2019 PLP 1106 (SCMR)

SYED MANSOOR ALI SHAH, J.

Through this consolidated judgment, the titled appeals are decided as they raise common question of law and facts.

2. Brief facts of the case are the Chairman, National Accountability Bureau (NAB), during investigation into the matter of the appellants on the charge of corruption and corrupt practices passed an order for freezing the properties of the appellants on 14.10.2003 ("Order") under section 12 of National Accountability Ordinance, 1999 ("Ordinance"). The prosecution filed an application for confirmation of the Order before the Accountability Court ("Court") on 29.10.2003 (on the 15th day of the Order) while the appellants filed objections before the Court against the order of the Chairman, NAB, under section 13 of the Ordinance. Due to one reason or the other, the matters (i.e., application for confirmation and the objections) could not come up for hearing and were finally taken up by the Court on 20.09.2006, when the Court dismissed the objections filed by the appellants and confirmed the Order of freezing of the property of the appellants, passed by Chairman, NAB. The appeals filed by the appellants before the High Court against the order of the Court were dismissed vide impugned judgment dated 22.03.20121. Hence, these appeals by leave of the Court granted on 17.06.2013.

3. The primary question raised in the objections filed by the appellants before the Court and now before us is that Order of the Chairman, NAB, for freezing of the properties of the appellants, could not have been confirmed by the Court after a period of 15 days, as provided under the first proviso to section 12(c)(iv) of the Ordinance.

4. We have heard the learned counsel for the parties and have examined the record. Relevant portions of sections 12 and 13 of the Ordinance provide as follows: "

12. Power to freeze property: (a) The Chairman NAB or the Court trying an accused for any offence as specified under this Ordinance, may, at any time, if there appear reasonable grounds for believing that the accused has committed such an offence, order the freezing of his property, or part thereof, whether in his possession or in the possession of any relative, associate or person on his behalf. (b) ........ (c) If the property ordered to be frozen is immovable, the freezing shall, in the case of land paying revenue, be made through the Collector of the district in which the land is situated, and in all other cases- (i) by taking possession; or (ii) by appointment of receiver; or (iii) by prohibiting the payment of rent or delivery of property to the accused or to any other person on his behalf; or (iv) by all or any of such methods as the Chairman NAB or the Court may deem fit: Provided that any order of seizure, freezing, attachment or any prohibitory order mentioned above by the Chairman NAB, shall remain in force for a period not exceeding fifteen days unless confirmed by the Court, where the Reference under this Ordinance shall be sent by the Chairman NAB: Provided further that notwithstanding anything to the contrary contained herein, that the order of Chairman NAB or the Court shall be effective from the time of passing thereof or proclamation thereof in a newspaper, widely circulated and dispatch at the last known address of the accused either by registered post A.D. or courier service or electronic media as the Court may deem proper having regard to the facts and circumstances of the case. (d) ......... (e) ......... (f) The order of freezing mentioned in subsections 'a' to 'e' shall remain operative until the final disposal of the case by the Court, and in the event of the acquittal or release of the accused, shall continue to remain operative for a period of ten days after receipt of certified copy of the order of acquittal or release by NAB, whereafter it shall be subject to an order by the court in which an appeal, if any, is filed.

13. Claim or objection against freezing: (a) Notwithstanding the provisions of any law for the time being in force, the Court shall have exclusive jurisdiction to entertain and adjudicate upon all claims or objections against the freezing of any property under section 12 above. Such claims or objections shall be made before the Court within 14 days from the date of the order freezing such property. (b) The Court may for sufficient cause extend the time for filing such claims or objections for a period not exceeding additional 14 days. (c) The accused or any other aggrieved party, whose claim or objection against freezing of property has been dismissed by the Court, may, within ten days file an appeal against such order before the High Court." (emphasis supplied) The above provisions show that Chairman, NAB at anytime during investigation and the Court during the pendency of the trial before it can pass an order regarding freezing of property of the accused. These powers are distinct and independent of each other. While one is available to the Chairman, NAB during the period of investigation; the other is available to the Court during the pendency of the trial. The two powers, therefore, can hardly be exercised simultaneously.2

5. Once Chairman, NAB has passed an Order under section 12 of the Ordinance, it has a lifespan of 15 days, unless confirmed by the Court. Prosecution has to move the Court for the confirmation of the Order. If the prosecution fails to do so within 15 days of the Order,3 any subsequent application for confirmation is not maintainable for the reason that there is no Order in the field to confirm. In case the application for confirmation has been filed within 15 days of the Order of the Chairman, NAB, it shall continue to subsist till the Court adjudicates upon the matter, otherwise the purpose of confirmation falls to the ground. There is no timeframe under the statute for the Court to decide the application for confirmation, except the general urgency expressed in the preamble and the expeditiousness underlined in conducting the trials under section 16 and carrying out the investigation under section 18 of the Ordinance. It is indisputable that the Court must decide the applications/objections under sections 12 and 13 of the Ordinance at the earliest. Section 12(f) of the Ordinance provides that if the order of freezing has been passed it shall remain operative until the final disposal of the case by the Court. The application for confirmation of the Order passes for a "case" under section 12(f) and, therefore, Order shall remain operative till the application for confirmation is decided by the Court.

6. We reiterate that these applications and objections must be decided at the earliest as required by the scheme of the Ordinance, but any delay in adjudicating these matters does not affect the validity of the Order of the Chairman, NAB. Case law4 relied upon by the learned counsel for the appellants arises out of a different factual matrix and has no relevance to the present case.

7. In the instant case Chairman, NAB passed the order on 14.10.2013 and the prosecution filed an application for confirmation of Order on 29.10.2013 (on the 15th day), while the appellants also filed objections against the said Order. The matter was decided on 20.09.2006 when the objections of the appellants against the order of the Chairman were dismissed and the application for confirmation was allowed, with the permission to the appellants to file fresh objections against the confirmation order, if so advised. In the light of the above discussion we take no exception to the impugned judgment, except the fact that the objections of the appellants were not premature, as held by the High Court, as objections can be filed against the order of the Chairman, even though such an exercise may hurriedly come to an end after a lapse of 15 days but otherwise objections filed during this period are maintainable.

8. Before parting with the judgment it is noticed with concern that the matter of confirmation of the Order of freezing of properties was decided after a considerable period of time and Reference No. 04/2007 against the appellants filed in the year 2007 is still pending. Such inordinate delays are inconsistent with the spirit and theme of the Ordinance, which mandates that the cases must be decided swiftly. This urgency is repeatedly underlined in the preamble and sections 16 and 18 of the Ordinance. The Court, as a neutral arbiter, must not lose sight of the fact that long delays in deciding matters does not sit well with the right to fair trial and due process guaranteed as a fundamental right under Article 10A of the Constitution.

9. For the above reasons these appeals are dismissed. These are the reasons for our short order, reproduced hereunder for completion of record and convenience of the parties. "For reasons to be recorded later, all these appeals are dismissed." MWA/S-31/SC Appeals dismissed.