MOHSIN AKHT AR KAYANI, J. Through this writ petition, Shazia Abbas ("petitioner") has assailed the notice under Section 23 of the NAO, 1999, issued by the respondent National Accountability Bureau, dated 23.10.2019, whereby a caution has been placed on the bank accounts of the petitioner as well as of her son, Hasnain Haider .
2. Learned counsel for petitioner contends that the respondent NAB pursuant to call up notice under Section 19 of the NAO, 1999, dated 11.04.2019, has started an inquiry / investigation against the petitioner 's husband namely Agha Wasif Abbas with respect to power plant projects namely Sindh Nooriabad Power Company (Pvt.) Ltd.
("SNPC") and SNPC-II in Public Private Partnership mode with M/s Technomen Kinetics (Pvt.) Ltd. and laid 132KV Double Circuit Transmission Line between SNPC and K-Electric Grid through Sindh Transmission & Dispatch Company ("STDC") , whereby the petitioner 's husband being the then Secretary Energy had allegedly initiated the summary for STDC Transmission Line Project without initial feasibility and recommended providing guarantees by Government of Sindh on behalf of SNPC. The petitioner 's husband is on Ex-Pakistan Leave since June, 2018 on account of his ailment, but the NAB has issued notices under Section 23 of NAO, 1999 and placed caution upon the bank accounts of petitioner as well as of her son without any legal justification despite the fact that the petitioner has no relationship whatsoever with the allegations of any suspicious or illegal transaction allegedly referred against the fake bank accounts or with reference to M/s Technomen Kinetics or with reference to project of SNPC. It has further been contended that both the notices are related to different bank accounts, including the bank account of petitioner 's business entity i.e. M/s Ability , whereby certain transactions were referred, but all these transactions were much prior to the initiation of entire project of SNPC and has nothing to do with the alleged proceedings of the NAB. The petitioner has placed heavy reliance upon the incorporation certificate of SNPC, which was registered on 04.09.2012, whereas the NEPRA granted generation license to SNPC and SNPC-II on 15.07.2015, therefore, any alleged activity is post generation license, but the suspicious transactions claimed by the NAB are relating to previous period, which have nothing to do with this case.
3. Conversely , learned Special Prosecutor NAB along with Investigating Officer contended that petitioner 's husband namely Agha Wasif Abbas is an accused person in the inquiry / investigation, which has been culminated into a reference presently pending before the Accountability Court, Islamabad, as such, petitioner 's husband is absconder staying out of the country and is willfully avoiding to face the inquiry proceeding s; that there is sufficient cogent evidence available on record connecting the petitioner 's bank accounts with the accused person and as such, the petitioner is not entitled for any extraordinary relief in constitutional jurisdiction; that the petitioner has deliberately not approached the learned Accountability Court as required under Section 23 of the NAO, 1999, especially when reference has been filed; that the petitioner 's husband has bypassed the procedure and got approved summary for laying transmission line without feasibility and also gave official cover to illegal award of project i.e. "laying of 132KV Double Circuit Transmission Line between SNPC and K-Electric Grid" amounting to Rs.1.275 Billion to M/s Technomen Kinetics, which could have been completed in only Rs.125 Millio n in case of connectivity with Hyderabad Electric Supply Company , which was originally part of this project, even otherwise, the cost of the project was enhanced to Rs.1.90 Billion.
4. Arguments heard, record perused.
5. Perusal of record reveals that the NAB authorities have issued notice under Section 23 of the NAO, 1999 to the bank authorities, dated 23.10.2019, to place caution upon the bank accounts being operated by the petitioner , her husband and son. Details of which are reproduced as under: Subject: Transfer of Property Void U/S 23 of NAO, 1999 - Investigation and Against Holder of Public Office, Legal Person and Others Involved in Fake Bank Accounts Scam Regarding Extending Illegal favours to M/s Technomen Kinetics (Pvt.) Ltd. and Others in Projects of Sindh Nooriabad Power Company and Sindh Transmission and Dispatch Company (STDC) and Misappropriation of Funds Whereas, the competent authority has taken the cognizance of an of fence committed under the provisions of NAO, 1999.
2. During the course of investigation, it has come on record that following accounts are being maintained in branches of your bank. Details of Accounts are as under:- Sr.No. Title of Account Account No Branch CNIC No i Agha W asif Abbas 1019-0078-008475-01-2 Clifton Karachi42301-6504038-1 Mandate: 42301-489340-8 ii Husnain Haider 1019-0081-011869-01-0 42301-1958200-9 iii Razia Anwar / Shazia Abbas1019-0077-008963-01-242301-4489340-8 iv Razia Anwar / Shazia Abbas1019-0112-018467-01-6 v Shazia Abbas 1019-0078-019131-01-0 vi Shazia Abbas 0065-0078-012855-50-6 Shadman Lahore vii Razia Anwar / Shazia Abbas1019-0077-004871-50-8
3. In this regard, your attention is drawn towards Section 23 of National Accountability Ordinance, 1999 related to above mentioned bank accounts, or any other bank accounts opened or operated by Agha Wasif (CNIC No: 42301- 6504038-1), Shazia Abbas (CNIC No:42301-4489340-8), and Husnain Haider (CNIC No:42301-1958200-9), which is reproduced as under:
23. T ransfer of Property V oid:
(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, accused person or any relative or associate of accused person or any other person on his behalf, shall not transfer by any means 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 sub-section (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.
4. Please acknowledge receipt.
6. Similarly , a separate notice under Section 23 of the NAO, 1999, dated 23.10.2019, has also been issued to Allied Bank Limited with respect to another bank account of the petitioner maintained at the said bank, details of which are reproduced as under: Sr.
No.Title of AccountAccount No Branch CNIC No i. Shazia Abbas 001004130412001 1Bath Island, Clifton Karachi 42301-4489340-8
7. The above referred notices have been issued with reference to inquiry / investigation against the holder of public office / legal person and others involved in fake bank accounts scam regarding extending illegal favour to M/s Technomen Kinetics (Pvt.) Ltd. and others in project of SNPC and STDC as well as misappropriation of funds, whereas the petitioner 's husband namely Agha Wasif Abbas was the then Secretary Energy , who had allegedly misused his authority in the project execution to safeguard the vested interest of co-accused persons. As per the record of the NAB, it was alleged that petitioner 's husband had bypassed the procedure and got approved summary for laying transmission line without any feasibility or estimate and had also given official cover to illegal award of work "Laying of 132KV Double Circuit Transmission Line between SNPC and K-Electric Grid" amounting to Rs.1.257 billion to M/s Technomen Kinetics, which could have been done in Rs.125 Million and even the cost of project was enhanced to Rs.1.9 Billion.
8. We have confronted the Special Prosecutor , NAB as well as the Investigating Officer, who conceded that inquiry/ investigation has been completed and reference has been filed before the Accountability Court, Islamabad, therefore, the issue relating to exercise of powers under Section 23 of the NAO, 1999 could only be settled by the NAB Court as to whether the same has been applied in accordance with law and this Court cannot exercise the jurisdiction under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 to set aside the impugned notices (under Section 23 of the NAO, 1999) when main Reference is subjudice and Court has taken cognizance.
In order to resolve the controversy , it is necessary to reproduce the provision of Section 23 of the NAO, 1999, which is as under:
23. T ransfer of Property V oid:
(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, accused person or any relative or associate of accused person or any other person on his behalf, shall not transfer by any means 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 sub-section (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.
9. The Chairman, NAB can exercise the powers referred in Section 23 of the NAO, 1999 during pendency of inquiry / investigation into any offence alleged to have been committed by an accused person and as such, there is no inquiry against the petitioner or her son, rather the petitioner 's husband, Agha Wasif Abbas, is an accused person in pending reference for misuse of his authority , therefore, the first part of the provision is not applicable to the petitioner case. However , the second part of the said provision, which refers "such accused person or any relative or associate of such accused person or any other person on his behalf", demonstrates the availability of extensive cover to the NAB authorities to take actio n against the family members of an accu sed person or third parties, who are beneficiaries of the assets belonging to an accused person is available, as such, the said provision of Section 23 of NAO, 1999 prima facie attracts to the petitioner being wife of the accused person, though the proviso to Section 23 of the NAO, 1999 discloses that any charge or interest or a right created on such property shall not be void if made with the approval of the Court. This aspect extends the authority to the Court if the Chairman NAB has not earlier withdrawn his notice under Section 23 of the NAO, 1999, even other wise, the matter falls within the jurisdiction of the learned Accountability Court, especially when the reference has been filed, the Trial Court could only decide whether to remove the caution or to allow the parties to operate the bank accounts with certain conditions and as such, the petitioner has not yet approached the Accountability Court, therefore, without touching merits of the case it is appropriate that the petitioner should approach the Accountability Court at first instance through separate application, if so advise d, in case such application is filed, it is expected from the Accountability Court, Islamabad to adjudicate upon the same independently in accordance with law, within the period of 30 days, under intimation to this Court.
10. In view of above, instant writ petition is DISPOSED OF .