Dr. Khurshid Iqbal,
1. The petitioner Muhammad Afzal, his brother Muhammad Sarwar and the legal heirs of one late Muhammad Aslam filed this writ petition under Article 199 of the Constitution, against the National Accountability Bureau (NAB), its Khyber Pakhtunkhwa's Director General, Peshawar's Accountability Court, and Haripur's Revenue Officer and Deputy Commissioner (respondent No. 01 to 05). They prayed for quashing the Accountability Court's (a) order dated 05.11.2007 vide which it confirmed a freezing order of the NAB in respect of 26 Kanals 11.5 Marlas land (details given in para-1 of the petition; to be referred as property in question) in Reference No.09/2009, and (b) para No. 26 of the judgment dated 31.03.2021 rendered in Reference No. 01.2020 in which a sale mutation in their favour bearing No. 1599 dated 24.02.2010 was ordered to be cancelled being void in terms of section 23 of the NA (Ordinance), 1999. They also prayed for issuance of directions to the respondents, not to interfere with the property in question through transfer mutation No. 1599 dated 14.02.2010.
2. Germane facts of the matter are that the petitioners alleged that the property in question was sold by their uncle Muhammad Zaman to one Tariq Fawad Malik on the strength of mutation No. 1454, attested on 04.102004. Somehow or the other, the NAB initiated an inquiry against the aforesaid Tariq Fawad Malik. During that inquiry, the property in question was initially frozen by the NAB on 26.09.2007, which was, later on, confirmed by the Accountability Court vide its impugned order dated 05.11.2007. The NAB, then, filed a Reference No. 09 in the year 2009 against Tariq Fawad Malik and his wife Ayesha Malik, who ran away. The Accountability Court proceeded against them u/s 512 Cr.P.0 and declared them as proclaimed offenders. The petitioners purchased the land in question through one Dr. Anees Kausar Malik, sister of Tariq Fawad Malik on the basis of a General Power of Attorney, on the strength of mutation No. 1599 dated 24.02.2010. Obviously, the aforesaid sale transaction was affected while the freezing order was in field, and Tariq Fawad Malik and his wife Ayesha Malik are still at large under a perpetual warrant of arrest against them. On 26.06.2018, the NAB submitted an application u/s 12 (c)(iv) of the Ordinance, for attachment of the property in question on the ground that Tariq Fawad Malik has transferred the property in question with ulterior motive to thwart the freezing order. The Accountability Court, however, dismissed that application on 20.12.2018 for the reasons: firstly, that the record of the Reference has been consigned, as such, it was not seized of the matter at that point of time. And, secondly, the freezing order was not communicated to the revenue authorities, and further that sections 12 and 13 of the Ordinance do not provide penal consequences in case of violation of a freezing order. The NAB filed a writ petition No. 738-P/2019, which this Court dismissed on 11.09.2019. They filed a fresh Reference No. 01/2020 against Tariq Fawad Malik and Dr. Anees Kausar Malik u/s 18 (g) read with section 23 of the Ordinance in respect of the fraudulent transfer of the property in question to the petitioners. While Tariq Fawad Malik remained all the same at large, his sister Dr. Anees Kausar Malik faced the trial, convicted by the Accountability Court and sentenced to imprisonment till raising Court (TRC) and payment of fine to Rs. 500,000/- vide its judgment dated 07.10.2021. The Accountability Court also, in its impugned paragraph No. 26, ordered cancellation of the 2010 mutation No. 1599 in favour of petitioners, restoring the earlier 2004 mutation No. 1454 in favour of Tariq Fawad Malik. She, however, was acquitted by this Court on appeal. The petitioners contend that they are bona fide purchasers in possession of the property in question, in which they have constructed residential houses, spending huge money. They also contend that in the writ petition No. 738-P/2019, filed by the NAB, they were condemned unheard. They further contend that Section 13 of the Ordinance, which govern submission of claims or objections against frozen property, does not provide remedy in case of what they called violation of freezing order. It is also their ground for interference by this Court that the impugned paragraph No. 26 of the judgment dated 31.03.2021 of the Accountability Court to the extent of cancellation of the sale mutation in their favour is against the law. They assert that the process through which their property has been dealt with by the NAB is offending their fundamental right to property under Articles 23 and 24 of the Constitution.
3. Counsel for the petitioners raised three points at the bar: the petitioners are bona fide purchasers having a fundamental right to acquire property within the meaning of Articles 23 and 24 of the Constitution; the petitioner had no knowledge of the freezing order as no note of caution was issued to them while purchasing the property in question; and that they were condemned unheard in the NAB's writ petition for seeking attachment of the property in question in 2018. He relied on certain case law which we shall refer and discuss in detail later in this opinion.
4. The Deputy Prosecutor General of the NAB, on the other hand, submitted that the fundamental rights of the petitioners are subject to reasonable restrictions imposed by law; the freezing order was in field at the time of the purchase by the petitioners who were supposed to have satisfied themselves about any charge on the property; and that the issue of their hearing in the 2018 writ petition is not relevant at all. We perused the record with the assistance of the learned counsels for the parties.
5. The sole and simple question for determination as delineated in the petition's admitting order dated 03.06.2025 is that whether this Court, in its constitutional jurisdiction, can interfere with the impugned freezing order dated 05.11.2007, and the impugned paragraph No. 26 of the judgment dated 31.10.2021 of the Accountability Court in reference No. 01/2020.
6. It is an admitted fact that the freezing order of the property in question was passed in 2007 earlier than the sale transaction of the petitioner in 2010. Section 23 declares that any transfer or creation of charge on property owned or possessed by an accused person or any one on his behalf, against whom inquiry or investigation has been initiated, shall be void. Thus, the purchase of the property in question by the petitioners, vide mutation No. 1599, attested in the year 2010, is void. Needless to say, the property in question was owned by an accused person in a NAB case, which has been frozen way back in the year 2007, and sold through the accused person's general attorney who happens to be his sister. Under section 13 of the Ordinance, an accused person or any other aggrieved (thirty) party may file claim or objection to a freezing order under section 12. A purchaser of the frozen property, being a third party, may redress grievance under section 13. The question in the instant case is whether the petitioners, as third party, could file claim or objection.
The answer is No. As the plain reading of section 23 transpires, purchase of an accused person's property that has already been frozen, is void. The section 13 claim or objection is open to a third party to whom a right has been accrued before the freezing order. Needless to say, no right had accrued to the petitioners at the time of the passing of the freezing order.
7. Moving now to the plea of knowledge counsel for the petitioner pleaded before us. He argued that the freezing order did not reach down to the patwari of the mauza who could have incorporated it in the record of rights. Be that as it may, the plea raises a factual controversy in which this court cannot enter in constitutional jurisdiction. While touching the issue in passing, however, a couple of points are in order in this regard. Firstly, the NAB arrayed the petitioners as a party in their writ petition # 738-P/2019 in which they challenged the order dated 20.12.2018 of the Accountability Court vide which their application for attachment of the property in question was dismissed. The petitioners were also associated as witnesses in the Reference No. 01/2020 and, amongst them, petitioner No. 1 was examined as a prosecution witness at the trial who was confronted with the fact of freezing of the property in question at the time of their purchase in 2010.
But despite having got knowledge of the freezing order at that specific point of time, they did not file any claim or objection. Secondly, the petitioners being the buyers--on the doctrine of caveat emptor--were supposed to be aware about the clog the NAB had created. Thirdly, Dr. Anees Kusar, general attorney and the sister of accused could not be stated to have had no knowledge of the Reference against her brother and his wife, the freezing order in respect of the property in question and his hiding out in Duabi in that very case. She was appointed as general attorney from Dubai. In such circumstances, there arises no question of a separate note of caution simply that the freezing order was not embedded in the revenue record. Similarly, the petitioners have not independently challenged in appeal para-No. 26 of the Accountability Court's judgment dated 21.10.2021, vide which the sale mutation No. 1599 in favour of the petitioners was ordered to be cancelled.
8. Counsel for the petitioners relied on some judgments in which both the issues of third party's fundamental right to property and knowledge of the freezing order have been discussed. He relied on Ali Trust[1] [Islamabad High Court (IHC): 2021]. The petitioners in that case had purchased some plots in Islamabad which the Capital Development Authority (CDA) was not transferring in its name. The reason the CDA was showing was that the NAB was inquiring an allegation that the status of the plots were illegally changed from that of clinics to general commercial nature. The NAB's inquiry was initiated subsequent to the purchase of the plots. In the instant case, the inquiry was already underway and even Reference was already filed at the time the petitioners were purchasing the property in question. Section 23, thus, stood fully triggered in this case. In the referred case, the owner was not an accused person. In the case in hand, the owner is an accused person. Hence, the cited case is of no help to the petitioners in this case.
9. The purpose of section 23 was first elaborated by the Supreme Court in Asfandyar Ali[2] (SC: 2001). The Court observed that the provision contains an interlocutory measure to restrain an accused person to defeat the object of the law "by creating a third-party interest in respect of illegally acquired property." The provision is also penal as its violation constitutes an offence. The Court explained that the purpose of the provision is not to render the final decision of the case redundant, emphasizing that it is not by way of punishment. In the 2010 Muhammad Mahesar[3] case, the Sindh High Court (Sindh: 2010), while further elaborating the provision, observed that the provision seeks to prevent an accused person from defeating the punishment s/he may be liable for an offence under the Ordinance, and that it does not militate against the fundamental right to property under Articles 23 and 24 of the Constitution which is subject to reasonable restrictions under the law in the public interest. In Ali Trust, the Court discussed the interplay between section 23 of the Ordinance and Article 23 of the Constitution from the standpoint of fraudulent creation of a third-party interest. The essence of section 23, the Court observed, is to give priority to the right of the State over the right of a third party purchaser created in property of an accused person under the Ordinance.[4] The issue is settled as the Supreme Court in the 2001 Asfandyar Ali case ruled that section 23 of the Ordinance and Articles 23 and 24 of the Constitution are not per se in conflict with each other.[5] It may be added here that the Courts have also held (Ashi Munir[6], IHC: 2019) that section 23, being requiring strict construal, is attracted only in relation to an accused person from the perspective of section 5(a) of the Ordinance[7], and that there must be a freezing order passed by the NAB (Muhammad Bilal[8] IHC: 2020; relied on by counsel for the petitioners).
10. On the petitioners' lack of knowledge, their counsel relied on the case of Azam Kasi[9] (Baluchistan: 2021). Pertinent facts of the case are the NAB, having initiated an inquiry against the appellant, the Director General by his order dated 02.12.2011 froze the appellant's property. That order was to be submitted to the Accountability Court for confirmation within 15 days, failing which it was to stand vacated. The NAB sought confirmation vide an application dated 28.12.2011, after the expiry of the prescribed period. The appellant raised an objection to confirmation which the Accountability Court rejected. The NAB's freezing order ceased to have effect on 17.12.2011. The High Court allowed the appeal in the above circumstances of the case. On a closer reading of the judgment, it is not clear whether knowledge was a specific question or not. The Court, however, observed that while computing "the period of limitation to file objections or claims, an aggrieved person must be aware of the passing of any order, therefore, limitation would start from the date of knowledge." The ruling is not attracted in the circumstances the present case. The reasons are: firstly, the accused himself got engaged in the judicial proceedings by filing an objection to the freezing order on the ground of limitation. In the instant case, the petitioners are third party.
Secondly, the freezing order was not submitted to the Accountability Court for confirmation within the statutory period of 15 days. In the case in hand, the freezing order was got confirmed within the prescribed period, and more so was already in the field at the relevant time.
11. While citing the case of Muhammad Bilal Sheikh, referred to above, counsel for the petitioners argued that no note of caution was issued to the petitioners at the time of attestation of the sale mutation No.1599 in their favour in the year 2010. In the first instance, we are of the view that there was no need of the proposed note of caution. The reasons are that the freezing order was already in field, as noted above, rather about three years ago, and Dr. Anees Kausar, the general attorney of the accused, was in knowledge of such order. Perhaps the petitioners' counsel considers that issuance of a note of caution was necessary under the Ordinance. If at all, a note of caution may be issued during inquiry or investigation. Once an inquiry or investigation is completed and the matter is referred to the Accountability Court, the NAB cannot even pass an order of freezing. This was held in the famous Shuja Khan case[10] (IHC: 2011). It was further held that if the property of an accused person is not in the knowledge of the NAB or the Accountability Court while an inquiry or investigation is pending, the transfer of the property by the accused would be void and the action would amount to an offence under section 23. The Court maintained that if the property is known to the NAB or the Accountability Court, it would be obligatory that a freezing order is passed in respect thereof. It follows that there could be either a freezing order or not at all.
12. Finally, we would consider some other precedents counsel for the petitioners relied on. They are Shaffat Ibrahim Khan[11] (Lahore: 2024), Mst. Bilqis Bane[12] (Sind: 2020), and Faiz Rasan[13] (Peshawar: 2023). The first case is distinguishable for the reason that the petitioner therein had purchased property from a person acquitted by the Accountability Court while the NAB's appeal was pending. The second case is no of help to the petitioners' case because the jurisdiction of civil court as regards frozen property under the Ordinance was involved. The Court returned the plaint for approaching the Accountability Court. In the last mentioned case, the petitioners (victims of public fraud) sought sealing and freezing of certain property of the person facing trial in a NAB Reference. In that case, counsel for the petitioners invited our attention to our view that freezing of any property for unlimited period is against the Constitution. We are afraid the aforesaid view is not a ground of the petitioners in the instant case.
13. For the reasons recorded above and the relevant legal principles applied, we have reached to the conclusion that we cannot interfere with the impugned freezing order dated 05.11.2007 on the plea that the petitioners had no knowledge, or, as they wrongly pleaded that no note of caution was given to them at time of attestation of the sale mutation in their favour. The issue of knowledge of the freezing order is factual in nature. It is also settled since long that section 23 of the Ordinance is not in conflict with Articles 23 and 24 of the Constitution on the principle of reasonable restriction imposed by law. Likewise, the petitioner's plea of right of hearing in the 2019 writ petition filed by the NAB is also groundless as they got knowledge of freezing order in event of the Reference No.01/2020, but they did not file any objection or claim. Hence, while answering the points of determination in the negative, we dismiss this writ petition with cost.
1. Ali Trust Pakistan v. Capital Development Authority, (2021 PCr.LJ 1738) [Islamabad].
2. Khan Asfandyar Ali and others v. Federation of Pakistan through Cabinet Division, Islamabad and others (PLD 2001 SC 607).
3. Khan Muhammad Mahesar v. National Accountability Bureau (Sindh) and another (2010 PCr.Ij 579).
4. Ali Trust, supra note 1, para. 14.
5. Khan Asfandyar Ali, supra note 2, paras. 264, 263.
6. Mst. Ashi Munir v. National Accountability Bureau, Rawalpindi and others (2019 PCr.IJ 1997).
7. Definition clause: "Accused' shall include a person in respect of whom there are reasonable grounds to believe [that he] is or has been involved in the commission of any offence [triable] under this Ordinance or is subject of an investigation [or] inquiry by the National Accountability Bureau, or [any other agency authorised by the National Accountability Bureau in this regard under this Ordinance.] (footnotes omitted).
8. Muhammad Bilal Sheikh v. Accountability Court NO. 1, Islamabad and others, W.P. 77 of 2020.
9. Dr. Muhammad Azam Kasi v. The State through Deputy Prosecutor-General, Accountability Court No. 1, Quetta (2012 PCr.LJ 1950) [Baluchistan].
10. Shuja Khan Baluch v. Capital Development Authority, Islamabad through Chairman and others (PLD 2011 Islamabad 25).
11. Shaffat Ibrahim Khan v. Chairman, National Accountability Bureau (2024 PCr.LJ 539)
[Lahore].
12. Mst. Bilqis Bano and another v. Pakistan Defence Officers Housing Authority through Administrator and 5 others (2020 PCr.LJ 354) [Sindh].
13. Faiz Rasan and 4 others v. Chairman National Accountability Bureau (NAB), Islamabad and 4 others [(PLJ 2023 Peshawar 36 (DB)].