' ANWAR ZAHEER JAMALI, J.---These three appeals by leave of the Court, vide common order dated 16-1-2004, arise out of judgment dated 17-2-2003, passed by a learned Division Bench of Balochistan. High Court, Quetta, whereby three identical appeals under section 32 of National Accountability Bureau Ordinance 1999 (in short Ordinance of 1999) filed by the present appellants, being Ehtesab Appeal No,41 of 2001 (re: Dr. Muhammad Anwar. Kurd v. The State through Regional Accountability Bureau, Balochistan), Ehtesab Appeal No,42 of 2001 (re: Dr. Saeedullah Khan and '.3 others v. The State through Regional Accountability Bureau, Balochistan) and Criminal Appeal.No,49 of 2001 (re: Dr. Nisar Ahmad v. The State through Regional Ehtesab Bureau, Balochistan), against the two orders of Accountability Court No,II, Quetta, dated 30-4-2001 and 24- 5-2001, challenging these orders only to the extent of their deemed conviction in terms of proviso to section 15(a), of the Ordinance of 1999 and imposition of penalties of disqualification/ losing their services etc., while granting their request for acceptance.Of plea bargain, were dismissed. Since facts/controversy involved in these. Appeals and the questions of law raised therein are common, we propose to dispose of the same by this single judgment.
2. Briefly stated, relevant facts forming background of these appeals are that based on investigation carried out by National Accountability .Bureau (in short NAB) a reference under sections 18(g) and 24(b) of the Ordinance of 1999 was drawn, showing involvement of the appellants and many others in irregularities and corrupt practices while Members of the Medical Board, which had resulted in a approximate loss of Rs,132,176,292,00 to the public exchequer. The appellants were accordingly arrested by the concerned authorities through warrants of arrest issued by the Chairman, Regional Accountability Bureau, but before such reference could be moved to the Accountability Couri, the appellants, availing the benefit of facility provided under section 25 of the Ordinance of 1999, Opted and applied for plea bargain in respect of allegations of procedural irregularities, corrupt practice qua ill gotten gains attributed to them, vide their respective applications dated 12/.13-4-2001 and 14-5-2001 addressed to the Chairman, NAB at Islamabad. After undergoing the due process of plea bargain, their pleas were approved and accepted by the Chairman, NAB and accordingly they deposited their respective sums payable in the - terms.Of such plea bargain; as detailed in the impugned judgment. Upon this; the two appellants Dr. Saeedullah Khan and Dr. Abdul Rasheed were produced before the Accountability Court Noll, Quetta with an application dated 30-4-2001 to the said Court . Through Deputy Prosecutor-General Accountability, apprising the Court about the terms of plea bargain arrived at between the parties and for the disposal of reference to the extent of these appellants in the light of paragraph 267 of the judgment of this Court in the case of Khan Asfandyar Wali v. Federation of Pakistan (PLD 2001 SC 607), which, inter alia, envisaged acceptance of such plea by the Chairman, NAB, subject to the approval of the Accountability Court. The Presiding Officer of the Accountability Court No,II, Quetta, after apprising the appellants about the consequence of acceptance of such plea bargain, passed his order dated 30-4-2001, in the following terms:-- "The plea of bargain between the parties is considered to be compromise. Accused persons admit their making request for plea of bargain and deposit of the amount by each of them as detailed in the application filed by Deputy Prosecutor-General. Accused when informed that in result of their making plea of bargain and deposit of amount they will be deemed to have been convicted which they accepted. Hence when both the parties are agreeing to the terms of plea of bargain, therefore, in view of judgment of Hon'ble Supreme Court plea of bargain is accepted. The alleged illegal gain obtained by accused persons has already been deposited while on acceptance of plea of bargain and deposit of amount they are deemed to be convicted for offence of corruption and corrupt practices in result of which they are to be declared disqualified for 10 years to hold any public office. Hence they shall lose their service and the benefit of the same also which is considered to be punishment. Hence keeping in view the above facts and circumstances the plea of bargain is accepted and they are deemed to have been convicted for corruption and corrupt practices. They shall stand disqualified for 10 years for seeking or from being elected, chosen, appointed as member, representative of any public office or any statutory or local authority of Government of Pakistan. Accused persons are also not allowed to apply or be granted or allowed any financial facility in the form of any loan or advance from any Bank or financial institution in the public sector for a period of 10 years. Accused are ordered to be released if not required in any other case or offence. Application accordingly stand disposed off."
3. As it appears from the record against such order appellants Dr. Saeedullah Khan, Dr. Abdul Rasheed and two other doctors invoked jurisdiction of the Balochistan High Court through Ehtesab Appeal No,42 of 2001, under section 32 of the Ordinance of 1999. Moreover, when they faced further action, inter alia, about their removal from service, they also moved a review application to the Chief Minister, Balochistan through Secretary Health Department, Government of Balochistan, but with no fruitful result.
4. As regards the case of remaining appellants Dr. Muhammad Anwar Kurd and Dr. Nisar Ahmed, they also after their nomination in the reference and arrest, adopted the similar course of plea bargain, which resulted in the passing of other impugner order of similar nature dated 24-5-2001, operative part whereof reads as under:-- " The plea of bargain, therefore, amounts to compromise and accused are deemed to have admitted their guilt, in consequence of which they will be deemed to have been convicted for offence of corruption and corrupt practices. Accused persons are apprised of the above position, which they accept and leave themselves to the mercy of the Court. It would be pertinent to mention that four (4) other doctors were also arrested on similar charges as made against present accused persons. They also surrendered the ill-gotten gain on which they were deemed to have been convicted and they were disqualified to hold any public office and obtained any finance/loan. The case of present accused is at par with their case. Therefore, having regard to the facts and circumstances stated above the plea of bargain of accused is accepted. They are deemed to have been convicted for offence of corruption and corrupt practices in result of which they are to be declared disqualified for 10 years to hold any public office. Hence, they shall lose their service and the benefit of the same also, which is considered to be punishment. Hence, keeping in view the above facts and circumstances the plea of bargain is accept and accused are deemed to have been convicted for corruption and corrupt practices. They, shall stand disqualified for 10 years for seeking or from being elected, chosen, appointed as member, representative of any public office or any statutory or local authority of Government of Pakistan. Accused persons are also not allowed to apply or be granted or allowed any financial facility in the form of any loan or advance from any Bank or financial institution in the public sector for a period of 10 years. Accused persons are ordered to be released if not required in any other case or offence. Application accordingly stand disposed off."
5. As it transpires from the record, these appellants also filed appeals under section 32 of the Ordinance of 1999 before the Balochistan High Court against the order dated 24-5-2001, challenging the above reproduced part of the impugned order of the Accountability No,II, to the extent of their disqualification etc., being Ehtesab Appeals Nos.41 of 2001 and 49 of 2001.
Simultaneously, against the action for their removal from service, they also knocked the doors of other forums, but remained unsuccessful.
6. All these appeals were heard together Bench of Balochistan High Court, who, precisely, came to the conclusion that after the judgment in the case of Khan Asfandyar Wali (supra), following its procedural conditionalities and the law in force, deemed conviction qua disqualifications etc., inflicted upon the appellants by the Accountability Court were lawful and natural consequence of acceptance of plea bargain by them, which could not be avoided, keeping in view the binding effect of judgment in the case of Khan Asfandyar Wali (supra) by virtue of Article 189 of the Constitution, and the relevant law to this effect. Moreover, the appellate Court also came to the conclusion that two of the appeals i,e, Ehtesab Appeal No, 42 of 2001 filed by Dr. Saeedullah Khan and three others and Ehtesab Appeal No,49 of 2001 filed by Dr. Nisar Ahmed were time barred, without any plausible or cogent reason for condonation of such delay, thus, these two appeals were also dismissed on this additional ground.
7. After brief narration of relevant facts, Mr. Iftikhar Hussain Gillani, learned counsel for the appellants, in his arguments, made detailed reference as regards amendments in the Ordinance of 1999, made from time to time, particularly, in the two relevant sections 15 and 25 thereof, to show that the deeming conviction and other disqualifications/punishments, as a consequence of plea bargain entered into by appellants, inflicted upon them were not warranted by law,, inasmuch as, the said disqualifications/punishments provided in the Ordinance of 1999, were made applicable to the plea bargain, case of appellants, through amendments, which became part of the statute book subsequent to the plea bargain entered into by them respectively on 30-4-2001 and 24-5-2001.
Further submission of the learned counsel was that indeed the judgment in the case of Khan Asfandyar Wali (supra), wherein requisite amendments were suggested was announced by the apex Court on 24-4-2001, but the relevant provisions of law were accordingly amended and introduced by the Legislature subsequently on 10-8-2001, vide Ordinance XXXV of 2001, thus, such suggestions/ guidelines meant for the Legislature could not have been pressed into service retrospectively against the present appellants, and no conviction/disqualification or penalty, other than the one prescribed by law at the relevant time of commission of such offence could be awarded to an accused retrospectively. In support of his submissions, learned counsel placed reliance upon the cases of Nabi Ahmad v: Home Secretary, Government of West Pakistan (PLD 1969 SC 509), Mehreen Zaibun Nisa v. Land Commissioner (PLD 1975 SC 397), and Muhammad Mubeen- us-Salam v. Federation of Pakistan (PLD 2006 SC 602). In the same context, learned counsel also made reference to Article 12 of the Constitution to show that deeming conviction of the appellants with retrospective effect, consequent penalties of disqualification to hold public office and other punishments awarded to them were clear negation of their fundamental rights guaranteed under the Constitution. Answering to the question of condonation of delay in filing of two subsequent Appeals Nos.42 and 49 of 2001 before the Balochsitan High Court, Quetta, learned counsel tried to explain the circumstances, which resulted in delay in the filing of these appeals. Further seeking condonation of delay, he relied upon the ratio of judgment in the case of Asghari Khanum v. The State (PLD 1980 SC 14), wherein this Court had observed that in criminal cases, unlike civil litigation, where after expiry of prescribed period of limitation opposite party gets a vested right, the Courts are generally liberal in condonation of delay.
8. Before leaving the rostrum,. Mr. Gillani also dilated upon the concept of freedom of contract qua plea bargain in terms of section 25 of the Ordinance of 1999, and contended that imposition of conditions of deeming conviction and disqualification etc., which are in the nature of punishment with retrospective effect, were against all judicial norms, highly unjust and prejudicial to the interest of the appellants as, in case they had the knowledge of such consequences of plea bargain they might not have even opted at all to follow such course, which has virtually ruined their whole career. In the same context, learned counsel also made cursory reference to Article 11 of the Universal Declaration of Human Rights. Mr. Gillani, however, could not show anything from the record to demonstrate that either the option of entering into plea bargaining exercised by the appellants was result of some coercion, undue influence or misrepresentation or even at the time of acceptance of plea bargaining before the Accountability Court, when they were apprised of all the consequences of entering into plea bargaining or 'at any stage before that, they were under any compulsion for accepting their earlier option of entering into plea bargaining with such conditionalities, instead of declining such option at any stage before its approval or acceptance. In fact it was not even the case of appellants so as to substantiate the arguments of Mr. Iftikhar Gillani, with reference to the concept of freedom of contract qua some provisions of Contract Act, 1872. Learned counsel for the appellants when confronted with the question of grant of back benefit or otherwise to the appellants, in case these appeals were allowed in their favour, further did not dispute that as such relief was not claimed by any of the three appellants in their respective, appeals, thus following the principle laid down under Order II, rule 2, C.P.C., they may not be entitled for awarding of, such benefits by this Court for the period during which they remained out of service. Moreso, as for this purpose an enquiry into the question of fact that whether the appellants during such period remained gainfully employed/engaged anywhere else or they remained idle will be required, which was not possible at this stage before this forum.
9. Conversely, Mr. M. Ibrahim Satti, learned Senior Advocate Supreme Court on behalf of the respondent contended that the impugned orders dated 30-4-2001, and 24-5-2001, passed by Accountability Court No,II Balochistan at Quetta, regarding acceptance of plea baigain with conditions of disqualification etc. Are quite lawful, equitable, just and fair in nature, being in line with the guidelines given by this Court in the case of Khan Asfandyar Wali (supra) and the law in force; thus, these orders of the Accountability Court No,II against the appellants are not open to question in these appeals. Further, he squarely placed reliance on the reasons assigned by learned Division Bench of the Balochistan High Court in the impugned judgment dated 17-2-2003, through which they upheld both the orders of the Accountability Court against the appellants. Learned counsel for this purpose also made reference to Article 189 of the Constitution to show that even the observations, particularly, as regards procedural matters contained in Khan Asfandyar Wali's case, so far as the Accountability Court was concerned, had binding effect, being subordinate to it.
Learned counsel, in order to demonstrate unbiased and fair status of proceedings of plea bargaining before the NAB authorities and the Accountability Court, also made a candid offer before this Court that in case terms of the impugned orders of Accountability Court, accepting the plea bargaining request of appellants in accordance with law in force at the relevant time, are now not acceptable to them for any reason, the same may be set aside as a whole, and cases be remanded so that appellants may face fresh proceedings/trial before the Accountability Court at Balochistan, and get a decision on these references against them on merits and in accordance with law. Learned counsel further argued that the learned Division Bench of Balochistan High Court in its impugned judgment has rightly held that the appellants had no right to seek an order of their choice and convenience while accepting plea bargain, so as to avoid consequences of disqualification and removal from service in terms of section 15(a) of the Ordinance of 1999, which was very much part of statute book and applicable to their cases after the amendments in sections 15 and 25 (ibid), vide Ordinance IV of 2000 dated 3-2-2000, and Ordinance XXIV of 2000 dated 5-7-2000. In support of his alternate arguments for setting aside the order of the Accountability Court on the plea bargain applications of appellants as a whole, and for ordering de novo proceedings before the Accountability Court, Mr. Satti placed reliance upon the judgment of this Court in the cases of Ali Nawaz Shah v. State (PLD 2003 SC 837). In this case, it was held that if a person, involved in a case under the Ordinance of 1999, avails plea bargain in terms of section 25 of the Ordinance of 1999, by operation of law, he has to face its consequence, as provided in section 15 of the Ordinance of 1999. However, after analyzing the peculiar facts of that case, Court came to the conclusion that as there was no offer of plea bargain by the accused person, and also there was no acceptance of plea bargain by the competent authority, therefore, on this account the impugned judgment was not sustainable and the case was thus remanded to the trial Court for further proceeding in the Reference in accordance with law.
10. Mr. M. Ibrahim Satti, did not controvert the legal proposition canvassed by Mr. Iftikhar Hussain Gillani that in criminal cases no punishment other than one available under the law at the relevant time of commission of offence could be awarded to an accused, as such rights against retrospective punishment are protected under Article 12 of the Constitution. But he added that in these appeals factual position is not so, as the appellants were deemed convicted and held disqualified on the basis of statutory provision in force at the relevant time
11. We have focused our attention to the submissions of the learned counsel and also minutely perused the whole material placed on record. As the two orders of the Accountability Court, Quetta dated 30-4-2001 and 24-5-2010, accepting plea bargain and awarding deemed conviction/punishment of disqualification etc, to the appellants are, inter alia, premised on the ratio of judgment in the case of Khan Asfandyar Wali (supra), so also the impugned common judgment of the learned Division Bench of Balochistan High Court, Quetta, before proceeding further, it will be useful to reproduce hereunder some relevant paragraphs from the said judgment, which read as under:-- "227. It is well settled that matters relating to remedy, mode of trial, the manner of taking evidence and forms of actions are all matters relating to procedure. It is also well settled principle of imeipretation of statutes that only a matter of procedure would be retrospective. However, if in this process any existing rights are affected on the basis of a statute the same would not operate retrospectively unless the legislature had either by express enactment or necessary intendment given the legislation retrospective effect. Viewed from whatever angle the placing of burden of proof on the accused, in the facts and circumstances of this case in juxtaposition with section 14(d) of the Ordinance falls within the realm of procedural law. Thus visualized, the plea raised oh behalf of the petitioners that the ratio of Nabi Ahmed (supra) is applicable to all situations in the realm of substantive law, cannot stand a detailed scrutiny thereof. Even the assertion that Nabi Ahmed (supra) was followed in Bhai Khan (supra) by a learned Single Judge of the. Lahore High Court, Lahore and therefore, it should be considered as applicable to the facts and circumstances of the present lis as well, also falls in the same category. Clearly, the cases of Nabi Ahmed and Bhai Khan (supra) are distinguishable and confined to the facts and circumstances of those cases.
266. A perusal of the Preamble of the NAB Ordinance shows that it is a composite and an extensive law and its interpretation has to be done in a manner different from the normal interpretation placed on purely criminal statutes. This law deals with, among others, setting up of the National Accountability Bureau, which is an executive as well as administrative authority and an investigating agency; which deals with several aspects of 'corruption', etc. The NAB does not merely deal with crimes of corruption, it also deals with their investigation and settlement out of court.
Bargain out of court is now an established method by which things are settled in several developed societies. It was necessary in cases where the criminal is a potential investor and is inter-linked with the economy of the society, he should be given an opportunity to play his role in the society, after he has cleared his liability. There appears to be nothing amiss insofar as it does not oust the jurisdiction of the Accountability Courts to exercise their judicial power in appropriate proceedings.
Rather this is in the nature of a facility provided to the accused. There is nothing wrong with the NAB Ordinance providing for a procedure of bargaining.
267.Moreover, the scheme for exploring the possibility of settlement during investigation/inquiry stage by the Charmin NAB cannot be ignored straight away. At the outset, most of the lawyers tend to consider the question of settlement out of Court. There is need to focus attention on this significant facet of the matter. The rationale behind the Ordinance is not only to punish those who were found guilty of the charges levelled under the Ordinance but also to facilitate early recovery of the ill-gotten wealth through settlement where practicable. The traditional compromise, settlement, compoundability of offence during the course of proceedings by the Courts after protracted litigation is wasteful. Viewed in this perspective, a power has been vested in the Chairman NAB to facilitate early settlement for recovery of dues through 'plea bargaining' where practicable. Lawyers are often interested in settling the disputes of their clients on just, fair and equitable basis. There are different approaches to settlement. Plea bargaining is not desirable in cases opposed to the principles of public policy. Chairman NAB/Governor, State Bank of Pakistan, while involved in plea bargaining negotiations, should avoid using their position and authority for exerting influence and undue pressure on parties to arrive at settlement. However, in the interest of revival of economy and recovery of outstanding dues, any type of alternate resolution like the 'plea bargaining' envisaged under section 25 of the Ordinance should be encouraged. An accused can be persuaded without pressure or threat to agree on a settlement figure subject to the provisions of the Ordinance. Establishing this procedure, at the investigation/inquiry stage greatly reduces determination of such disputes by the Court. However, as the plea bargaining/ compromise is in the nature of compounding the offences, the same should be subject to approval of the Accountability Court. Accordingly, section 25 of the impugned Ordinance be suitably amended.
317. We, therefore, allow these petitions with the observations that this order and the directions contained therein shall come into force with immediate effect. However, the Federal Government is directed to formally promulgate appropriate legislative instruments, as soon as possible, but preferably, within a period of two months from today in order to make necessary amendments, modifications, alterations, or substitutions, as the case may be, to give effect to the above directions. No costs."
12. A careful reading of judgment in the case of Khan Asfandyar Wali (supra), particularly, its above reproduced paragraphs, which are quite relevant for the purpose of these appeals relating to the controversy of plea bargain, reveals that in depth examination about the vires of .The Ordinance 1999, its merits and demerits etc., was undertaken by a larger Bench of this Court, whereafter, inter alia, on one hand legislature was directed to make suggested amendments in the Ordinance of 1999 and on the other hand procedural guidelines were issued for regulating the pending investigations/cases under the Ordinance of 1999. About its applicability and effect, in paragraph 227 (reproduced above), it was further clarified that it was well settled principle of interpretation of statutes that only matters of procedure would have retrospective application, however, if in that process any existing rights are affected un the basis of a statute the same would not operate retrospectively unless the legislature had either by express enactment or necessary intendment given the said legislation retrospective effect. These observations, in itself have clarified the position that the amendments in law, suggested through the said judgment, had to take effect from the date the same were made part of the statute book i,e, vide Ordinance XXXV of 2001 dated 10-8-2001. Therefore, mere fact that in the concluding paragraph No,317 of the said judgment two months timeframe was given for promulgation of appropriate legislation or observations were made that the directions contained in the order for regulating procedure shall come into force with immediate effect, will not mean that from the date of announcement of such judgment i,e,, 24-4- 2001, proposed substantive amendments in law had become part of the statute book with immediate effect, but of course all matters relating to procedure did. Moreso, as in the matter of mere procedure nobody can claim any vested right.
13. Having discussed as above, now we revert to the facts and circumstances of the present case to see that how for submissions made by Mr. Gillani, learned Senior Advocate Supreme Court for the appellants gain strength from the case record and helps to the case of appellants, who, being well educated, admittedly out of their free will availed the benefit of section 25 of the Ordinance of 1999 relating to plea bargain, and consequently per section 15(a) (ibid) faced deemed conviction, followed by other disqualifications/penalties from the Accountability Court No,II, Quetta, as detailed in its two orders, reproduced in the earlier part of this judgment, which view was also maintained by a learned Division Bench of the Balochistan High Court in its impugned judgment dated 17-2- 2003, containing laudable reasons to justify their conclusion.
14. Before proceeding further, to grip the relevant facts, it will be advantageous that some salient (admitted/not disputed) features of these appeals are more specifically summarized as under:--
(a) A Reference under sections 18(G) and 24(B) of the Ordinance of 1999, containing relevant details and showing therein loss of almost Rs .132,176,191 to the public exchequer in terms of commutation and monthly pension in 990 cases was filed/drawn after completion' of enquiry/investigation by NAB authorities. In this Reference, present appellants and some other persons were specifically nominated with their respective role of participation.
(b) As a follow up, some of the appellants were arrested while others remained absconding.
(c) On 12/13-4-2001 and 14-5-2001 all the four appellants moved their respective applications in terms of section 25 of the Ordinance of 1999,, addressed to the Chairman, NAB, Islamabad, praying therein for acceptance of their plea bargain in the terms stated therein.
(d) The matter was processed before the concerned NAB authorities with the concurrence of appellants and finalized as per their request, without any change/ modification in terms, and accordingly payments were made/deposited by the appellants.
(e) Thereafter, respective applications of the present appellants were submitted before the Accountability Court No,II, Quetta Balochistan in their presence for disposal of Reference to their extent respectively, whereupon the two orders dated 30-4-2001 and 24-5-2001 were passed in the terms as recorded therein, reproduced above.
(f) Dissatisfied with the conditions of disqualification etc. As a consequence of deemed conviction of the appellants, Ehtesab Appeal No,41 of 2001 was filed by appellant Dr. Muhammad Anwar Kurd in time i.e: within ten days as prescribed under section 32(a) of the Ordinance of 1999, while the other two Ehtesab Appeals Nos.42 of 2001 and 49 of 2001 by other appellants Dr. Saeedullah Khan and Dr. Abdul Rashid and Dr. Nisar Ahmed Achakzai were filed before the appellate Bench of Balochistan High Court after the expiry of prescribed period of limitation.
(g) The High Court, vide its impugned judgment examined various contentions raised by the learned counsel of the appellants before it and, precisely, agreeing with the view of Accountability Court and also holding two of the appeals, being barred by time, dismissed all the three appeal, vide common judgment dated 17-2-2003.
(h) In the civil petitions for leave to Appeals Nos.101, 102 and 103 of 2003, filed by the petitioners, leave to appeal was granted, vide order dated 16-1-2004, with reference to the legal scope and extent of plea bargaining; application of dictum laid down in the case of Khan Asfandyar Wali (supra) or otherwise, and scope of deeming conviction.
15. In the above background, the moot points for consideration before us, which also cover almost all the contentions recorded in the leave granting order dated 16-1-2004, are two fold: firstly, to what extent, if any, the Accountability Court No,II, Balochistan at Quetta and the learned Division Bench of the Balochistan High Court misinterpreted or misapplied the ratio of judgment in the case of Khan Asfandyar Wali. (supra), or the ratio of said judgment and its application to the present cases was strictly in accordance with law. Secondly, whether voluntary acceptance of plea bargain by the appellants and their deemed conviction by the Accountability Court with further disqualifications/punishments awarded to them are not strictly in accordance with law.
16. In order to examine the first point, it will be .Seen that in the detailed judgment of Khan Asfandyar Wali's case (supra), this Court, while exercising its jurisdiction under Article 184(3) of the Constitution, dilated upon the whole scheme of the Ordinance of 1999 with reference to 23 formulations noted in the earlier order dated 12-9-2000, as reproduced in para two of its judgment, which were accordingly discussed in detail and answered. In the operative part of said judgment, some portions whereof have also been reproduced in the earlier part of this judgment, Court had identified/clarified the legal flaws, which were required to be addressed by the legislature within two months period to bring the said statute in conformity with the fundamental rights and other Constitutional provisions, and the procedural shortcomings, which were to be accordingly addressed, altered and adopted by the Accountability Courts, aS per guidelines given by the Court.
It was also specifically recorded in the said judgment that procedural guidelines will have immediate application with retrospective effect, while the substantive legislative amendments, as suggested, will have prospective effect, unless expressly otherwise provided. Besides, the concept of deeming conviction introduced in the Ordinance of 1999 was also accepted and approved by the Court. This aspect of the case, to the extent of retrospective application of the procedural matters has been again aptly discussed by the learned Division Bench of the Balochistan High Court in its impugned judgment dated 17-2-2003, and we do not find any legal flaw in it to justify our interference in such findings and conclusion in these cases on this legal point.
17. As to the second point, in the first place, it will be pertinent to mention here that during the course of arguments, due to misprinting in some law publications, there was much confusion amongst learned counsel about the exact language of sections 15 and 25 of the Ordinance of 1999, therefore, in order to avoid any further confusion, it will be useful to reproduce hereunder the exact extract of sections 15 and 25 of the Ordinance of 1999, as it stood amended at the relevant time of acceptance of plea bargain by the Accountability Court i,e, 30-4-2001/24-5-2001. For this purpose, Mr. Ibrahim Satti, learned Senior Advocate Supreme Court for the State has made appreciable efforts to place on record a paper book containing up-to-date position of the Ordinance, XVIII of 1999 dated 16-11-1999, as amended from time to time, vide Ordinance No,IV of 2000 dated 3-2- 2000, Ordinance XIV of 2000 dated 5-7-2000, Ordinance XXXV of 2002 dated 10-8-2001 and Ordinance CXXXIII of 2002 dated 23-11-2002. From the above dates, regarding promulgation of various amending Ordinances, it is evident that first two amending Ordinances dated 3-2-2000 and 5-7-2000 were part of the statute at the relevant time when plea bargaining were entered into by the appellants and accepted by the Accountability Court. Thus, sections 15 and 25 of the Ordinance of 1999, carrying requisite amendments up to the date of acceptance of plea bargain.Of appellants with the NAB authorities and before the Accountability Court, read as under:--
15. Disqualification to contest elections or to hold public office.---(a) Where an accused person is convicted for the offence of corruption or corrupt practices as specified in the Schedule to this Ordinance, he shall stand disqualified for 21 years for seeking or from being elected, chosen, appointed or nominated as a member or representative of any public office, or any statutory or local authority of the Government of Pakistan: ' Provided that any accused person who has availed the benefit of section 25 of this Ordinance shall also be deemed to have been convicted for an offence under this Ordinance, and shall stand disqualified for 21 years as above.
(b) Any person convicted of an offence of corruption and/or corrupt practices as described at serial No,1 of the Schedule shall not be allowed to apply for or be granted or allowed any financial facilities in the form of any loan or advances or other financial accommodation by any bank or financial institution owned and controlled by the Government for a period of 10 years from the date of conviction.
25. Voluntary return (plea bargaining).---Where at any time whether before or after the commencement of trial the holder of a public office or any other accused of any offence under this Ordinance, returns to the NAB the assets or gains acquired through corruption or corrupt practices,--
(1) if the trial has not commenced, the Chairman NAB may release the accused; and
(2) if the Court has taken cognizance of the offence or the trial has commenced, the Chairman NAB may, with the approval of the Court, release the accused;
(2) 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 etc., within one month from the date of such (3) Notwithstanding anything contained in section 15 or in any other law for the time being in force, where a holder of a public office or any other person voluntarily comes forward to return. The illegal gain made by him or loss caused by him to the State exchequer through corruption and corrupt practices, the Chairman NAB may accept the offer and after determination of the amount of illegal gain or loss caused, as the case may be, and its deposit with NAB, discharge such person of all his liabilities relating to the matter or transactions in issue: ' Provided that the matter is not under inquiry or investigation or sub judice in any court of law. ".
' A plain reading of up-to-date amended sections 15 and 25 of the Ordinance of 1999 as on the date of acceptance of plea bargaining and admitted facts and circumstances of the case clearly reveal that subsection (3) to section 25 (ibid) though opening with non-obstante clause, could not have come to the rescue of the appellants, as regards their deeming conviction and disqualification etc. In terms of section 15(a) of the Ordinance of 1999 in view of its proviso, which had categorically debarred/denied the benefit of subsection (3) to section 25 (ibid) in the matters under enquiry or investigation or sub judice in any Court of law, which is an undisputed position in the instant cases. In so far as the procedure is concerned, the guidelines for that purpose given by the Court in the case of Khan Asfandyar Wali case (supra), came into force with immediate effect in terms of its paragraph 317, as the same had binding force under Article 189 of the Constitution.
Thus, it cannot be said that plea bargain could have been disposed of by the Chairman, NAB without its approval from the concerned Accountability Court. It seems that it was in this background of the matter that the Presiding Officer of the Accountability Court, while accepting the plea bargain request of appellants, in their presence, specifically observed as under:-- "The plea of bargain, therefore, amounts to compromise and accused are deemed to have admitted their guilt, in consequence of which they will be deemed to have been convicted for offence of corruption and corrupt practices. Accused persons are apprised of the above position, which they accept and leave themselves to the mercy of the Court. It would be pertinent to mention that four (4) other doctors were also arrested on similar charges as made against present accused persons. They also surrendered the ill -gotten gain on which they were deemed to have been convicted and they were disqualified to hold any public Office and obtain any finance/loan.
The case of present accused is at par with their case. Therefore, having regard to the facts and circumstances stated above the plea of bargain of accused is accepted. They are deemed to have been convicted for offence of corruption and corrupt practices in result of which they are to be declared disqualified for 10 Years to hold any public office."
18. In view of the above position, there remains no doubt in our mind to hold that at the time of entering into and acceptance of plea bargain before the Accountability Court, the appellants, who are even otherwise well educated, were' well apprised/aware of its legal consequences about their deeming convictions and disqualifications, as imposed by the Accountability Court, which were based on up-to-date amended Ordinance of 1999, vide two earlier amending Ordinances No,IV of 2000 and XXXIV of 2000 respectively promulgated on 3-2-2000 and 5-7-2000. Any confusion as to the exact language of section 25 (ibid) at the time of entering into plea bargaining is also clarified from its reproduction in the comparative table, at pages 831 and 832 of the judgment in the case of Khan Asfandyar Wali, confirming the same position about its language as reproduced above.
19. The Balochistan High Court, in its impugned judgment, though had not examined in detail the effect of these two earlier amending Ordinances and has squarely placed reliance upon the ratio of judgment in the case of Khan Asfandyar Wali (supra) to sustain deemed convictions and disqualifications of appellants, but, as discussed above, fact remains that such convictions/disqualifications were based on the statute in force at the relevant time, therefore, it cannot be said that the substantive provisions of Ordinance of 1999 were retrospectively pressed into service against the appellants.
20. Scanning the cases, cited at the Bar by Mr. Gillani, learned Senior Advocate Supreme Court for the appellants perusal of these cases goes to show that in the case of Nabi Ahmed (supra), dilating upon the principle of interpretation of statutes, with reference to retrospective application of substantive law, it was held that statutes are presumed to be applicable to cases and facts coming into existence after their enactment unless there be clear intention to give them retrospective effect. Making distinction between procedural and substantive laws, it was further held that though it was a difficult task to draw clear line of distinction between the two, but this task was not impossible and this object can be achieved if the essential difference between the two is kept in mind. In this context reference from Salmond's Jurisprudence (12th Edition of 1966) at page 128, was also made, which reads as follows:-- "The law of procedure may be defined as that branch of the law which governs the process of litigation .... All the residue is substantive law, and relates, not to be process of litigation, but to its purposes and subject-matter." Thus, a right of appeal, a right to give evidence on one's own behalf, a right to interrogate the other party, rules defining the remedy. As those which define the right itself, that part of criminal law which deals, not with crimes alone, but with punishments also, as the measure of liability and many rules of procedure which, in their practical operation, are wholly or substantially equivalent to rules of substantive law," and, as such must be treated as falling within the classification of substantive law. In this category has been included by this Court the change of forum ---. "If in the process any existing rights are affected or the giving of retrospective operation causes inconvenience or injustice."
' In the case of Mehreen Zaibun Nisa (supra), Court had examined the effect of deeming clause in a statute and held as under:-- "When a statute contemplates that a state of affairs should be deemed to have existed, it clearly proceeds on the assumption that in fact it did not exist at the relevant time but by a legal fiction we are to assume as if it did exist.
' Where the statute says that you must imagine the state of affairs, it does not say, that having done so you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs.
' At the same time, it cannot be denied that the Court has to determine the limits within which and the purposes for which the Legislature has created the fiction.
' When a statute enacts that something shall be deemed to have been done which in fact and in truth was not done, the Court is entitled and bound to ascertain for what purposes and between what persons the statutory fiction is to be resorted to. ".
' It was further held that the law should be interpreted with the sprit to save it rather than to destroy it, and the Courts should lean in favour of upholding the constitutionality of legislation.
' In the case of Muhammad Mubeen-us-Salam (supra), dealing with the subject of interpretation of statutes qua deeming clauses, making reference to the earlier judgment in Mehreen Zaib-un-Nisa, this Court had reiterated as under:-- "The following are the effects of a deeming clause:-
(i) When a statute contemplates that a state of affairs should be deemed to have existed, it clearly proceeds on the assumption that in fact it did not exist at the relevant time but by a legal fiction we are to assume as if it did exist.
(2) Where a statute says that you must imagine the state of affairs, it does not say that having done so you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs.
(3) At the same time, it cannot be denied that the Court has to determine the limits within which and the purposes for which the Legislature has created the fiction.
(4) When a statute enacts that something shall be deemed to have been done which in fact and in truth was not done, the Court is entitled and bound to ascertain for what purposes and between what persons the statutory fiction is to be resorted to."
21. Indeed, there is no cavil to the proposition of law propounded in the above cited cases, but looking to the simple facts and circumstances of these cases and the law points involved, same are of no help to the appellants' cases. Similarly, arguments of Mr. Gillani, learned Senior Advocate Supreme Court for the appells, with reference to certain provisions of the Contract Act 1872 an Article 11 of the Universal Declaration of Human Rights are devoid of force having no relevance or applicability to the facts of the instant case, as detailed above.
22. When confronted by the Court with the legal issue of exclusion of application of subsection (3) to section 25 (ibid) to the case of appellants due to exception to its general application provided by its proviso, Mr. Gillani made valiant attempt to save the appellants from this legal position. He contended that though on facts, case of the appellants is hit by the said proviso, as proceedings before NAB were at the stage of enquiry/investigation, but its application, as such, to their cases will virtually nullify the whole effect of subsection (3) to section 25 (ibid), and will make it redundant in their cases in a situation where otherwise said subsection starting from non obstante clause "notwithstanding" has overriding effect on the application of section 15 (ibid) to the case of appellants. This submission of the learned Senior Advocate Supreme Court has again no legal force, as the very object and purpose of legislature by inserting a proviso with a section/subsection is to provide an exception, and to control or bar the application of main section/subsection in certain cases. Thus, natural presumption of providing such proviso is to exclude the general application of the relevant section/subsection in the matter notified under the proviso. In the words of Hadayatullah, J. "As a general rule, a proviso is added to an enactment to qualify or create an exception in what is in the enactment, and ordinarily, a proviso is not interpreted as stating a general rule" (see: AIR 1961 SC 1596). It is, therefore, understandable that proper function of the proviso is that it qualifies the generality of the main enactment by providing an exception and taking out as it were, from the main enactment. Thus, to say that proviso shall normally be construed not merely to limit or control, but nullifying the enactment and taking away completely a right conferred by the enactment, is incorrect. We may add here that application of well recognized rule of harmonious interpretation of statute, to the facts of these cases, also does not lend any support to the arguments of Mr. Gillani, keeping in view that there is no such inconsistency or conflict in various provisions of Ordinance of 1999, and the principle that, unless inevitable, no redundancy can be attributed to any part of a statute, which is to be read and interpreted as a compact and complete single document. To add force to the above legal proposition, here a reference to the case of S. Sundaram v. V. R. Pattabhiraman (AIR 1985 SC 582) will be useful, wherein, after detailed discussion about the scope, object and purpose of "proviso", with reference to number of cases on the subject from Indian Supreme Court, Court had observed as under:-- "42. We, need not multiply authorities after authorities on this point because the legal position seems to be clear and manifestly well established. To sum up, a proviso may serve four different purposes:-
(1) qualifying or excepting certain provisions from the main enactment:
(2) it may entirely change the very concept of the intendment of the enactment by insisting on certain mandatory conditions to be fulfilled in order to make the enactment workable;
(3) it may be so embedded in the Act itself as to become an integral part of the enactment and thus acquire the tenor and colour of the substantive enactment itself; and
(4) it may be used merely to act as an option addenda to the enactment with the sole object of explaining the real intendment of the statutory provision."
23. The above discussed principles as regards the import and application of proviso, leaves us in no doubt to conclude that the proviso to subsection (3) of section 25 of the Ordinance 1999 was consciously made part of it by the legislature to provide an exception about the application of section 25(3) in its generality to certain cases, as in the instant one, and no redundancy had occurred in subsection (3) (ibid) when read with its proviso. This being the position, despite having its opening with a non obstante clause, subsection (3), to section 25, as controlled and regulated by its proviso, was not attracted or applicable to the case of appellants, thereby denying them its benefit.
24. As regard Civil Appeals Nos.8 and 9 of 2004, we may further add here that learned Division Bench in the Balochistan High Court has rightly dismissed two Criminal Appeals Nos.42 and 49 of 2001 of the appellants on the point of limitation, for the detailed reasons recorded in paragraph 14 of the impugned judgment, which remained uncontroverted, as no satisfactory or plausible ground for condonation of delay was offered by the appellants for not invoking the jurisdiction of the Balochistan High Court in terms of section 32 of the Ordinance of 1999 within prescribed time limit of ten days. On this account too, these two appeals are liable to fail.
25. The upshot of above discussion is that we do not find any substance in the arguments of learned Senior Advocate Supreme Court for the appellants that the appellants deserved any leniency in the matter of their deemed conviction or disqualification. As a matter of fact any such leniency shown to the appellants at this stage would be contrary to the mandate of amended statute (Ordinance of 1999) at the relevant time and also against public policy that those who have been once found guilty on their plea bargain, shall again be accommodated to take yet another risk/chance of further irregularities, mal-practices and corruption at their hands. Before parting with this judgment, we may observe here that the proposal extended by Mr. Satti, learned Senior Advocate Supreme Court for the respondent/State for setting aside the plea bargaining proceedings to accommodate the appellants and remanding these cases to the Accountability Court so that the appellants may face fresh trial before the Accountability Court has also no force as his concession or even consent of both the parties in this regard would not matter much, unless we find substance and lawful justification to pass such an order for setting aside the judgments of two courts below against the appellants, which is lacking.
26. As a sequel of above discussion, these appeals fail and are dismissed accordingly.