2012 P Cr. L J 1950
[Balochistan]
Before Jamal Khan Mandokhail and Ghulam Mustafa Mengal, JJ
Dr. MUHAMMAD AZAM KASI ---Appellant
Versus
THE STATE through Deputy Prosecutor -General Accountability Court No.1, NAB,
Quetta ---Respondent
Criminal Ehtesab Appeal No.1 of 2012, decided on 25th July, 2012.
(a) National Accountability Ordinance (XVIII of 1999) ---
----S. 12 ---Constitution of Pakistan, Art. 23 ---Freezing of property right (Bank accounts) for
unlimited period ---Validity ---Restri ction can be imposed on acquiring, holding and
disposing of property against any person, if so required but under the Constitution,
such restriction must be reasonable ---Any act or order resulting into freezing of property for
unreasonabl e excessive period is outside the meaning of "reasonableness" ---Both validity of
law and action taken in such manner becomes justiceable from stand point of public interest.
(b) National Accountability Ordinance (XVIII of 1999) ---
----Ss.12 & 13 ---Constitution of Pakistan, Art. 23 ---Right to property ---Freezing of property
(Bank accounts) ---Duration ---Confirmation of freezing order ---Pre-conditions ---Non-filing of
reference ---Effect ---Petitioner was accused facing trial before Accountability Court and his
grievance was that his accounts could not be frozen for unlimited period ---Validity ---
Freezing order and its confirmation period was limited by law for a reasonable time,
therefore, no property should be ordered to be frozen for an unlimited per iod--- Purpose
of request for confirmation of freezing order of Chairman NAB was to secure ill -gotten
property from its disposal before decision of reference by Trial Court ---Chairman NAB could
pass order to freeze property on the basis of all po ssible evidence and material collected by
investigating officer against accused ---Period of fifteen days provided by National
Accountability Ordinance, 1999, was to enable Chairman to prepare reference and send to
court along with request for confirmation of freezing order ---Such request was made by
prosecutor, without reference, who was not certain as to when reference would be
filed---Order passed by Trial Court confirming freezing of property, without reference,
was considered to be for an unlimited period and the same was not only contrary to law but
was also against provisions of Art. 23 of the Constitution ---Pre-condition for confirmation of
freezing order was that if there appeared reasonable ground for believing that accused has
committed such offence and for believing that a person had committed an offence, there
must have been some material before Trial Court ---When no reference was filed before Trial
Court, Trial Court, while confirming freezing order could not possibly believe that accused
had committed offence under National Accountability Ordinance, 1999 ---High Court set
aside order passed by Trial Court, as the same was contrary to provisions of S.12 of National
Accountability Ordinance, 1999, and accounts frozen by T rial Court were released forthwith -
--Appeal was allowed, in circumstances.
Khan Asfand Yar Wali and others v. The Federation of Pakistan PLD 2001 SC 607 ref.
(c) National Accountability Ordinance (XVIII of 1999) ---
----S. 13 ---Objection to freezing order (Bank accounts) ---Period of limitation ---
Determination ---Remedy to aggrieved person has been provided under S.13 of National
Accountability Ordinance, 1999 ---Period of 14 days has been provided for filing objections
or claims against freezing order a nd Trial Court may extend the period upto further 14 days ---
To calculate period of limitation to file objections or claims, aggrieved person must be aware
of passing of any freezing order, therefore, limitation starts running from date of knowledge --
-Neces sary for the Trial Court to inform the person, whose property has been frozen under
S.12 of National Accountability Ordinance, 1999.
Muhammad Qahir Shah and Javed Iqbal Kasi for Appellant.
Muhammad Afzal Jami, Deputy Prosecutor -General, NAB for the St ate.
Date of hearing: 21st June, 2012.
ORDER
JAMAL KHAN MANDOKHAIL, J. ---Precisely stated facts are that an inquiry was
initiated against the appellant, who is an Ex -Director -General, Livestock. During the inquiry
proceedings, the Director -General N AB Balochistan passed an order on 2nd December 2011,
whereby the following accounts of the petitioner were freezed: --
S. No. Account Number Bank Title of Account
1 20620 -714-107433 My/Summit Bank G -11
Markaz, Islamabad Muhammad Azam
Kansi
2 08784162035 Standard Chartered Bank,
Quetta -do-
3 100-4554 -6 UBL Liaqat Bazar, Quetta -do-
4 005816 -5 NBP Shahra -e-Iqbal -do-
5 0103 -00035907 -001 Summit Bank Liaqat Bazar Khushal Enterprises
Subsequently, on 28th December, 2011, the Acting Deputy Prosecutor -General, NAB, filed
an application before the Accountability Court -I Balochistan, Quetta for confirmation of the
freezing order. The appellant filed an objection to the application on 6th February, 2012. The
accountability Court -I Balochistan Quetta rejected the objections of the appellant and
accepted the application by means of the order impugned dated 14th February, 2012, hence
this appeal.
2. Learned counsel for the appellant stated that the trial Court has wrongly rejected the
objections of the appella nt, which is an illegality and irregularity. Accounting to him, even
otherwise, while accepting the application, the trial Court did not give any reason for
confirmation of the freezing order passed by the Director -General, NAB, Balochistan. He
further sta ted that the order is operating against the appellant since December, 2012, but till
date, no reference has been filed, therefore, the property of the appellant could not be freezed
for an unlimited period, therefore, on this score as well, the order impug ned is illegal and
unlawful.
3. On the other hand, the learned Deputy Prosecutor -General, NAB Balochistan,
opposed the contention and stated that under section 13 of the Ordinance, the objections
shall be made before the Court within 14 days fro m the date of the order freezing such
property, but the appellant did not file his objection within time, as such, the trial Court has
rightly rejected the objections and confirmed the freezing order, therefore, no illegality or
irregularity has been commi tted.
4. We have heard the learned counsel for the parties and have perused the record of the
case, It is to be noted that under section 12 of the Ordinance, the power of the Chairman to
freeze the property is limited to 15 days and any period exceeding such time limit is subject
to confirmation by the Accountability Court. The order of freezing the properties by the
Chairman NAB or Court is a sort of restriction, which has a backing of Article 23 of the
Constitution of the Islamic Republic of Pakistan, w hich is reproduced below: --
Art: "23. Provision as to property . Every citizen shall have a right to acquire,
hold and dispose of property in any part of Pakistan subject to the constitution and
any reasonable restriction imposed by law in the public inte rest."
A restriction can be imposed upon a property of a person under section 12 of the NAB
Ordinance, which has two portions, one assigns power to the Chairman NAB to freeze a
property of a person for 15 days, further confirmable by a Court wh ere a reference shall be
filed, while the other portion assigns power to the Court to freeze the property of an accused
facing trial on its own, till the final disposal of a reference. No doubt, under the law, a
restriction could be imposed on acquiring, h olding and disposing of a property against any
person, if so required, but the Constitution says that such restriction must be reasonable,
therefore, any act or order resulting into freezing of a property for an unreasonable excessive
period will of course be outside the meaning of reasonableness. Both the validity of law and
action taken in such a manner becomes justiceable from stand point of public interest.
Initially, a period of 30 days was provided under section 12 of the Ordinance for the
Chairman NA B to pass an order freezing a property, but the period was curtailed to 15 days
pursuant to the judgment passed by the honourable Supreme Court in the case of Khan
Asfand Yar Wali and others v. The Federation of Pakistan reported in PLD 2001 SC 607,
hence the provisions section 12 of the NAB Ordinance have now been made consistent with
Article 23 of the Constitution of the Islamic Republic of Pakistan. Section 12 of the
Ordinance is exhaustive and self -explanatory, which provides that the Chairman NAB may,
at any time, if there appear reasonable grounds for believing that the a person has committed
an offence, punishable under the NAB Ordinance, order the freezing of his property or a part
thereof, but that order should not exceed 15 days. Any order beyond 1 5 days shall be subject
to confirmation by a Court, where a reference shall be filed. It means that the request for
confirmation of a freezing order must be made by the Chairman NAB, which shall follow by
a reference before the Court against the person, wh ose property is sought to be freezed.
Section 16 of the Ordinance provides that on receiving a reference, the trial should be
proceeded on day to day basis and should be disposed of within 30 days. The honourable
Supreme Court in the above -referred judgmen t has already held that after confirmation of the
freezing order by the trial Court, it shall continue till the final disposal of the reference. Thus,
it is evidence that the freezing order and its confirmation period has been limited by the law
for a reas onable time, therefore, no property should be ordered to be freezed for an unlimited
period. The purpose of a request for confirmation of freezing order of the Chairman NAB is
to secure the ill -gotten property from its disposal before the decision of a ref erence by the
trial Court. Usually the Chairman NAB passes such an order on the basis of all the possible
evidence and material collected by the Investigating Officer against an accused. The period of
16 days provided by the Ordinance is to enable the Chai rman to prepare a reference and sent
into the Court along with the request for confirmation of the freezing order. Admittedly, the
request has been made by the Additional Prosecutor -General, without a reference, and he is
not certain as to when it would be filed, therefore, under such circumstances, the order
impugned for confirmation without a reference is considered to be for an unlimited period,
which is not only contrary to law, but is also against the provisions of Article 23 of the
Constitution.
5. Moreover, under the Ordinance, any order of freezing a property is valid up to 15
days and the moment, the stipulated period expires, the order automatically ceased to exist,
therefore, it is necessary for the Court that there must be an order in field to confirm it. In the
present case, admittedly the order of freezing of the accounts of the appellant was passed by
the Director -General NAB Balochistan on 2nd December, 2011 expired on 17th December,
2011, as such, it ceased to exist, therefore, no question of its confirmation thereafter arises.
The application filed by the Deputy Prosecutor -General NAB before the trial Court for its
confirmation on 28th December, 2011 was not maintainable for the reason that there was no
order of the DG NAB, Quetta, for conf irmation. The trial Court, while entertaining the
application, did not consider such an important aspect of the case and has wrongly allowed it,
which is an illegality and irregularity.
6. Under the provision of section 12 of the Ordinance, certain oblig ations are placed
upon the authorities to keep check and balance to avoid misuse of authority, therefore, the
request for confirmation of an order of freezing of property must also come from the
Chairman NAB or the DG NAB in case power assigned to him, of course through the
Prosecutor. The application for confirmation filed by the Deputy Prosecutor -General NAB is
not supported by any document, confirming the request or permission of the Chairman. NAB
or DG NAB, therefore, the request of confirmation is not in accordance with law. The order
impugned passed by the trial Court on such an application is illegal.
7. Without prejudice to above, even otherwise, a precondition for confirmation of
freezing order is that if there appears a reasonable ground for believing that the accused has
committed such an offence, and for believing that a person has committed an offence, there
must have been some material before the trial Court. Admittedly, no reference has been filed
before the trial Court, therefore, a question arises as to how the trial Court believed that the
appellant has committed an offence specified under this Ordinance, while confirming the
freezing order. The order impugned without assigning any reason is contrary to the provisions
of section 12 of the Ordinance, therefore, the same is illegal and unlawful.
8. As regards the contention so raised by the Deputy Prosecutor -General that the
objection filed by the appellant was barred by time. In this behalf, sectThis judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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