The petitioner Qaiser Amin Butt/Director of M/s. Paragon City (Pvt.) Ltd. who is in the custody , through the instant petition filed in terms of Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, prays for his release on post arrest bail in Inquiry No, 1(9)HQ/1832/NAB-L dated 10.1.2018 facing the allegation that he alongwith other co-accused persons Launched Paragon City (Pvt.) Limited Housing Scheme, Lahore in the year 2005 on the basis of fake and forged documents which scheme in the year 2013, was merged into Lahore Development Authority but record of the same was not transferred to LDA. He is also facing the allegation that he with the connivance of his co-accused, cheated and defrauded the public at large and grabbed a sum of Rs, 250 million on the pretext of allotment of plots in Paragon Housing Scheme, Lahore by issuing bogus allotment letters.
During the physical remand, it transpired that the petitioner being Director of M/s. Paragon City (Pvt.) Ltd. aided, connived, assisted and abetted Nadeem Zia, co-accused and others in commission of offences of cheating the public at large and misappropriation of funds collected from the general public.
2. Learned counsel for the petitioner submits that the petitioner has made full disclosure of the facts through his statement recorded under Section 164, Cr.P.C., in consequence whereof full pardon has been granted to him by the Chairman, NAB in terms of Section 26(a)(i) of the National Accountability Ordinance, 1999, and he (petitioner) is also committed to remain bound to appear as prosecution witness before the learned Accountability Court, Lahore where the reference would be filed. He further submits that since the reference has yet not been filed, therefore, further incarceration of the petitioner will not serve any useful purpose, particularly when the petitioner is not required for further investigation/inquiry into the matter . Lastly , he submitted that the NAB authority has also no objection on release of the petitioner from the jail, therefore, the petitioner may be granted post arrest bail.
3. On the other hand, the learned Special Prosecutor for NAB assisted by Khewer Ilyas, Director NAB, Lahore submits that since the Chairman, NAB, while exercising powers under Section 26(a)(i) of the National Accountability Ordinance, 1999, has granted full pardon to the petitioner , therefore, he has no objection on acceptance of this petition and release of the petitioner in consequence of the same.
4. Arguments heard. Record perused.
5. From the arguments advanced by learned counsel for the petitioner as well as the learned Law Officers and scanning of the record, it is gathered that Qaiser Amin Butt who is Director of M/s. Paragon Housing Society , Lahore is facing the allegation of aiding/abetting the co-accused Nadeem Zia and others who, in connivance with the petitioner embezzled a, huge amount from the general public on the pretext of allotment of plots in the above mentioned housing society , which was not registered in accordance with law with the concerned departments i,e, LDA and TMA Aziz Bhatti Town, Lahore and at the time of merger of the above mentioned Paragon Housing Society into Lahore Development Authority , its documents were not handed over to LDA and the accused persons, allotted so many commercial plots on the basis of fake/forged documents.
6. It has surfaced on record that during the course of investigation, the petitioner requested for tender of pardon under Section 26 of the National Accountability Ordinance, 1999, which request of the petitioner has been accorded by the Chairman, NAB on 05.12.2018 and in consequence of the same statement of the petitioner under Section 164, Cr.P.C. has also been recorded by the learned Judicial Magistrate concerned. As a sequel to the above, the Chairman NAB has granted pardon to the petitioner .
7. The Chairman, NAB is empowered under Section 26 (a) of the National Accountability Ordinance, 1999 to tender a full or LL conditional pardon to a person with a view to obtain evidence supposed to have been directly or indirectly concerned or privy to any offence, at any stage of inquiry/investigation or trial. This provision contained the word "Notwithstanding anything contains in the Code" meaning thereby that being a provision of Special Law, the NAB Ordinance, 1999 shall have a preference over the Code of Criminal Procedure, 1898. The further perusal of this provision shows that it also deals with the effect of accepting such tender of pardon to a person at the stage of inquiry/investigation or trial and it also stipulates that he would not be tried if had been granted full pardon, otherwise, would be tried partially be awarding a punishment or penalty not higher to the one specified in the law . Section 26 of the National Accountability Ordinance, 1999 is reproduced as under:-- "26. T ender of Pardon[......]:
(a) Notwithstanding anything contained in the Code, at any stage of [inquiry , investigation or trial], the Chairman
[NAB] may, with a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in or privy to any offence, tender a full or conditional pardon to such a person on condition of his making a full and true disclosure of the whole of the circumstances within his knowledge relating to the said offence including the names of the persons involved therein whether as principals or abettors or otherwise.
(b) Every person accepting a tender of pardon under sub-section (a) shall be examined [by a Magistrate and shall also be examined] as a witness in the subsequent trial.
(c) Subject to sub-section (d), the person to whom pardon has been granted under this section shall not--
(i) In the case of a full pardon be tried for the of fence in respect of which the pardon was granted; and
(ii) In the case of conditional pardon be awarded a punishment of penalty higher or other than that specified in the grant of pardon notwithstanding the punishment or penalty authorized by law .
(d) Where the Chairman NAB certifies that in his opinion, any person who has accepted such tender has, either by willfully concealing anything essential or by giving false evidence through willful or reckless mis-statement, not complied with the condition on which the tender I of pardon] was made, such a person may be tried for the offence in respect of which the pardon was so tendered, or for any other offence of which he appears to have been guilty in connection with the said matter including the offence of giving false evidence, which he knows or ought or know is false.
(e) Any statement made before la Magistrate] by a person who has accepted a tender of pardon may be given in evidence against him at [the] trial.
It is evident from the perusal of sub-section (c)(i) of Section 26 of the National Accountability Ordinance, 1999, that when an accused is granted full pardon then he shall not be tried for the offences in respect of which pardon was granted. As the full pardon has been granted to the petitioner in this case and he is not to be tried for the offence(s) of this case, therefore, no useful purpose shall be served by keeping the petitioner behind the bars as a punishment. Although, under Section 337, Cr.P.C. it is provided that an accused to be kept in confinement till final decision of the case but Section 3 of the National Accountability Ordinance, 1999 provides that the provisions of the said Ordinance shall override the other laws. As mentioned earlier , the NAB Ordinance, 1999 is a special law and in the light of Section 26(c)(i), no trial of the petitioner is to be conducted in this case. as he has been granted full pardon by the Chairman, NAB, therefore, bar contained in Section 337(3), Cr.P.C. is not applicable to the case of the present petitioner . Even otherwise, the bar under Section 337(3), Cr.P.C. is not absolute and bail may be granted to an approver under Section 561-A, Cr.P.C. in the cases of hardships or injustice as observed in the case of "Abdul Latif vs. The State" (PLD 1975 Karachi 159). As the petitioner is not to be tried in this case, therefore, keeping him behind the bars for indefinite period would amount to hardship and injustice.
8. As the Chairman NAB, while exercising his powers bestowed upon him under Section 26(a) read with Section 26(c)(i) of the National Accountability Ordinance, 1999 has granted full pardon to the petitioner which has further been supported by the statement of the petitioner recorded under Section 164, Cr.P.C., therefore, this Court cannot withhold its benefit even at bail stage. In the wake of above mentioned facts, the case of the petitioner squarely falls within the ambit of further inquiry entitling him to the concession of post arrest bail.
9. For what has been discussed above, the petition is hand is allowed and Qaiser Amin Butt, petitioner is admitted to post arrest bail subject to his furnishing bail bonds in the sum of Rs, 1,000,000/-(Rupees One million only) with two sureties in the like amount to the satisfaction of the learned trial Court.
10. However , it is made clear that the petitioner shall surrender his passport with the NAB and his name be placed in the Exit Control List (ECL) forthwith before his release.