P L D 2005 Lahore 168

 

Before Muhammad Akhtar Shabbir and Abdul Shakoor Paracha, JJ

 

MUBARAK ALI ‑‑‑Appellant

 

Versus

 

THE STATE‑‑‑Respondent

 

Criminal Appeal No. 19‑E of 2004, heard on 22nd November, 2004.

 

National Accountability Ordinance (XVIII of 1999)‑‑‑

 

‑‑‑‑Ss.9, 10, 15, 25 & 32‑‑‑Corruption and corrupt practices‑‑‑Voluntary return of ill‑gotten gains‑‑‑Consequences of plea bargaining‑‑‑National Accountability Bureau would make plea bargaining or effect settlement with accused/holder of public office or any other person accused of any offence under National Accountability Ordinance, 1999, if accused would come forward voluntarily to return illegal gain acquired or loss caused by him to State Exchequer through corruption/corrupt practices‑‑­If offer to return illegal gain was made by accused after commencement of trial, Chairman National Accountability Bureau could release accused with the approval of the Court‑‑‑If bargaining was made before taking cognizance by Accountability Court, then Chairman National Accountability Bureau, would be competent to accept the offer and determine the amount of illegal gain or loss caused and after deposit of same with National Accountability Bureau would discharge said person‑‑‑Chairman National Accountability Bureau was not competent to release a person without his own offer to return gain illegally acquired by him or loss caused by him‑‑‑Offer for plea bargain by accused was the pre‑condition for release of accused provided same was accepted by Chairman National Accountability Bureau and approved by the Court‑‑­Penal consequences of plea bargaining as provided under S.25 of National Accountability Ordinance, 1999 was disqualification as provided under S.15 of said Ordinance‑‑‑No special provision existed for issuance of show‑cause notice for disqualifying accused, but person who availed of benefit of S.25 of National Accountability Ordinance, 1999, would automatically be deemed to have been convicted for an offence under said Ordinance and would forthwith cease to hold public office, if any, held by him and would be disqualified to avail of financial facility as provided in S.15 of National Accountability Ordinance, 1999‑‑‑Offer made by accused to return ill‑gotten’ money, would be deemed to be the confession of accused for committing corruption/corrupt practices and being convicted person would have to face legal consequences as provided in S.15 of National Accountability Ordinance, 1999.

 

Javed Tariq Khan v. The State PLD 2002 Lah. 607; Makhdoom Syed Ali Raza Shah v. State 2003 YLR 374; Muhammad Anwar v. State 2004 SCMR 1229 and. Ghulam Akbar Lasi 2003 SCMR 89 ref.

 

Sh. Muhammad Sulaman for Appellant.

 

Sardar Asmat Ullah. Khan DPGA for NAB.

 

Date of hearing: 22nd November, 2004.

 

 

JUDGMENT

 

MUHAMMAD AKHTAR SHABBIR, J.‑‑Mubarak Ali, appellant, had been involved in a NAB Reference No.79 of 2000 on the allegations of having hiring of bogus houses and caused loss of Rs.40,250. The Chairman, NAB issued warrants against the appellant on 17‑6‑2004. The appellant was arrested and remained on physical ‘remand till 21‑7‑2004. Thereafter, he was sent to judicial lock‑up. The appellant made an application to chairman NAB making offer to return the amount allegedly embezzled by him and causing loss to the exchequer and prayed for acceptance of his plea bargain and release from jail. The Chairman NAB after processing the application of the appellant, sent the same to the Court for approval and the learned Judge Accountability Court accepted the application as the appellant had deposited the worked amount in lump sum. Learned Judge while accepting the application, approved the plea bargain and passed the following orders:‑‑

 

‘”I have gone through the record with the assistance of the learned Special prosecutor. Admittedly, the accused came forward with their plea bargain and made their offer to return the ill‑gotten money after the authorization of investigation and accepted their total liability were determined. The record further reveals that they were involved in bogus hiring of houses and an amount of Rs.5.3 million have been got withdrawn fraudulently and have been misappropriated/embezzled in connivance with their other co‑accused and filed these applications. According to which their total liabilities were Rs.40,250 and Rs.23,000 respectively which they deposited after the acceptance by the Chairman NAB. The acceptance of plea bargain amounts to a conviction for the commission of the offence of corruption and corrupt practices as provided under section 15 of National Accountability Ordinance, 1999. Therefore, the applications are allowed and the acceptance offer of plea bargain of both the accused by the chairman NAB is approved as prayed for and the accused are deemed to have been convicted for commission of offence of corruption and corrupt practices defined under section 9 and punishable under section 10 of National Accountability Ordinance, 1999. They are forthwith ceased to hold public office held by them. They shall stand disqualified for a period of ten years form today, for seeking or from being elected, chosen, appointed or nominated as a member or representative of any public body or any statutory or loci authority or in service of Pakistan or of any Province of Pakistan. They, are also debarred from applying or be granted or allowed any financial facilities in the form of any loan or advances or other financial accommodation by any bank or financial institution owned or controlled by the Government, for a period of 10 years from today.”

 

  1. Learned counsel for the appellant contended that the appellant has not made any agreement with the Chairman NAB and that the Accountability Court had passed the ‑order in his absence and the penal action under section 15 of the Ordinance in. disqualifying and debarring the appellant from holding public office is not attracted to the case of the appellant. In this regard, he placed reliance on cases of Javed Tariq Khan v. The State PLD 2002 Lah. 607 and Makhdom Syed Ali Raza Shah v. State 2003 YLR 374. Learned counsel argued that no pro forma had been got signed by the NAB authorities from the appellant for making agreement under said section for release of the accused.

 

  1. On the other hand, learned A.D.P.G.A. has vehemently opposed the arguments of learned counsel for the appellant contending that the appellant through an application has made offer for plea bargain to return the amount of Rs.40,250. This application was accepted by the Chairman NAB which was approved by the Accountability Court and as a result of which the impugned order dated 28‑7‑2004 was passed and as a penal consequences the appellant was disqualified and debarred from holding any public office.

 

  1. We have heard the arguments addressed by the learned counsel for the parties carefully and also perused the record with their kind assistance.

 

  1. Before commenting upon the objections raised by the learned counsel for the appellant it would be appropriate to reproduce the relevant provisions of section 25 of the NAB Ordinance which provides plea bargaining procedure:‑‑

 

“25. Voluntary return plea bargaining.‑‑(a) Where at any time whether before or after the commencement of trial the holder of a public office or any other person accused of any offence under this Ordinance, returns to the NAB the assets or gains acquired through corruption or corrupt practices, the Court or the Chairman NAB with the approval of‑the Court or the appellate Court, as the case may be, may release the accused.”

 

(b) …………………

 

(c) Notwithstanding anything contained in section 15 or in any other law for the time being in force, where a holder of a public office or any other person voluntarily comes forward to return the illegal gain made by him or loss caused by him to the State Exchequer through corruption and corrupt practices, the Chairman NAB may accept the offer and after determination of the amount of illegal gain or loss caused, as the case may be, and its deposit with NAB, discharge such person of all his liabilities relating to the matter or transactions in issue:

 

Provided that the matter is not under inquiry or investigation or subjudice in any Court of law.”

 

  1. From the plain reading of the above referred provisions of section 25, it is manifestly clear that NAB would make plea bargaining or effect settlement with the accused if he comes forward voluntarily to return the illegal gain acquired or loss caused by him to the State Exchequer through corruption/corrupt practices. If the offer to return the illegal gain is made by the accused after the commencement of the trial, the Chairman NAB may release the accused with the approval of the Court or if the bargaining is made before taking cognizance by the Accountability Court, then, the Chairman, NAB will be competent to accept the offer and determine the amount of illegal gain or loss caused, as the case may be, and after deposit of the same with the NAB, discharge such person. The Chairman NAB is not competent to release a person without his own offer to return the acquired illegal gain or loss caused by him. The appellant has made his application signed by him offering to make plea bargain to return the amount gained by him which was processed and accepted by the Chairman NAB and filed in the Court for approval of the Court.

 

  1. The most important feature of the case is that offer for plea bargain by the accused person is the pre‑condition for his release provided accepted by the Chairman NAB and approved by the Court, whatever is the case. The appellant in consequence of this plea bargain/settlement between him and NAB, the deposited amount through his brother on his asking, had the appellant not instructed his brother he would not have deposited the amount with the NAB. The penal consequences of plea bargain as provided in section 25 of the Ordinance is disqualification as provided in section 15 of the Ordinance which envisaged that:‑‑

 

“15. Disqualification to contest election or to hold public office.‑‑(a) Where an accused person is convicted for the offence of corruption or corrupt practices as specified in the schedule to this Ordinance, he shall forthwith cease to hold public office, if any, held by him and further he shall stand disqualified for a period of ten years, to be reckoned from the date he is released after serving the sentence, for seeking or from being elected, chosen, appointed or nominated as a member or any statutory or local authority or in service of Pakistan or of any Province:

 

Provided that any accused person who has availed the benefit of section 25 shall also be deemed to have been convicted for an offence under this Ordinance, and shall forthwith cease to hold public office, if any, held by him and further he shall stand disqualified for a period of ten years, to be reckoned from the date he has discharged his liabilities relating to the matter or transaction in issue, for seeking or from being elected, chosen, appointed or nominated as a member or representative of any public body or any statutory or local authority or in service of Pakistan or of any Province.

 

(b) Any person convicted of an offence of corruption and/or corrupt practices as described at serial No. 1 of the Schedule shall not be allowed to apply for or be granted or allowed any financial facilities in the form of any loan or advances (or other financial accommodation) by any bank or financial institution (owned or controlled by the Government) for a period of ten years from the date of conviction.”

 

  1. From bare reading of the above referred provision of law, it reveals that there is no special provision for the issuance of show‑cause notice for disqualifying the accused person. The person who avails of the benefit of section 25 shall automatically be deemed to have been convicted for an offence under the Ordinance and shall forthwith cease to hold the public office, if any, held by him and shall be disqualified for a period of 21 years. In addition thereto he would be dis­entitled to avail of the financial facility as provided in section 15 of the Ordinance.

 

  1. The offer made by the accused person to return the ill-­gotten money would be deemed to be the confession of accused person for committing the corruption/corrupt practices. The appellant is a convict as a consequence of his plea bargain made with the NAB.

 

  1. So far as the case‑law cited by the learned counsel for the appellant is concerned, the facts of Javed Tariq Khan’s case (supra) are quite distinguishable. In that case, the appellant Javed Tariq Khan being defaulter of huge amount of Rs.4,67,30,823 when arrested by the NAB, he offered to make agreement with PCBL, finalized before the High Court but it was not a case of plea bargain under section 25 of the Ordinance and the application before the Accountability Court was filed by the Prosecutor and not by the accused, no agreement/settlement was made with the NAB and amount was not returned to the NAB authorities, therefore, the principle laid down in that case is not attracted to the case of present appellant.

 

  1. In case of `Makhdoom Syed Ali Raza Shah’ (supra) the application was also filed by the Public Prosecutor before the Accountability Court for release of the accused and the facts of that case are also not attracted to the case in hand because the case of Makhdoom Syed Ali Raza Shah did not fall within the purview of `plea bargain’ as contemplated in section 25 of the Ordinance.

 

  1. As to the case of Muhammad Anwar v. State 2004 SCMR 1229 is concerned, it was a leave granting order and not final judgment of the apex Court.

 

  1. As regards, the contention of learned counsel for the appellant to the extent of non‑signing of pro forma, it is not the legal requirement nor any penalty for non‑performance of the same has been provided in the Ordinance, therefore, this argument of learned counsel being misconceived is repelled.

 

  1. Furthermore, the question involved in the matter in hand has also been dealt with by the Hon’ble Supreme Court of Pakistan in case of Ghulam Akbar Lasi reported as 2003 SCMR 89 wherein, the apex Court has maintained the view of the High Court of Balochistan Quetta that plea bargain is a conviction and convicted person has to face the legal consequences as provided in section 15 of the Ordinance.

 

  1. For the foregoing reasons, this appeal being, devoid of force is dismissed.

 

H.B.T./M‑781/L                                                                                  Appeal dismissed.