This matter is listed for Katcha Peshi and during hearing, with the consent of the parties, it was agreed that the matter would be heard and decided at Katcha Peshi stage.
2. Through this Petition the petitioner has sought quashment of the Reference No.1 of 2010, filed against him by the NAB, pending before the Accountability Court No.1, Karachi.
3. Facts of the case are that the petitioner, B.E. In Mechanical, has joined the service in `WAPDA' and was lastly posted as Project Director, Panigor, Baluchistan. The petitioner claims that on account of strained relations with the then Chairman, WAPDA, he was demoted and on 20-12-2000 the Federal Service Tribunal, in Appeal, has reversed the Order of demotion. He further claims that thereafter on 27-2-2001 his services were terminated by the then Chairman, but again the Federal Service Tribunal in Appeal set-aside the order of his removal from service, which order was affirmed by the honourable Supreme Court of Pakistan and ultimately he retired from service on 22-6-2003.
4. The petitioner claims that after his retirement the then Chairman, WAPDA ordered investigation against 37 WAPDA officials including him, inter alia on the ground that they have caused loss of Rs.617 Million to the government exchequer in procuring firefighting system, security system, electric motors by purchasing them on exorbitant rates, etc. In this regard, the NAB called the petitioner off and on. On 19-1-2005, the inquiry against the petitioner was closed, however, it was observed in the said letter that closure of this inquiry will not affect any other case against the petitioner, if already under investigation nor shall it restrict the NAB authorities from initiating investigations of any new case under the NAB Ordinance.
5. On 26-9-2006, the NAB initiated investigation under Section 18(c) of the NAB Ordinance against the Petitioner and others, inter alia, on the ground that they are, prima facie, involved in commission of scheduled offences of corruption and corrupt practices, punishable under the NAB Ordinance. It appears that after the authorization of investigation, the petitioner approached the NAB authorities for voluntary plea bargain. On 5-7-2007 the NAB authorities approved the petitioner's plea bargain for a sum of Rs.56.031 million in the following terms:--
(a) Rs.19,050,540 as 34% down payment due on 6-8-2007.
(b) Rs.18,490,230 as 1st instalment 33% of payable within three months of down payment.
(c) Rs. 18,490,230 as 2nd and final instalment 33% of payable within six months of down payment.
It was further provided that all the payments should be made through pay order/demand draft in favour of Chairman, NAB and an adequate bank guarantee/surety/collateral may be furnished for remaining two instalments/balance amount from the petitioner.
6. In terms of the aforesaid settlement, the petitioner at times paid to the NAB an amount of Rs.19.05 Million while for payment of the remaining two instalments of Rs. 18,490,230 each, the petitioner from time to time sought extensions from the NAB authorities. It appears that after notice the NAB authorities have filed the impugned Reference against the petitioner in terms of section 16(c) of the NAB Ordinance, 1999, inter alia, on the ground of accumulation of assets beyond known source of income to the tune of Rs.21,036,510 against the petitioner.
7. The learned Counsel has contended that the NAB cannot file a fresh reference once it has accepted the plea bargain in terms of section 25(b) of the NAB Ordinance. The learned Counsel for the petitioner has further contended that in the circumstances the NAB can only invoke the provisions of section 33E of the Ordinance whereby any fine or other sum due under the Ordinance, shall be recoverable as arrears of land revenue. He submits that the plea bargain is undisputed except that after payment of 1st instalment, the remaining two instalments, in aforesaid terms, as reflected from the letter dated 5-7-2007 of the NAB, was not paid by the petitioner. However, no justifiable reason has been offered by the petitioner for non-deposit of the agreed remaining two instalments of the plea bargain either in the Petition or during hearing. In support of his contention the learned Counsel for the petitioner has relied upon the Division Bench Judgment of this Court in the case of Mahesh Kumar v. Chairman NAB, reported in PLD 2008 Karachi 38 and the case of Mubarak Ali v. State reported in PLD 2005 Lah. 168.
8. The contention of the learned Counsel for the Petitioner that once such arrangement is entered into between the Petitioner and NAB by way of plea bargain, which is approved by the Chairman, NAB, then the NAB in law cannot file a Reference, inter alia, on the ground of nonpayment of amount due or remaining instalments. He submits that in such a situation Section 33E would be attracted, which authorizes the NAB from recovering the sum due as arrears of land revenue. He, therefore, in the given circumstances seeks quashment of the impugned Reference.
9. On the other hand, the learned Deputy Prosecutor-General, NAB, has argued that the Chairman, NAB, in law, is bound to seek endorsement of the Court in terms of section 25(b) of the Ordinance, if the plea bargain of the accused is approved after the authorization of investigation, before or after the commencement of the trial or during the pendency of an appeal.
10. We have heard the learned Counsel for the petitioner, the Deputy Prosecutor-General and have also gone through the record. The provision of section 25 of the NAB Ordinance speaks of two classes of cases. In the first category 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 the NAB 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. The case of the petitioner does not fall within this category of section 25(a) but it falls in the other category under section 25(b) where the petitioner has voluntarily offered to the NAB authorities for payment of an amount of Rs.56.031 Million in instalments under a settlement, after authorization of investigation and such settlement under plea bargain between the NAB and the petitioner required mandatory approval of the Accountability Court.
11. The language of section 33E of the Ordinance clearly provides that "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." The payable amount of plea bargain agreed between the petitioner and the NAB, would not discharge the liability of the petitioner merely on approval of such plea bargain by the Chairman, as in the first place, the law requires the Chairman. NAB to communicate such plea bargain and or settlement to the NAB Court in terms of section 25(b) of the Ordinance. In the case in hand, if is not in dispute that authorization of investigation was ordered by the Chairman, NAB.
Once authorization of investigation is ordered by the Chairman, NAB, provisions of section 25(b) would apply, which envisages the NAB authorities to seek concurrence of the NAB Court in order to sanctify the plea bargain. Approval of plea bargain by the NAB means settlement between the parties but this settlement by itself would not ipso facto discharge the liability of the petitioner from the section 25(b) of the Ordinance, which requires that the Chairman on receipt of the entire amount of plea bargain has to seek consent/endorsement of the Accountability Court.
12. In the case in hand there was no occasion for the Chairman, NAB, to make a Reference to the Accountability Court for seeking its consent on the plea bargain as the petitioner himself was in default. We, for the aforesaid reasons, are not persuaded by the contention of the learned Counsel for the petitioner that once the plea bargain is approved by the Chairman, NAB, it amounts to discharge of the petitioner's liability under the Ordinance and no new Reference can be filed.
13. We have gone through the case law relied upon by the learned Counsel for the petitioner. Both these judgments are of no help to the petitioner. The case of Mahesh Kumar is distinguishable on facts. In the said case, the plea bargain, which was accepted by the Chairman, NAB', the matter was referred to the Court, which approved the said plea bargain. Therefore, the honourable Division Bench has rightly quashed the Reference in the aforesaid case whereas in the case of petitioner, the issue of voluntary plea bargain entered into between the petitioner and the NAB was neither communicated nor consult was sought from the Accountability Court. Accordingly, the case of the petitioner stands on different footing than the case of Mahesh Kumar is concerned.
14. Reliance of the learned Counsel for the petitioner on the case of Mubarak Ali (PLD 2005 Lahore 168) was also misconceived inasmuch as the case of the Petitioner on facts is distinguishable. The Lahore High Court has clearly held that if offer to return illegal gain was made by accused after commencement of trial, Chairman, NAB, could release accused with the approval of the Court. If bargaining was made before taking cognizance by Accountability Court, then Chairman, NAB, would be competent to accept the offer and determine the amount of illegal gain or loss caused and after deposit of same with National Accountability Bureau would discharge said person. The Chairman. NAB, was not competent to release a person without his own offer to return gain illegally acquired by him or loss caused by him. In the case in hand, the voluntary plea bargain was offered by the petitioner subsequent to the authorization of investigation, therefore, the case of the petitioner falls in the second category where consent of the Accountability Court is mandatory in terms of section 25(b).
15. {23941A30-1521-4F9D-96A2-602ABD17AA0D}Moreover, in exercise of constitutional jurisdiction, the petitioner has to approach the Court with clean hands. In the present case, we do not find one good justifiable reason as to why the petitioner has failed to make payment of remaining two instalments of the plea bargain. In the case in hand, once the petitioner has entered into a plea bargain he cannot turn around and say that such amount is recoverable from him as arrears of land revenue by invoking the provisions of Section 33E of the Ordinance when admittedly such 'plea bargain' approved by the Chairman, NAB, after the authorization of the investigation was never consented to by the NAB Court. In order to invoke the provision of section 33E of the Ordinance, the petitioner has to show that the plea bargain after approval of the Chairman was consented to by the Accountability Court, which is not the case of the petitioner.
16. We are clear in our mind that a defaulter cannot have a premium over his default and, in the given circumstances, the NAB authorities were competent to file the impugned Reference, in absence of the material reflecting that Chairman, NAB after approving the plea bargain has sought consent of the Accountability Court. We accordingly, dismiss this Petition in limine along with the listed applications and direct the Accountability Court to decide the impugned Reference on its own merits without being influenced by the observations, made in this order.