' ALI NAWAZ CHOWHAN, J.--- This judgment shall dispose of Writ. Petition No,3334 of 2004 and Writ Petition No,2724 of 2004.
2. Writ petition No,3334 of 2004 assails the NAB Reference No,105 of 2004 which is sub judice before the NAB Court at Rawalpindi against 17 persons, out of whom including the petitioner there are four members of the erstwhile Purchase Committee, Pakistan Railways. The three members of the Purchase Committee, except the petitioner, along with 12 others have already been discharged because they have entered into the plea bargain pursuant to the provisions of section 25 of NAB Ordinance, 1999 after having paid the losses to the Railways.
3. Abdus Saeed Khan, the present petitioner amongst them, however, has refused to enter into the plea bargain and has advanced the plea that nothing was due from him and there is no incriminating evidence standing against him. He has come forward for quashment of the proceedings.
4. Along with the petition for quashment of proceedings, he has filed Writ Petition No,2724, asking for grant of bail.
5. This Committee had to purchase commodities meant for Railways. The, allegation is that they bungled money during the purchases and were responsible for corruption and corrupt practices.
6. Before the matter was entrusted to NAB, a fact finding Committee of Railways under the Efficiency and Disciplinary Rules conducted a comprehensive inquiry and has given its findings with respect to the allegations which stood against the members of the Committee .Along with.
Others. The findings are reproduced below in extenso:-- "The Enquiry Committee based upon the facts of the case, defence by the accused, cross- examination by the Enquiry Committee and scrutiny of the relevant record concludes, that charge No,(1) is proved against accused officer on account of inefficiency and negligence as member of the Tender Committee. As far as financial loss to the State up to the extent of Rs,6.161 million is concerned, this cannot be substituted though the loss has occurred. Charge No (ii), Charge (iii) and Charge (iv) are not proved against the accused officer."
7. However, the Railways Authorities were dissatisfied with the result and it is stated that probably they were more interested in the recovery of the loss and therefore, in a swift move the Secretary of the Board of the Pakistan Railways, Brig. (R) Muhammad Umer addressed a letter to the NAB asking for NAB's help in getting the required results.
8. A forwarding letter, dated 6-12-2000 was addressed to NAB saying:--- "From July, 1998 to April, 1999, the Zonal Manager/IBU Rawalpindi made procurement of material worth Rs,62.489 million during the period under investigation through 88 Purchase Orders for Engineering, Electrical and Civil Defence Departments beside purchase of certain Common User Items. It was reported that the purchases were made on exceptionally exorbitant rates and that prescribed procedures and principles were not observed in true spirit. It was reportedly alleged that the entire process i,e, release of funds from H.Q. Office floating and acceptance of tenders as well as ultimate consumption of the material was based on consideration other than established norms/procedure and merits. To scrutinize the purchases so made, the General Manager, Pakistan Railways, Lahore ordered fact finding enquiry.
(2) According to fact finding enquiry report, all the purchases were made at an exorbitant rates causing an over all loss of Rs,35.473 million. The subsequent departmental enquiry under Efficiency.
And Disciplinary Rules found the officers involved responsible on different counts. Pakistan Railways has on the basis of the fact finding report withheld the payment to the contractors amounting to Rs,20.2 million which was contested by them with the Wafaqi Mohtasib, who gave his verdict in their favor. However, on appeal, the President of Pakistan has viewed that the case be contested in a Civil Court.
(3) In view of the above the case be forwarded for investigation by NAB as the contractors have played in major role in embezzlement of huge amount in collusion with Railways employees and the Railways cannot recover the losses from the contractors due to legal implication."
9. So, NAB started its role thereafter and the Chairman authorized the investigation. The investigation implicated and involved the members of the erstwhile Purchase Committee along with others on grounds of corrupt practices.
10. It is stated that while those proceedings were going on, the other members of the Purchase Committee, namely, Khalid Mehmood DTO Railways, Muhammad Fayyaz Khan, Ex-Zonal Civil Engineer-I and Muhammad Aslam, ex-Accounts Officer along with others entered into plea bargain under the provisions of section 25 of NAB Ordinance, 1999 and paid more than what the Railways had portrayed as its total losses allegedly caused by the present petitioner and the three members in terms of money.
11. In this connection a reference may be made to the following statements appearing in Chairman's NAB Reference:-- "On receipt of complaint of the Secretary, Pakistan Railway Board that purchases were made on exceptionally exorbitant rates and in violation of prescribed procedure, an investigation was authorized. The Investigating Officer NAB has submitted his report.
' According to independent estimates prepared by Inquiry Committee of Railways, total amount spent on purchases were not more than Rs,92,91,768 but an excess amount of Rs,11.263 million (approx.) was paid."
12. It is stated at the bar that whereas the total loss was about 35 millions, the amount so far recovered because of the "plea bargain" is approximately 41 millions, an amount far above the loss suffered by the Railways and mentioned in the Reference.
13 Learned counsel for the petitioner while seeking quashment of the proceedings has stated that in fact there was no valid Reference made to NAB because, this was not authorized by the - "appropriate Government". This in case of Pakistan Railways is the Secretary Railways in accordance with the rules of business of the Federal Government. But while replying to this objection of the learned counsel for the petitioner, the learned counsel for NAB stated that lodging of Reference is not merely confined to a complaint to be made by the "appropriate Government".
This can be made even by a private person or anyone. Therefore, to attribute infirmity to the Reference was not a correct argument.
14. But the basic question which came up for consideration while the arguments were proceeding was that in case NAB has already recovered more money, than loss suffered by the Railways after permitting the co-accused to enter into "plea bargain" and who upon this arrangement had paid the amount, this rendered the Reference infructuous against the petitioner and his co-accused Misri Khan because there was nothing left to be recovered and they were then to be discharged.
15. There is permission for plea bargain for purposes of recovery of the loss given by the Chairman NAB to the co-accused. If the present petitioner did not go for plea bargain, it was because he remained steadfast to his plea that he was innocent. The others having bargained, therefore, bargained their positions and paid the amount claimed. It is now an admitted position that the loss as indicated by the Pakistan Railways and later by NAB and attributed to all of them was fully paid.
Thus, nothing was left to be recovered.
16. NAB Law came into being in 1999 and this is a new law which has adopted the American concept of "plea bargain". And one of the purposes for this and enunciated in its preamble was to recover the State money misappropriated or removed through corruption and corrupt practices or misuse of powers and authority. So, the aim of NAB Ordinance, 1999 and the provisions of its section 25 was not merely for punishing people with sentence and, therefore, where a recovery could be made and the Chairman NAB upon an offer being mane voluntarily, accepts the same and the pecuniary loss is made good, the case ends and for it to proceed further has no moral justification in view of the practice of NAB and the intention and the spirit of this law and this situation has emerged in this case today.
17. In this connection it will be proper if we make a reference to section 25 of NAB Ordinance, 1999. It reads as follows:- "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 the authorization of investigation against him, voluntarily comes forward 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 matter or transaction in issue: ' Provided that the matter is not sub judice in any Court of law.
(b) Where at 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 the assets or gains acquired or made by him in the course, or as a consequence, of any offence under this Ordinance, the Chairman 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.
(c) The amount deposited by the accused with the NAB shall be transferred to the Federal Government or, as the case may be, a Provincial Government or the concerned bank or financial institution, company, body corporate, cooperative society, statutory body, or authority concerned with one month from the date of such deposit."
18. According to our interpretation, a plea bargain can be entered into by the holder of a public officer or by any other person on his behalf. This implies that it can be entered into on behalf of other persons by any person who makes good the said loss.
19. The only other question will be whether this is possible only at the stage prior to the authorization of investigation or it might be done at any time later on. In case of the other co- accused we are told that the plea bargain exercise was carried out after the authorization/filing of the Reference.
20. It is now for the Court below to see what the facts pertaining to the plea bargain are entered into with some of the accused who had been accused of the same offence as the present petitioner and who having made good the loss have been discharged.
21. We are of the view that once the agency authorizes plea bargain and the loss is made good, then agency has to follow what is prescribed by section 25 itself in the words, i,e, "discharge such person from all his liability in respect of the matter or transaction in issue" and cannot go any further.
22. A State exists for the welfare of the people and it has always to interpret its criminal law with this spirit. According to Dostovesky in "Crime and Punishment", the civility of a State is to be judged from the fair treatment it allows to its criminals. So, if the loss has been made good, the intention of the law and its spirit would demand that a similar treatment be extended to the petitioner which was extended to other co-accused who have been discharged of their liability after they paid the entire loss rather more, irrespective, of the fact that the petitioner did not enter into a "plea bargain".
23. These are our views and with these views we are referring the matter back to the learned trial Court for arithmetical calculations of the loss and the recovery effected. If what is said is true the petitioner will also be discharged in accordance with law. In case, the loss was not made good then this order will not be binding on the trial Court and the trial Court will proceed with the matter as if this order was not passed.
24. Our observations aforementioned are explicit and the matter is now remitted to the trial Court for determining in about two months the factual questions which we have raised, consequently the bail already granted to the petitioner on 23-9-2004 by this Court is also confirmed on the same Machalka.