' MUHAMMAD ALI MAZHAR, J.---Through this constitution petition, the petitioner has challenged the Reference No.5 of 2014, filed by the respondent under section 18(g) read with section 24(b) of the NAB Ordinance, 1999.
2. The reference has been challenged on the premise that it is based on illegal/unauthorized enquiry. It was further stated that during pendency of the trial the petitioner may be enlarged on bail. It is contended that before the arrest of the petitioner, he was serving as Food Supervisor in Food Department, Sukkur Region. The petitioner was assigned the job at Wheat Procurement Centre, Bhiria City. He procured/purchased 55000 wheat bags from 30-4-2012 to 12-6-2012. It is the procedure for procurement that all the wheat bags are collected at Wheat Procurement Centre and after physical checking, the purchase bill are issued in the name of sellers and the purchase bills are directly deposited in the account of parties in the concerned bank. Keeping in view the relationship of the petitioner with some Zamidars, he issued advance cheques on the direction of D.F.C. But some of the parties subsequently backed out and failed to provide required wheat which resulted in shortage of the wheat in the godowns. The petitioner made all efforts to convince the parties to fulfil the commitment but they kept the petitioner on false promises. The petitioner before his arrest had explained his position to the I.O. However, he failed to investigate the case properly. It was further contended that the petitioner is not keeping good health and his consultant suggested the regular follow up checkup which is not possible in the jail premises.
3. Learned counsel for the petitioner argued that investigation is illegal and without any authority.
The petitioner has not gained anything nor misused his power and there was no violation of law on his part. Since the petitioner has been arrested, hence, the efforts to approach the sellers for the recovery could not be materialized. He further argued that the petitioner had undergone open heart surgery and requires treatment and constant care including periodical tests and treatment which is not possible in jail premises. It was further argued that the petitioner was arrested on 1-3- 2014, since then he is in jail and his health is being deteriorated. On 3-7-2014, counsel for the petitioner pointed out the investigation report which is available in the court file at page-29. He referred to paragraph 17 of the report in which it is stated that the same petitioner entered into Voluntary Return Agreement with the NAB on 14-5-2013 for payment of 3661 wheat bags but no such agreement was placed on record. When we asked learned ADPG, NAB to show us the voluntary return agreement, he stated that factum of VR agreement is mentioned in the comments filed by the NAB, however he requested for time to place on record the copies of relevant documents.
4. The learned ADPG, NAB produced copy of an application dated 27-4-2013, submitted by the petitioner to the Director General NAB with the request of voluntary return. In paragraph 2 of the application the petitioner stated that with his free consent and without any coercion or undue influence he voluntary came forward and admitted that he is in possession of assets or gains acquired by him in the course or as consequence of offence under NAO, 1999. He further undertook that he shall deposit with NAB, amount determined by DG NAB and prayed that he may be discharged of liability in respect of subject inquiry. Learned ADPG NAB has also produced affidavit of the petitioner which he submitted to the NAB to avail voluntary return option in which he deposed as under:-- "That I declare that an amount of Rs.1,09,83,000 (One Crore Nine Lac and Eighty Three Thousand Rupees) was gained/acquired by me as a consequence of corruption and corrupt practices under the provision of NAO, 1999 and schedule thereof and I voluntary, without any duress and coercion, offer to return aforesaid amount as per following schedule"-- Down Payment Rs.37,34,220 (34%)
1st Instalment Rs.36,34,390 (33%)
2nd Instalment Rs.36,24,390 (33%)
' That, I undertake to lead a life with professional and financial honesty to benefit the fellow countrymen as of now. That I am deeply remorse on my failing in the past and resolve to act in consonance with law. I am eternally grateful to this institution for having provided me, my family and any others by enactment of such a law to cleanse soul of any guilty and start afresh with absolute conviction and ability to inculcate the right values and morals in my children to make them human and good Pakistanis."
5. The request of the petitioner was forwarded to Director General, NAB for approval, which was approved on 14-5-2013. Since the petitioner was ready to pay the amount, he was directed to pay the same by availing voluntary return option but when he failed to discharge his VR obligation, the Additional Director Coordination NAB on 1-1-2014 written a letter to the petitioner that after lapse of eight months neither the petitioner appeared nor any VR amount was deposited thus he defaulted in paying the entire VR amount of Rs.1,09,83,000. In paragraph 2 of the letter, the petitioner was finally advised to immediately deposit the VR amount within 10 days failing which the approved VR would be cancelled and action will be initiated against him under the provisions of NAO, 1999.
6. Learned ADPG NAB argued that it is clear without any shadow of doubt that in memo of petition, the petitioner has concealed and suppressed material facts. Not a single word or indication has been given in the petition to the effect of VR option for which the petitioner applied voluntarily but he failed to honour his commitment. Learned counsel further argued that in view the facts and circumstances of the case the .Petitioner is not entitled for any relief in this constitutional petition, which is liable to be dismissed.
7. After producing VR agreement and other relevant documents by the ADPG NAB, the counsel for the petitioner again took the rostrum and now he come up with a divergent plea which was neither mentioned in the memo of petition nor he initially argued on this footing. It is also an important aspect of the case which needs to be mentioned that the VR documents produced by the NAB were neither denied nor controverted nor any plea was taken even orally that the same were secured by NAB from the petitioner under duress or coercion. On the contrary the learned counsel argued that the discloser of the VR agreement along with other documents has made the case of the petitioner more easiest and now instead of pressing the grounds raised in the memo of petition including the filing of reference or initiation of inquiry/investigation without any lawful authority or legal backing, the learned counsel referred to section 33-E of NAO 1999, which 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. It was averred that after entering to V.R. Agreement there was no question of filing any reference against the petitioner and the proper remedy available to NAB was to invoke section 33-E of NAO, 1999 and the amount due under V.R. Agreement should have been recovered as an arrears of land revenue through separate proceedings under the Land Revenue Act. In support of his argument, he relied upon following case-law:--
(1) PLD 2011 Karachi 24 (Muhammad Afaq Shamsi and others v. National Accountability Bureau and others). Constitution of Pakistan, Article 199. Wilful default. During pendency of reference filed by National Accountability Bureau against company for wilful default, application filed under section 265-K, Cr.P.C. In Accountability Court was dismissed notwithstanding the certificate issued by decree holder bank to the effect that instalments were being paid by the company in accordance with the new agreement regularly. New agreement was novation of the original contract between the company and the bank and once an agreement had been novated, rights and obligations under the original agreement stood extinguished under section 62 of Contract Act, 1872 and were replaced by rights and obligations under the novated contract. Proceedings in Accountability Court were stayed by the High Court and were ordered to stand quashed if entire payment had been made in accordance with new agreement failing which the National Accountability Bureau could apply the Accountability Court to revive proceedings for wilful default.
(2) 2013 PCr.LJ 58 (Muhammad All Athar v. Director General NAB Punjab, others). National Accountability Ordinance (XVIII of 1999). Sections 9 and 10. Penal Code (XLV of 1860), sections 409/420/468/471/109. Constitution of Pakistan Article 199. Constitutional Petition. Corruption and corrupt practices, criminal breath of trust by public servant, cheating and dishonestly inducing delivery of property, forgery for purpose of cheating, using as genuine a forged document, abetment. Bail, grant of. Medical grounds. Accused suffering from multi infarcts dementia with history of brain hemorrhages and having poor sphincter control. Accused showed signs of fragility and poor health, when taken into custody. Reports of two different medical boards revealed that diseases from which accused was suffering required constant care including periodical tests and treatment, around the clock attendant, special diet and availability of quick medical advice etc. Which were not available in jail.
(3) PLD 2008 Karachi 38 (Mahesh Kumar and another v. Chairman, NAB and others). The question arises whether the amount of plea bargain comes within the definition of section 33-E. The words used in the section "other sum due under the Ordinance, or as determined to be due by a Court" are very significant. If any amount comes within the above definition then the provisions of section 33-E would be attracted. In the present case, under the plea bargain the petitioners had offered sums which were accepted by the Chairman, NAB. The matter was referred to the Court and the Court approved the said amounts, therefore, such amounts were determined by the Court under the provisions of the Ordinance. Thus, the amounts of plea bargain would come within the definition of "other sum due under the Ordinance or as determined to be due by the Court."
Therefore, the provisions of section 33.E would be attracted.
8. Before visiting the outcome and ingress of section 33-E of the NAO 1999, it is necessary to first look into the provisions of section 25 of the aforesaid Ordinance, which is in fact made for providing options to a person or the holder of public office prior to authorization of investigation against him to voluntarily come forward and offer to return the assets and gains acquired by him unlawfully.
For the ready reference and convenience, section 25 of the National Accountability Ordinance, 1999 is reproduced as under:
25. Voluntary return and plea bargain:-
(a) Notwithstanding, anything contained in section 15 or in any other law for the time being in force, 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 this 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.
(b) Where at any time after the authorization of investigation, before or after the commencement of the trial or during the pendency of an appeal, the accused offers to return to the NAB the assets or gains acquired or made by him in the course, or as a consequence, of any offence under this Ordinance, the Chairman NAB, may, in his discretion, after taking into consideration the facts and the circumstances of the case, accept the offer on such terms and conditions as he may consider necessary and if the accused agrees to return to the NAB the amount determined by the Chairman, NAB, the Chairman NAB, shall refer the case for the approval of the Court, or as the case may be, the Appellate Court and for the release of the accused.
(c) The amount deposited by the accused with the NAB shall be transferred to the Federal Government or, as the case may be, a provincial Government or the concerned bank or financial institution, company, body corporate, co-operative society, statutory body, or authority concerned within one month from the date of such deposit.
9. The aforesaid Section has two distinct parts. Sub-clause (a) pertains to the option of VR prior to authorization of investigation that is why in the end of this clause a proviso has been added i.e. "Provided that the matter is not sub judice in any court of law". While sub-clause (b) provides the scenario which starts after authorization of investigation, before or after commencement of the trial or during the pendency of appeal, in which also, the accused may offer to return the NAB the assets or gains acquired by him in the course or as consequence of any offence under this Ordinance. If the accused agrees to return to the NAB the amount determined by the Chairman NAB, the Chairman NAB shall refer to the case for approval of the court or as the case may be the appellate court for release of accused. It is clear that the VR option can be availed prior authorization of investigation which means the stage when the matter is not sub judice in any court of law. What happened in this case is the petitioner voluntarily agreed to return the amount in the instalments and the breakup of amount is already mentioned in his affidavit and this VR arrangement was made before filing reference in the court but the petitioner committed default and failed to honour and fulfil his VR obligation/commitment which commitment has not been denied in the memo of petition nor anything argued contrary before us, rather we have observed that not a single word has been mentioned in the memo of petition regarding the crucial aspect of VR agreement.
10. The arguments advanced by the learned counsel for the petitioner that after disclosure of VR documents his case has become more easiest is nothing but a figment of his imagination and or a misconceived argument. The case-law referred to above are also distinguishable. In the case of Mohammad Afaq the question of novation of contract was involved in view of the section 62 of the Contract Act. Under the novated contract, the instalments were regularly being paid by the customer/ company. No such case is made out in the case in hand. The case of Mohammad Ali Athar is based on the premise of seeking bail on medical ground. Nothing has been shown us that the petitioner is suffering from the disease or ailment as in the case of Mohammad Ali Athar, except that he had undergone open heart surgery on 26-12-2013 and required constant follow up treatment. It is nowhere stated that proper treatment or proper medication of a heart surgery patient is not possible in the jail. In the last case of Mahesh Kumar though the learned court discussed the provision of section 33-E of the NAO 1999, but in this case, the plea bargain was referred to the court, which was approved hence this court in the above cited judgment held that the amount of plea bargain would come within the definition of "other sum due under the Ordinance or as determined to be due by the Court", therefore, the provisions of section 33-E would be attracted. This case is also distinguishable to the facts and circumstances of the case in hand where the VR agreement reached between the petitioner and the NAB when no reference was filed or pending and section 25(a) applied only when the matter is not sub judice in any court of law but due to default committed by the petitioner, not only he is behind the bars but the NAB has also filed the reference and now this case has become a case of plea bargain with the approval of the court.
If the petitioner still wants to fulfil his commitment, he may apply to the Chairman NAB who in exercise of powers conferred upon him under law may accept the offer and refer it to the Accountability Court for approval as now the stage of VR is over after filing reference.
11. If the argument of the learned counsel is accepted that since VR arrangement has been made henceforth, reference is liable to be dismissed then it would create chaos and it would become a mockery of law. Every accused just to defraud and swindle the public money and then to save him from the rigors and clutches of NAB law will come forward and sign the VR agreement with the sole intention and motive to deceive the law on the notion and perception that once he signed the VR agreement, criminal liability under the reference is over and now the ,recovery proceedings will be conducted under the Land Revenue Act so that and proceedings against him should be dropped which is totally an irrational and flawed interpretation of law. Enough time was given to the petitioner to deposit the VR amount but he failed to do so thereafter, notice was given to him and finally a reference was filed. After VR agreement, signed voluntarily and without any duress, the petitioner has no right or justification to question the validity of reference or investigation conducted by NAB. The option to avail VR was valid till such time the reference was not filed and now the matter is sub judice in NAB court hence the petition cannot take the plea that recovery should have been made under the Land Revenue Act instead of filing reference against the petitioner.
12. Not only the petitioner has concealed the factum and existence of his VR agreement with NAB but we have further observed from paragraph 6 of the Reference that earlier also the petitioner was dismissed from service on 8-10-2005 on account of misappropriation of wheat amounting to Rs.23,95,575 then he was reinstated in service on 16-8-2010 subject to the payment of misappropriated amount in instalments. He was again suspended on 12-12-2012 on account of shortage of 4661 wheat bags and he was issued show cause notice. Again the petitioner submitted his undertaking that he will credit Rs.30,00,000/ on 15-3-2013. He also signed VR with NAB for the payment of 3661 missing wheat bags. The track record of the petitioner is self-explanatory.
13. As a result of above discussion, we do not find any merits in the petition which is dismissed. The Accountability Court is directed to conclude the trial and pass the judgment within a period of three months. If the case is not decided within the direction period, the petitioner may file fresh petition for bail. The petition is disposed of in the above terms.