SH. AHMAD FAROOQ, J.---Through the instant appeal under section 32 of the National Accountability Bureau Ordinance, 1999, the appellant has assailed the order dated 1-10-2004, whereby the Accountability Court No. 1, Lahore, while accepting his application for plea-bargain, has imposed an embargo to obtain financial facilities in the form of any loan or advances or any other financial accommodation from any bank or financial institution owned or controlled by the Government for a period of ten years.
2. The learned counsel for the appellant contended that the disqualification/restraint as specified in Clause (b) of section 15 of the NAB Ordinance, 1999 was not applicable to the case of the present appellant. The learned counsel further contended that the impugned order is the result of misinterpretation of the provision of section 15 read with section 25(b) of the NAB Ordinance. 1999.
Submits that in the case of voluntary return and plea bargain invoked under section 25(b) of the Ordinance ibid and in the event of approval of such bargain by the "Chairman." NAB, the accused is "deemed" to have been convicted for an offence under the said Ordinance. The learned counsel next contended that there is a distinction between "convicted" and "deemed to have been convicted" as the former word "convicted" is implied in the statute for those persons who are tried under section 9 of the Ordinance ibid, while the latter "deemed to have been convicted" is used for those who are not tried by the Court and they opt to discharge their liabilities by invoking the provision of section 25 of the Ordinance. The learned counsel submitted that the only disqualifications which could be imposed upon the present appellant by the learned trial Court, were those provided in clause (a) of section 15 of the Ordinance, and the disqualifications mentioned in clause (b) of section 15 were not applicable to the case of the present appellant. At the resume of her arguments, the learned counsel contended that the impugned order, is not sustainable in the eyes of law and merits to be set aside to the extent it imposes upon the appellant a restraint to apply for or to be granted or allowed any financial facility from any bank or financial institution owned or controlled by the Government, for a period of 10 years.
3. The learned Special Prosecutor, NAB contended that the disqualification enumerated in clause
(b) of section 15 of the NAB Ordinance, 1999 is equally applicable in the case of the present appellant and his case is not distinguishable from those who are convicted after being tried under section 9 of the Ordinance ibid.
4. We have examined sections 25 and 15 of the NAB Ordinance, 1999 with an analytical approach.
Section 15 deals with the disqualification of two categories of accused persons, firstly, those who are convicted for an offence under section 9 of the Ordinance, and secondly, the persons who opt to avail the benefit of subsection (b) of section 25, and are deemed to have been convicted.
Subsection (a) of section 15 provides the nature of disqualifications for both the aforesaid categories of accused persons. However, subsection (b) of section 15 contains additional disqualification for the accused persons falling within the category of "person convicted". The statute itself formulates a distinction between "person convicted" and "person deemed to have been convicted" and the purpose and legislative intent behind such a classification is understandable from a specific provision of subsection (b), which contains such a disqualification that is relevant to the accused persons convicted under section 9 of the Ordinance ibid only. We feel that the legislature intentionally and not accidentally created distinction between "convicted" and "deemed to be convicted" otherwise the disqualification mentioned in subsection (b) could also be provided in subsection (a). By adding a specific provision of subsection (b) of section 15, the intent and purpose of the Legislature was to exclude the accused persons who have availed the benefit of section 25(b) of the Ordinance, from the implication of the constraint of availing any financial facility from any bank or financial institution owned or controlled by the Government, for a period of ten years from the date of conviction. The logic and reason behind this exclusion is comprehendible from the fact that not only the persons holding public offices, other persons, such as bankers, industrialists and traders etc. Were also made subject to the provisions of the National Accountability Ordinance, 1999. At the time of enforcement the said law a number of private persons, who were running business by inducting huge money, which included funds generated from public sector, on having been found to be involved in plundering public money, were also booked by the NAB Authorities. Keeping in view the cases of such like private accused persons, the Hon'ble Supreme Court in the case of Khan Asfandyar Wali v. Federation of Pakistan (PLD 2001 SC 607) held that "it was necessary in cases where the criminal is a potential investor, and is inter- linked with the economy of the country, he should be given an opportunity to play his role in the society after he has cleared his liability." This is also a hard fact that most of the industrial units/commercial institutions, owned and run by private persons, due to their financial constraints have to obtain financial facilities from banks or financial institutions for smooth running of their business. After approval of their plea- bargain by the Chairman NAB and on their having discharged their liabilities, imposition of any embargo on their availing financial facilities from the banks or financial institutions owned or controlled by the Government, would certainly mean creating hurdles in smooth running of their business. In these circumstances, we are of the view that where the NAB Ordinance introduced the terminology of "plea-bargain" in the criminal law to provide an opportunity to the accused persons voluntarily coming forward to return their assets or gains acquired or made by them in the course or as a consequence of any offence under the NAB Ordinance, using another terminology of A convicted and "deemed to have been convicted" is also meaningful. It obviously meant to create a distinction between those who opted to face the trial and the other who decided to discharge their liabilities. Both these categories of accused persons by any stretch of imagination could not be treated alike. By adopting such an interpretation of the above said terminology, we are guided by the wisdom laid down by the Hon'ble Supreme Court in the case of Fecto Belarus Tractor Ltd. v. Federatiori of Pakistan (PLD 2005 SC 605), wherein it has been held that "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 it has to be assumed as if it did exist." The Hon'ble Supreme Court in another case entitled Khan Asfandyar Wali v. Federation of Pakistan (PLD 2001 SC 607) qua the NAB Ordinance observed 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.
5. At the resume of the above discussion, we hold that the learned trial Court has misconstrued the provision of law and thereby wrongly imposed the restraint on the appellant as is envisaged in subsection (b) of section 15 of the Ordinance ibid. Consequently, the instant appeal is B accepted and the impugned order dated 1-10-2004 is set aside, to the extent it imposes upon the appellant an embargo to obtain financial facilities from any bank or financial institutions, owned or controlled by the Government.