Fakhr-e-Alam Vs The Chairman NAB Islamabad

JUDGMENT SHEET

PESHAWAR HIGH COURT, PESHAWAR

(Judicial Department)

Writ Petition No. 620-P/026 Fakhr-e-Alam and another —Versus—

The Chairman, National Accountability Bureau, NAB Headquarters, Islamabad, and others

PRESENT:

Mr. Ashfaq Ahmad Daudzai, Advocate for petitioners.

Arbab Kalimullah, Special Prosecutor, for NAB.

Date of hearing: 17.03.2026

JUDGMENT

QAZI JAWAD EHSANULLAH, J.- Through the instant writ petition, the petitioners have sought indulgence of this court essentially calling in question the continued freezing of their properties effected by the National Accountability Bureau (NAB) emanating from the basic freezing order issued on 14.02.2020 by the Director General of NAB under the provisions of section 12 of the National Accountability Ordinance, 1999 (NAO), wherein the particulars of the said properties have been specifically enumerated.

For ease of reference, the specific prayer clause of the writ petition is reproduced herein below;

“It is, therefore, most humbly prayed that on acceptance of this Writ Petition;

D.B Hon’ble Mr. Justice Syed Arshad Ali Hon’ble Mr. Justice Qazi Jawad Ehsanullah

I. The freezing orders dated 14.02.2020 and confirmation thereof dated 25.02.2020 may kindly be declared as illegal, without lawful authority and beyond the mandate rather inapplicable after amendments in the NAO,

II. The order of learned trial court be set aside / modified to the extent of dismissal of miscellaneous petitions / objection petition while keeping intact the freezing orders dated 14.02.2020 and 25.02.2020;

III. The order, dated 14.02.2020, 25.02.2.20, 22.07.2025 & 06.12.2025 be declared illegal without lawful authority, void-ad-initio and ineffective upon the rights of the petitioners;

IV. The orders of learned Senior Civil Judge (Judicial) dated 22.07.20205 and orders of learned Additional Sessions Judge-I, Mardan dated 06.02.2025 be set aside/quashed and the property be de-freezed.”

2.Briefly stated, NAB had initiated inquiry proceedings against the petitioners on the allegations of corruption and corrupt practices within the contemplation of Section 9 of the NAO. Subsequently, a Reference was filed by the Director General NAB before the Accountability Court, whereupon the petitioners were put to trial and formally charged under the relevant provisions of Section 9 ibid.

3.During the course of inquiry/investigation, the Director General NAB, Khyber Pakhtunkhwa, vide order dated 14.02.2020, directed the freezing of the petitioners” properties. The said freezing order was thereafter confirmed by the Accountability Court-IV, Peshawar, on 25.02.2020, and the properties have since remained under attachment.

D.B Hon’ble Mr. Justice Syed Arshad Ali Hon’ble Mr. Justice Qazi Jawad Ehsanullah

The petitioners also filed objections under Section 13 of the NAO, which remained pending adjudication alongside the trial of the Reference. It is an admitted position that during the pendency of the Reference as well as the objections, substantial amendments were introduced in the NAO, whereby the jurisdiction of NAB and the Accountability Courts to proceed with the matter stood divested.

4.In view of the aforesaid legal developments, the Accountability Court, vide order dated 24.09.2024, observed that pursuant to the National Accountability (Amendment) Act, 2022, NAB no longer retained jurisdiction over the matter. Consequently, the Reference along with the objections filed by the petitioners against the freezing of their properties was ordered to be transferred to the ordinary courts, i.e., the Court of Sessions Judge, Mardan. The matter was thereafter placed before the learned Judicial Magistrate/Senior Civil Judge, Mardan, for proceedings under Sections 406 and 420 of the Pakistan Penal Code, 1860. The transferee court has, on 11.02.2025, also framed / re-casted formal charge against the accused. The petitioners subsequently moved an application for de-freezing of their properties, which was dismissed by the learned trial Court on 22.07.2025. Aggrieved thereof, Criminal Revision Petition was filed before the learned Sessions Judge which was partly allowed on 06.12.2025 to the extent of de- freezing 50% of the attached plots in order to safeguard the interests of the allottees/complainants, while the remaining properties were ordered to remain frozen. Dissatisfied with the partial relief so D.B Hon’ble Mr. Justice Syed Arshad Ali Hon’ble Mr. Justice Qazi Jawad Ehsanullah

granted, the petitioners have approached this Court through the instant writ petition.

5.Learned counsel for the petitioners contends that, by virtue of the amendments introduced through the National Accountability (Amendment) Act, 2022 and subsequent legislative changes, the jurisdiction of NAB to inquire into, investigate and / or file Reference against the petitioners has been completely ousted. It is argued that the expression “offence” as defined under Section 5(o) of the NAO has been materially altered, and the allegations levelled against the petitioners no longer fall within its ambit. Consequently, it is contended that the continuance of the freezing of the petitioners” properties under Section 12 of the NAO stood automatically vacated by operation of law, and the courts below were under a legal obligation to formally acknowledge the same.

6.Learned Special Prosecutor for NAB, when confronted, fairly conceded that in view of the successive legislative amendments, NAB no longer retains jurisdiction over the subject matter and, as a necessary corollary, the freezing of the petitioners” properties ought to have been dealt with accordingly.

7.Arguments heard and record perused.

8.Section 12 of the NAO governs the freezing of properties and empowers the Chairman NAB or the Court to order freezing where there exist reasonable grounds to believe that an accused has D.B Hon’ble Mr. Justice Syed Arshad Ali Hon’ble Mr. Justice Qazi Jawad Ehsanullah

committed an offence under the Ordinance. The said provision inter alia stipulates that such freezing shall remain operative till the final disposal of the case. The clear text of said section 12 goes as under;

“12. Power of 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)If the property ordered to be frozen under sub-section (a) is a debt or other movable property, the freezing may be made:

(i)by seizure; or

(ii)by appointment of receiver; or

(iii)by prohibiting the delivery of such property to the accused or to anyone on his behalf; or

(iv)by all or any of such or other methods as the court or the Chairman NAB as the case may be, deem fit.

(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 Chairman NAB:

Provided further that notwithstanding anything to the contrary contained herein, 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)If the property ordered to be frozen consists of livestock or is of a perishable nature, the Chairman NAB, or the Court may, if it deems proper and expedient, order the D.B Hon’ble Mr. Justice Syed Arshad Ali Hon’ble Mr. Justice Qazi Jawad Ehsanullah

immediate sale thereof and the proceeds of the sale may be deposited with the Chairman NAB or the Court, or as either may direct as appropriate.

(e)The powers, duties, and liabilities of a receiver, if any, appointed under this section shall be the same as those of a receiver appointed under Order XL of the Code of Civil Procedure, 1908 (Act of 1908).

(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 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, where after it shall be subject to an order by the Court in which an appeal, if any, is filed.

[emphasis added]

9.A plain reading of the aforesaid provision makes it evident that the power to freeze property is contingent upon the existence of proceedings relating to an “offence” as defined and specified under the NAO. It is an undisputed position that, owing to the amendments introduced in the NAO, the allegations levelled against the petitioners no longer constitute an “offence” within the meaning of the Ordinance, whether on account of pecuniary thresholds or otherwise.

This legal position was duly recognized by the Accountability Court in its order dated 24.09.2024, whereby the matter was transferred to the ordinary courts for trial under the general law. In such circumstances, once the very foundation for invoking the provisions of the NAO ceased to exist, the continuation of freezing orders under Section 12 ibid became wholly untenable. The freezing of the petitioners” properties, therefore, stood vacated and recalled by operation of law and could not legally subsist thereafter. Furthermore, D.B Hon’ble Mr. Justice Syed Arshad Ali Hon’ble Mr. Justice Qazi Jawad Ehsanullah

under the general criminal law, including the Pakistan Penal Code, 1860 and the Code of Criminal Procedure, 1898, there exists no provision permitting the freezing of properties of an under-trial accused, except in cases involving proclamation and attachment under Sections 87 and 88 Cr.P.C, which admittedly is not the case here.

10.It may also be observed that the right to acquire, hold and dispose of property is a fundamental right guaranteed under Article 23 of the Constitution of the Islamic Republic of Pakistan. Such right can only be curtailed through a clear and specific provision of law, subject to reasonable restrictions in the public interest. In the absence of any lawful authority or subsisting legal framework justifying the continued attachment, the deprivation of the petitioners” property amounts to an infringement of their fundamental rights and cannot be sustained.

11.For the foregoing reasons, this writ petition is allowed. The impugned orders passed by the learned courts below to the extent of protecting and justifying any freezing of petitioners” properties as a whole or part of it are set-aside. Consequently, it is declared that the freezing of the petitioners” properties, as initially ordered by the Director General NAB vide order dated 14.02.2020, ceased to have legal effect upon the promulgation of the National Accountability (Second Amendment) Act, 2022, and the same shall stand withdrawn.

Announced Dt:17.03.2026

D.B Hon’ble Mr. Justice Syed Arshad Ali Hon’ble Mr. Justice Qazi Jawad Ehsanullah

-Sd-

JUDGE

-Sd-

JUDGE

D.B Hon’ble Mr. Justice Syed Arshad Ali Hon’ble Mr. Justice Qazi Jawad Ehsanullah