2015 Y L R 2235
[Balochistan]
Before Shakeel Ahmed Baloch and Naeem Akhtar Afghan, JJ
Syed FATEH AGHA ---Petitioner
versus
ACCOUNTABILITY COURT and 2 others ---Respondents
C.P. No.306 of 2011, decided on 29th June, 2015.
National Accountability Ordinance (XVIII of 1999) ---
----Ss. 12 & 13 ---Constitution of Pakistan, Arts. 13 & 199 ---Constitutional petition ---Freezing of
property ---Double jeopardy ---Petitioner was accused before National Accountability Bureau who
entered into volu ntary return and deposited Rs.2.1846 million ---Subsequent to issuance of "No
Objection Certificate" by NAB as well as Quetta Development Authority and after execution of
registered sale deed with petitioner, National Accountability Bureau issued freezing o rder with
regard to same property ---Plea raised by authorities was that remedy with petitioner was filing of
appeal and not Constitutional petition ---Validity ---Such freezing order against same property
amounted to double jeopardy which was prohibited unde r Art. 13 of the Constitution ---Remedy
of filing appeal within ten days was provided under S. 13(c) of National Accountability
Ordinance, 1999, to an aggrieved person whose claim or objection against freezing of property
had been dismissed by Accountabilit y Court ---No appeal was provided under S. 13 of National
Accountability Ordinance, 1999, against an order passed under S. 12 of National Accountability
Ordinance, 1999 ---No objections were filed by petitioner against freezing of his property and
order was passed by Accountability Court under S.12 of National Accountability Ordinance,
1999, against which no appeal was provided under S. 13 of National Accountability Ordinance,
1999 ---Petitioner was an aggrieved person having no remedy of appeal provided again st order in
question, therefore, he rightly invoked Constitutional jurisdiction of High Court under Art. 199
of the Constitution ---Powers of superior Courts under Art. 199 of the Constitution remained
available to petitioner to their full extent notwithsta nding anything contained in any legislative
instrument ---High Court set aside freezing order passed by National Accountability Bureau and
approval by Accountability Court, as the same were null, void and of no legal effect ---High
Court de -freezed the prope rty owned by petitioner ---Petition was allowed in circum -stances.
Khan Asfand Yar Wali v. Federation of Pakistan PLD 2001 SC 607 and Javed Hashmi v.
Federation of Pakistan, 2003 PCr.LJ 266 rel.
Syed Ayaz Zahoor for Petitioner.
Muhammad Afzal, Sen ior Prosecutor and Riaz Akhtar, ADPG, NAB for Respondents.
Date of hearing: 25th June, 2015.
ORDER
NAEEM AKHTAR AFGHAN, J. ---This order disposes of Constitution Petition No.306
of 2011, wherein the following relief has been claimed by the petitioner: --
(A) Declaring that the act of the respondent No.2 in issuing the letter dated 22nd February,
2011; freezing the property of the petitioner known as Hassan Plaza, situated at Sirki Satellite
and Saryab Road Chowk, Quetta, is totally, illegal , improper, unjust, unconstitutional, based with
mala fide intention, in excess and mis -exercise of authority and jurisdiction vested in him under
the provisions of NAB Ordinance, 1999, therefore, is of no legal consequence.
(A-1) Further declaring that the Order dated 27 -5-2011, passed by learned respondent No.1,
confirming the freezing order of the respondent No.2 is not only illegal, improper, in excess and
mis-exercise of authority vested in him under the provisions of NAB Ordinance, 1999 but is also
contrary to the guarantees available to the petitioner under the provisions of Constitution of
Islamic Republic of Pakistan, 1973, therefore, is of no legal consequences.
(B) After granting the relief Clauses -A and A -1 above, to set aside the Order dated 22-2-
2011, passed by respondent No.2 and Order dated 27 -5-2011, passed by respondent No.1.
(C) Permanently suspending the order dated 22 -2-2011, passed by respondent No.1 and order
dated 27 -5-2011, passed by learned respondent No. 1.
(D) Any other rel ief which this Hon'ble Court deems fit and appropriate may also be granted
in favour of the petitioner, in the interest of justice. "
2. Facts of the case are that with regard to the compensation and allotment of land at Sirki
Road Quetta letter dated 23 -5-2006 was issued to the petitioner by Director Estate Quetta
Development Authority ("QDA") which reads as follows: --
To
Messrs Fateh Muhammad and Haji Mardan R/O 255 -N/B3 Satellite Town, Quetta.
Subject: - COMPENSATION AND ALLOTMENT OF LAND - ISSU ANCE OF SITE
PLAN/ HANDING OVER PHYSICAL POSSESSION OF PLOT SITUATED AT SIRKI
ROAD, QUETTA ALLOTMENT OF ADDITIONAL LAND.
Reference your application dated 29 -12-2005. As per approval granted by Governing
Body vide its meeting held on 28 -1-2006 and subse quent confirmation by it dated 27 -4-2006 and
approved by the Competent Authority. You are allotted / compensated an area of 4940 sq.ft. as
per following detail in addition to the land already allotted to you: -
(a) An area of 1040 sqft. of land in lieu o f your squeezing land coming for widening of Road
in front of main Sirki Road of 1040 sq.ft already allotted is allowed at the back side of the plot.
(b) An area of 600 sq.ft. of land as free of cost in lieu of land mentioned (a) above.
(c) An area of 3300 sq.ft. land @ Rs.438 per sq.ft
2. As a result of this allotment, the total area of your plot will now become 8840 sq.ft and
you should deposit the cost of extra piece of land measuring 3300 sq.ft. @ Rs.438 per sq.ft.
which come to Rs.14,45,400 in N ational Bank of Pakistan Satellite Town, Quetta within 30 days
from the date of issuance of this letter, failing which a surcharge at the rate of 15% shall be
recovered by the QDA.
3. The actual demarcation and measurement of extra piece of land will be determined by
the Town Planning Branch QDA as per rule/policy while handing over its possession and
issuance of site plan as the case may be."
3. The petitioner got approved plan for construction of shops, flats with basement and
stores. After completio n of superstructure, completion Certificate dated 25 -7-2007 was issued by
the Building Inspector Zarghoon Town Quetta.
4. In the meanwhile, on the basis of a complaint, cognizance was taken by the National
Accountability Bureau ("NAB") and letter dated 2 1-5-2007 was written by respondent No.2 to
the Chairman Governing Body QDA to charge Rs.4000 per sq.ft. from the petitioner for the
allotted plot and to recover the amount from the petitioner.
5. The petitioner applied for voluntary return which was acce pted by respondent No.2 vide
letter dated 15 -8-2008 which reads as follows: --
"Subject: Acceptance of Voluntary Return Application Mr. Fateh Muhammad.
Reference: your application for voluntary Return dated nil.
1. Your case for Voluntary Return ha s been approved for Rs.2.1846 Million. You are
directed to deposit the agreed amount through Bank Draft/Pay Order in the name of "Chairman
NAB" account No.186 -3 NBP, Prime Minister Secretariat Branch, Islamabad and deliver the
same in this Bureau as per sc hedule:
(a) Down payment Rs.0.78624 Million by 10 Aug 08
(b) 1st installment Rs. 0.69918 Million by 10 Nov. 08
(c) 2nd installment Rs.0.69918 Million by 10 Feb 09
2. In case of default, the deposited amount will be confiscated and the original case will
be re -opened."
6. Subsequent to deposit of entire amount of voluntary return, the letter dated 15 -6-2009
was issued by the NAB which reads as follows: --
"Subject: Acceptance of VR -Application of Mr. Fateh Muhammad Agha (ODA
Governing Body).
Reference: letter No.1 -2086/88 (QDA) Estate/C. 589 dated 14 Apr 09.
1. It is intimated that the subject individual has deposited entire amount of Voluntary
Return and no other liability is pending against the subject individual. Hence, original file of
QDA No.1 -2086/88 (QDA) Estate is hereby returned as desired.
2. Forwarded for further necessary action, please."
7. Subsequently, in July 2009, letter was issued by NAB Balochistan to Director General,
QDA for issuing NOC in favour of the petition er, which is reproduced herein below: --
"Subject: Issuance of NOC -case No.291.
Reference: this Bureau letter No.2009/291/ IW -1/ NAB (B)/ Quetta/384 dated 15 Jun 09
1. A case against Fateh Muhammad Agha (QDA Governing Body) was investigated by
this Bureau, in which, the individual had deposited his liability through Voluntary Return. The
NOC to the individual was not being issued by QDA on the pretext that case is with this Bureau
as mentioned vide your officer letter No.1 -2086/88 (QDA) Estate/C.58 9 dated 14 Apr 09. It was
intimated to your office vide this Bureau letter under reference that he had cleared all his
liabilities through VR.
2. As in instant case individual has discharged his outstanding liability therefore now no
justification exist s to deny him the NOC. Whereas QDA has already issued him other relevant
certificates/documents i.e. Site Plan, Allotment letter, Handing Over of Possession, Transfer
order, NOC to Zarghoon Town for Approval of Building, Building Permit and Completion
Certificate issued by Zarghoon Town, Quetta.
3. It is requested that NOC be issued to the individual under intimation to this Bureau by
4 July 09."
8. Consequent to the above, Sale Deed was also executed between the petitioner and QDA
on 1-10-2009, which was also registered with the Sub -Registrar Quetta on 18 -12-2009.
9. The Deputy Director, Land Management QDA also issued NOC dated 31 -3-2010 for
mutating the above property in the name of the petitioner. In pursuance of the same, mutation
was also entered in the name of the petitioner in the revenue record and Non -Encumbrance
Certificate dated 1 -4-2010 was also issued by Tehsildar/Assistant Collector Quetta.
10. Subsequently, the respondent No.2 freezed the above property of the petitioner under
section 12 of the National Accountability Ordinance, 1999 (hereinafter "the Ordinance") vide
order dated 22 -2-2011 (hereinafter "the impugned order") which reads as follows: --
"Subject: Order under Section 12 of the National Accountability Ordinance 1999 for
Freezing of Immovable Property of Accused Fateh Agha Situated at Sirki, Satellite and Saryab
Road Chowk (Hassan Plaza) (Case No.291).
Whereas, during the process of Investigation at NAB Balochistan against Quetta
Development Authority (Governing Bo dy) on following allegations: -
Irregularities in allotment of Govt. land at Satellite Town Quetta and causing a loss of Rs.
15.00 million.
Illegal allotment of land on Zarghoon Road near Over head Bridge.
Allotment of land in Block -3 Satellite Tow n Quetta at Very low rate
Change in location/numbers of plots of bus Adda allotted during 2002 for their mala fide
intention.
2. It was established from the relevant record that the accused persons from QDA by
misusing their authority, illegally allo tted subject land to accused beneficiary Fateh Agha at
lower than market rate, and caused heavy loss to Govt exchequer. On the above allotment
following plaza has been constructed: --
Hassan Plaza, Situated at Sirki, Satellite and Saryab Road Chowk, Quet ta.
3. It is mostly likely that the accused may dispose off or sublet the aforesaid identified
property (assets) for frustrating/subverting any process of law initiated against him.
4. I am satisfied that freezing of above said property is necessary and I, therefore, in
exercise of powers vested on me by the Chairman NAB vide Gazette Notification S.R.O.
731(I)/2006 dated 13 Jun 06 under section 12 of the NAO 1999, hereby order the freezing of said
property. The said property shall stand frozen thus pr ohibiting the payment of rent or delivery to
the accused person or to any other person on his behalf until matter is decided in accordance with
law."
11. The Deputy Prosecutor General ("DPG") NAB submitted an application to the
Accountability Court -I Que tta ("respondent No.1") for confirmation of the impugned order' dated
22-2-2011 with regard to freezing of immovable property of the petitioner. No objections were
filed by the petitioner against freezing of his immovable property. However, the application
submitted by DPG NAB for confirmation of the freezing order dated 22 -2-2011 passed by
respondent No.2 was contested by the petitioner by filing reply praying therein to dismiss the
application on the ground that the petitioner has already discharged his o utstanding liability and
NAB Balochistan itself has issued letter to QDA for issuing NOC to the petitioner; that deposit
of entire amount as agreed in voluntary return was acknowledged by the NAB and in such view
of the matter, the freezing of immovable pr operty of the petitioner is unjustified and the
application for confirmation of the same be dismissed.
12. Before disposal of the above application, the petitioner approached this Court by filing
instant constitution petition challenging the impugned order dated 22 -2-2011 passed by
respondent No.2.
13. During pendency of the petition, respondent No.1 passed the order dated 27 -5-2011
(hereinafter "the impugned order") whereby the application for confirmation of the freezing of
the immovable property o f the petitioner was allowed and the freezing order dated 22 -2-2011
passed by respondent No.2 was confirmed in the following words: --
"I have heard the learned Special Prosecutor for NAB (B) Mr. Irshad Ali Khan as well as
defence counsel Mr. Ayaz Zahoor Advocate and also perused the record which reveals, that
earlier during course of inquiry and before filing this application respondent/accused Fateh Agha
interred (sic) into Voluntary Return with NAB authorities for a peace (sic) of land measuring
3300 s q.ft. However, the subject property Hassan Plaza was illegally constructed on a land
measuring more than 3300 sq.ft. There is no justification for allotment of remaining land
1040+600+1140 sq.ft. respectively to respondent/accused Fateh Agha, more over enc roachment
was also made on a peace (sic) of land measuring 1812 sq.ft. by accused/ respondent Fateh Agha
without any justification.
For the reason discussed herein above application is allowed and the freezing order dated
22-2-2011 passed by the DG NAB Balochistan is confirmed.
Given under my hand seal of the court this 27th day of May 2011."
14. The petitioner filed C.M.A. No.1425/2011 for amending the petition to challenge the
above order of respondent No.1. The same was allowed on 14 -6-2012 by th is Court, whereafter
amended Constitution Petition was filed on 1 -8-2012
15. Learned counsel for the petitioner stated that freezing of immovable property by
respondent No.2 and subsequent confirmation of the same by respondent No.1 is unlawful as
previo usly, in consequence of voluntary return, the petitioner had paid 2.1846 Million to the
NAB Balochistan with regard to the market rate of the disputed plot; that after issuance of letter
dated July 2009 by NAB Balochistan to Director General QDA for issuin g NOC to the
petitioner, there was no occasion for respondent No.2 to freeze the property of the petitioner or
for respondent No.1 to confirm the freezing of the property; that since passing of the impugned
orders, till date, no reference under the Ordinan ce has been filed against the petitioner; that the
property of the petitioner cannot be kept freezed for indefinite period.
16. Learned Senior Prosecutor NAB stated that deposit of 2.1846 Million by the petitioner as
result of voluntary return has no con cern with the impugned orders as the same was only to the
extent of 3300 sq.ft. and the plaza has illegally been constructed on the land exceeding 3300
sq.ft; that the petitioner has illegally been allotted pieces of land measuring 1040+600+1140
sq.ft. and has also made encroachment over a piece of land measuring 1812 sq.ft; that reference
has been forwarded to the Chairman NAB and there is likelihood of approval of the same in near
future; that in order to preserve the subject matter and to avoid creation of any third party
interest/ alienation of the property by the petitioner, the impugned orders have been passed with
lawful authority and jurisdiction and same are not suffering from any illegality or irregularity
warranting interference by this Court in i ts constitutional jurisdiction.
It was further objected by the learned Senior Prosecutor NAB that instead of filing appeal
under section 13 (c) of the Ordinance against the impugned orders, the petitioner has filed
constitution petition, which is not ma intainable.
17. Heard the learned counsel and perused the available record. Perusal of record reveals that
the immovable property of the petitioner measuring 8840 sq.ft. was in question during the
inquiry proceedings before the NAB which resulted into mu tual decision between respondent
No.2 and the Chairman QDA for determination of the market rate. The petitioner applied for
voluntary return which was accepted. The petitioner deposited 2.1846 Million in three
installments, in acknowledgement whereof, NAB issued letter dated 15 -6-2009. Subsequently,
NAB also issued letter dated July 2009 to DG QDA to the effect that the petitioner has
discharged his outstanding liability and there exists no justification to deny him the NOC and it
was directed that NOC be i ssued to the petitioner under intimation to NAB. In compliance of the
same NOC was issued by QDA and registered sale deed of land measuring 8840 was also
executed by QDA with the petitioner. On the basis of NOC dated
31-3-2010 issued by QDA, the said land has also been mutated in the name of the petitioner in
the revenue record. The Tehsildar/Assistant Collector Quetta has also issued non -encumbrance
certificate dated 1 -4-2010.
18. There is nothing on record to show that the settlement of the market rate and deposit of
2.1846 Million by the petitioner as Voluntary Return was related only to 3300 sq.ft. nor it was
ever the case that the petitioner has illegally been allotted 1040+600+1140 sq.ft. pieces of land or
has encroached upon 1812 sq.ft. of land. Ev en the same has not been mentioned in the impugned
order dated 22 -2-2011 issued by respondent No.2 while freezing the immovable property of the
petitioner. The contents of the impugned order dated 27 -5-2011 passed by respondent No.1 are
not supported by an y document.
19. It appears that while passing the impugned orders the respondents Nos.1 and 2 have
badly fallen into error of facts as well as law. In view of deposit of 2.1846 by the petitioner as
voluntary return, subsequent to issuance of NOC by the N AB Balochistan as well by QDA and
after execution of registered sale deed by QDA with the petitioner, the impugned orders with
regard to freezing of the same property of the petitioner amount to double jeopardy which is
prohibited under Article 13 of the C onstitution of Islamic Republic of Pakistan.
Till date no reference has been filed against the petitioner. Even no copy of the reference,
allegedly transmitted to Chairman NAB for approval, has been placed on record. The property of
the petitioner canno t be freezed for indefinite period.
20. With regard to objection of learned Senior Prosecutor NAB about main -tainability of
constitution petition against the impugned orders, it is observed that remedy of filing appeal
within ten days has been provided under section 13(c) of the Ordinance to an aggrieved party
whose claim or objection against freezing of property has been dismissed by the Court. No
appeal has been provided under section 13 of the Ordinance against an order passed under
section 12 of the Ordinance. In the case in hand no objections have been filed by the petitioner
against freezing of his property. The impugned orders have been passed under section 12 of the
Ordinance, against which, no appeal has been provided under section 13 of the Ordi nance. In the
case of Khan Asfand Yar Wali v. Federation of Pakistan, PLD 2001 Supreme Court -607 it has
been held as follows: --
"Clause (c) of section 13, which relates to claim or objection against freezing, also denies
the right of appeal against an o rder made under section 12 of the Ordinance. In Pakistan through
Secretary, Ministry of Defence v. The General Public (PLD 1989 SC 6) it was held by the
Shariat Appellate Bench of this Court, as under:
"The Federal Shariat Court in its impugned judgment has also held that the right of
appeal was recognized by the Holy Prophet (Peace be upon him) as well as by the Khulafa -e-
Rashideen and discussed this question in great detail. Nothing has been shown to us in refutation
thereof. The plea, thus, that barri ng the right of appeal does not offend against the Injunctions of
Islam, cannot be accepted."
The purported denial of the right of appeal is violative not only of Article 2A of the
Constitution but also power of the Superior Courts to correct such order s through exercise of
their Constitutional jurisdiction. Clearly, the denial of right of appeal is contrary to the norms of
justice as also violative of principles of natural justice. Also refer Messrs Chenab Cement
Product (Pvt.) Ltd. and others v. Bankin g Tribunal, Lahore and others (PLD 1996 Lahore 672).
Thus, section 13(c) which denies the right of appeal is violative of the principles of the Islamic
Injunctions and the same needs to be suitably amended so as to allow right of appeal to the
accused as w ell as to the non -accused/third party whose claim or objection against freezing of
property is dismissed by the Accountability Court."
21. The petitioner being an aggrieved person having no remedy of appeal provided against
the impugned orders has rightl y invoked the constitutional jurisdiction of this Court under
Article 199 of the Constitution. According to settled principles of law, powers of the superior
Courts under Article 199 of the Constitution remain available to them to their full extent
notwith standing anything contain in any legislative instrument. Reliance in this regard is placed
on the case of Javed Hashmi v. Federation of Pakistan, 2003 PCr.LJ 266 and the case of Khan
Asfand Yar Wali v. Federation of Pakistan PLD 2001 Supreme Court 607.
In view of the above, the objection of learned Senior Prosecutor NAB with regard to
maintainability of constitution petition against the impugned orders is overruled.
22. For the above reasons, the Constitution Petition is accepted, the impugned orders d ated
22-2-2011 passed by respondent No.2 and impugned order dated 27 -5-2011 passed by
respondent No.1 are declared null, void and of no legal effect and the property of the petitioner
i.e. Hassan Plaza situated at Sirki Road, Satellite Town/Sariab Road Cho wk Quetta stands de -
freezed.
MH/84/Bal Petition allowed.This 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,
let us know.