TASSADUQ HUSSAIN JILANI, J.---Appellant was arrested on 21-2-2002 under the order of.
Competent Authority in the National Accountability Bureau and subsequently his physical remand was given by the learned Accountability Court for the purpose of investigating the case relating to non-payment of loan of Rs,4,67,30,823 (principal amount) obtained on 6-11-1991 by Toshay Incorporation (of which appellant was the Managing Partner) from Service Cooperative Credit Corporation Limited. After adding mark-up, the total outstanding amount came to Rs,6,50,01,791.
During the period of appellant's custody with the NAB, a settlement was effected by the appellant with the Punjab Cooperative Board for Liquidation through a written agreement dated 8-3-2002 which was duly approved by the concerned learned Cooperative Judge of this Court on 14-3-2002.
Pursuant to this agreement, on 15-3-2002 Chairman NAB filed application before the learned Accountability Court No,6 Lahore wherein it was prayed that the appellant be released as "he is not wanted in any other case under the NAB Ordinance". Notwithstanding this application, the Additional Deputy Prosecutor-General NAB filed an application under sections 9/10 of the said Ordinance for the release of the appellant which was allowed vide the impugned order, dated 16- 3-2002, operative part of which reads as under:-- "Request of the Ld.DPGA NAB(P) Lahore, being quite reasonable and justified, is allowed and Tariq Jawaid Khan son of Dr. Abdul Qadir, accused, is released on interim basis subject to disqualification of section 15 of the NAB Ordinance, 1999."
2. Not satisfied with the afore-referred order, which stipulated appellant's disqualification in terms of section 15 of the NAB Ordinance, 1999, appellant moved an application before the learned trial Court to pass a fresh order as he had not been heard and the application of the Chairman NAB, for appellant's release, which was already pending before the said Court, had not been considered.
The learned Accountability Court No,6 Lahore, vide order, dated 1-4-2002, dismissed the said application in the following terms:-- "Petitioners being defaulter of huge amount of Rs,4,67,30,823, when was arrested by the NAB, in this way, his release, though pursuant to an agreement with PCBL, finalized before the Honourable High Court, but it never implies that disqualification of section 15 of NAB Ordinance, are not attracted, therefore, this petition is dismissed."
3. In support of this appeal, challenging the orders dated 16-3-2002 and 1-4-2002, learned counsel for the appellant has made following submissions:--
(i) That the learned trial Court has failed to appreciate that the appellant had not entered into plea bargaining in terms of section 25 of Ordinance, 1999.
(ii) That the application of the Chairman NAB before the learned Accountability Court was not under section 25 of the NAB Ordinance and there was no prayer in the said application to disqualify the appellant. The application filed by the learned Additional Deputy Prosecutor-General before the learned trial Court was, therefore, misconceived and the Court fell in error in accepting the same.
(iii) That the Chairman NAB has the powers under section 9-C of the NAB Ordinance to release a person arrested under the NAB Ordinance without any condition whatsoever and the appellant was being released under the said provision.
(iv) That the order was passed behind the back of the appellant and he has been condemned unheard.
4. The learned Deputy Prosecutor-General NAB (Mr. Ahmed Bilal Soofi, Advocate), while defending the impugned order, submitted that a bare reading of section 25(3) of the NAB Ordinance would show that when a person who is facing inquiry or investigation, whether under arrest or not, opts to be released on the basis of plea-bargaining, he has to incur the disqualification in terms of section 15 of the NAB Ordinance which provision, according to him, is in consonance with the judgment of the august Supreme Court reported in Khan Asfandyar Wali and others v. Federation of Pakistan through Cabinet Division, Islamabad and others (PLD 2001 Supreme Court 607). He, however, on a Court query, did.Not deny the factual position that the appellant had not been sent up for trial before the learned Accountability Court and no final report under section 173, Cr.P.C. Was submitted. He further did not deny that the NAB accepted the agreement entered into between the appellant and the Punjab Cooperative Board of Liquidation which was endorsed by the High Court and moreso that the application filed by the Chairman NAB before the learned trial Court did not pray for imposing any condition with regard to appellant's disqualification.
5. We have given our anxious considerations to the submissions made at the bar and have also gone through the various provisions of the NAB Ordinance, 1999 which may have a bearing on the issues raised in this appeal.
6. Broadly speaking the propositions which have cropped up for consideration in the instant case are as under:--
(i) Whether appellant's' agreement with the Punjab Cooperative Board for Liquidation which was sanctioned by a learned Judge of this Court, could be classified as a plea bargaining agreement in terms of section 25 of the Ordinance?
(ii) Whether the application filed by the Chairman NAB pending before the learned trial Court was under section 9-C or section 15 read with section 25 of the NAB Ordinance, 1999 and whether these provisions stipulate two distinct modes of release entailing different consequences of the accused?
(iii) Whether the release of the appellant pertains to discharge under the Criminal Procedure Code and can he be re-associated with the investigation of the transaction in question or re-arrested without intervention of the Court?
7. Before a detailed comment is made on the afore-referred propositions it would be of relevance to refer to some of the provisions of the National Accountability Ordinance, 1999 which has since been amended from time to time. Section 9(c) stipulates as under:-- "9(c). Where the Chairman NAB decides to release from custody or detention a holder of public office or any other person accused of an offence under this Ordinance he shall do so after considering the gravity of the charge against such person and the accruing quantum to loss involved in the offence alleged to have been committed and may impose any reasonable conditions for such release." Section 15 of the Ordinance is relatable to disqualification of an accused who stands convicted or who avails the benefit of section 25 (plea-bargaining) and the entailing consequences. It reads as under:- "15. Disqualification to contest elections for to hold public office], (a) Where an accused person is convicted for the offence of corruption or corrupt practices as specified in the Schedule to this Ordinance, he shall forthwith cease to hold public office, if any, held by him and further he shall stand disqualified for a period of ten years, to be reckoned from the date he is released after serving the sentence, 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 in service of Pakistan or of any Province: Provided that any accused person who has availed the benefit of section 25 shall also be deemed to have been convicted for an offence under this Ordinance, and shall forthwith cease to hold public office, if any, held by him and further he shall stand disqualified for a period of ten years, to be reckoned from the date he has discharged his liabilities relating tb the matter or transaction in issue, 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 of any Province." Section 17 makes the provisions of Criminal Procedure Code applicable mutatis mutandis.
Subsections (a), (b), (c) to section 18 of the said Ordinance relate to taking of cognizance by the Court and for initiation of proceedings by the National Accountability Bureau which read as under:- - "18. Cognizance of offences.--(a) The Accountability Court shall not take cognizance of any offence under this Ordinance except on a reference made by [the Chairman NAB or an officer of the NAB duly authorized by him].
(b) A reference under this Ordinance shall be initiated by the National Accountability Bureau on--
(i) a reference received from the appropriate Government;
(ii) receipt of a complaint; or
(iii) [its] own accord.
(c) Where the Chairman NAB, or an officer of the NAB duly authorized by him, is of the opinion that it is, or may be necessary and appropriate to initiate proceedings against any person, he shall refer the matter for inquiry or investigation." Section 25(a) reads as under:-
25. Voluntary return/plea bargaining.--(a) Where at any time whether before or after the commencement of trial the holder of a public office or any other person accused of any offence under this Ordinance, return to the NAB the assets or gain acquired through corruption or corrupt practices, the Court or the Chairman NAB with the approval of the Court or the Appellate Court, as the case may be, may release the accused."
PROPOSITIONS NO.(i) AND (ii):
(i) Whether appellant's agreement with the Punjab Cooperative Board for Liquidation which was sanctified by a learned Judge of this Court, could be classified as a plea-bargaining agreement in terms of section 25 of the Ordinance?
(ii) Whether the application filed by the Chairman NAB pending before- the learned trial Court was under section 9-C or section 15 read with section 25 of the NAB Ordinance, 1999 and whether these provisions stipulate two distinct modes of release entailing different consequences of the accused?
8. A bare reading of the agreement dated 8-3-2002 (Annexure-A with the petition) would show that it was an agreement between the appellant and Punjab Cooperative Board for Liquidation (PCBL) in terms of which the appellant agreed to clear the entire outstanding loan of Rs,6,50,26,326 in six instalments ending on 31-8-2002. It was further agreed in clause (7) of the said agreement as under:- "In the event of failure to fulfil any of the terms and conditions of the Agreement or default in payment of any instalment as per above schedule would be treated as a defaulter of his agreement and liable to suffer proceedings of investigation and consequent arrest and, prosecution for offences under the NAB Ordinance, besides the forfeiture of amount already paid by First Party to Second Party." This agreement was put up before our learned brother Mr. Justice Karamat Nazir Bhandari, the learned Cooperative Judge of this Court which disposed of the matter with the following observation:- "3. The agreement seems to be lawful inasmuch as it terminates lot of litigation between the parties and also secures funds for the respondent-Board. Copy duly attested by the learned counsel for the parties has been placed on record and has been marked as "A".
4. In terms of the agreement, this petition is disposed of with no order as to costs".
9. The agreement in question was not a plea-bargaining agreement in stricto-senso as contemplated in section 25 of the Ordinance. It could be such an agreement only if the appellant had returned the outstanding loan to the National Accountability Bureau (as contemplated in section 25) which admittedly is not the case.. Even the application dated 15-3-2002, on behalf of the Chairman NAB addressed to the Accountability Court, confirms the afore-referred position, operative part of which reads as under:-- "4. He has executed an agreement with the PCBL and the Cooperative Judge has approved the same on 14-3-2002. He has also made payment of Rs,90 lacs as first instalment and furnished guarantee for payment of the 'remaining amount.
5. It is, therefore, requested that the above mentioned accused may be released as he is not wanted in any other case under the NAB Ordinance."
10. The application from Chairman NAB neither attached any condition (other than the agreement between the appellant and the PCBL) nor there was any reference' to disqualification stipulated in proviso to section 15 of the NAB Ordinance. The application, therefore, intended a release within the meaning of section 9(c) of the Ordinance. There appears to be a distinction between the release under section 9(c) and the release under section 25 of the Ordinance. Under the former provision the Chairman NAB may release accused of an offence under the Ordinance "after considering the gravity of the charge against him and may impose reasonable conditions for such -release as well". On the other hand a careful reading of section 25 of the Ordinance would show that a release could be classified as release under this provision if following features are met:--
(i) The expression "at any time before or after the commencement" underlines the legislative intent that a final or interim report under section 173, Cr.P.C., in other words, a reference has been filed and the Accountability Court has taken cognizance in terms of section 18 of the NAB Ordinance, 1999.
(ii) This section can be invoked only if the accused returns to the NAB (the underlining is ours), the assets gained or acquired through corrupt practices.
(iii) The Court itself can allow plea-bargain and may release the accused in consequence thereof; or
(iv) The Chairman NAB may release, but with the approval of the Court.
(v) Since the plea-bargain agreement has a penal dimension i,e, incurring of disqualification in terms of section 15 of the NAB Ordinance unlike the order under section 9-C of the Ordinance, it is a judicial order.
(vi) Prior to amendment in section 25 of the NAB Ordinance (vide Ordinance XXXV dated 10-8-2001) the Chairman NAB could allow plea-bargain without intervention of the Court if trial had not commenced. In view of the observations of the august Supreme Court in Khan Asfandyar Wali and others v. Federation of Pakistan through Cabinet Division, Islamabad %and others (PLD 2001 Supreme Court 607), law was amended. But for Court intervention the conditions precedent are conditions (i) and (ii) above. In the instant case, the distinguishing features are as under:--
(i) Admittedly, no reference (under section 18 of the NAB Ordinance) or report under section 173, Cr.P.C. Has been filed against the appellant.
(ii) He had returned no money to the NAB.
(iii) An application by Chairman. NAB for appellant's release was made to the Court only because it had granted the remand.
11. There is yet another circumstance supportive of the afore-referred view. The application received from the Chairman NAB did not carry with it an undertaking sighed by the appellant requesting for plea-bargain in terms of section 25. It is not denied before this Court that as per practice there is a set pro forma which has to be signed by the accused before he can avail of the benefit of the afore-referred provisions a copy of which has been placed on record. It reads as under:-- To: The Chairman, National Accountability Bureau, Chief Executive's Secretariat No,II, Constitution Avenue, Islamabad. Sub: Request for plea-bargain under section 25 read with section 15 of the NAB Ordinance, 1999. Respectfully submitted,
1. That the undersigned is an accused in Reference No,---------titled State v.----------pending in the Accountability Court comprising of---------Judge. That in the abovesaid Reference, a total amount of Rs,--------------- is alleged as the loss cause/benefit derived by the undersigned accused.
2. That the undersigned accused requests for plea-bargain and is willing to make payment of Rs,against the loss cause/benefit derived. The undersigned accused is willing to make the said payment in cash within days of acceptance of his application or plea bargain by NAB Headquarters, Islamabad.
3. That the undersigned accused pleads guilty to the allegation/charge(s) against him and is willing to return the assets and gains acquired through corruption and corrupt practices.
4. The undersigned accused understands that with the acceptance of the application of plea- bargain, the undersigned accused shall stand disqualified for 10 years from seeking or being elected, chosen, appointed or nominated as member or representative of any public office of any statutory or local authority of the Government of Pakistan.
5. That the present plea-bargain is in respect of Reference No,----------------- pending in Accountability Court No-------------- only. The present plea-bargain in no way absolves the undersigned accused from any other allegation, investigation, trial, legal proceedings in respect of any other transaction or case made thereafter or presently under investigation.
6. The plea-bargain is being done, by the undersigned accused voluntarily without any coercion, pressure and after knowing all the consequences of such plea-bargain under the NAB Ordinance.
7. The undersigned accused recognizes that plea-bargain being requested is subject to approval by the Hon'ble Accountability Court which may add any additional provision, condition, term in its own irrespective of any condition or is subject to term on which the Chairman may finalize the request for plea bargain.
8. That in view of the above undersigned accused requests for finalization of plea-bargain n and the order of release in terms of section 25 of NAB Ordinance. Signature/Thumb-impression of accused Verified by the accused Name in full---------------- NIC No,---------------- Address----------------- Date------------- _________________________ ____ Counsel------------------- Verification/Attestation by the Jail/Police Station Authorities."
PROPOSITION NO.(iii)
12. The word 'discharge' has not been used in NAB Ordinance, 1999. For purposes of criminal law 'discharge' is synonymous with release. The word 'release' has been used in sections 9(c) and 25 of the Ordinance, shall apply mutatis mutandis. The 'discharge' under the Criminal Procedure Code, takes place under various provisions contained in sections 63, 169, 170(1) and 173(3), Cr.P.C., depending upon the stage of investigation, the intent behind, the quality of evidence against the accused and the authority who passes the order.
13. A detailed discussion on the various modes of discharge, under the Criminal Procedure Code, may not be relevant for the purposes of this case but for an exhaustive understanding reference may be made to some of the precedent case-law reported in Parul Bala Sen Gupta v. The State (AIR 1937 Cal. 379), Din Muhammad Shakir alias D.M. Shakir v. D.S.P., Ichhra Lahore (PLD 1977 Lahore 180), Mst. Kausar Bibi v. Deputy Inspector-General of Police, Crimes Branch, Punjab, Lahore and 2 others (1996 PCr.LJ 124), Habib v. The State (1983 SCM R 370) and Ashiq Hussain v. Sessions Judge, Lodhran and 3 others (PLD 2001 Lahore 271).
14. So far as the instant case is concerned, the agreement between the appellant and Punjab Cooperative Board for Liquidation, inter alia, stipulates re-investigation and re-arrest in the event of its violation. As final report under section 173 Cr.P.C. Had not been submitted before the learned Accountability Court, the release of the appellant was, for all intents and purposes, was a 'discharge' under section 63 of the Cr.P.C. Which mandates as under:-- "63. Discharge of person apprehended.--No person who has been arrested by a police officer shall be discharged except on his own bond, or on bail, or under the special order of a Magistrate."
15. The release under the afore-referred provision is neither an acquittal nor does it terminate the investigation for all times to come. It is an administrative order and the person so discharged can be associated with the inquiry or investigation if the circumstances so warrant. This is in line with the law laid down by this Court in Muhammad Waseem v. Additional Sessions Judge, Dera Ghazi Khan and 3 others (1985 PCr.LJ 224) wherein it was held as under:-- "Therefore, clearly the order of discharge under section 63 cannot be interpreted to be an order of closing the investigation. This order is, therefore, only an administrative order and is not susceptible to interference in revision."
16. The import of an order under section 63 of the Criminal Procedure Code is none other than the release of the accused person from custody. It cannot, in any way, be interpreted to be the cancellation of a case or stopping of re-investigation. The impugned order, however, has two dimensions; one administrative and the other judicial. The release reflects the former, and disqualification under section 15 of the Ordinance reflects the latter dimension. The Court could not have passed a judicial order of the kind it passed, firstly, because it was not seized of a reference against the appellant and, secondly, the appellant, as per record, had not deposited any defaulted loan or asset with the NAB in terms of section 25 of the Ordinance. This tier of the order made it a final order amenable to the appellate jurisdiction of this Court in terms of section 32 of the NAB Ordinance, 1999.
17. We may also observe that the accountability of holders of public office is indeed a laudable objective but the procedure adopted and the judgment rendered must reflect transparency and strict adherence to the principles of natural justice. In the might of the State, the prosecution responsibility to apply correct law, backdrop of high blown rhetoric and the n and the Courts have an awe-inspiring hear the accused, consider his pleas and administer justice without fear or favour so that the scales of justice are kept even. The impugned order was admittedly passed without hearing the appellant. The order was not simply a benign order of release, it carried with it a stigma i,e, that the appellant shall stand disqualified to hold public office, to seek or to be elected or nominated as member of any representative body or statutory authority in Pakistan or to apply or to be granted any financial facility in the form of loan or advances during the afore-referred period. He was condemned unheard. The penal tier of the order insofar as it directed disqualification of the appellant in terms of section 25 of the NAB Ordinance cannot be sustained for this reason as well.
18. For what has been discussed in the preceding paragraphs we reiterate and hold as under:--
(i) That the Chairman NAB can release a person arrested under section 9(c) of the Ordinance without intervention of the Court provided an interim or final report under section 173, Cr.P.C., against the accused in question, has not been filed in the learned trial Court, the latter has not deposited any dues or asset with the NAB and he has not signed any agreement of plea- bargain with it.
(ii) The application filed by the Chairman NAB before the learned accountability Court for the release of the appellant, was a request for the release of the appellant under section 9(c) of the Ordinance as it neither spoke of a plea-bargain agreement between the appellant and the NAB Authorities nor it requested for his disqualification in terms of section 15 of the Ordinance.
(iii) The release of an accused under section 9(c) and section 25 of the NAB Ordinance stipulate two distinct conditions precedent and have distinct consequences as well. The former being a release or discharge simpliciter and the latter visualizing consequence of disqualification.
(iv) Since the provisions of Criminal Procedure Code have been made applicable mutatis mutandis release under section 9(c) of the NAB Ordinance would be a "discharge" under section 63 of the Cr.P.C. This order of "discharge" would not terminate or cancel the investigation qua the accused in whose favour the order has been passed.
(v) A person discharged under section 9(c) of the Ordinance read with section 63 of the Cr.P.C. Can always be associated with the investigation by the concerned Investigating Agency at any stage without permission of the Court.
(vi) If at a subsequent stage the Investigating Agency needs the custody of the accused, who stands released/discharged under the aforefreferred provision of law, he can be arrested and taken into custody but with the permission of the Court.
19. The appeal is partly allowed in terms noted above and the impugned orders dated 16-3-2002 and 1-4-2002, insofar as they disqualified the appellant in terms of section 25 of the National Accountability Ordinance, 1999, are set aside. 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.