' SARMAD JALAL OSMANY, J.---Briefly stated the case of the Prosecution per Reference No.16 of 2002 filed before the learned Administrative Judge, Accountability Courts is that the applicants being the Directors/Partners of Messrs Ahson Drug Company fraudulently availed the exemptions in duties/taxes on certain raw material imported by them for the manufacture of drugs on the basis of fake records kept at their offices and instead of using the same for producing finished products they disposed them of in the open market thus causing a loss to the exchequer in the amount of Rs.96,752,091. Thereafter during the investigation both the accused entered into a plea bargain agreement with the NAB Authorities by voluntarily offering to return Rs.60 million out of which an amount of Rs.7 million was given as a down payment whereas the remaining Rs.53 million was to be paid in instalments and as security the title documents of their immovable property were kept with NAB. However, the accused did not pay further instalments and hence the reference also on the ground that they had committed wilful default as defined in section 5(r) of the NAB Ordinance.
Earlier the co-accused Dr. Tanveer Alam who was one of the Drug Inspectors who had issued the consumption certificate on the basis of which the petitioners had been able to claim exemption in customs duty etc., was convicted in Reference No.40 of 2001 (separated Reference No.11 of 2002) vide judgment passed by the Accountability Court, dated 28-8-2003.
2. In support of the petition, Mr. Raja Qureshi has firstly submitted that the entire case of the prosecution is based on the allegation that the raw material imported by the petitioners was not used to manufacture finished products but sold off in the open market thus evading customs duties etc. Further that the record of the factory was manipulated showing bogus entries of consumption based upon which fake consumption certificates were issued by the co-accused Drug Inspector. In this regard, learned counsel has invited our attention to Part-II, Schedule B-III of the Drugs (Licensing, Registration and Advertising) Rules, 1976 which provides as follows:-- "(II) Record of raw material:--- "Record in this respect of each raw material shall be maintained in the quantity, received, control reference, numbers, the quantity issued from time to time, the given batch numbers of the production of the manufacture of which the quantities have been issued and the particulars relating to the proper disposal of the stock."
' Consequently, per learned counsel, as no particular format has been prescribed for the purpose of keeping records, the same in the instant case were in the shape of bin cards to which no exception can be taken. In this connection, he has further submitted that per the testimony of P.W. Maqsood Alam (the Quality Control Inspector of the petitioner's factory) in Reference No.11 of 2002, the said bin cards (which were produced by him) were the authentic record of the factory as to the raw material brought into the factory and consumed thereafter in the manufacture of finished products. According to this witness, all the raw material in question, per the reference, was so consumed and hence the certificates issued by the co-accused were based on the authentic record. He has also deposed that the bin cards are maintained under the standard operating procedure as per the rules issued by the Government of Pakistan from time to time. This witness also produced the stock registers maintained at the factory which did not contain any record of the imported raw material or its consumption for the purpose of manufacturing finished products.
According to him these were the internal record of the company and maintained for the purpose of sampling, research and development. Learned counsel has also referred to the deposition of P.W.
Dr. Ali Akbar Siyal, Deputy Director General of the Drug Control Administration, Karachi, according to whom he had inspected petitioner's factory and found that it was functioning according to the prescribed rules and regulations and its record was properly maintained. However, per learned counsel, the learned Accountability Court failed to appreciate these pieces of evidence and has, on the other hand, relied upon the stock registers, which admittedly did not contain the record of the imported raw material and hence come to the wrong conclusion that the bin cards were manipulated in order to obtain the consumption certificates for the purpose of claiming exemption from customs duties fraudulently.
3. Regarding the charge of wilful default, on the basis that the petitioners had not adhered to their agreement for plea bargain, learned counsel has submitted firstly that such an agreement must be clear and concise and must fulfil the normal legal requirements which creates a binding contract viz. Offer, consideration and acceptance. In the present case, the same are missing and hence it cannot be said that there was a valid contract between the NAB Authorities and the petitioners as to a plea bargain. Per learned counsel the documents in this regard would show that there is an offer of plea bargain by the petitioners which has been accepted by NAB conditionally viz. Subject to clear title of the property documents which had been deposited with the latter. In support of this submission learned counsel has relied upon the case of Ali Nawaz Shah v..The State PLD 2003 SC 837. Next learned counsel has submitted that per section 5(r) of the Accountability Ordinance, no Prosecution for wilful default can be launched against the petitioners before the expiry of 30 days statutory notice as contemplated under the said section, which in the present case has not been given. In this connection learned counsel has relied upon the case of Khan Asfandyar Wali v. Federation of Pakistan PLD 2001 SC 607. Finally per learned counsel, unless and until the dues are determined under section 5(r) no question arises of their recovery and hence the case would not be covered within the definition of wilful default. According to him this could only be done on the basis of a proper audit which exercise has been ordered to be done in Suit No.259 of 2002 disposed off by this Court on 28-3-2002. In support of this submission he has relied upon the case of Main Munir Ahmed v. The State 2004 PCr.LJ 2012 and Asim Textile Mills Ltd. v. NAB PLD 2004 Kar.638.
4. For all the foregoing reasons learned counsel has prayed that bail be considered in the matter.
5. On the other hand, Mr. Shoukat Hussain Zubedi, learned D.P.G., has submitted that insofar as the issue of plea bargain is concerned, this is a past and closed transaction as evidenced by the documents on the record. In this regard, he has referred to the application filed by the petitioners before the NAB Authorities on 18-4-2001 offering to settle the matter by paying Rs.30 million which was not accepted. Thereafter, vide application dated 19-7-2001 this amount was increased to Rs.60 million which was accepted by NAB. Previously, on 25-9-2001 the petitioners had already deposited an amount of Rs.7 million. However, as they had not paid the instalments of the balance Rs.53 million as agreed and hence the present reference was filed. Consequently, now they cannot turn around and say that they had never entered into a plea bargain agreement with NAB. Further according to learned D.P.G. The necessary thirty-days notice has been given to the petitioners on 6-9-2003 vide copy of the same available on the file.
6. As far as the merits of the case are concerned, learned D.P.G. Has submitted that the registers recovered by NAB under a proper seizure memo. From the petitioners factory did not contain any entries regarding the imported raw material. As to the bin cards, per learned D.P.G., these were manufactured later on by the petitioners. As much has been stated by the employees of the petitioners (who are the store keeper and the Quality Control Manager) in their 161, Cr.P.C.
Statements. In this connection, he has referred to the deposition of such Quality Control Manager (P.W. Maqsood Alam) before the learned Accountability Court in Reference No.11 of 2002 wherein he has improved upon his previous 161, Cr.P.C. Statement as noted by the Court in its judgment disposing of such reference, which is dated 28-8-2003.
7. For all the foregoing reasons learned counsel has prayed that the petition be dismissed.
8. We have heard both learned counsel and our conclusions are as follows:
9. Insofar as the merits of the case are concerned, it would be seen that the entire evidence is of a documentary nature and has been the subject-matter of a decided case by the learned Accountability Court in Reference No.11 of 2002 wherein the version of the petitioners has been disbelieved as to the authenticity of the bin cards in question. In our opinion, if we were to give any findings, though prima facie, one way or the other, this would embarrass the trial of the petitioners.
Indeed, this would also adversely affect the appeal filed by the co-accused against the judgment aforementioned.
10. Insofar as the issue of plea bargain is concerned, it would be seen that the petitioner No.1 himself had initiated the same vide letter dated 18-4-2001 wherein he had offered Rs.30 millions which was increased to Rs.60 millions vide letter dated 16-7-2001 and the same was accepted by NAB vide letter dated 8-10-2001 wherein it has also been requested to submit the title documents of the petitioner's property as security. This was done by them vide letter dated 24-10-2001. In the circumstances, it cannot be said that the dues were not determined as urged by Mr. Raja Qureshi.
Consequently, prima facie, we are satisfied that there was a valid and binding agreement between the parties insofar as the plea bargain is concerned. So also the NAB Authorities served the petitioners with the necessary thirty-days notice on 6-9 2003. Hence, in our view, at this stage, it cannot be held that the charge against the petitioners regarding wilful misconduct is misconceived or otherwise unlawful.
11. For all the foregoing reasons we would dismiss the petition with the directions to the learned NAB Court to dispose of the reference before it within three months from today. Needless to say our observations vis-a-vis the charge of wilftil default against the petitioners are only cursory and the learned trial Court shall not at all be influenced by the same. Concurrently, the petitioners would at the same time be free to establish their defence as urged before us.