Arbab Muhammad Tahir, J.- Through this consolidated judgment, we shall decide the following criminal appeals, involving common questions of law and facts.-
1. Crl. Appeal No.206/2022, Nisar Ahmed Afzal v. National Accountability Bureau through Chairman & another
2. Crl. Appeal No.207/2022, Nisar Ahmed Afzal v. National Accountability Bureau through Chairman & another
3. Crl. Appeal No.321/2019, The Chairman, NAB v. Nisar Ahmed Afzal
4. Crl. Appeal No.170/2021, The Chairman, NAB v. Nisar Ahmed Afzal
5. W.P. No.1652/2022, Nisar Ahmed Afzal & 4 others v. National Accountability Bureau through Chairman & another
2. Two criminal appeals i.e. Crl. Appeal No.206 & 207 of 2022 have been filed by the Nisar Ahmed Afzal (Appellant) assailing orders, dated 18.03.2022, whereby the objections raised by him on freezing of his assets were dismissed. The National Accountability Bureau (NAB) has filed two Crl.
Appeals No.321/2019 & 170/2021 assailing two separate orders dated 16.09.2019 and 17.09.2021, respectively, whereby the applications filed by the Appellant/Nisar Ahmed Afzal for de-cautioning of the properties, assets and accounts were dismissed, however, the Appellant was allowed to deposit and withdraw amounts for his personal use. Writ Petition No.1652/2022 has been filed by the Appellant (Nisar Ahmed Afzal) seeking quashing of the proceedings initiated against the Appellant by the NAB.
2. Succinctly, the facts are that during the period 1st April, 2004 and 15th January, 2006, one Saghir Ahmed Afzal (i.e. brother of the Appellant) mortgaged six properties in the United Kingdom. It is alleged that the properties were purchased at prices inflated to between 51/2 to 16 times the original price, through dishonest valuation in order to secure mortgage advances by Saghir Ahmed Afzal from lenders to the tune of 6,885,625/-. Saghir Ahmed Afzal and co-accused Ian Mark McGarry was charged for obtaining property through deception under the municipal law of United Kingdom, to which he pleaded guilty, therefore, he was sentenced to 13 years in prison.
Confiscation investigations commenced to ascertain whether the convict has benefitted from the crime. The Crown Court sitting at Southwark, London, imposed a confiscation order on Saghir Ahmed Afzal on 30.08.2012. His total criminal conduct was adjudged to be GBP 60,768,920.36, however, he was ordered to pay GBP 29,276,565.91. For recovery of the remaining amount, assets restraint orders were passed by the competent court at UK under section 41 of Proceeds of Crime Act, 2002. The said assets restraint order, as per record, is in field against the Appellant and his brother Saghir Ahmed Afzal. It is alleged that the Appellant and his brother, together controlled all the relevant transactions, directly or through their agents and intermediaries, fraudulently obtained the proceeds thereof and sent the amounts to Pakistan through banking channel.
On 31.08.2016, the Director, Serious Fraud office (SFO), London forwarded a confidential request to authorities in Pakistan for legal action, followed by letter dated 24.07.2017. The Contents of letter, dated 07.07.2017, reveals that a delegation led by Deputy Chairman NAB visited the United Kingdom and held meeting with the officials of SFO, wherein the instant case came under discussion and formal request to the Chairman, NAB was made for assistance to recover the criminal assets held illegally by the Appellant and in return the SFO offered to the NAB, retaining 50% of the assets recovered to cover costs.
The NAB initiated inquiry against the Appellant and his family members and passed freezing order, dated 08.09.2021, subsequently confirmed by the learned Accountability Court on 20.09.2021. It is pertinent to mention here that Reference in the matter in hand has not yet been filed in the concerned Accountability Court. The petitioner filed objection petitions, which were dismissed through the impugned orders. However, they were allowed to operate two bank accounts for deposit and withdrawal of rent and money for personal use.
3. The learned counsel for the Appellant has been heard at length. He has argued that; NAB cannot act as a recovery agency for a foreign state; the investigations have been dropped and the warrants withdrawn by the authorities in UK; the investigations in the instant case are without lawful authority; contents of the letters of request, show that NAB is being used for recovery of amount; criminal proceedings cannot be invoked to satisfy civil disputes; NAB cannot act as a commission agent; the letter addressed to the Chairman manifests that the proceedings are being conducted to realize the 50% of the recovered amount; under the law, NAB cannot act as a civil court, conduct recovery proceedings and then in execution of its orders compel the Appellant to pay certain amount to any person; NAB law envisages imposition of fine upon conviction, which can only be paid to the Federal Government and that too in respect of offences committed in relation to public office; the law has been amended and the matter does not fall within the jurisdiction of NAB; the freezing of assets can be ordered only in respect of offences falling with the jurisdiction of NAB; the inquiry was initiated under the National Accountability Ordinance, 1999 (Ordinance of 1999) and the Anti-Money Laundering Act, 2010 (Act of 2010); section 12 of the Ordinance is no more applicable whereas the period stipulated in section 8 of the Act of 2010 has lapsed; the freezing order holding is the field without any legal basis.
4. On the other hand, the learned Special Public Prosecutor, NAB has argued that; the Appellant is involved in the commission of offence; the freezing order was passed under section 12 of the Ordinance of 1999; such an order cannot be considered as an order of attachment passed under section 8 of the Act of 2010; if the law has been amended and jurisdiction under the Ordinance of 1999 is ousted, even then the Bureau can proceed with the matter under the Act of 2010; the investigations are competent; the properties are the proceeds of crime committed by the Appellant in connivance with his brother who has been sentenced by a competent foreign court; the learned Accountability Court illegally allowed the Appellant to maintain bank accounts for his personal use.
5. Heard. Record perused.
6. Perusal of the record shows that NAB had initiated proceedings against the Appellant at the request of a foreign State for recovery of assets accumulated by him allegedly adjudged to be proceeds of crime. The Appellant has asserted in the writ petition that the proceedings under the Proceeds of Crime Act, 2002 (held at UK) have been discharged and the restraint order passed vide order, dated 24.06.2006 have been withdrawn. Furthermore, the warrants of arrest issued against the Appellant by City of Westminster Magistrates Court have also been withdrawn on 27.07.2021 (documents attached at pages 225-226 of writ petition).
It is noted that the Reference in the matter in hand has not yet been filed before the learned Accountability Court.
7. The learned Special Public Prosecutor, NAB has conceded that after promulgation of the National Accountability (Amendment) Act, 2022 and the National Accountability (Second Amendment) Act, 2022 the provisions of the Ordinance of 1999 are no more attracted in the instant case. The offences under the Act of 2010 were being investigated as predicate offence to the offences under the Ordinance of 1999. Since the provisions of the Ordinance of 1999 are no more attracted after a retrospective change in the law, then a question arises, whether the NAB, being investigating/prosecution agency, can file complaint through the investigating officer before the Court of Sessions on the basis of investigations already conducted.
8. NAB is proceeding in the matter in hand simultaneously under the provisions of the Ordinance of 1999 and the Act of 2010 pursuant to the information/complaint of National Crime Agency, UK.
Section 12 of the Ordinance of 1999 empowers the Chairman NAB or the Court trying an accused for any "offence" specified under the said Ordinance to freeze the properties or part thereof, whether in his possession or in the possession of any relative, associate or person on his behalf. Similarly, under section 8 of the Act of 2010, the investigating officer/prosecution agency, with the approval of the Court, can provisionally attach the property "involved" in money laundering for a period not exceeding one hundred and eighty days from the date of the order. This period, however, can further be extended for a period of one hundred and eighty days. Sub section (3) of section 8 of the act of 2010 provides that the attachment order passed by the investigating officer shall seize to have effect on expiry of the stipulated period or the time, subject to sub-sections (2) & (3) of section 9 of the Act of 2010. Under section 9(2) if the investigating officer/prosecution agency determines during the investigations that the properties provisionally attached are involved in money laundering, then he shall apply to the Court under section 9(3) of the Act of 2010 for confirmation of the attachment till conclusion of the trial. The scheme of attachment of property under the Act of 2010 and freezing under section 12 of the Ordinance of 2009 is the same. The expression "property involved in money laundering" is defined in section 2(xxxi) of the Act of 2010 as meaning "proceeds of crime, property derived or obtained directly or indirectly from the offence of money laundering and property used or intended to be used in commission of the offence of money laundering, a predicate offence or a foreign serious offence".
9. Section 2(xviii) of the Act of 2010 defines the expression "investigating or prosecution agency", which, inter alia, includes NAB. The expression "Court" has been defined in section 2(x) as meaning the Court specified under section 20. Section 20 ibid provides that the Court of Sessions established under the Code of Criminal Procedure, 1898, shall within its territorial jurisdiction, exercise jurisdiction to try and adjudicate the offences punishable under the Act of 2010. However, the proviso to section 20 ibid provides that where the predicate offence is triable by any court other than the Court of Sessions, the offence of money laundering and all matters connected therewith or incidental thereto shall also be tried by the Court trying the predicate offence. Section 21(2) of the Act of 2010 provides that the Court shall not take cognizance of any offence punishable under section 4, except upon a complaint in writing by the (a) investigating officer; or (b) an officer of the Federal Government or Provincial Government authorized in writing in this behalf by the Federal Government. The expression "investigating officer" has been defined in section 2(xvii) of the Act of 2010 as an officer nominated or appointed under section 24 ibid . Section 24(1) provides that the investigating or prosecuting agencies may nominate such persons as they think fit to be the investigating officers under the Act of 2010 from amongst their officers.
10. As discussed above, the Court of Sessions is barred to take cognizance of the offence under section 4 of the Act of 2010, except on a complaint in writing by the investigating officer duly appointed by the investigating or prosecuting agency from amongst its officers. In the case in hand, NAB is the investigating / prosecution agency duly defined under section 2(xviii) of the Act of 2010. A complaint in writing by the investigating officer of the NAB to the Court of Sessions at Islamabad is, therefore, sufficient to cross the barrier of section 21(2) of the Act of 2010. Thus a complaint made in writing by the investigating officer duly appointed under section 24(1) of the Act of 2010 by NAB shall be competent before the Court of Sessions.
11. In the case in hand, the freezing orders were passed by NAB and confirmed by the learned Accountability Court. The objections of the Appellant have also been dismissed. An order passed by exercising power under section 12 of the Ordinance of 1999 is subject to the allegation of the commission of "offences" defined under the said Ordinance and, therefore, cannot stand alone.
This however is without prejudice to the provisions of the Act of 2010, which provides its own scheme for attachment of the property involved in the commission of offence of money laundering. In the case in hand, the properties were frozen suspecting them to be "proceeds of crime derived directly or indirectly from the commission of foreign serious offence" at the request of National Crime Agency, UK. The record appended with the writ petition shows that the said proceedings against the Appellant have been dropped by the authorities at UK by withdrawing his warrants of arrest and assets restraint order issued under the Proceeds of Crime Act, 2002 (UK).
Furthermore, one of the reasons advanced by the learned Accountability Court to turn down the objections of the Appellant was amendment in section 4 through the National Accountability (Amendment) Ordinance, 2021, vested jurisdiction in learned Accountability Court to deal with matters relating to the Act of 2010. However, the said section 4 has been substituted through the National Accountability (Amendment) Act, 2022, ousting the jurisdiction of the learned Accountability Court to the extent of the Act of 2010.
11. The orders passed for freezing the properties by NAB and confirmed by the learned Accountability Court under the Ordinance of 1999 are similar to the scheme of attachment by the investigating officer and confirmation by the Court provided under the Act of 2010. NAB had proceeded under both the laws simultaneously in respect of the properties/bank accounts, etc. Since the offences under the Ordinance of 1999 are no more attracted after a retrospective change in the law, therefore, the learned Court of Sessions shall have jurisdiction to deal with the case in hand, keeping in view the facts and circumstances of the case in hand, as well as the developments i.e. withdrawal of the proceedings against the Appellant in UK. As held above, a complaint in writing by the investigating officer appointed by NAB under section 24(1) of the Act of 2010 is competent before the Court of Sessions, therefore, NAB is directed to conclude the investigation and, if sufficient material is available on record, then file a complaint before the Court of Sessions within one month from the date of receiving a certified copy of this order. In case a complaint under the Act of 2010 is filed, then the learned Court of Sessions is expected to decide the question of attachment of the properties/bank accounts independently in accordance with law and shall be at liberty to alter, amend, vary, rescind or modify the freezing impugned/orders passed by the learned Accountability Court within two weeks from the date of receiving such complaint. The writ petition was filed by the Appellant/petitioner before the recent amendments in the Ordinance of 1999 and the grounds raised therein are mainly related to the Ordinance of 1999.
After filing of the writ petition, two developments have occurred i.e. (i) amendments in the Ordinance of 1999 and (ii) discharge of the proceedings by the authorities at UK. Since investigations are pending and the investigating/prosecuting agency and the learned Court of Sessions have ample powers to look into the matter afresh, therefore, the Appellant/petitioner would be at liberty to approach both the forums on the referred fresh grounds and if his grievance persists, then file a fresh petition.
12. The listed criminal appeals and the writ petition are, therefore, accordingly disposed-of in the above terms.