IN THE HIGH COURT OF SINDH AT KARACHI
MR. JUSTICE SALAHUDDIN PANHWAR
Petitioner: Tariq Irshad S/o. H. Irshad Illahi (late)
Through: Shaukat Hayat, Advocate.
Respondents: The Chairman National Accountability Bureau (NAB) & 2 others,
Through: Mr. Noor Muhammad Dayo, ADPG, NAB along with Mr. Zamir Hussain, Sr. Prosecutor NAB.
Petitioner: Mehmood S/o. Abdullah
Through: Shaukat Hayat, Advocate.
Respondents: The Chairman National Accountability Bureau (NAB) & 2 others,
Through: Mr. Noor Muhammad Dayo, ADPG, NAB along with Mr. Zamir Hussain, Sr. Prosecutor NAB.
Date of hearing : 27.01.2014.
Date of announcement:
SALAHUDDIN PANHWAR, J. By this common order we intend to dispose of the captioned petitions as facts and circumstances as well as law involved therein are the same.
2. Through instant petition(s), petitioner(s) have assailed order dated 27th June 2013, passed by the Accountability Court No.IV, Sindh in Reference No.14 of 2012, whereby application under Section 25(a) of the National accountability Ordinance, 1999; moved by NAB authorities was declined.
3. Precisely, relevant facts, set out in these petitions, are that FIA registered various cases against the management of Pakistan Steel Mill(s) and others for various Acts of corruption and corrupt practices, subsequently the Hon’ble Supreme Court in Suo Moto Case No.15 of 2009 directed for transfer of the investigation of such cases from FIA to NAB. After that NAB authorities initiated investigation whereby the Petitioner(s) have been arraigned. During investigation, notice of V.R. was issued to the Petitioner with regard to Voluntary Return of the gains acquired by him. In response, the Petitioner accepted such offer and moved such application. Resultantly a deed was executed by the Petitioners and NAB authorities, whereby amount worked out by the I.O. was settled between the parties. Such Voluntary Return proforma was approved by D.G. NAB, however, it was ordered that such approval is subject to approval of the Court. In consequence whereof, NAB authorities preferred application for Voluntarily return under Section 25(a) of NAO, 1999 in respect of the Petitioners, according to NAB, Petitioners Tariq Irshad and Mehmood agreed to voluntary return the amount of Rs.2,60,161/- and Rs.2,60,898/- respectively, in the terms of settlement.
4. Learned counsel for the petitioner(s) has inter alia, contended that impugned order is against settled principle of law as laid down in Asfand Yar Wali’s case reported in PLD 2001 S.C. 607; Petitioner voluntary returned the amount involved in the matter, which was accepted by the competent authority, hence application filed by the Respondents was in accordance with law.
5. On the other hand, learned Special Prosecutor (NAB) has, inter alia, contended that the basic object of National Accountability Ordinance is to affect the recoveries from the accused involved in the corruption and corrupt practices; accused is a businessman and if his request is not accepted then whole business set-up would be collapsed and in such eventuality nobody will come forward to pay/return the public exchequer, therefore, impugned order is not maintainable under the law.
6. Heard counsel and perused the record.
7. Before proceeding further into the merits of the case, suffice to say that it is a settled principle of law that writ jurisdiction can be exercised in extra ordinary circumstances and normal course provided under the law cannot be bypassed in any manner. Keeping in view this touchstone, we have considered the contentions of the respective counsel and have meticulously examined the available record couple with the impugned order. Admittedly it has come on record that application under Section 25(a) of NAO, 1999 was filed by the NAB authorities, whereby it was placed before the trial Court that since parties have settled their disputes and the Petitioners have returned the assessed amount, therefore, such plea may be accepted. Since both the parties are on one and same stance that impugned order is not maintainable under the law, therefore, at this stage, it would be significant to examine carefully the impugned order to understand whether such order is without jurisdiction and patently illegal.
8. It would be conducive to refer the relevant portions of the instruments relating to plea-bargain, wherein it is contended that “during investigation, it is revealed that accused person, being one of the beneficiary in the instant case, caused loss to Pakistan Steel Mills in connivance with Government officer. Now he is willing to pay Rs.2,60,898/- to pay off the liability,” thereby concerned authorities endorsed approval on such deed. Similar endorsement is available on voluntary return proforma between NAB and Petitioner Mehmood both cases were approved as under:
“Approved provided, it is also approved by the Court.”
9. At this juncture, it would be germane to refer the relevant portion of the impugned order, whereby such application was declined. The Para Nos. 11 and 12, being relevant, are reproduced hereunder:
11.“It appears from the record of this case that instead of availing opportunity of voluntarily return, during inquiry, the accused after authorization of investigation agreed/opted to return the payment of public money involved in the case. I agree with the contention of the learned DPG, NAB that the purpose of proclamation of the National Accountability Ordinance, 1999 was to recover the looted public money from the accused persons involved in the offences of corruption and corrupt practices as defined U/s 9 (a) of National Accountability Ordinance and schedule thereto. But in my humble view, for the purpose of recovery of looted public money from accused persons the NAB should follow the procedure prescribed in the National Accountability Ordinance itself which in the present case has been laid down in the Section 25 of the said Ordinance.
12. As discussed above clause (a) of Section 25 of the National Accountability Ordinance provides opportunity to an accused involved in the corruption and corrupt practices to voluntarily come forward and offer for return the assets or gains acquired or made by him in the course, or as a consequence of any offence under the National Accountability Ordinance prior to the authorization of investigation against him. This is a stage of inquiry. The Clause (b) of the Section 25 ibid provides that after the authorization of investigation, before or after the commencement of trial or during the pendency of an appeal the accused offers to return to the NAB, the assets or gains acquired made by him in the course, or as a consequence, of any offence under this Ordinance hence in my humble view case of the accused Mehmood would come in clause (b) of Section 25 of the National Accountability Ordinance. Admittedly, in this particular case, the investigation had been authorized earlier and the offer was made the accused for voluntarily return during the investigation.”
However, such application was concluded in para-16:
“16. In view of the of the above discussions, the voluntarily return application filed by the NAB under Section 25(a) of the National Accountability Ordinance, 1999 is dismissed. However, the NAB is at liberty to file proper application under Section 25(b) of Ordinance ibid; if deem necessary.
Order accordingly.”
10. Bare perusal of the above, it is surfaced that basic disagreement by the Presiding Officer with the NAB authorities is that the instant case falls within section 25 (b) and not under Section 25(a), therefore, such request was declined, however, they were allowed to move application under Section 25(b) of NAO, 1999.
11. At this stage, it would be worth to reproduce sub section (a) and (b) of Section 25, which is as under:
25—Voluntary return and plea bargain.
(a) Notwithstanding
anything contained in section 15 or in any other law for the time being in
force, where a holder of public office or any other person,
prior to authorization of investigation against him and offers
to return the assets or gains acquired or made by him in the course, or as the
consequence, of any offence under this Ordinance, the Chairman
NAB may accept such offer and after determination of the amount due
from such person and its deposit with the NAB discharge such person from
all his liability in respect of the mater or transaction in issue:
Provided that the matter is not sub judice in ay Court of law.
(b) Where any time after the authorization of investigation, before or after the commencement of the trial or during the pendency of an appeal, the accused offers to return to the NAB, may, in his discretion, after taking into consideration the facts and circumstances of the case, accept the offer on such terms and condition as he may consider necessary, and if the accused agrees to return to the NAB the amount determined by the Chairman, NAB, the Chairman, NAB, shall refer the case for the approval of the Court, or as the case may be , the Appellate Court and for the release of the accused.
(Underlining is supplied for emphasis).
The plain reading of the above provisions of section 25 (a) and (b) of the NAB Ordinance would show that there is a marked distinction between these two sub-provisions which needs to be understood and followed.
12. The phrases, used in the Section 25(a), as ‘a holder of public office or any other person’; ‘prior to authorization of investigation against him’; are required to be given their due weight. In Section 25(a) the word ‘accused’ has not been used but ‘a holder of public office or any other person’ have been used which further stands explained with use of phrase ‘‘ prior to authorization of investigation against him’ , therefore, it becomes quite clear that such offer comes from a person not an accused. The legislature vests a discretion with Chairman NAB to reward of ‘discharge such person from all his liability in respect of the mater or transaction in issue;. Since in such matter (s) no investigation initiates as such the exercise of such discretion by Chairman NAB is not subject to any approval of the Court. This stands patent from reading of the provision of Section 25(a) wherein the word ‘Court’ is nowhere mentioned. The reward of ‘discharge from all liability’ is also with an intention to invite the person to return at very initial stage.
13. On the other hand, in the provision of Section 25(b) the phrase ‘a holder of public office or any other person’ stood substituted with word ‘accused’ while phrase ‘prior to authorization of investigation against him’ stood substituted with ‘after the authorization of investigation, before or after the commencement of the trial or during the pendency of an appeal’ . These substitutions make it clear that who fails to avail opportunity, provided by Section 25(a) yet continues with an option to resort to plea bargain but as an accused or convict, as the case may be. Such delayed offer (plea of bargain) cannot be equated with that of an offer (plea of bargain) by a person against whom there started no investigation so far. Therefore, the legislature has confined reward of such offer with release of the accused or the convict, as the case may be, which too is subject to approval of the Court, or as the case may be , the Appellate Court.
14. Since it is a matter of record that investigation against the petitioners stood initiated and their present status in the matter is of ‘accused’ therefore, the case of the petitioners does not fall within meaning and objective of section 25(a) but it falls in the other category, as explained by Section 25(b). Since the import, objectives and consequences of both subsections i.e (a) and (b) of Section-25 are entirely different and independent to each other therefore, neither the petitioners nor the NAB authorities could be legally justified in deviating with prescribed procedure because the settled principle is that “what is required to be done in a particular manner then the same has to be done in same manner and not otherwise”.
15. It stood patent on record that case of the petitioners is falling within meaning of Section 25(b) but application has been made under section 25(a) without understanding the purpose, object and consequences thereof. The manner in which the NAB authorities sought approval of the NAB Court also confirms the fact that the NAB authorities do understand that case of the petitioners falls within meaning of Section 25(b) which requires approval of the court. Thus, it can safely be said that such authority has departed from the normal course provided under the law which cannot be approved. Since the learned NAB Court has itself, having properly appreciated the position, and has left the opportunity for the NAB authorities to repeat the application but under proper procedure, so defined by Section 25 (b), therefore, stance of the petitioner and NAB authorities to press the application under wrong provision is unjustified.
16. It is worth to make clear here that within meaning of the Section 25(b), it shall be the NAB Authorities which shall refer the case for approval of the Court, or as the case may be, the Appellate Court. Thus it is the prerogative of the NAB authorities only to seek approval of accepted offer of the accused because after such acceptance it is the NAB authority which has to seek approval with reference to terms and condition on which acceptance is made.
17. With regard the to the plea of the petitioners that the amount involved in investigation is meager and thus reference cannot be filed in view of dictum laid down by the Hon’ble Supreme Court in case of Abdul Aziz Memon vs. The State reported in PLD 2013 S.C. 594. It would be pertinent to reproduce the relevant portion of paras-31 & 32, of the said decision, which are as under:-
31. As regards the new offences created by the Ordinance we are constrained to observe that strictly speaking, it is not possible for us to declare them ultra vires the Constitution. Nevertheless, it is expected that the Chairman, N.A.B. will keep in view the spirit of the law in accordance with the guidelines referred to in para. 29 and file references only when the amounts involved are large enough and it is worthwhile in the public interest and same mensrea on the part of the defaulter is involved.
32. Since filing of a reference is essentially the function of the Chairman, N.A.B (though it may be amenable to judicial review in proper cases) and since he in view of the experience of the Institution is in a better position to determine whether the amount involved in these cases could be classified as large or otherwise. We would remand these matters to the Chairman, N.A.B. to re-examine these cases from the above stand-point. In case he is satisfied that the amounts involved are large enough to justify proceedings under the Ordinance, they may continue before the Accountability Courts. In case he is not so satisfied the cases may be transferred to the appropriate Courts and such Courts may proceed with them from the stage they had reached without recalling witnesses. A definite decision is expected to be taken within one month from today and till such time the interim order passed earlier will continue. The petitions stand disposed of in the above terms."
18. Plain reading of the above, it is manifest that it is the domain of Chairman NAB to decide the matter. Moreover, it is not the case of submission of reference but it is the matter of acceptance of offer (plea bargain) therefore, this plea of the petitioner and NAB is also not sustainable. However, regarding the merit of the case, we restrain ourselves to comment further as the matter is pending before the concerned forum, for further proceedings in accordance with law and as per direction of Hon’ble Supreme Court.
19. Accordingly, in view of what has been discussed above, the captioned petitions are hereby dismissed. However, opportunity of approaching NAB court, as provided under Section 25(b) shall remain available, being a creation of the law itself.
J U D G E
Karachi.
Dated: _____________
Sajid/PA