Dr. Khurshid Iqbal. J.
1. The National Accountability Bureau [("The NAB")/respondents 1 and 2], has filed a Reference No. 02/2019, against respondents 3 to 5, which is pending before the learned Accountability Court-I, Peshawar. The petitioners herein contend that NAB has filed the Reference on their complaint against the respondents 3 to 5, for cheating the public at large through different housing schemes in District Mardan and certain shops in a commercial plaza by the name "Bajaur Towers" in Rawalpindi (the property in question) and thereby grabbed huge money on the pretext of providing plots and shops therein and with a hope of exorbitant profits.
2. The petitioners moved an application before the learned Judge Accountability Court for attachment and sealing the property in question. The NAB and respondent No. 4 filed their separate replies and contested the application. The learned Judge Accountability Court-I, after hearing both the parties, dismissed the application vide her order passed on 16.03.2022.
3. The petitioners instituted the instant writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 whereby they seek the proposed attachment and sealing of the property in question by reversing the order dated 16.03.2022.
4. The respondents were put on notice. The NAB filed its comments. The respondent No. 4 though did not file comments, but contested the instant writ petition.
5. We have heard arguments of Mr. Lajbar Khan Khalil, learned counsel for the petitioners, Mr. Nauman Sattar, learned counsel for respondent No. 4, Mr. Muhammad Riaz, Additional Deputy Prosecutor General for NAB and perused the record.
6. The petitioners assert that they are the complainants, as such, victims of the alleged public cheating and that they have invested huge amount of money in the plaza, in which respondent No. 4, Malik Arif has sold shops to many people. They also assert that the aforesaid property is highly valuable and the respondents being accused persons, who are illegally occupying it, have been enjoying its usufructs in the shape of rent.
7. The respondent No. 5, on the other hand, contends that the petitioners, being private persons, cannot legally make such an application. He also contends that the accused has purchased the property in question in good faith through a registered deed, executed on 06.04.2017. The NAB contends that: firstly, Chinar Gul, respondent No. 3, one of the accused persons owned M/S Rifa and Zohaib Associates through which he, and other respondents, cheated the public at large under the garb of the aforesaid housing scheme and commercial plaza. Secondly, out of the total 75 claimants in the Reference, only 37 relate to shops in the property in question. Thirdly, the ownership of the property in question is yet to be determined. Fourthly, hundreds of bona fide purchasers and investors have commercial interests which reason prevent it for seeking it attachment and freezing.
8. The law related to freezing of property is laid down in section 12 of the National Accountability Ordinance, 1999 ("The Ordinance"). From a close reading of section 12, three points are worth noting. First, the Chairman NAB and the Court may in their discretion order freezing of property.
Second, a freezing order passed by the former shall last for 15 days and that of the latter, till the decision of the Reference. Third, a freezing order is to be passed where reasonable grounds exist for believing that the accused has committed an offence.
9. Section 12 of the Ordinance does not confer any right on a private person irrespective of the fact whether such a private person is a complainant or a victim, to request for freezing of property. The existence of reasonable grounds is a key factor in triggering the freezing provision. It is for this reason that freezing of property is discretionary in nature, which, of course, has to be exercised judiciously. Where no reasonable grounds are seen to exist, it would not be appropriate to freeze a property. We may endeavour to properly understand the phrase "reason to believe". The phrase has been defined in section 26 of the Pakistan Penal Code, 1860, as under: "Reason to believe.--A person is said to have reason to believe a thing if he has sufficient cause to believe that thing but not otherweiselt follows that authority concerned
10. The phrase has been interpreted by our august Supreme Court in many cases, to refer here but a few, are: (Moulvi) Fazlul Qader Choudhury v. Crown PLD 1952 FC 19; Ch. Abdul Malik vs. The State PLD 1968 SC 349; and Chaudhry Shujat Hussain vs. The State 1995 SCMR 1249 [Supreme Court of Pakistan. In the first case, honourable Justice Cornelius (as then his lordship was) approved the following observation of the Dacca High Court: [R]eason to belive', 'beief being a conviction of the mind arising not from the actual perception of knowledge but by way of inference from evidence received or information derived from others. It falls short of an 'absolut' certainty because the other accused, in accounting for his possession, may be able to show that the grounds upon which it is based are unsubstantial (p.
24] In the second case, the honourable Court observed: "Reasonable grounds" is an expression which connotes that the grounds be such as would appeal to a reasonable man for connecting the accused with the crime with which he is charged, "grounds" being a word of higher import than "suspicion" (p. 352).
In the third case, it was defined like this: "The term 'reason to believe' can be classified at a higher pedestal than mere suspicion and allegation but equivalent to prove evidence. Even the strongest suspicion cannot transform in "reason to believe" (p. 1268)'
11. Coming to the matter in hand, there is no denying the fact that the property in question is one of the subject matter of the Reference that is pending adjudication before the Accountability Court. If, for the sake of arguments, it is conceded that private persons may seek freezing of property, even then, admittedly, the petitioners are not in possession of ownership documents. It follows that they are claimants and claimants alone in the property in question. Learned counsel for the petitioners could not deny that there certain other persons running business in the property in question. Those other persons were party to the application (as well as in the present writ petition) for freezing.
12. The record shows that at the trial, only 30 witnesses out of a total 112 have been examined before the learned Accountability Court. It follows that the trial will take sufficient time to be concluded. It worth emphasizing that a freezing order would adversely affect those other persons who are running business in the property in question (and not party to the lis). Those persons have the freedom of trade, business and profession and right of property, guaranteed as fundamental rights under article 18, 22 and 23 of the Constitution. It is an established legal principle that freezing of any property tends to offend an individual's or individuals' right to property and business and profession. In the case of Haji Muhammad Arif Khattak and 2 others vs. Chairman/Director General National Accountability Bureau and another reported as PLD 2018 Peshawar 207, a learned Division Bench of this Court has held that freezing of property is violative of the constitution which requires that the provision of section 12 of the Ordinance should be construed strictly. The Hon'ble Bench has held: "It is settled principle of law that freezing of any property by the Court for unlimited period is itself against the Constitution and no any prolonged restriction could be imposed in order to deprive a person even the accused to use right over his property prior to holding him guilty and in order to decide such matter in regard to freezing of property, Section 12 of the NAB could be strictly construed, wherein Court is empower to adjudicate the issue of freezing separately [...]."
13. The upshot of our above discussion is that the instant writ petition is devoid of merit. Hence, it is dismissed.