While setting aside top anti-graft body order of freezing the bank account of an accused person in a delayed trial, the Islamabad High Court termed the directive as depriving a citizen of his constitutional fundamental basic right to life.
Through the landmark 4-page judgement on the appeal, a division bench of Justice Aamer Farooq and Justice Ghulam Azam Qamrani has highlighted the excesses of National Accountability Bureau (NAB) declaring them to be against statutory provisions of the NAB Ordinance 1999.
The bench said in its order, “It is pertinent to observe that where the State has the responsibility to prosecute and procure punishment of a guilty person, it also has an equal responsibility that a citizen is not denied from exercising or enjoying rights over his/her property, as enshrined in the Constitution”.
Advocate High Court Usama Khawar said now the accused facing investigations or trials under the NAB Ordinance will at least be afforded the basic fundamental right to life and will be able to operate their accounts for personal use.
National Accountability Bureau (NAB) had arrested former president of Sindh Bank Bilal Sheikh and two others during July 2019 in a fake accounts case in which former president Asif Ali Zardari and his business partners were co-accused.
After converting the inquiry into investigation in the matter the NAB wrote a letter to all banks that an inquiry/investigation was pending against Bilal Sheikh saying under Section 23 of the NAB Ordinance 1999 any transfer of funds would be void.
It was further expressed in the letter that any person who will transfer or create a charge on property shall be punished with rigorous imprisonment for a term which may extend to three years and shall also be liable to fine not exceeding the value of the property involved.
Representing the accused before the division bench, Advocate Supreme Court Mirza Mahmood Ahmad contended that NAB routinely uses letters issued under Section 23 of the NAO, 1999, to “freeze” assets (including bank accounts) of an accused terming the practice against the fundamental right to life and property of the accused.
He submitted that the practice blatantly contravenes the express procedure provided in section 12 of the NAO, 1999 to freeze the assets of an accused, adding that NAB’s practice was adopted to prevent an accused from exercising his rights under section 13 of the Ordinance.
While noting that NAB investigations and subsequent trials often last for many years, the division bench observed that in such situations – and especially since no proceedings can be taken against officers of NAB – a balance has to be struck between the potential recovery of ill-gotten gains and the right of the accused to live.
The bench noted that NAB “conveniently” avoids passing orders under section 12 and that this “practice by NAB appears to be in violation of statutory provisions and should be avoided”.
The bench ruled that the effect of Section 23 and the notice of caution is only to put banks and other institutions/departments on notice that certain proceedings are pending, during which property may not be transferred and no charge should be created on it but it does not affect the right of the accused to operate his bank accounts and make withdrawals for personal use.
Deprecating NAB’s practice of “freezing” the assets of an accused without going through the process given in the National Accountability Ordinance, 1999 the bench said, “spirit of the Ordinance is that investigation or inquiry is to be conducted and concluded by NAB expeditiously and also trial is to be concluded within 30-days, yet it is hardly ever the case”.
The bench further said that inquiry/investigation continues for years and even the trials are not concluded within stipulated statutory period, adding, in such a situation, blocking the bank account of an accused person, would tantamount to depriving him from his legitimate means to live.
“It can never be the spirit of law that a person, facing investigation or inquiry, is unable to withdraw from his bank account (s) for day-to-day affairs and the referred position to continue for years due to delay by the investigating agency”, the bench said in its order.