Stereo. H C J D A 38.

JUDGMENT SHEET
IN THE LAHORE HIGH COURT, LAHORE
JUDICIAL DEPARTMENT
Writ Petition No.58871 of 2022
Shaffat Ibrahim Khan Versus Chairman National Accountability
Bureau and others

JUDGMENT
DATE OF HEARING 24.10.2023______________________________________

PETITINOER BY Mr. Muhammad Tayyab Gull, Advocate_____________

RESPONDENTS BY Mr. Tahir Mehmood Ahmed Khokhar, Deputy

Attorney General for Pakistan_____________________

Mr. Muhammad Waseem Javed, Special Prosecutor for

NAB___________________________________________

RAHEEL KAMRAN, J. – Through the instant petition under

Article 199 of the Constitution of Islamic Republic of Pakistan, 1973
(„the Constitution‟) the petitioner while alleging to be the bonafide
purchaser in possession of the property bearing No.8-A, Shabbir Road,
Lahore Cantt. and relying upon the judgment dated 28.08.2020, passed
by the High Court of Balochistan, Quetta, has prayed that the restriction
placed by the Military Estate Officer, Walton Cantonment, Lahore
Cantt/respondent No. 3 over the said property may be declared to be
without lawful authority and he be directed to remove the said
restriction and provide him with the copy of the GLR after entering
name of the petitioner in his record as lawful owner of the said
property.

2. Brief facts of the case are that the petitioner purchased plot
No.8/A, comprising Survey No. 176/8/A, total land measuring 506.2
Sq.Yds. situated at Shabbir Road, Lahore Cantt., out of which 1/3 rd
share was owned by Nisar Hussain Shah (respondent No.4), who sold it
by execution of a sale deed registered with the Sub-Registrar, Aziz
Bhatti Town, Lahore Cantt. on 27.08.2016, vide Document No. 5558,
Book No. 1, Volume No.2256. Subsequently, when the petitioner
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approached respondent No.3 to enter his name in the GLR, he came to

know that with respect to 1/3rd share of respondent No.4 a freezing
order was passed by the NAB authorities on 18.02.2009 which was
confirmed by the Accountability Court, Quetta on 21.11.2009. Cr.
Ehtisab Appeal No.07/2011 was filed to challenge the order of the
Accountability Court, Quetta dated 21.11.2009, which was partially
allowed vide order dated 30.11.2011 whereby the case was remanded to
the trial Court after setting aside the impugned order. Subsequently,
vide judgment dated 04.10.2013 passed by the Accountability Court-II,
Balochistan, Accountability Court Reference No.12/09 filed by the
NAB against respondent No.4 was ultimately dismissed and he was
acquitted from the charges including the property in dispute. Against
that, NAB preferred Criminal Acquittal Ehtesab Appeal No. 06 of 2013
challenging acquittal of respondent No.4, which was also dismissed by
the High Court of Balochistan, Quetta vide judgment dated 28.08.2020
against which leave to appeal has been sought by the NAB through
Criminal Petition No.1243 of 2020 filed before the Supreme Court of
Pakistan.

3. Learned counsel for the petitioner contends that respondent No.4

from whom the petitioner has purchased the property in dispute stands
acquitted from the charge of acquiring the said property from
corruption and corrupt practices by the trial Court and the appeal filed
thereagainst has also been dismissed. He maintains that though the
NAB has challenged the acquittal of respondent No.4 before the
Supreme Court but till-date no leave granting order has been passed and
double presumption of innocence is attached to the acquittal of
respondent No.4 by the trial Court as maintained by the High Court in
appeal. He emphasizes that at present there is no freezing order in field,
therefore, there exists no legal justification for refusal to remove
restriction over the property in question. He finally contends that
respondent No.3 is legally bound to enter name of the petitioner in the
record as lawful owner of the property in question and issue him a copy
of GLR to which he is entitled under the law.
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4. Conversely, learned Special Prosecutor for NAB opposed the

instant petition by arguing that the petitioner purchased the property in
dispute from respondent No.4 during the pendency of the NAB‟s appeal
against his acquittal by the Accountability Court-II, Balochistan, Quetta
which was in violation of section 23 of the National Accountability
Ordinance, 1999 („the Ordinance‟). It is contended that section 23 ibid
places an embargo on transfer or creating any charge on the property
owned and possessed by the accused during the pendency of the trial.
He further submits that respondent No.4 sold the property in dispute to
the petitioner during the pendency of the appeal against his acquittal
and the appeal being continuation of the trial, such transfer of the
disputed property in the name of the petitioner was void and unlawful.
He concludes his arguments while stating that acquittal of respondent
No.4 has not been finalized so far since the same has been still assailed
before the Supreme Court of Pakistan where Criminal Petition No.1243
of 2020 is pending adjudication.

5. Learned Deputy Attorney General for Pakistan has also

supported the arguments advanced by the learned Special Prosecutor,
NAB.

6. Arguments heard. Record perused.

7. Opposition of the instant petition is based on two grounds: firstly,

sale of the property in dispute during the pendency of the appeal was in
violation of section 23 of the National Accountability Ordinance, 1999,
secondly, the NAB has filed Criminal Petition No. 1243 of 2020 against
acquittal of respondent No.4 which is pending adjudication before the
apex Court.

8. Prior to its omission on 22nd June 2022 through the National

Accountability (Amendment) Act, 2022 [Act No. XI of 2022], section
23 of the Ordinance read as follows:

23. Transfer of property void.-

(a) Notwithstanding anything contained in any other law
for the time being in force after the Chairman NAB has
initiated an inquiry or investigation into any offence
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under this ordinance, alleged to have been committed by

an accused person, accused person or any relative or
associate of accused person or any other person on his
behalf, shall not transfer by any means whatsoever, or
create a charge on any property owned by him or in his
possession, while the inquiry, investigation or
proceedings are pending before the NAB or the Court;
and any transfer of any right, title or interest or creation
of charge on such property shall be void.

(b) Any person who transfers, or creates a charge on

property in contravention of subsection (a) shall be
punishable with the rigorous imprisonment for a term,
which may extend to 3 years and shall also be liable to
fine not exceeding the value of the property involved;

Provided that such transfer of any right, title or interest

or creation of a charge on such property shall not be void
if made with the approval of the Court, subject to such
terms and conditions as the Court may deem fit”.

9. It is noteworthy that the proviso to section 23 ibid was inserted in

Ordinance pursuant to the direction issued by the Supreme Court of
Pakistan in the case of Khan Asfandyar Wali and others Vs. Federation
of Pakistan through Cabinet Division, Islamabad and others (PLD
2001 SC 607) wherein, inter alia, vires of the Ordinance were assailed
for violation of fundamental rights embodied in Chapter 1 of Part II of
the Constitution to reflect that transfer of property by an accused person
or any relative or associate of such person or any other person on his
behalf or creation of charge on any movable or immoveable property
owned by him or in his possession, while inquiry, investigation or
proceedings before the Accountability Court was pending, not to be
void if made with approval of the Court subject to such terms and
conditions as the Court deems fit.

10. The purpose and object behind promulgation of section 23 of the

Ordinance has been expounded by the Supreme Court in the case of
Khan Asfandyar Wali (Supra) in the following terms:-

“Section 23 ibid is an interlocutory measure to prevent

persons accused of such offences to frustrate the objects
of law by creating third party interest in respect of
illegally acquired property, thereby creating hurdles in
the object of law i.e. to eradicate corruption and corrupt
practices and hold accountable all those persons
accused of such practices and matters ancillary thereto.
The purpose of this power is more to preserve the
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property acquired by the accused through corruption

and corrupt practices so that ultimately if the guilt is
proved the same can be taken back from him in
accordance with law. Section 23 of the NAB Ordinance
is also preventive in nature and prescribes penalties for
the accused person who attempts to alienate or transfer
by any means property after the Chairman NAB has
initiated investigation, inquiry or proceedings have
commenced against him in an Accountability Court. Put
differently, it is in the nature of a restraint order. The
protective measures are not by way of punishment but
with a view to ensure that the final decision is not
rendered redundant.”

11. Punishment for the offence of corruption and corrupt practices

has been prescribed under Section 10 of the Ordinance not only in
custodial terms but includes, amongst others, forfeiture to the
appropriate government or the concerned financial institution such
assets and pecuniary resources as are found to be disproportionate to
the known sources of income or which are acquired by money obtained
through corruption and corrupt practices, whether in the name of the
holder of the convict or any of his dependents or benamidars. Section
23 ibid, as held by the Supreme Court in the case of Khan Asfandar Yar
Wali (Supra), provides for an interlocutory measure to prevent persons
accused of corruption and corrupt practices to frustrate the objects of
law.

12. In the instant case, respondent No.4 sold the property in question
to the petitioner on 27.08.2016 after his acquittal by the Accountability
Court-II, Quetta vide judgment dated 04.10.2013 in Accountability
Reference No.12 of 2009 and during pendency of the Criminal
Acquittal Ehtisab Appeal No.06 of 2013. One of the primary questions
would be to ask whether provisions of the repealed section 23 of the
Ordinance extended in their application to the cases in appeals before
the High Court under the Ordinance?

13. Since section 23 of the Ordinance not only restricted the exercise
of fundamental rights enshrined in Articles 23 and 24 of the
Constitution of the Islamic Republic of Pakistan, 1973 but also
prescribed an offence under section 23(b) ibid, therefore, it could only
be construed strictly. The word “Court” used in section 23 of the
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Ordinance has been defined in section 5(g) the Ordinance to mean the
Accountability Court. It does not include the High Court. An
amendment was made in section 9(b) by insertion of phrase “including
High Court” through Ordinance No. IV of 2000 to eclipse authority of
the High Court to grant bail in cases under the Ordinance, however,
such statutory prohibition could not abridge or takeaway jurisdiction of
the High Courts to grant bail under Article 199 of the Constitution to
any person accused of an offence under the Ordinance, as held by the
Supreme Court of Pakistan in the cases of Khan Asfandyar Wali and
others Vs. Federation of Pakistan and others (PLD 2001 SC 607) and
Muhammad Iqbal Khan Noori and others v. National Accountability
Bureau and others (PLD 2021 SC 916). The distinction between the
Court and the High Court, as maintained by the Ordinance, is equally
manifest from section 32 which provides the remedy of appeal against
final judgment of the Court before the High Court to be heard by a
Bench of not less than two judges. It is one of the cardinal principles of
interpretation of criminal statutes that such enactments are not to be
extended by construction. In the case of Mirza Shaukat Baig and others
Vs. Shahid Jamil and others (PLD 2005 SC 530), the Supreme Court of
Pakistan quoted with approval the following passage of lord Halsbury
from the English Judgments reported as (1891) AC 107 and (1952) AC
189:

“ It seems to me that, construing the statute by adding to

it words which are neither found there in north for which
authority could be found in the language of the statute
itself, is to sin against one of the most familiar rules of
construction, and I am wholly unable to adopt the view
that, where a statute is expressly said to codify the law,
you are at liberty to go outside of the code so created,
because before the existence of that code another law
prevailed. In the construction of statute the duty of the
Court is limited to interpret the words used by the
legislature and it has no power to fill in any gaps
disclosed. To do so would we do use of the function of the
legislature”.

14. The proviso inserted in section 23 of the Ordinance which

provided a remedy to any person to seek approval of transfer from the
Court, entailed inquiry into facts that could not be held in appeal before
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the High Court. This lent an additional justification for not extending
application of Section 23 ibid to the High Court.

15. For the above reasons, we are of the view that after conclusion of
the trial resulting in acquittal of an accused, the restriction imposed by
law under section 23 comes to an end and provisions of the said section
do not extend in their application to the High Court. Be that as it may,
upon admission of an appeal against acquittal, High Court is possessed
of all powers of the trial Court to pass any incidental order qua freezing
of assets under section 12 of the Ordinance read with section 423 of the
Code of Criminal Procedure, 1898 which mutatis mutandis applies to
the proceedings under the Ordinance as mandated by Section 17(a) of
the Ordinance.

16. Adverting now to the second plea of the NAB that the instant
petition be dismissed inasmuch as filed Criminal Petition for Leave to
Appeal has been filed before the Supreme Court to assail acquittal of
respondent No.4 against dismissal of the Criminal Acquittal Ehtisab
Appeal No.06 of 2013. In this regard, it is noted that an acquittal carries
double presumption of innocence and the same could be reversed only
when found blatantly perverse, illegal, arbitrary, capricious or
speculative, shocking or arrested impossibility. Reliance in this regard
is placed on judgments of the Supreme Court in the cases of Mst.
Anwar Begum Vs. Akhtar Hussain alias Kaka and 2 others (2017
SCMR 1710) and Muhammad Shafi alias Kuddoo Vs. The State and
others (2019 SCMR 1045).

17. On the last date of hearing, the learned Law Officer had sought
some time to place on record a copy of the aforesaid Criminal Petition.
However, that has not been done. Even during the course of hearing
today we have asked the learned Special Prosecutor for NAB about the
leave granting order and/or restraining order, if any, passed by the
Supreme Court but he has not produced any such order for perusal of
this Court. In this scenario, we are of the view that acquittal earned by
respondent No.4 from the trial Court and upheld by the Appellate Court
still holds the field.
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18. There is admittedly a registered sale deed in favour of the

petitioner which is a title document. We are of the firm opinion that
unless and until operation of judgment of the High Court of Balochistan
dated 28.08.2020 is suspended or stay against transfer or alienation of
the property in question is granted by the Supreme Court, there stands
no legal impediment in the way to seek removal of any restriction
placed on the property purchased by the petitioner from respondent
No.4 who succeeded in earning an acquittal from the learned trial Court
that was maintained by the High Court in appeal. The moment final
judgment in the trial Court was announced, restriction under section 23
ibid came to an end and became inoperative, therefore, respondent No.4
was free to transfer the property in question in the exercise of his rights
guaranteed by Articles 23 and 24 of the Constitution of Islamic
Republic of Pakistan, 1973. Therefore, we cannot refuse a relief in this
case in absence of any order passed by the Supreme Court restricting
transfer of property, merely on the assertion that NAB has filed a
petition for leave to appeal.

19. For the foregoing reasons, we allow this writ petition with a
direction to respondent No.3 to remove the restriction placed on the
property in question, enter name of the petitioner in his official record
and provide him a copy of the GLR in accordance with law within
thirty days of presenting a certified copy of this judgment unless
otherwise the NAB obtains and produces before the aforementioned
respondent any order passed by the Supreme Court restricting such
transfer. There shall be no order as to costs.

((ALI BAQAR NAJAFI) (RAHEEL KAMRAN)

JUDGE JUDGE
Approved for Reporting.

JUDGE JUDGE
*Z.A.Manzoor *