' Through this petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, the petitioner has prayed for the following prayers:--
(a) that act of respondents Nos.1 and 2 to register the case against the petitioner in the Court of respondent No,3 is without lawful authority and of no legal effect.
(b) that the petitioner is entitled to pay back money received by respondent No,2.
(c) that respondent No,3 accordingly has also acted without jurisdiction and lawful authority.
2. The brief facts of the case are that Reference No,7 of 2004 has been filed under section 18(g) read with section 2(b) of the National Accountability Ordinance, 1999 against the petitioner for his trial as he according to the allegation through corrupt, dishonest and illegal means had obtained for himself pecuniary advantage in connivance with late Zulfiqar Ahmad Awan, Chairman of said SCCL who misused his authority and rendered undue benefit to the petitioner, which came upto Rs,5,91,61,005 including mark-up. The petitioner was referred for his trial for corruption and corrupt practices as defined in clauses (iii) (iv) and (vi) of section 9(a), punishable under section 10 of the National Accountability Ordinance, 1999.
3. During the pendency of the said trial the petitioner filed an application under section 265-K, Cr.P.C. Which was dismissed by the learned trial Court vide order, dated 28-5-2004. The case of the petitioner is that he is a proprietor of Messrs Salman Art Printing which firm had business relationship with the defunct Messrs Service Cooperative Credit Corporation and two accounts were opened i,e, Account No,199 and Account No,315 which were maintained as one being personal and the Other of the firm: It is claimed by the petitioner that the firm was providing printing material like stationery etc. And sign boards etc. For advertisement purpose of SCCL. The material was supplied and the bills were tendered. The amount due to the said defunct Corporation was received through the said accounts. Even the petitioner has to receive the outstanding amount from the said Corporation, but he never obtained any finance facility from the Corporation as alleged in the Reference. The petitioner claims that the claim of finance facility was based on fictitious documents and signatures of the petitioner were pasted on printed papers. Earlier a reference was filed which was decided in favor of the petitioner by the Judicial Officer, who dismissed the same on 17-9-1991. Then the defunct Corporation filed an appeal, before the Deputy Registrar which was also dismissed vide order, dated 23-12-1992. Respondent No,1 thereafter submitted a Petition No,242/C of 1993 and the petitioner along with his wife filed Petition No,396/C of 1993 controverting the allegations in defence. Both these petitions were disposed of as withdrawL vide order, dated 3-10-1998 by the Cooperative Judge, Lahore. Then respondent No,1 filed an appeal under section 64, of the Cooperative Societies Act, 1925, in the Court of Secretary Cooperative, Government of Punjab, Lahore, which was decided in favor of respondent No,1 and case was remanded to the Deputy Registrar vide order, dated 24-7-2001 for fresh decision on the appeal filed by respondent No,l. The remand proceedings could not be decided on merits due to the withdrawal of letter dated 24-7-2001 issued by respondent No,l. The proceedings before the Judicial Officer did not commence and the petitioner also filed revision petition under section 64-A of the Cooperative Societies Act, before the Secretary Cooperative who did not decide the same on merits vide order, dated 11-11-2003. The grievance of the petitioner is that there was specific denial of the petitioner for availing finance facility from SCCL but without adjudication of the matter reference under the NAB Ordinance, 1999 was submitted before him in contravention of the provisions of section 31-D thereof. During the pendency of the Reference, the petitioner filed application under section 265-K, Cr.P.C. For his acquittal which was dismissed by the learned Accountability Court and Writ Petition No,10445 of 2004 challenging the said order was also dismissed by this Court vide order, dated 2-9-2004. Then the petitioner availed the facility of plea bargain and after payment of 34% of the alleged misappropriated amount he was released on bail. The petitioner claims that the said amount was extracted from him under coercion against the fundamental rights guaranteed by the Constitution and he is entitled to receive back the same besides a declaration from this Court that the Reference was submitted against him illegally and the learned Accountability Court is acting illegally.
4. The main argument of the learned counsel for the petitioner is that under section 31-D of NAB Ordinance, 1999, the Governor of State Bank can only refer the matter for wilful default. Relies upon PLD 2001 SC 607 to contend that in para. 219 of the said judgment at page 905 it has been held that in cases of wilful default the matter can only be referred by the Governor State Bank and in the present case as the Governor State Bank had not referred the matter to the Accountability Court or the NAB authority hence the impugned Reference filed against the petitioner is liable to be quashed. Also relies upon Rauf Bakhsh Kadri v. The State and others 2003 M LD p.777 in which the Karachi High Court has quashed the proceedings as the complaint was not made under section 31-D of the NAB Ordinance. It is further contended that the payment of the amount under the pretext of plea bargain is not an estoppel against the petitioner for contesting the Reference as he .Was forced to have recourse to the same binding no alternate, hence he is entitled for the refund of the said amount having been recovered under coercion. Relies upon a judgment of this Court reported in Messrs Afzal Construction Co. (Pvt.) Ltd. v. Chairman Central Board of Revenue and others NTR 1990 HC 61. Also contends that the documents on the basis of which the reference was set up had no authority, as such the same cannot proceed unless the petitioner is declared wilful defaulter by the Court of competent jurisdiction.
5. Learned counsel for the NAB on the other hand opposes this petition on the ground that the petitioner himself had moved two applications for the plea bargain and having already paid an amount of Rs,56,00,000 has been released on bail, who is now estopped by his conduct to challenge the proceedings in the present writ petition after getting the benefit thereof. It is also contended that actually the petitioner now wants to back out from his undertaking given before the Chairman, NAB for the payment of the remaining amount within three months after getting the benefit, which shows his mala fide and writ petition is not maintainable as he has not come in the Court with clean hands. It is also contended that the Reference has not been filed for the wilful default and even otherwise the matter can be referred by Governor, State Bank of Pakistan in the cases where the State Bank of Pakistan has Supervisory powers and the persons are guilty of wilful default but in the present case the defunct Cooperative Society was formed without obtaining any permission from the State Bank of Pakistan which had started the bank business of collecting the money from general public and said amount had been obtained by the petitioner through fraud under the garb of finance facility only on the deposit of Rs,1,000 without getting mortgaged any property and proper documentation. The learned counsel contends that the said fraud was committed with the help of Zulfiqar Ahmad Awan, Chairman of the defunct SCCL, who started running it as a family deal/business and the said amount is still due to the general public.
6. We have heard arguments of the learned counsel for the parties and also perused the contents of this writ petition as well as the documents attached therewith. The allegation against the petitioner in the said Reference is that he had opened account in the SCCL with the deposit of Rs,1,000 only but availed the finance facility to the tune of Rs,1,42,82,341 without depositing any document required to be executed for the purpose. The said amount was never repaid by the petitioner which was collected by the said Corporation from the general public under the garb of payment of profit. The same is still due to the general public and the petitioner is prima facie guilty of misappropriation and is guilty of offence under section 9 which is reproduced as under:-- "9(a) A holder of a public office, or any other person, is said to commit or to have committed the offence of corruption and corrupt practices:-- (i).
(ii) ..........................................................................................
(iii) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use, or for the use of any other person, any property entrusted to him, or under his control, or wilfully allows any other person so to do."
' From the perusal of this section it is clear that the petitioner is not being tried under section 9(a) of sub-clause (iii) of National Accountability Ordinance, if he dishonestly or fraudulently misappropriates or otherwise coverts for his own use, or for the use of any other person, any property entrusted to him, or under his control, or wilfully allows' any other person so to do.
7. As far as the argument of the learned counsel for the petitioner that in case of wilful default the Reference can only be filed after obtaining permission from the State Bank of Pakistan is concerned, suffice it to say that the defunct Corporation was not being governed by the State Bank and it had allegedly afforded the finance facility to the petitioner and others without any permission of State Bank of Pakistan. It is not the case where the State Bank of Pakistan had any concern and the Reference was not required to be submitted under section 31-D of the NAB Ordinance. Hence this argument is repelled. Even otherwise the question of maintainability of the Reference filed against the petitioner was resolved by this Court in Writ Petition No,10445 of 2004 vide order, dated 28-5-2004 which was filed by the petitioner against the dismissal of his application by the learned Accountability Court No,2, Lahore, filed under section 265-K, Cr.P.C.
Seeking acquittal. The operative portion of the order is reproduced as under:- "We have heard the learned counsel for the parties and find that the allegation contained in Reference are that the petitioner obtained the amount without observing the legal formalities and proper sanction of the Board. The witnesses so far examined have involved the petitioner in commission of the crime. The case pending adjudication of different levels have no nexus bearing or ultimate effect on the trial/Reference against the petitioner, even otherwise. It is settled law that civil and criminal proceedings can proceed simultaneously independent of each other, therefore, we do not find any force in the petition. The same stands dismissed. However, the trial Court is directed to proceed with the trial expeditiously and conclude the same preferably within one month after receipt of the order."
' The said order has attained finality as there is nothing on the record that the same was challenged any further before the higher forum. As such the petitioner cannot agitate the same matter before this Court.
8. Now we come to the claim of the petitioner that plea of bargain was tendered by him under forced circumstances, hence he is entitled for refund of the said amount. It is not denied that the petitioner himself had submitted application for recourse to plea bargain. The said application was processed as per procedure provided in the NAO, 1999 and after approval of the petitioner has been released on payment of agreed amount and promise to deposit outstanding amount in installments. There is nothing on the record to substantiate the plea of the petitioner that plea bargain was tendered under coercion. Merely detention of the petitioner in jail in consequence of reference under the law and then dismissal of his application filed under section 265-K, Cr.P.C.
Seeking acquittal by the Court of competent jurisdiction, which order was also affirmed by this Court in writ jurisdiction cannot be considered forced circumstances, as claimed by the petitioner.
The petitioner after having been benefited from the transaction of plea bargain has been released from jail and now he is estopped to challenge the said proceeding by his conduct as well. He is breathing hot and cold at the same time, which cannot be allowed. The case-law cited by the learned counsel is not applicable in the present case.
9. For the foregoing reasons, we do not find any merit in this writ petition, which is dismissed.