1. ' SAJJAD ALI SHAH, J.---The petitioners have filed the instant petition containing the following prayers:--
(i) It be declared that in the absence of essential requirement of the plea bargain/voluntary return under section 25 of the N.A. Ordinance 1990, the order dated 14-7-2000 passed by the respondent No,2 purported to be under section 25 of the N.A.O. 1999 is ab initio void, illegal and coram non judice and does not affect the fundamental rights as to the property/the person of the petitioners.
(ii) It be declared that the term "deeming conviction" as contained under section 15 of the N.A.O.
2. 1999 is alien to criminal justice system and thus section 15 of the N.A.O. 1999 is to that extent unconstitutional, ultra vires of fundamental rights of the petitioners and is not applicable in the circumstances of this case And/or the same does not operate due to disability of the petitioners contained the relevant laws to enter into plea bargain/voluntary return under section 25 of the N.A.O. 1999 and as a consequence the application of section 15 of the ibid law to the case of the petitioners is unwarranted.
(iii) Without prejudice to the above reliefs, It be declared that after surrender of lease hold rights/interest as granted in violation of law by order dated 21-2-1994 by the then Chief Executive and subsequent lease agreements executed in favour of the petitioners in respect of chunks of land admeasuring 16 acres for each petitioner in NA Class No,90, Deh Kotriro, Tapo Joreeja, District East, (Malir) Karachi, the residue legal interest i.e, temporary leases as per policy/statement of conditions notified under section 10(2) of the Colonization of Government Land (Sindh) Act, 1912 will be deemed to have been revived and are valid and subsisting being not the subject matter of the reference.
(iv) It be declared that the petitioners Nos.2 and 3 being below the age of 12 years as such their case is covered under section 83, P.P.C. Which provides therein the exception to the offence for a child above seven years of age and under 12 as such purported acts attributed to the petitioners do not make out any "offence" against the petitioners and even otherwise there is no iota of evidence against the petitioners.
(v) It be declared that the petitioners under the circumstances of this case have been condemned unheard as such the penalty imposed as legal fiction under section 15 of the N.A.O.
3. 1999 does not apply to the case of the petitioners.
(vi) Any other reliefs, which this Hon'ble Court may deem fit and proper.
4. (vii)Costs.
5. ' Mr. Muhammad Anwar Tariq, learned counsel appearing for the petitioners contends that petitioners No,1 is the wife whereas petitioners Nos.2 and 3 are the sons of Mir Lutfullah Talpur who in the year 1992 moved an application before the then Chief Minister requesting for conversion of various pieces of agricultural land held in the name of his family members (including the petitioners) into residential/industrial and from 30 .Years lease to 99 years. The request was accepted by the Chief Minister on 3-2-1994 and consequently a total of 96 acres in Na Class Nos.90 and 91, Deh Kotiraro, Karachi Malir was converted from agricultural to industrial/commercial/residential purposes for 99 years upon payment of Rs,5,000 per acre. Per Counsel after six years of such conversion cognizance of such conversion was taken by NAB by filing Reference No,20 of 2000 against the Ex-Chief Minister, Secretary Land Utilization and the beneficiaries of such conversion including the petitioners. It is contended that during pendency of the said reference the Prosecutor-General NAB on 21-4-2000 moved an application under section 25 read with section 31(B) of the National Accountability Ordinance, 1999 seeking withdrawal of the prosecution and dropping of charge against all the private accused persons including the petitioners on the ground that beneficiaries of such conversion by accepting the offer of the Chairman NAB surrendered all rights, title and interest in the said land in favour of the government and the differential amount paid still remains in the exchequer and further that petitioner No,1 being a lady and petitioners Nos.2 and 3 being minors therefore, the prosecution against them be dropped. The Court while entertaining the application directed the prosecutor to produce the material on the basis of which consent was accorded by the Chairman NAB. It is contended that thereafter not only the consent of Chairman NAB which was accorded by him vide letter dated 6- 5-2000 (page-85) was placed before the Court but a proper application was moved on behalf of all the private accused including the petitioners, seeking release of private accused as their plea bargain was accepted by the Chairman NAB. The Court after hearing the parties vide its Order dated 14-6-2000 while accepting the request allowed the withdrawal of the prosecution against private accused including the petitioners.
6. ' Mr. Anwar Tariq at the very outset contends that he would not press the present petition on behalf of the petitioner No,1 and further that the petitioners Nos.2 and 3 have no intention whatsoever to question the Order dated. 14-6-2000 of the NAB Court on merits or the consideration on the basis whereof the plea bargain was accepted by the Chairman NAB. Or by the Accountability Court but questions the legality of impugned order only to the extent whereby the Accountability Court after recording in its order that petitioners Nos.2 and 3 were minors disqualified them for 21 years for seeking or from being elected, chosen, appointed, nominated as a member or representative of any public office or any statutory or local body of Government of Pakistan. It is contended that at the time when the alleged offence i.e, "conversation of land" took place the ages of petitioners Nos.2 and 3 were less than 10 and 12 years respectively and their father had acquired the said agricultural land in their names and he himself had applied for conversion, therefore, at least criminal liability could not be imposed upon the petitioners, he therefore, challenges the impugned order only to the extent of disqualification of petitioners Nos.2 and 3 to hold public office.
7. ' In order to explain laches, Mr. Anwar Tariq contends that law of limitation would not run against an illegal order therefore, the question of laches does not arise. He further by placing reliance on the judgment of Muhammad Ayai alias Cheena and others v. The State (PLD 2004 Karachi 652) contends that the order/judgment without jurisdiction and/or against mandatory provisions of law or delivered inadvertently and in case if left intact would result in perpetration of manifest injustice, High Court even while exercising its inherent jurisdiction under section 561-A, Cr.P.C. Can correct the manifest error floating on the record without involving long drawn process of arguments or reinterpretation or re-examination of facts, without any attempt to arrive at any other conclusion.
8. ' On the other hand Mr. Noor Muhammad Dayo, ADGP NAB contends that since the petitioners were beneficiaries of unlawful conversion and had caused loss to the national exchequer and upon being prosecuted were liable to be convicted and punished, however, in order to escape the punishment they returned the benefits but in such circumstances, they cannot escape the consequences provided in section 15 of the Ordinance 1999 and therefore, the order now impugned was just, fair and in accordance with law and has further attained finality. - ' Mr. Sadaqat Khan Awan, learned Standing Counsel on behalf of the Federation of Pakistan contends that the petitioners at the time when their plea bargain was accepted, have attained the age of 15 and 17 years respectively and consequently were liable for the act and could not be provided the benefit on account of minority.
9. ' We have heard the learned counsel for the respective parties and have minutely scrutinized the record with their able assistance and have gone through the case-law cited at bar.
10. ' The position which emerges from the record appears to be that the husband of petitioner No,1 who happens to be father of petitioners Nos.2 and 3 moved an undated application requesting the Chief Minister for conversion of various pieces of land held in the name of his family members including the petitioners Nos.2 and 3 who were holding 16 acres each out of 96 acres of agricultural land in Na class 90 Deh Kotiraro Union Council Darsana Channa, leased out by the Deputy Commissioner East on 28-2-1993 . It appears that Chief Minister Sindh on 23-2-1994 allowed such conversion and upon payment of differential at the rate of Rs,5,000 per acre, not only the agricultural land was converted into industrial/commercial/residential but the period of lease was extended from 30 years to 99 years and consequently Mukhtiarkar issued lease deeds, acknowledging such conversion. The record further reflects that on 6-3-2000 Chairman NAB filed Reference bearing No,20 of 2000 before the Accountability Court at Karachi against Chief Minister, Secretary Land Utilization and all beneficiaries of such conversion including petitioners Nos.2 and 3.
11. The relevant paragraph which would explain the nature of allegations reads as under:-- "2. That the accused No,3 on behalf of himself and his other family members accused No,4-9 submitted an application to the then Chief Minister Sindh accused No,1, requesting therein for conversion of their 96 acres land situated in NA Class 90 and 91, Deh Kotiraro, Distt. Malir, Karachi, from 30 years barani cultivation lease into 99 years lease for Industrial and residential purposes."
12. ' The record further reflects that after filing of such reference Prosecutor-General NAB on 21-4-2000 moved an application under section 25 read with section 31-B of the Ordinance 1999 seeking withdrawal of the prosecution and dropping of the charges against private accused persons who were the beneficiaries of such conversion including the petitioners on following grounds:--
(2) That the private beneficiaries namely Accused Nos. 3 to 9 had applied to the Chairman, National Accountability Bureau to surrender all lease rights and interest acquired by. Conversion.
13. The Chairman, N.A.B. Has accepted the offer whereby the said accused persons have surrendered all right, title and interest in the said land that may have been acquired .By them through different lease agreements entered pursuant to the order dated 4-10-1995 passed by the then Chief Minister Sindh the accused No,1.
(3) Considering that the accused No,4 is lady and the accused Nos. 5 and 6 are minors and further considering that sums paid for by way of conversion charges remain in the exchequer notwithstanding the surrender, the Chairman, N.A.B. Has accepted the offer and is of the opinion that the ends of justice would be served if the prosecution against the accused persons 3 to 8 are dropped.
14. ' However, the Accountability Court vide its Order dated 26-4-2000 directed the Prosecutor to produce necessary material on the basis whereof the Chairman NAB had accorded consent for withdrawal of the prosecution against private accused and in response the Prosecutor filed a letter dated 6-5-2000 duly signed by Chairman NAB with his seal the second paragraph of the said letter provided Since the accused 3 to 9 have surrendered their rights and interest in the land with the original title documents and forfeited the conversion charges, 1 had directed the Prosecutor-General, N.A.B.
15. To make an application before this Court for withdrawal of the prosecution against accused Nos. 3 to 9 which accordingly has been made.
16. ' The record further reflects that thereafter an application under section 25 of Ordinance 1999 was moved before the Accountability Court which after hearing the counsel for the parties was allowed through a detailed order, however, in order to decide the instant petition we deemed it ,necessary to reproduce only two paragraphs from the said order:- "The application further revealed that considering that the accused No,4 is lady and the accused Nos.5 and 6 are minors and further considering that the sums paid for by way of conversion charges remain in the Exchequer notwithstanding the surrender of the lease, Chairman National Accountability Bureau has accepted the offer and is of the opinion that the ends of justice would be served if the prosecution against the accused persons 3 to 9 (wrongly mentioned as 3 to 8) are dropped".
17. "The accused persons Nos.3 to 9 under provision of section 15 of National Accountability Bureau Ordinance, 1999 also 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."
18. (Accused No,4 referred to as lady and accused Nos.5 and 6 referred to as minors in above reproduced paragraphs, are petitioners before us.)
19. ' Now the question arises as to whether the petitioners Nos.2 and 3 who admittedly were minors at the time when the offence of corruption and corrupt practice as envisaged under section 9 of Ordinance, 1999 was committed by their father, may be for their benefit could be saddled with the consequences of such wrong. From the allegations contained in the reference certain portions whereof have already been reproduced above, it appears that the offence with which the petitioners were charged was of corruption and corrupt practices under clauses (ii) and (iii) of section 9 of Ordinance 1999 on account of getting their agricultural land converted for industrial/commercial use and lease of 30 years into 99 years and the punishment prescribed for such offence in section 10 of Ordinance 1999 inter alia may extend to 14 years with fine. It further is reflected from the record that 16 acres of land which was in the name of each petitioner as referred to above, was allotted by the Deputy Commissioner East vide his letter No,REV/4055/93 dated 13-11- 1993 admittedly when the petitioners were of very tender ages i.e, less than 11 and 9 years respectively and neither they had any means of their own nor under the law could have purchased or sold any property without a guardian and obviously the stated property was acquired by their father in their names as his benami. Likewise, when the request for conversion was made on their behalf by their father who was their natural guardian their ages admittedly were less than 10 and 12 years respectively and there is nothing on record to show that they even had any say or knowledge about such request. Therefore, in our opinion no criminal liability could have been attached to petitioners Nos.2 and 3 on account of their tender ages.
20. As to the contention of Mr. Awan that at the time of plea bargain ages of the petitioners Nos.2 and 3 were 15 and 17 years respectively and therefore, they would not be entitled to the benefit of section 83, P.P.C., suffice it to observe that the ages of the petitioners are to be counted from the day when the offence was committed and not when it was compounded and or plea bargain was accepted and on the day when the alleged offence was committed the ages of the petitioners were less than 10 and 12 years respectively. Though section 83, P.P.C. Provides that nothing is an offence which is done by a child above seven years of age and under twelve-years, who has not attained sufficient maturity of understanding to judge the nature and consequences of his conduct on that occasion, in accordance with the judicial pronouncement lays the burden of proof on the accused who is above 7 years of age and below 12 years to prove that he had not attained sufficient maturity but in the instant case since the matter was compounded before framing of charge, therefore, in our view the respondents even if had committed any offence were entitled to the benefit of an immature understanding. However, we may add here that there is nothing on record to show that the petitioners Nos.2 and 3 themselves committed the offence of corruption and corrupt practices as they were of very tender ages and had no knowledge or understanding of corruption or corrupt practices committed by their father, may be for their benefits.
21. ' Besides we would like to observe, though none of the parties have argued before us one other very important aspect which directly goes to the root of this case, that Article 63 of the Constitution of Islamic Republic of Pakistan after Eighteenth Amendment provides for -disqualification for the membership of Majlis-e-Shoora (Parliament) in sub-Article (1) clause (h) in the following terms:--
(1) A person shall be disqualified from being elected or chosen as, and from being, a member of the Majlis-e-Shoora (Parliament), if (a)
22. (b)
23. (c)..
24. (d)
25. (e)
26. (f)..
27. (g).
(h) he has been, on conviction for any offence involving moral turpitude, sentenced to imprisonment for a term of not less than two years, unless a period of five years has elapsed since his release; or ' Since none of the parties have argued before us the impact of 18th amendment on period of disqualification provided from being elected or chosen as Member of Parliament under the National Accountability Ordinance 1999 and we have already concluded that criminal liability could not be imposed on the petitioners Nos.2 and 3, therefore, we would leave it for an appropriate occasion to examine the provision of section 15 of the National Accountability Ordinance (which at the relevant time disqualified a convict for a period of 21 years for seeking or from being elected, chosen, appointed or nominated as a Member or Representative of any public body or any statutory or local authority or in service of Pakistan or in any province which period subsequently was reduced to 10 years through an amendment introduced by Ordinance XXXV of 2001 dated 10- 8-2001 on the touchstone of Article 63(1)(h) of the Constitution.
28. In view of what has been discussed above, we allow this petition only to the extent that the bar of disqualification for a period of 21 years through Order dated 14-6-2000 in terms of section 15 of the National Accountability Ordinance 1999 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 would not apply to the petitioners Meer Attaullah Talpur and Meer Umairullah Talpur.