1. RAHMAT HUSSAIN JAFFERI, J.---This judgment will dispose of Constitutional Petitions Nos.D-1580 and 1661 of 2007, as common questions of facts and law are involved.
2. The common facts of the petitions are that in the year 2005 the NAB authorities were investigating an offence of corruption and corrupt practices on the allegation that in Thatta Cement Factory big amount was misappropriated by the employees of the Cement Factory and contractors and both the petitioners were arrested. Pending the said investigation, the petitioners entered into plea bargain separately With the Chairman, NAB, by which, they agreed to pay some of amount as down payment and the remaining amount in instalments. The Chairman, NAB agreed the said proposal and further agreed that in case of non-payment of instalments, the down payment already paid would be forfeited and the accused would be re-arrested and tried accordingly to law. The Chairman, NAB referred the matter to the Accountability Court for approval of the plea bargain. The Court approved it, therefore, by virtue of section 15 of the NAB Ordinance the petitioners were convicted for the offence involved in the case and disqualified as mentioned thereunder. It appears that the petitioner did not pay the instalments, therefore, Deputy Prosecutor General issued notices to the petitioners for payment of amount within a period of 30 days as provided under section 5(r) of the National Accountability Bureau Ordinance, 1999 (hereinafter referred to as "the Ordinance"). The petitioners did not pay the amount in spite of notice, therefore, References Nos.49 and 27 of 2007 were filed against the petitioners for their trial for offence as defined under sections 5(r), 9(a)(viii) and punishable under section 10 of the Ordinance. The petitioners have challenged that the Deputy Prosecutor General cannot issue such notices and the proceedings were illegal, therefore, they have also requested for the grant of bail.
3. As some important questions of law were involved in the petitions, therefore, in Constitutional Petition No,1661 of 2007 following preliminary points were raised:-
(1) Whether non-deposit of amount determined by the Chairman, NAB under the plea of bargain and approved by the Court is an offence within the provisions of section 5(r) of the National Accountability Bureau Ordinance, 1999, when the remedy of recovery of such amount is available under section 33(E) of the Ordinance?
(2) If the answer is in affirmative then who is competent to issue 30 days notice?
(3) Whether the D. P. G. A. Without authorization of the Chairman, NAB can issue notice of 30 days as provided under section 5(r) of the NAB Ordinance?
4. Messrs A.Q. Halepota, Shoukat, Zubedi and Ismat Mehdi, Advocates were appointed as Amici Curiae to assist the Court.
5. We have heard the Advocate for the petitioners, D.P.G.A. For NAB and Mr. N.Q. Halepote, Amicus Curiae. The remaining Amici Curiae did not address the Court.
6. Mr. A.Q. Halepota, Amicus Curiae has argued that preamble of the NAB Ordinance shows that recovery of the amount was also one of the main considerations, therefore, the questions framed are required to be examined in the light of the said preamble. He has further stated that the amount was to be payable to the Chairman, NAB, therefore, it was the Chairman, NAB, who was required to issue notice as provided under section 5(r) of the Ordinance or his authorized officer, but the D.P.G.A. Was not competent without such authority to issue such notice; that the amount was agreed by the Chairman, NAB, then the matter was referred to the Court, the Court determined the said amount and accepted the plea by releasing the petitioners, but by virtue of section 15 of the Ordinance, they were convicted for the offence, for which, investigation was being conducted, therefore, after conviction the remedy under the Ordinance has been provided as stipulated under section 33-E of the Ordinance, by which the amount is to be recovered as arrears of land revenues, as such, the act of the petitioner would not become an offence as provided under section 9(a)(viii) read with section 5(r) of the Ordinance. He is of the 'view that fresh trial would be double jeopardy and it is hit by section 403, P.P.C. And Article 13 of the Constitution, therefore, the proceedings are able to be quashed.
7. The learned Advocates for the petitioners have adopted the arguments of Amicus Curiae Mr. Halepota.
8. The learned D.P.G.A. Has argued that the amount was due against the petitioners, which was to be payable to the Chairman, NAB, but they have failed to pay the amount in spite of required notice, therefore, the offence as defined under section 9(a)(viii) read with section 5(r) of the Ordinance has been made out, hence they are liable to be prosecuted for the said offence. He has further stated that the. D.P.G.A. Is authorized to issue required notice. However, he could not produce the copy of such authorization.
9. We have given due consideration to the arguments, gone through the material available on the record and found that the Ordinance was promulgated to eradicate corruption and corrupt practices and hold accountable to all those persons accused of such practices. It is also provided that there was an emergent need for the recovery of outstanding amounts from those persons who have committed default in payment to bank, Financial Institutions, Governmental agencies and other agencies and also to recover State's money and other assets from those persons who have misappropriated or removed such money or assets through corruption and corrupt practices.
10. Thus, one of the main considerations for promulgation of the Ordinance was to recover the amount which the accused person did not pay and misappropriate the amount and assets. In the background of the preamble of the Ordinance, the NAB Authorities investigated the case of corruption and corrupt practices of misappropriation of amount in Thatta Cement Factory. The petitioners were contractors and some amounts have allegedly outstanding against them, which they agreed to pay and then they entered into plea bargain in the capacity as accused persons of the offence, which was accepted by the Chairman, NAB and approved by the Court. Thereafter, the petitioners were released from the custody of NAB. The definition of "wilful default" as defined under section 5(r) of the Ordinance is as under:- "Wilful default.--A person or a holder of public office is said to commit an offence of wilful default under this Ordinance if he does not pay, or continues not to pay, or return or repay the amount due him to any bank, financial institution, cooperative society or a Government Department, statutory body or an authority established or controlled by a Government on the date that it became due as per agreement containing the obligation to pay, return, or repay or according to the laws, rules, regulations, instructions, issued or notified by the State Bank of Pakistan or bank, financial institution co-operatives society, Government Department, statutory body or an authority established or controlled by a Government, as the case may be, and a thirty days notices has been given to the such person or holder of public office: Provided that it is not wilful default under this Ordinance if the such person or holder of public office was unable to pay, return or repay the amount due from him as aforesaid on account of any wilful breach of agreement or obligation or failure to perform statutory duty, on the part of any bank, financial institutions, co-operative society or a Government Department, statutory body or an authority established or controlled by Government: Provided further that in case of default concerning a bank or a financial institution a seven days notice has also been given to the such person or holder or holder of public office by the Governor, State Bank of Pakistan: Provided further that the aforesaid thirty days or seven days notice shall not apply to cases pending trial at the time of promulgation of the National Accountability Bureau (Amendment)
11. Ordinance, 2001"
12. In the above provision, the words "a person or holder of public office" are very significant, therefore, they require special attention while examining the case. It is pointed out that word "person" would include all persons including accused as per its normal .Definition. The word "person" has been defined in section 5(o) of the Ordinance, which reads as under:-- "person" unless the context otherwise so-requires includes in the case of company or body corporate, the sponsors, Chairman Chief Executive, Managing Director, elected Directors, by whatever name called, and guarantors of the company or body corporate or any one exercising direction or control of the affairs of such company or body corporate, and in the case of any firm, partnership or sole proprietorship, the partners, proprietor or any person having any interest in the said firm, partnership or proprietorship concern or direction or control thereof."
13. Initially, when this provision was added by the Ordinance IV of 2000 the words "holder of public office" were not available. These words were added subsequently vide Ordinance XXXIII of 2002. A point has arisen as to why the words "holder of public office" were included. The definition of "holder of public office" as defined under section 5(m) covers large number of Government functionaries and other persons. They also come within the definition of "person" as per its general meaning, therefore, by adding the words "holder of public office", in section 5(r) the intention of legislature was very clear that this clause of persons should also be specifically included in the definition of section 5(r). From this it is manifest that the legislature was not satisfied with the words "person" as defined under section 5(o); appearing in section 5(r) to include the persons holding public office, therefore, it appears that they wanted to include the persons holding public offices in the said definition of section 5(r), hence these words were specifically added in the said section. It is pointed out that both the words come within the definition of general and normal definition of "person" and carry somewhat similar meaning, but different meanings have been given to them as per sections 5(m) and 5(o) of the Ordinance. It is well-settled principle of law that if different words are used in a provision carrying somewhat similar meaning then it will not be the intention of the legislature that the said words should be given similar meaning, but they have to be given different meaning, otherwise one of them which covers special meaning different from other word, would become redundant, which cannot be attributed to the legislature. Reference is invited to the case of Momdar v. State PLD 1990 SC 934.
14. From the adding of the above words in the provision, the intention of legislature is very clear that apart from definition "person" as defined in section 5(o) the "holder of public office" as defined in D section 5(m) should also be included to the persons committing the offence of wilful default. Thus, specified persons, who are defined in the Ordinance, are included in provision of section 5(r). It is well-settled E principle of law that a penal provision is to be interpreted very strictly. The provisions of section 5(r) are penal in nature as they involve punishment on omission to fulfil the requirement of provisions. It is pointed out that the petitioners were accused in the investigation of a F misappropriation of amount of Thatta Cement Factory and in that capacity, they entered into plea bargain. The word "accused" has not been specifically defined in Criminal Procedure Code or Pakistan Penal Code, but it has been defined in section 5(a) of the Ordinance, which is as under:-- "Accused shall include a person in respect of whom there are reasonable grounds to believe, that he is or has been involved in the commission of any offence triable under this Ordinance or is subject to any investigation or inquiry by the National Accountability Bureau, or any other agency authorized by the National Accountability Bureau in this regard under the. Ordinance."
15. The legislature knew that if an accused during the investigation or trial enters into plea bargain then he would be entering into plea bargain in the capacity of accused for whom specific definition has been given in the Ordinance,. Therefore, if the intention of the legislature would have been to include the "accused" as defined above in the provision of section 5(r) then the legislature could have added the word "accused" in such provision as done in case of holder of public office. The omission of such word clearly indicates that the legislature did not intend to specifically include the "accused" as defined above in the definition of wilful default under section 5(r) in the Ordinance.
16. Be that as it may, it is an admitted position that the petitioner were convicted in the case of misappropriation of amounts by virtue of section 15 of the Ordinance, as they returned the alleged misappropriated amounts. The offence of misappropriation was committed by misappropriating amounts, therefore, the said amounts were the case 'property and on returning the case property the petitioners were convicted. If the amount would have not been paid, and after trial the accused were convicted then the Court had power under section 522-A of Cr.P.C. To restore the possession of the movable property involved in the case of offence of criminal misappropriation of the property or criminal breach of trust or cheating or forgery. The said provision reads as under:-- "522-A. Power to restore possession of movable property.---(1)
17. Whenever a ,arson is convicted of an offence of criminal misappropriation of property or criminal breach of trust or cheating or forgery and it appears to the Court that, by such misappropriation, breach or trust, cheating or forgery any person has been dispossessed or otherwise deprived of any movable property, the Court may, if it think fit, when convicting such person or at any time within one month from the date of conviction, order the person dispossessed or deprived of the property, where such property can be identified, to be restored to the possession of such property, whethersuch property is in the possession or under the control of the person convicted or of any other person to whom it may have been transferred for any consideration or otherwise.
(2) Where the property referred to in subsection (1) cannot be identified or has been disposed of by the accused so that it may not be identified, the Court may order such compensation to be paid to the person dispossessed or deprived of such property as it may determine in the circumstances of the case.
(3) No order referred to in subsection (1) or subsection (2) shall prejudice any right or interest in any movable property which any person may be able to establish in a civil suit."
18. It is also pointed out that the Court had also power to pass final order with regard to the property involved in the case as provided under section 517, Cr.P.C. Under its explanation clause, it is provided that if the original property is exchanged with any other property then an order can be passed with regard to the said property. Explanation clause of section 517, Cr.P.C. Reads as under:- "Explanation.--In this section the term "property" includes in the case of property regarding which an offence appears to have been committed, not only such property as has been originally in the possession or under the control of any party, but also any property into or for which the same may have been converted or exchanged, and anything acquired by such conversion or exchange, whether immediately or otherwise."
19. It is also pointed out that under section 53 of Pakistan Penal Code, "forfeiture of property" is also one of the punishments apart from imprisonment, fine, etc: In a case involving offence either the case property through which offence is committed is surrendered by the accused or it is forfeited by the Court, in both the cases it will come-within the ambit of section 53, P.P.C. As in the case of fine because the word "forfeit" has been defined in Chambers 21st Century Dictionary as under:-- "forfeit.--noun 1 something that one must surrender as a penalty. 2 a penalty or fine for a crime. 3 (especially forfeits) a game in which a player surrenders an item (a forfeit) which can be won back only by performing a test, or fulfilling a challenge, set for them, Adj. Surrendered or liable to be surrendered as a penalty."
20. After the conviction the sentence or punishment is required to be executed. The punishment of fine is to be executed through recovery in the modes as provided under section 386, Cr.P.C. Under which the fine amount can be recovered by attachment and sale of immovable property belonging to the offender, issuing warrant and authorizing D.O. Revenue to realize the amounts by execution according to the civil process against the movable and immovable property by the defaulter or in case of nonpayment of fine the Court can award the imprisonment to the extent of 1/4 of substantive sentence.
21. In the present case the amounts through which the offence of misappropriation of amount was committed were returned or surrendered and on such return and surrender the petitioners were convicted under section 15 of the Ordinance. Therefore, surrender of such amounts will be deemed to be punishment apart from other punishments. Under the Ordinance the legislature has specified the mode of execution of punishment of fine other sum due under the Ordinance and amounts determined by the Court under section 33E by, hich fine and other such amounts can be recovered as arrears of land revenue. This provision appears to have been enacted keeping in view the one of the objects (to recover the amount) of the Ordinance as is clear from the preamble of the Ordinance. Section 33E reads as follows:-- "Recovery , of amount of fines, etc., as arrears of land revenue.---Any fine or other sum due under this Ordinance, or as determined to be due by a Court, shall be recoverable as arrears of land revenue."
22. Now the question arises whether the amount of plea bargain comes within the definition of section 33E. The words used in the section "other sum due under the Ordinance, or as determined to be due by a Court" are very significant. If any amount comes within the above definition then the provisions of section 33E would be attracted. In the present case, under the plea bargain the petitioners had offered sums which were accepted by the Chairman, NAB. The matter was referred to the Court and the Court approved the said amounts, therefore,. Such amounts were determined by the Court under the provisions of the Ordinance. Thus, the amounts of plea bargain would come within the definition of "other sum due under the Ordinance or as determined to be due by the Court", therefore, the provisions for section 33E would be attracted.
23. It is pointed out that special provisions have been provided to execute the order of the amount due under the Ordinance and determined by the Court, therefore, when the Ordinance itself provides the mode of recovery of amount by providing special provision then the said mode is required to be adopted. It is well-settled principle of law that if a 'particular act is required to be done in a particular manner then it should I be done in that manner alone. Furthermore, the provisions of section 5(r) are general in nature which deals with all sums due, but the provision of section 33E deals with specified sum, therefore, the special provision will prevail over the general provision, as such, the amount which comes within the scope of section 33E is required to be recovered as provided under the said provision.
24. If for the sake of arguments, we take that the provision of section 5(r) are applicable then there is a proviso attached to it under which if the accused is unable to pay or return the amount on account of wilful breach of the agreement on the part of any bank, financial institution, Government Department, etc. Then it will not be wilful default. The order of the trial Court, by which the plea bargain was accepted and the petitioner were released, shows that the plea bargain was accepted by the Chairman, NAB on certain conditions. One of the conditions was that in case of default of payment by the accused as per schedule then the down payment already paid would stand forfeited and the accused would be re-arrested and tried according to law. Under this clause, the parties had agreed that if after down payment further payment is not paid then the down payment would be forfeited and the petitioners would be re-arrested and would be tried for original offence of misappropriation of amounts. Without touching the legality of clause, it is manifest that under this agreement, the petitioners knew that if they did not pay the amount they would be tried for original offence on forfeiture of down payment and no further action would be taken. The NAB Authorities did not forfeit the down payment on non-payment of instalments by the petitioners, or re-arrested in the original offence of misappropriation or tried for the said offence.
25. Thus, the NAB Authorities wilfully breached the agreement entered into between the parties. Thus, on this ground also by virtue of proviso to section 5(r) there would be no offence of wilful default.
26. Furthermore, according to these provisions, a thirty-day notice is required to be given to the petitioners before initiating further proceedings. Admittedly, the amounts were payable to the Chairman, NAB, therefore, the Chairman, NAB was required to issue such notice or any officer authorized within the meaning of section 34-A of the Ordinance. In this case, the Chairman, NAB has not issued any notice as required under section 5(r) to the petitioners, but the notice was issued by the D.P.G. A. During the course of arguments, the learned D.P.G.A. Had stated that he was authorized to do so, but no order of the Chairman, NAB has been produced showing such authorization, as such, notice issued by the D.P.G.A. Does not fulfil the requirements of section 5(r).
27. Without legal and proper notice the proceedings under section 5(r) cannot be initiated by the NAB Authorities.
28. After considering the material available on the record, the preliminary points are replied as under: Point No.1 : No offence committed.
29. Point No.2 : Chairman, NAB is required to issue notice Point No.3 : D.P.G.A. without authorization of the Chairman, NAB cannot issue such notice.
30. In the light what has been discussed above, the proceedings of References Nos.27 and 49 of 2007 pending before the Accountability Court Karachi are abuse of the process of law, therefore, the proceedings of such References are quashed.
31. The petitions are disposed of in the above terms.