ORDER GULZAR AHMED, J.---By this petition, petitioner has sought granting him pre-arrest bail in NAB Reference No. 1 of 2010 filed against him in Accountability Court Sindh at Karachi under section 18(g) read with section 24(b) of the National Accountability Bureau Ordinance, 1999 (NAB Ordinance).
2. Counsel for the petitioner has contended that the grant of bail to the petitioner is to be considered on the same principle that of sections 497 and 498, Cr.P.C. And has contended that in calculating the known source of income of petitioner the employment period of petitioner from 1967 to 1984 and income generated from it has not been considered in the reference application and thus 17 years of service of petitioner has not been accounted for. Learned counsel has further contended that in examining the bank accounts total credit is not to be considered but only peak balance is to be considered. It is further contended that the properties which are attributed to the petitioner and belonging to his were are the properties owned by his were from the income earned by her from her on independent business and that all the properties which are mentioned in the reference are accounted for as taxes are paid on it and declarations have been filed with WAPDA and nothing has been hidden. He has contended that on one occasion the petitioner was demoted which was challenged by him and such demotion order was recalled. On another occasion, Chairman WAPDA has dismissed the petitioner from the service on account of illegalities committed in civil work at Jamshoro which order was set aside by Service Tribunal and petition filed in Hon'ble Supreme Court was dismissed. He has contended that this very action was referred to the Chairman NAB for misuse of authority which enquiry was closed by the NAB in January, 2005.
Counsel has further contended that another enquiry was initiated by the NAB regarding accumulation of assets beyond known source of income of the petitioner on which on 26-9-2006 investigation was authorized and while such investigation was pending, plea bargain was made and an undertaking in the, shape of affidavit was obtained from the petitioner. He has contended that obtaining of such undertaking is not admissible in terms of Article 37 of Qanune-Shahadat Order and that such undertaking cannot be used against the petitioner. He has contended that all allegations made against the petitioner are based upon documents which are available on the record and they cannot be tampered with by the petitioner and that main purpose and object of reference being to recover the money and the petitioner having deposited major part of it which makes the case of further enquiry and the petitioner be admitted to pre-arrest bail. In support of his submissions, counsel for the petitioner has relied upon the cases of Badar Alam Rachani and others v. The State (PLD 2004 Karachi 160), Shamraiz Khan v. The State (2000 SCMR 157), Farrukh Javed Ghumman v. The State (PLD 2004 Lahore 155), Makhdoom Javed Hashmi v. The State and 2 others (2003 PCr.LJ 266), Hosh Muhammad v. Chairman, National Accountability Bureau, Islamabad (2007 PCr.L1 1260) and Syed Ali Nawaz Shah and 2 others v. The State and others (PLD 2003 SC 837).
3. On the other hand, Senior Prosecutor-General, NAB has contended that petitioner has filed Constitutional Petition No.D-1330 of 2010 for quashment of Reference No. 1 of 2010 which was dismissed vide order dated 23-8-2010 and the arguments advanced by counsel for the petitioner are in negation of the said order. He has further contended that petitioner having admitted/confessed his guilt by making plea bargain cannot be allowed to approbate and reprobate. He has further contended that the amount in respect of which reference has been filed only reflects the book value of the property and not the market value and that in the event case against the petitioner is proved, it is not the amount which is recovered from the petitioner but the very properties are forfeited and fine is imposed. As regards the income for the period 1976 to 1984, the Senior Prosecutor has contended that the total amount earned by the petitioner during this period is Rs.4,38,193 which is mentioned in the investigation report and that it has not been mentioned in the reference for the reason that all properties that all are shown to have been acquired by the petitioner are of 1990's onward. He has contended that petitioner has not furnished any justification of acquiring such properties and that there is no source of income of were of petitioner for purchasing the properties in 1990. He has further contended that petitioner has made plea bargain and offence being punishable by 10 years imprisonment comes within prohibitory clause of section 497, Cr.P.C. And therefore the petitioner is not entitled to the grant of bail and that petitioner has not approached the Court with clean hands for granting him discretionary relief under Article 199 of the Constitution.
4. We have considered the submissions made by learned counsel and have gone through the record.
5. In Reference No. 1 of 2010, filed against the petitioner by the NAB authorities it is alleged that petitioner was working as Chief Engineer/Director (BPS-20) in WAPDA till 2001. An enquiry was authorized against the petitioner for his involvement in act of corruption and corrupt practices and accumulation of assets beyond the known sources of pecuniary income which resulted into authorization of investigation and in the investigation report inter alia, it is mentioned that during his service from 1985 to 2001 petitioner has received an amount of Rs.24,56,122 on account of salary/allowances, Rs.8,33,000 on account of agricultural income, Rs.5,13,561 on account of rental income and Rs.10,00,000 as sale proceeds of property of Plot No. 321, WAPDA Town, Lahore total Rs.48,02,683 and as against this income, the petitioner during the period in question has purchased 41 immovable properties in his name, in his wife's name, his daughter's name and his sons' name out of which one flat No. D-4111, Maymar Garden, Gulshan-e-Iqbal, Karachi was purchased in 1983 and was gifted to his first were which has been taken as justified but the following 40 properties were found beyond his known source of income:-- Shahbaz Town, Mehran Art, Industrial and Housing Co-Operative Society, Jamshoro, Hyderabad {{TABLE}} S.# Description Date of Acquisition
(1) (2) (3)
Plot No. A-3 (7650 Sq. Ft) 26-9-1995 Plot No. A-4 (5400 Sq. Ft) 18-6-1995 Plot No. A-8 (5400 Sq. Ft) 20-4-1995 House No.A-5 (old) New No.90 (5400 Sq ft.) 22-3-1995 Name of Owner Regd Price (Rs) Accused Version (Rs)
(4) (5) (6)
M.M. Chandio 17,000 49,000 -do- 11,000 49,000 -do- 11,000 49,000 -do- 131.86 p.a 49,000 Afsar Sultana 40,000 240,000 Citizen Cooperative Housing Society Hyderabad S.# Description Date of Acquisition
(1) (2) (3)
Plot No.224 (400 Sq yrds) 14-11-1994 Plot No.225 (798 Sq yrds) 12-12-1992 Plot No.224-A (400 Sq. Yrds) 14-11-1994
2. 3. 4.
5. Shop No.1 Shop No.2 Shop No.3 Shop No.4 and Shop No.5 of Citizen Apartment (1246 Sq ft) 12-8-1996 Flat No.A-1, FF, Citizen Apartment (1250 Sq. Ft) 10-9-1998 - Name of Owner Regd Price (Rs) Accused Version (Rs)
(4) (5) (6)
M.M. Chandio Lease amount 24 p.a. 100,000 Afsar Sultan 24 p.a. 200,000 -do- 24 p.a 100,000 Plot No. A-3 (7650 Sq. Ft) 26-9-1995 Plot No. A-4 (5400 Sq. Ft) 18-6-1995 Plot No. A-8 (5400 Sq. Ft) 20-4-1995 House No.A-5 (old) New No.90 (5400 Sq ft.) 22-3-1995 Name of Owner Regd Price (Rs) Accused Version (Rs)
(4) (5) (6)
M.M. Chandio 17,000 49,000 -do- 11,000 49,000 -do- 11,000 49,000 -do- 131.86 p.a 49,000 Afsar Sultana 40,000 240,000 Citizen Cooperative Housing Society Hyderabad S.# Description Date of Acquisition
(1) (2) (3)
Plot No.224 (400 Sq yrds) 14-11-1994 Plot No.225 (798 Sq yrds) 12-12-1992 Plot No.224-A (400 Sq. Yrds) 14-11-1994
6. 7. 8.
9. Shop No.1 Shop No.2 Shop No.3 Shop No.4 and Shop No.5 of Citizen Apartment (1246 Sq ft) 12-8-1996 Flat No.A-1, FF, Citizen Apartment (1250 Sq. Ft) 10-9-1998 - Name of Owner Regd Price (Rs) Accused Version (Rs)
(4) (5) (6)
M.M. Chandio Lease amount 24 p.a. 100,000 Afsar Sultan 24 p.a. 200,000 -do- 24 p.a 100,000
1. Plot No. A-2 (7650 Sq. Ft) 18-6-1995
(4) (5) (6)
Fawad Khan son of M.M. Chandio Purchased the possession rights 500,000 -do- -do- 600,000 Qasimabad Hyderabad S.# Description Date of Acquisition
(1) (2) (3)
Shop No. 10, Nadeem Complex (224 Sq ft) 14-1-1992 Shop No.11, Nadeem Complex (271 Sq ft) 13-9-1992 . Shop No.12, Nadeem Complex (327 Sq ft) 3-11-1992 Shop No.6, Shahbaz Arcade (336 Sq ft) 24-10-1998 House No.11, Nasim Nagar, Phase III, Deh Seri, Hyd: 21-10-1990 Name of Owner Regd Price (Rs) Accused Version (Rs)
(4) (5) (6)
Afsar Sultan 50,000 45,000 M.M. Chandio 40,000 40,000 Afsar Sultana 40,000 40,000 M.M. Chandio 1729.65 p.a 40,000 M.M. Chandio 84,000 600,000 Mehran Homes Deh Jamshoro Hyderabad {{TABLE}} S.# Description Date of Acquisition
(1) (2) (3)
House No.20 (1350 Sq ft) 22-10-1995 House No.21 (1350 Sq ft) 22-10-1995 Name of Owner Regd Price (Rs) Accused Version (Rs)
(4) (5) (6)
Afsar Sultana 206.31 p.a 150,000 -do- 268.42 p.a. 150,000 DHA Hyderabad S.# Description Date of .Acquisition
(1) (2) (3)
22. Shop No.14 and Shop No.15 (1340 Sq yrds) 14-10-1998 14-10-1998 House No. 132, (623 Sq yrds) 13-2-1995 Flat No.107-A (1368 Sq ft) 14-10-1998 Name of Owner Regd Price (Rs) Accused Version (Rs)
(4) (5) (6)
Afsar Sultana 24,000 p.a. 500,000 -do- General Power of attorney 900,000 -do- 3,600 p.a. 600,000 Marvi Garden Deh Jamshoro, Hyderabad S.# Description Date of Acquisition
(1) (2) (3)
House No.6 (100 Sq yrds) 12-5-1991 House No.14 (100 Sq yrds) 27-6-1994 Showroom (Messrs Sindh Motors Suzuki) Hyd: (13040 Sq ft) 1995 sold in 2003 Name of Owner Regd Price (Rs) Accused Version (Rs)
(4) (5) (6)
Afsar Sultana 35,000 160,000 Ftwad Khan 49,000 Afsar Sultana Purchased Pos- session rights 3,000,000 Miscellaneous S.# _ Description Date of Acquisition
(1) (2) (3)
Plot No.66, Greenl Homes, Deh Seri, Qasimabad, Hyd: (2200 Sq ft) 11-6-2001 Plot No.169, graduate Engr. Housing Society Hyd: 1991 Plot No.B-9, S. No.613,83, Deh Jamshoro Hyd: (3000 Sq ft) 6-6-1993 R.S. 78, Deh Jamshoro, Sachalabad Housing Scheme No.1 Deh Jamshoro Hyd: (7200 Sq ft) 12-7-1995 S.No. 78/1, 78/2, 78/3, 78/4, Deh Jamshoro Taluka Qasimabad Hyd: (1-35 acres) 13-8-1995 Name of Owner Regd Price (Rs) Accused Version (Rs)
(4) (5) . (6)
Afsar Sultana 100 p.a M.M. Chandio 40,000 40,000 Afsar Sultanal 10,000 Not declared -do- 10,000 140,000 -do- 140,000 140,000 Karachi S.# Description Date of Acquisition
(1) (2) (3)
Flat No.A-13, Mumtaz Square Ch. Khaliq-uz- Zaman Road Clifton Kci (1451 Sq ft) . 6-1-1993 Flat No.303-B, Oyster view apartment, 3rd floor, Clifton Karachi (1573 Sq ft) 7-8-1995 Flat No.C-1, FL-5/C-1, Habib Centre, Ground Floor, Clifton Karachi (1425 Sq ft) 8-10-1992 Sold in 2003 House No.32/11/II, 4th Commercial Lane, Phase- IV, DHA Karachi 2-12-1994 Name of Owner Regd Price (Rs) Accused Version (Rs)
(4) (5) (6)
M.M. Chandio 8,000 350,000 -do- 685,000 685,000
(4) (5) (6) -do- Gift deed 700,000 Saima Chandio D/o M.M. Chandio 617,000 617,000 Islamabad S.# Description Date of Acquisition
(1) (2) (3)
Flat No.A-10, Royal Inn Plaza, F-8 Markaz, Islamabad 14-4-1998 Name of Owner Regd Price (Rs) Accused Version (Rs)
(4) (5) (6)
Afsar Sultana 700,000 700,000 Agricultural Land S.# Description Date of Acquisition
(1) (2) (3)
R.S Nos. 62-72, 737 Deh, Patghahi, Tal Tando M. Khan, (47-31 Acres) 25-2-1991 Sold in 1997 S.No.96,J. No.245 Deh Bhawan Taluka KN Shah, Dadu (03-22 Acres) 23-10-1996 Name of Owner Regd Price (Rs) Accused Version (Rs)
(4) (5) (6)
Afsar Sultana 480,000 (384,000) 480,000 M.M. Chandio 190,000 190,000
5. That the summary of the above said immovable properties is given below:--{{TABLE}} Properties M.M. Chandio
(Self) - Mrs. Afsar (2nd Wife)
(1) (2) (3)
Plot 6 6 Flat 1 5 House 3 2 Shops 2 5 Agr-Land 1 1 Total 13 19 Fawad (Son) Saima (Daughter) Total
(4) (5) (6)
0 0 12 0 0 6 2 1 8 5 0 12 0 0 2 7 1 40
6. Besides the petitioner has acquired following vehicles:{{TABLE}} S# Title of Vehicle Reg.# Model Price Suzuki Bloan in the name of Mrs. Seema Chandio CG- 8962 1992 200,000 Toyota Corolla in the name of Mrs. Afsar Sultana ABU- 523 1998 800,000 Suzuki Mehran in the name of Mrs. Afsar Sultana ABH- 309 1998 300,000 Mitsubishi Pajero in the name of M.M. Chandio BA- 3645 1998 Purchased in 1992 400,000 Total 1,700,000
7. Petitioner has bank accounts as under:-- S# A/C No. And Name of Bank Title Period
(1) (2) (3) (4)
4069-2 MCB, M.M. 22-12-87 to Latifabad No.7 Chandio 31-12-2003 Hyderabad 002-3 ABL, -do- 18-4-88 to Mohra Jabal 22-3-2005 Br. Jamshoro 19246-1 HBL -do- 23-8-1997 to Wapda House 31-12-2004 Br. Lahore 4962-0 ABL, K.N. Shah Br.Dadu Now Merged with -do- 7-3-1998 to 22-3-2005 Dadu Branch 3025-5 ABL, -do- 26-10-1999 Khayaban-e- to 30-12- Tanzeem Br. 1999 Karachi Total Initial Amount Total Credits Peak Balance (Rs.) Dated
(5) (6) (7) (8)
104 10,886 21,935 31-31988 5000 5,104,873 335,048 4-8-1991 1000 767,854, 114,198 . 13-7-1999 30,000 197,280 140,489 26-7-00 500 157,500 55,200 23-9-2003.
6,238,393
8. Foreign Exchange Bearer Certificate worth Rs.2.4. Million from Bank al-Habib in the name of his were Mrs. Afsar Sultana.
9. Doing business in the name of his were by the name of Irfan Enterprises, partnership with Muhammad Dhani Bux, Sindh Motors Jamshoro Road, Hyderabad, having Pak Suzuki dealership.
10. It is alleged that petitioner has accumulated assets to the tune of Rs.2,10,36,510 and during enquiry the petitioner applied for voluntarily return of Rs.32 million in January, 2006 which was rejected by the competent authority and subsequently after authorization of investigation the petitioner applied for plea bargain on 30-4-2007 and offered the amount as may be determined by NAB and on such application plea bargain was approved on 13-6-2007 by the Chairman NAB for an amount of Rs.56.031 million pursuant to which the petitioner paid in year time instead of one month Rs.19.05 million and the amount of Rs.37 million having not been paid by the petitioner the plea bargain was cancelled by the competent authority and matter was referred to the Court for forfeiture of the amount of Rs.19.05 million and for accumulation of assets beyond his known source of income to the tune of Rs.2,10,36,510.
11. In Constitutional Petition No.D-1330 of 2010 filed by the petitioner, the petitioner has made the following prayer:-- "(A) It be declared that once the plea bargain is accepted under section 25(b) of National Accountability Ordinance, 1999 after the authorization of the investigation, the provisions of section 15 of the ibid law become enforceable and the petitioner is deemed to have been convicted and thus no further Reference on the same facts or on some other grounds alleging the ground of default, could be filed and thus the pending proceedings i.e. Reference No. 1 of 2010 (State versus Minhon Khan Chandio) pending with the respondent No.2 filed at instance of respondent No.1, are nullity and the same is liable to be quashed.
(B) Any other relief which this Hon'ble Court may deem fit and proper may be awarded."
12. This petition was dismissed by Division Bench of this Court vide order dated 23-8-2010 with the following observation:-- "(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 installment 33% of payable within three months of down payment.
(c) Rs.18,490,230 as 2nd and final installment 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 installments/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 installments 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 installment, the remaining two installments, in aforesaid terms, as reflected from the letter dated 5-72007 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 installments 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 Lahore 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 non-payment of amount due or remaining installments. 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 class of cases. In the first category where a holder of public office or any other persons, 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 installments 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, it 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 rigors of 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 consent 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 in as much 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 .On 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)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 installments 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 on merits without being influenced by the observations, made in this order."
13. From the above record it is clear that on the very representation of the petitioner, plea bargain was approved in the sum of Rs.56.031 million as is apparent from the letter dated 21-6-2007 filed as annexure P/3 with the petition and the petitioner has also acted upon the said plea bargain by making payment in the sum of Rs.19.05 million which, too, is apparent from the letter dated 8-8- 2008 filed as annexure P/4 with the petition. Both these documents are not disputed by the petitioner. Although, such plea bargain was not referred for approval to the Court as is required by section 25(b) but the very fact that such plea bargain was made by the petitioner in itself prima facie provides an evidence that petitioner has acquired assets beyond his known source through corruption and corrupt practices and in order to get himself released from the liability has made the plea bargain with the NAB and this in itself will form sufficient material to deny him the benefit of discretionary relief under Article 199 of the Constitution as no person can be granted discretionary relief under Article 199 of the Constitution for making of illegal gains. Reference in this regard is made to the case of Abdul Haque Indhar and others v. Province of Sindh through Secretary Forest, Fisheries and Livestock Department, Karachi and 3 others (2000 SCMR 907) where the Hon'ble Supreme Court has held that the jurisdiction conferred upon the Court under Article 199 of the Constitution cannot be exercised to perpetuate ill-gotten gains. In the case of Muhammad Maqsood Sabir Ansari v. District Returning Officer, Kasur and others (PLD 2009 SC 28) the Hon'ble Supreme Court has also observed that constitutional jurisdiction is discretionary in character and therefore cannot be invoked by a person who has come to the Court with unclean hands and likewise no one can be allowed to take advantage of his wrong act.
14. In view of the above overwhelming prima facie material and the law on the subject the submissions of learned counsel for the petitioner and the case law relied upon by him takes secondary position and does not need consideration for the additional reason that the arguments advanced apparently were in the nature of deeper appreciation of the matter which at the stage of granting of bail cannot be gone in..The provisions of section 25(b) of the NAB Ordinance apparently are mutually beneficial to the NAB as well as to the accused in that the NAB receives the money agreed to be returned by the accused while on payment of plea bargain amount, the accused gets benefit of disposal of case against him and also obtains his release from the custody. The initiate plea bargain with the NAB having been made by the petitioner and same having not been complied with by him in toto, the petitioner cannot get benefit of his release.
15. After hearing the counsel for the parties, by a short order passed on 6-12-2010, the petition was dismissed, B above are the reasons for the same.