition, noted above, both of which were dismissed by way of the impugned judgment. Hence, these petitions.
5. Learned counsel for the petitioner submits that the learned Division Bench of the High Court has misinterpreted the provisions of the NAO. He maintains that in terms of Section 9(v) of the NAO, the Accountability Court has the jurisdiction to determine whether a property held in the name of one person is actually owned by another and pass appropriate orders in this regard. However, if an accused is charged under any other provision of the NAO, the Accountability Court lacks jurisdiction in the matter and cannot pass an order of the nature challenged before the High Court.
He further maintains that Hans Afzal and Sheikh Afzal were not charged under Section 9(v) of the NAO and as such, the Accountability Court could not have passed orders relating to the real ownership of the' property in question. He further maintains that Section 25(a) of the NAO which deals with VRA is an independent Section. Under the said provision, the Accountability Court has no jurisdiction to record a finding regarding real ownership of a properly and the question whether a person is real or Benami owner lies within the jurisdictional domain of the Civil Courts. Reference in this regard has been made to Zahida Sattar v. Federation of Pakistan (PLD 2002 SC 408).
6. The learned counsel has further argued the onus to prove Benami nature of transaction lies on the prosecution which the Respondents had failed to discharge Therefore, the Accountability Court in passing the orders dated 06:04.2010 & 15.05.2010 and the High Court in affirming the said orders through the impugned judgment acted without lawful authority.
7. Learned Special Prosecutors, NAB have defended the impugned judgment. They have pointed out that the accused had misappropriated huge sums of money from the Bank of Punjab and had utilized the said funds to purchase moveable and immovable properties which were held in the names of the accused persons themselves and their close relations. They maintain that the Accountability Court has the exclusive jurisdiction to decide all questions arising out of a charge for corruption and corrupt practices. They finally submit that Haris Afzal who is an accused in the matter had entered into a VRA and given a list of his assets which, were required to be disposed of to recover the public money misappropriated by him and his father. They further pointed out that the petitioner is a sister of Sheikh Afzal and paternal aunt of Hans Afzal arid the close relationship between the parties coupled with the timing of purchase of the property in question by Haris Afzal and its transfer to his aunt clearly point towards a collusive transaction.
8. We have heard learned counsel for the petitioner as well as the learned Special Prosecutors, NAB and have scrutinized the record. It is an admitted fact that Reference No, 62 of 2008 filed by the NAB is pending in the Accountability Court against Sheikh Afzal and his son Haris Afzal. An application was moved by the NAB for freezing of certain properties including the property which is subject-matter of the present proceedings. Vide order dated 21.10.2009, the Accountability Court passed a freezing order. However, simultaneously notices were issued to all parties in whose names the properties in question were held to file objections against the freezing order. The petitioner filed such objections claiming that the property owned by her held nothing to do with Hans Afzal and that she had purchased the property with her own funds.
9. During proceedings before the Accountability Court, Haris Afzal opted to enter into a VRA with the NAB and surrendered certain properties in favour of the Bank of Punjab. In this regard, he got his statement recorded on 11.02.2010. The properties surrendered by Haris Afzal included the aforesaid property. The VRA was accepted by the Accountability Court. It appears that in the meantime the freezing order and the objection petition filed by the Respondents remained pending. However, pursuant to a direction issued by the High Court, the Accountability-Court heard the objection, petition, and dismissed the same through its order dated 15.05.2010.
10. The record indicates that in support of her objection petition, the petitioner appeared as a witness and produced the original sale-deed dated 02.06.2006 in her favour. However, in her cross-examination she admitted that she was a housewife and had no source of income of her own. Although she claimed that her husband and son had provided, the funds to purchase the property in question, she did not produce either of them before the Court. She also failed to produce any evidence to show that her husband or son had the necessary sources of income to provide the requisite funds to purchase the property. No evidence of provision of the funds by her husband or son to purchase the property in question was produced either.
11. We have also noted that while the petitioner claimed to have paid a sum of Rs, 600,000/- to purchase the property, in her statement before the Accountability Court she took the stance that she had paid a sum of Rupees One Million as price of the property. She also took contradictory positions regarding the mode, manner and place of payment and stated that she had not directly paid the amount in question and that in fact payment had been made by her son/husband.
12. The record also shows that the property in question was initially purchased by Haris Afzal on 18.07.2005 and was subsequently sold by him in favour of his real, aunt on 15.05.2006. It is also significant to note that the disputed loan which is subject-matter of the Reference was obtained by Sheikh Afzal in 2004 which was subsequently used by him to purchase various properties in his own name and in the name of his son.
13. We are not impressed by the argument of the learned counsel for the petitioner that the Accountability Court had no jurisdiction to record a finding that the property was not owned by the petitioner. We are in no manner of doubt that under the NAO the Accountability Court has the exclusive jurisdiction to decide all questions arising out of a charge of corrupt and illegal practices specially so where properties acquired by misappropriated or corruption based funds are surrendered pursuant to a VRA under Section 25 of the NAO. We also find that reliance of the learned counsel on Zahid Sattar's case ibid is misplaced. The said judgment has been rendered in a different set of facts and circumstances and is of no help to the case of the petitioner. The Accountability Court as well as the High Court were, therefore, justified and had valid grounds for coming to the conclusion that the property was owned by Haris Afzal and was transferred by him in favour of his real aunt in order to hoodwink and defraud the Bank.
14. We find that the reasons recorded by the High Court as well as the Accountability Court justifying the Freezing order as well as the order directing the competent authorities to transfer the properties in favour of the NAB/Bank of Punjab were based upon, adequate and sufficient evidence available on the record. The orders did not suffer from any illegality, jurisdictional defect, error or flaw that may have furnished grounds for interference by this Court.
15. For reasons recorded above, these petitions being devoid of merit are dismissed and leave refused.