' JAMAL KHAN MANDOKHAIL, J.---Facts of the case are that the competent authority sanctioned an investigation against the petitioner under the provisions of NAB Ordinance (the Ordinance). The petitioner filed the instant petition for grant of bail, during the pendency whereof, the parties entered into plea bargaining as provided by section 25 of the Ordinance. The petitioner agreed to pay, an amount of Rs,7.732 Million. The learned DPG NAB on 6th May 2015 informed this Court that the agreed amount has been received by the NAB Balochistan and 25% of the amount would be deducted as NAB's share In view of such statement, the learned DPG and the learned Standing Counsel were asked to explain as to in which account, the recovered amount has been deposited and under which provision of law, 25% of the amount of voluntary return and plea bargaining is being deducted as share of NAB? In compliance, the learned DPG submitted a report, supported by relevant documents.
2. Learned counsel for the petitioner stated that since the petitioner has entered into plea bargaining and the agreed amount has been deposited in the NAB account, therefore, the investigation/inquiry against him has been dropped and he is no more enquired by the NAB authorities. Learned DPG NAB confirmed his statement, as such the petition to the extent of the petitioner stands disposed. However the queries put to the learned DPG requires consideration, therefore, the learned counsel for the petitioner was to assist the Court on this legal point.
3. Learned counsel for the petitioner stated that the entire amount which the NAB authorities are receiving from a person, holding a public office of the province, must be deposited in account of the concerned provincial Government or a local body of the Province. He further added that the NAB authorities are not authorized by the law to deduct 25% of the recovered amount received through voluntary return or plea bargaining, as such, the deduction is illegal.
4. Learned Standing counsel and the learned DPG NAB opposed the contention and relied upon the documents annexed with the report. The learned counsel stated that the amount received by the NAB under the Ordinance is being deposited with the Ministry of Finance Government of Pakistan, which deducts 25% of the recovered amount for the NAB and the remaining amount is being delivered to the concerned Government. He made a reference to the letter No,2(2) DFA(CAB)/2000, Government of Pakistan, Finance Division, office of the AFS(Exp) dated the 6th July 2000, and a procedure provided by the Federal Government regarding the amount recovered through plea bargaining and voluntary return, They in the end contended that even otherwise 25% of the amount so deducted is being utilized in accordance with the NAB Recovery and Reward Rules 2002 for the NAB employees, therefore, the deducted amount is just and proper.
5. We have heard the learned counsel for the parties and have gone through the record. The NAB Ordinance extend to whole of Pakistan [all citizens of Pakistan] and persons who are/have been in the service of Pakistan, where ever they may be. It is therefore clear that the NAB authorities can investigate and prosecute cases of corruption and corrupt practices against a person holding a public office of the Federal Government or the Provincial Government or a statutory authority or against any person as defined in the Ordinance.
6. According to section 10 of the Ordinance, if it is proved that the assets and/or pecuniary resources of holder of a public office found to be disproportionate to the known sources of his income or which is/are acquired by money obtained through corruption, shall be forfeited to the appropriate Government. Similarly, under Section 25 of the Ordinance, where a holder of a public office or any other person voluntarily comes and offers the return of assets or gains acquired or made by him in the course or as the consequence of any offence, or enters into plea bargaining, the Chairman NAB may accept such offer, and such person has to deposit the agreed amount with the NAB with permission of the court. The procedure for disposal of the amount so deposited by the accused, pursuant to clause (a) of section 25 of the Ordinance has been described in subsection
(c) of the said section, which is reproduced herein-below: " The amount deposited by the accused with the NAB shall be transferred to the Federal Government or as the case may be, the provincial Government or the concerned bank, or financial institution, company, body corporate, cooperative society, statutory body or authority concerned within one month from the date of such deposit. "
7. Besides, Article 78 and Article 118 of the Constitution of the Islamic Republic of Pakistan 1973 prescribe a financial procedure of the Federation and the Provinces respectively, which are reproduced as under: "78. Federal Consolidated Fund and Public Account (I) All revenues received by the Federal Government, all loans raised by that Government and all moneys received by it in repayment of any loan shall form part of a. consolidated fund, to be known as the Federal Consolidated Fund.
(2) All other moneys-- (a)received by or on behalf of the Federal Government; or (b)received by or deposited with the Supreme Court or any other Court established under the authority of the Federation; shall be credited to the public account of the Federation.
"118. Provincial Consolidated Fund and Public Account (1) All revenues received by the Provincial Government, all loans raised by that Government and all moneys received by it in repayment of any loan, shall form part of a consolidated fund, to be known as the Provincial Consolidated Fund.
(2) All other moneys--- (a)received by or CA behalf of the Provincial Government; or (b)received by or deposited with the High Court or any other Court established under the authority of the Province; shall be credited to the public account of the Province."
8. One of the documents dated 6th of July allows the Finance Department Government of Pakistan to deduct amount at certain percentage mentioned therein, whereas, the other document contains a procedure provided by the Finance Department for the recovery and disposal of the amount recovered by NAB on account of corruption money through plea bargaining and voluntary return. Step six of the procedure is relevant, which is reproduced herein-below: "e) Step Six: Recoveries-Provincial Governments: All the amounts received by NAB from any source pertaining to the provincial governments departments/offices autonomous/ semi autonomous bodies or any other office/authority established under the provincial government shall be deposited in their respective accounts with State Bank of Pakistan after deduction of NAB share as approved by the Chief Executive vide Chief Executive Secretariat letter No, I -1(b)DDNA-1)/2000-1242, dated 06.04.2000. Details of the individual recovery effected shall be given to all concerned as detailed in step one. However, NAB share deducted from the recoveries will be deposited with Federal Account No,01 in the head of account mentioned in step two and NAB shall claim equivalent amount deposited with Federal Government from Finance Division according to procedure specified in step three to step five."
' These documents do not have a statutory backing nor are these notified in an official Gazzate. To consider legality of these documents, it is necessary to go through the Constitution and the relevant provision of law.
9.After going through the above provisions of the NAB Ordinance which deals with the recovery of the amount voluntary or through plea bargaining, there is no Provision in the Ordinance allowing NAB or any other authority to retain any portion of the recovered amount. According to Section 10 of the Ordinance, the property moveable or immovable proved to be obtained through corruption, shall be forfeited to the appropriate Government. With regard to the amount of corruption .recovered through voluntary return or on account of plea bargaining, shall be transferred to the Federal Government or as the case may be, the Provincial Government etc, as provided by sub- clause "C" of section 25 of the Ordinance. The Constitution provides financial procedure wherein, any amount received by or on behalf of the Federal Government or the Provincial Government shall be deposited in the public account of the Federation or the Province as the case may be. Thus it is very much clear that neither the Constitution nor the NAB Ordinance allows the Federal Government or the NAB to deduct any portion of the recovered amount. Rather there is direction in Articles 78 and 188 of the Constitution, and in sub-clause "C" of Section 25 of the Ordinance to deposit the entire amount recovered on behalf of the concerned Government in its respective accounts, on whose behalf, the amount is recovered. Once the amount is deposited as per directions of the Constitution, the procedure for disposal of such amount has been elaborated in Articles 79, 80 and 81 of the Constitution with regard to Federation, whereas, in Articles 119, 120 and 121 of the Constitution with regard to Provinces. Any deduction out of such amount according to the directives and procedure made by the Federal Government is therefore, contrary to the provision of the Constitution and the NAB Ordinance, hence the NAB authorities or the Ministry of Finance, Government of Pakistan are not authorized to deduct any amount from the amount so recovered in lieu of voluntary return or plea bargaininig.
10.Without prejudice to above, even otherwise, the instruction and procedure for deduction of 25% amount from the recovery of corruption money issued by the Finance Ministry Government of Pakistan is upon the NAB's proposal. The purpose and reasons advanced for such proposal was to reward the NAB officials for rendering their services, and to make the NAB establishment self- sufficient with regard to funds.
' Such deduction at source is a sort of tax. Article 77 of the Constitution deals with the levy of the tax, which is reproduced as under: "77. Tax to be levied by law only. No tax shall be levied for the purposes of the Federation except by or under the authority of the Act of [Majlis-e-Shoora (Parliament)]. "
' According to this provision of the Constitution, no authority, department, organization or any Government is authorized to receive or collect any amount for any purpose from any person, or body corporate or business entity, etc. except by enactment promulgated by the authority of the Parliament or by the Provincial Assembly. Since the instruction and the procedure provided by the Finance Department Government of Pakistan for deduction of 25% out of the recovered amount has no statutory backing, therefore, such deduction is contrary to Article 77 of the Constitution, hence is illegal on this score as well.
11. As far as the grant of reward to the officers/officials and making the NAB self-sufficient with regard to funds is concerned, the officials/officers of the NAB may be rewarded in accordance with the rules by competent authority of NAB, within its allocated budget, instead of rewarding them by deducting 25% from the amount so recovered under section 25 of the Ordinance.
Thus in view of above, it is declared as under: (a)That the procedure/instructions issued by the Finance Ministry for deduction of amount as NAB's share from the amount recovered on account of voluntary return and plea bargaining is void.
(b)That the NAB authorities are restrained from deducting any amount from the amount recovered by them on account of voluntary return and plea bargaining as provided by section 25 of the Ordinance.
(c)That the entire amount received by the NAB through voluntary return and plea bargaining as per the NAB Ordinance shall be deposited in the Public Account of the Federation or in the Public Account of the Province as the case may be, within a period of one month.
(d)That the entire amount received by the NAB authorities on behalf of the concerned bank, financial institution, company, body corporate, cooperative society, statutory body or authority concerned shall be transferred in the their respective accounts.
(e)That the entire amount of fine other than the amount of voluntary return and plea bargaining recovered under the NAB Ordinance with the assistance of Court, shall directly be deposited in the Public Account of the Federation and Public Account of the Province, or any other authority as the case may be.
(f) That any asset and pecuniary resources found to be disproportionate to the known sources of income of holder of public office, either on his name or in the name of any of his dependants or binamidars shall be forfeited to the concerned Government of which a person holding such public office belongs.
' The petition is disposed of accordingly.
' Copy of this order be sent to the Chairman NAB, DG NAB Balochistan and the Accountability Courts at Balochistan.