1. GULZAR AHMED, J.---The petitioners have filed this petition with the following prayers:--
(i) Admit the petitioners to anticipatory bail in Accountability Reference No. Nil of 2007.
(ii) Grant the petitioner six months time starting 1-3-2008 to satisfy all debts and liens of Habib Bank A.G. Zurich.
(iii) Restrain the respondent, their agents, servants and all persons acting through or under them from taking any coercive actions against the petitioners till the expiry of the six month period starting 1-3-2008.
(iv) Direct the respondent to withdraw all proceedings against the petitioners once the petitioners have satisfied their debts and liens in favour of the Habib Bank A.G. Zurich.
(v) Grant any other relief as this Court may deem fit and proper.
2. Learned counsel for the petitioners has contended that Reference No. 06 of 2010 has been filed by the NAB Authorities against the petitioners on the ground of default in payment of bank liabilities and that petitioners may be allowed six months time to pay dues as petitioners are making the arrangements to discharge their liabilities.
3. Mr. Muhammad Aslam Butt, learned D.P.G. NAB, on the other hand, has contended that reference has been filed for wilful default in payment of bank dues by the petitioners and they have previously made several promises for payment of dues but have not fulfilled them and even the plea bargain has been defaulted by the petitioners. He further contended that in the case of Mukesh Kumar v. Chairman NAB (PLD 2008 Karachi 38) a Division Bench of this Court has held that where the plea bargain approved by the Chairman NAB is referred to the Accountability Court who also approves the same, for its enforcement the only remedy is by way of section 33-E of the National Accountability Bureau Ordinance, 1999 (the Ordinance), which provides for recovery of dues by way of arrears of land revenue. He further referred to the order dated 23-8-2010 in Constitutional Petition No. D-1330 of 2010 (Minhon Khan Chandio v. National Accountability Bureau) passed by a Division Bench of this Court.
4. Ms. Naheed A. Shahid, Advocate has filed Vakalatnama on behalf of the Habib Metropolitan Bank and has contended that the bank had filed suit against the petitioners which was decreed and thereafter execution application No. 55 of 2008 has been filed which is still pending. She contended that petitioners had agreed to pay liabilities of the bank but have never fulfilled such promises and are also not adhering to plea bargain made with the NAB.
5. It seems that petitioners have obtained finance facilities from Habib Bank A.G. Zurich now Habib Metropolitan Bank. The petitioners defaulted in payment of its dues and ultimately Reference No. Nil of 2007 was filed in the Court of Administrative Judge, Accountability Court Sindh, Karachi. While the said reference was pending, the petitioners have entered into plea bargaining With the NAB and such plea of petitioners was recorded by the Administrative Judge Accountability Court, copy of which has been filed with the petition as annexure 'H' which reads as follows:-- "PLEA OF ACCUSED Q.No. 1 . An application for approval of plea bargain in the sum of Rs.32 Million (Rupees thirty two million only) out of which you have deposited Rs.10.88 million vide Demand Draft as follow: Rs.5,000,000 No.HBM/PO 2161797, Drawn on Habib Metropolitan Bank Rs.8,00,000 No. HBM/PO 1937442, Drawn on Habib Metropolitan Bank Rs. 5,00,000 No. 0516-888 990479, 2161797 Drawn on Prime Commercial Bank.
6. Rs.5,00,000 No. HBM/PO 21014134, Drawn on Habib Metropolitan Bank.
7. Rs.7,00,000 No. HBM/PO 1512455, Drawn on Habib Metropolitan Bank.
8. Rs.2,100,000 No. 0516-907 990498, Drawn on Prime Commercial Bank.
9. Rs.5,00,000 No. H0028 825266, Drawn on PICIC Commercial Bank.
10. Rs.7,80,000 No.0511-2657, Drawn on Prime Commercial Bank.
11. Remaining amount of remaining amount of Rs.21.12 million within 180 days, which has been accepted by the Director General NAB Sindh, and has been filed before this Court, whether you have entered into above plea bargain?
12. Ans. Yes Sir, I have entered into plea bargain with D.G. NAB and have made payment of Rs.10.99 Million and the remaining balance will be paid within a period of 180 days. The rate of costs of use of fund has not been correctly made will be settled with the Bank.
13. Q.No. 2. Whether you are aware that after approval of above plea bargain you will be convicted under section 15 of the NAB Ordinance, 1999?
14. Ans. Yes Sir."
15. Upon recording of above plea, Administrative Judge, Accountability Court Sindh, Karachi proceeded to pass order dated 14-7-2007, the operative part of which is as follows:-- "Since the accused have fulfilled the terms and conditions of the plea-bargain and there appears no legal impediment, therefore, I hereby allow the application of pleabargain arrived in between the accused and the NAB authorities in terms of section 25(b) of National Accountability Ordinance, 1999 provisionally till the finalization of the remaining amount of plea bargain by the accused. Accused (1) Abdul Sattar Battiwala son of Abdul Salam and (2) Khursheed Ahmed son of Abdul Salam be released forwith if they are not required to be detained in any other case. The matter to come up for final order after (180) days i.e. The scheduled period by which the accused have to make remaining amount of the above plea bargain."
16. It seems that petitioners did not abide by the terms of their plea bargaining and did not make the payment of amount of Rs. 21.12 million within 180 days but instead of filed this petition with the prayer as noted above. On 3-3-2008, following order was passed by the Court:-- 3-3-2008 Mr. Raja Qureshi advocate along with the applicants.
(1) Granted.
(2) Deferred.
(3) Granted subject to all just-exceptions.
17. (4 and 5) It has been contended that the some loan has been settled by the bank and the applicants are ready to pay the said loan.
18. Without touching the merits of the case interim pre-arrest bail is granted to the applicants subject to their furnishing surety in the sum of Rs.2,00,000 (rupees two lac) each and P.R. Bond in the like amount to the satisfaction of Nazir of this Court. Notice to DPGA, NAB. To come up for confirmation or otherwise on 10-3-2008."
19. After passing of above order, the record shows that the petition was not fixed in Court until 28-10- 2010 that is for almost 2-1/2 years. On 28-10-2010, when the matter was taken up, counsel for the petitioners filed a statement by which petitioners seem to have offered to make payment to the Habib Metropolitan Bank through pay orders and post-dated cheques. The statement of the petitioners was kept on the file while pay orders and cheques were kept by counsel for the petitioners for paying/depositing the same with the Habib Metropolitan Bank. The matter was adjourned for today with notice to Habib Metropolitan Bank.
20. As noted above, the only contention of counsel for the petitioners is that petitioners be allowed six months time to pay the dues of the bank. The very pay orders/cheques referred in the statement dated 28-10-2010 were still in the hands of counsel for the petitioners. The D.P.G. NAB so also the counsel for Habib Metropolitan Bank has made categorical statement that petitioners have not made any payment of plea bargain amount except down payment.
21. The very order passed by Administrative Judge, Accountability Court Sindh, Karachi was a provisional one for period of 180 days only during which period the petitioners were required to deposit the balance amount of plea bargaining which admittedly petitioners have not done so. Far.
22. The very ground on which the interim pre-arrest bail was obtained by the petitioners, was that of settling the matter with the bank, which, too, has not been done although more than 2-1/2 years have gone by. The order of the Administrative Judge, Accountability Court Sindh, Karachi dated 14- 7-2007 being provisional and only for 180 days during which period the petitioners were required to deposit balance amount and such having not been done by the petitioners- uptil now, being almost three years and four months, the reference being still pending before the Administrative Judge, Accountability Court Sindh Karachi, the petitioners having defaulted in making compliance of their very plea, there is no legal and moral justification for allowing any equitable and discretionary relief to the petitioners by exercising jurisdiction under Article 199 of the Constitution as it will amount to perpetuating illegal gains, which is not permissible by. Law. Reliance is, placed upon the case of Rehmatullah and others v. Mst. Hameeda Begum and others (1986 SCM R 1561) and The Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others (PLD 1975 SC 331). We, therefore find no merit in this petition. The same is therefore, dismissed.
23. Before parting, it may be noted that since after passing of order on 3-3-2008, the matter was not fixed in Court for almost 2-1/2 years and was fixed for the first time on 28-10-2010 and it seems to have been done for the reason that the Accountability Court has written two letters; one dated 14- 10-2010 where the Court was asked about genuineness of order dated 3-3-2008 which was replied by Assistant Registrar (Writ) vide his letter dated 15-10-2010 and further letter dated 18-10-2010 where the Accountability Court has requested about the order dated 3-3-2008 being still intact.
24. This letter, too, was replied by the letter dated 19-10-2010 of Assistant Registrar (Writ). It seems that original file of this petition is not available and the matter has been decided on duplicate set. It is a matter of grave concern that a case, in which interim pre-arrest bail was obtained by the petitioners, has not been fixed by the office in Court for almost 2-1/2 years without anybody being responsible for this grave act of misconduct. The Registrar is, therefore, directed to hold enquiry in fixing responsibility on delinquent officials and to place the matter before Hon'ble Chief Justice for passing of orders against them. The report of enquiry be submitted by the Registrar to Hon'ble Chief Justice within a period of one month.
25. Office is directed to forward a copy of this judgment to the Registrar for making compliance. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.