RAJA FAYYAZ AHMED, C.J.----These Criminal Ehtesab Appeals Nos.41, 42 and 49 of 2001 filed under section 32 of the National Accountability Bureau Ordinance (Ordinance No. XVIII) of 1999 are directed against orders dated 24-5-2001 and 30-4-2001 passed by the learned Judge, Accountability Court-II, Quetta insofar as the appellants are deemed to have been convicted in terms of proviso to section 15(a) of the Ordinance and further ordered that they shall lose their services and benefits thereof.
As identical points of law and facts relating to the accusation of the corruption and corrupt practices are involved commonly in these appeals, therefore, we; intend to dispose of these appeals by this common judgment.
2. Criminal Ehtesab Appeal No.41 of 2001.---Facts in brief of this case are that appellant Dr. Muhammad Anwar Kurd, Professor (B-20) and Head of Department of Medicine, Bolan Medical College, Quetta and one other Dr. Naseer Ahmed Achakzai were arrested in pursuance of the warrants of arrest issued by the Chairman, National Accountability Bureau on the charge of corruption and corrupt practices allegedly committed by them each in their capacity as Doctors while posted in Sandeman (Prov.) Hospital, Quetta. Before any reference could be made, the appellant and the co-accused applied for plea-bargaining in respect of such charge and alleged ill-gotten gain, amount whereof was determined by the NAB as Rs.7,20,000 relating to the appellant. On acceptance of the plea of bargain the said amount was deposited in favour of the Chairman, National Accountability Bureau. The appellant and the co-accused Dr. Naseer Ahmed Achakzai were produced before the Accountability Court-II, Quetta with an application of even date submitted in the said Court by the learned D.P.G. Accountability wherein it was stated that Dr. Muhammad Anwar Kurd and Dr. Naseer Ahmed Achakzai were arrested on the charge of corruption and corrupt practices. During their detention and investigation of the case liability of the said accused persons as to ill-gotten gain was determined respectively as Rs.7,20,000 and Rs.7,05,000, and; the plea-bargaining of the each of the accused has been accepted by the Chairman, National Accountability Bureau, therefore, the accused can be released with the approval of the Accountability Court in view of para.267 of the judgment of the Hon'ble Supreme Court passed in Khan Asfandyar Wali and others' case on NAB, Ordinance; 1999.
3. The learned Judge, Accountability Court after hearing the parties and having gone through the record and papers of the case in the light of relevant provisions of the NAB Ordinance passed the impugned order on the same date i.e. 24-5-2001, came to the conclusion that as the plea of bargain of accused persons has been accepted therefore, they shall, be deemed to have been convicted of the Offence of corruption and corrupt practices, as a result whereof they are declared to be disqualified to hold any public office, consequently; they shall lose their services and benefit of the same, accordingly it was ordered that their plea of bargain is accepted and they shall be deemed to have been convicted for corruption and corrupt practices and shall stand disqualified for ten years for seeking or from being elected, chosen, appointed as member, representative of any public office or any statutory or local authority of Government of Pakistan. Moreover: they are also not allowed to apply or be granted or allowed any financial facility in the form of any loan or advance from any bank or financial institution in the public sector for a period of ten years. Thus; the accused persons were ordered to be released if not required in any other case or offence. The application submitted by the Deputy Prosecutor-General Accountability was disposed of in terms of the impugned order.
Operating part of the impugned order is reproduced herein-below for convenience sake: "As per Accountability Bureau Ordinance, 1999 the Chairman NAB has been made the authority to accept or reject the plea of bargain, however, the Hon'ble Supreme Court vide its judgment dated 24-4-2001 has granted two (2) months' time for making suitable amendment in para.25 of NAB Ordinance which is regarding plea of bargain and the same is to be made through the Court. The observation made in the judgment of Hon'ble Supreme Court, therefore, reflect that plea of bargain can be made by accused which can be considered having regard to the facts and circumstances of the case. The plea of bargain, therefore, amounts to compromise and accused are deemed to have admitted their guilt, in consequence of which they will be deemed to have been convicted for offence of corruption and corrupt practices. Accused persons are apprised of the above position, which they accept and leave themselves to the mercy of the Court. It would be pertinent to mention that four (4) other doctors were also arrested on similar charges as made against present accused persons. They also surrendered the ill-gotten gain on which they were deemed to have been convicted and they were disqualified to hold any public office and obtain any financial/loan.
The case of present accused is at par with their case. Therefore having regard to the facts and circumstances stated above the plea of bargain of accused is accepted. They are deemed to have been convicted for offence of corruption and corrupt practices in result of which they are to be declared disqualified for 10 years to hold any public office. Hence; they shall lose their service and the benefit of the same also, which is considered to be punishment. Hence; keeping in view the above facts and circumstances the plea of bargain is accepted and accused are deemed to have been convicted for corruption and corrupt practices. They shall stand disqualified for 10 years for seeking or from being elected, chosen, appointed as member, representative of any public office or any statutory or local authority of Government of Pakistan. Accused persons are also not allowed to apply or be granted or allowed any financial facility in the form of any loan or advance from any Bank or financial institution in the public sector for a period of 10 years. Accused persons are ordered to be released if not required in any other case of offence. Application accordingly stands disposed of."
4. Pursuant to the above said order, shoes cause notice dated 10-6-2002 (copy whereof has been filed with the memo of appeal) was issued to the convicted officers as to why action in accordance with the Rule 9(1) of the Baluchistan Civil Servants (E&D) Rules, 1992 by the Competent Authority under section 2(a) of the Baluchistan Province Removal from Service (Special Provisions)
Ordinance. 2002. The appellant Dr. Muhammad Anwar Kurd feeling aggrieved of the order dated 24-5-2001 insofar as it relates to the findings and observation that he shall lose his service and benefits thereof as a punishment, has assailed the same by filing this appeal.
5. The gist of allegations against the appellant as contained in the minutes of the Plea-Bargaining Committee meeting held on 22-5-2001 are that the accused was a member of a Medical Board and during the tenure of his such assignment he accepted illegal gratification from various Government employees for issuance of illegal and unjustified invalidity in service' certificate and thereby caused loss to the State Exchequer to the tune of Rs.7,20,000. The minutes of meeting maintained by the Committee shows that the accused had requested for plea-bargaining and offered to return entire amount of ill-gotten gain i.e. Rs.7,20,000 and the same being equivalent to the amount gained through corruption was approved subject to the condition that the same shall be processed through the Accountability Court.
6. Criminal Ehtesab Anneal No.49 of 2001.---The facts relating to the case of appellant namely Dr. Nisar Ahmad Achakzai have been mentioned hereinabove. He alongwith Dr. Muhammad Anwar Kurd vide a common order dated 24-5-2001 passed by the learned Accountability Court-II Baluchistan, Quetta operating whereof has been reproduced hereinabove in view of their plea of bargain having been accepted were deemed to have been convicted for the offence of corruption and corrupt practices and declared to be disqualified for ten years to hold any public office, hence; it was observed that they shall lose their service and benefits thereof as a punishment, accordingly; the learned Accountability Court ordered that the appellant shall stand disqualified for ten years for seeking, or from being elected chosen, appointed as member, representative of any, public office or any statutory or local authority of Government of Pakistan and also not allowed to apply or be granted or allowed any financial facility in the form of any loan or advance from any bank or financial institution in the public sector for a period of ten years. Application referred to above submitted by the learned D.P.G. Was disposed of in terms of the impugned order.
The precise allegation against appellant Dr. Nisar Ahmed Achakzai as reflected from the Plea- Bargaining Committee meeting held on 22-5-2001 was that during the tenure of his assignment as member of Medical Board he accepted illegal gratification from various Government employees for issuance of illegal and unjustified invalidity in service certificate and caused loss to the State Exchequer to the tune of Rs.7,05,000. After his arrest and during investigation he requested plea-- bargaining and offered to return the amount of ill-gotten gain, which being equivalent to the amount gained through corruption was approved by the Competent Authority i.e. Chairman, NAB subject to the condition that the same be processed through the Accountability Court. Also, the appellant, apprehended that as per advice rendered to the Secretary, Government of Baluchistan, Health Department vide letter dates 15-5-2001 issued by the Services and General Administration Department in an identical case for initiating action in accordance with law in view of the order passed by the learned Accountability Court; under the E&D Rules, 1992 and under section 2(a) of Baluchistan Province Removal from Service (Special Provisions) Ordinance, 2000 (copy whereof has been filed with the memo. Of appeal) he will be deprived of his service rights, who thus has assailed the impugned order except to the extent of approval of plea bargain.
7. Criminal Ehtesab Appeal No 42 of 2001.---Appellants Doctors Saeed Ullah Khan (B-19), Abdul Rasheed (B-20) Head of Surgical Unit-III, Sandeman (Prov.) Hospital, Quetta, Mehrullah Shah Hashmi (B-20) Professor of Medicine, Bolan Medical College, Quetta and Mehboob Ali (B-19)
Assistant Professor Medicine, Bolan Medical College, Quetta were arrested on the charge E of corruption and corrupt practices in their capacity while posted as Medical Officers in the Sandeman (Prov.) Hospital, Quetta by the NAB Authorities pursuant to the arrest warrants issued by the Chairman, NAB. During the course of investigation liability of each of the appellants with regard to the alleged ill-gotten gain was determined as under:--
(i) Dr. Saeedullah Khan (appellant No.1) Rs.6,75,000.
(ii) Dr. Abdul Rasheed (appellant No.2) Rs.1,50,000 (i.e) Dr. Mehrullah Hashmi (appellant No.3) Rs.2,55,000
(iv) Dr. Mehboob Ali (appellant No.4) Rs.1,65,000 The appellant applied to the Chairman, National Accountability Bureau for plea-bargaining which was accepted and each of the appellant in terms of the determined liability deposited the amount of their liability in favour of the Chairman, NAB. Subsequent thereto the learned D.P.G. Accountability on 30-4-2001 filed application in the Accountability Court II, Baluchistan. Quetta mentioning therein that plea-- bargaining of each of the accused have been accepted by the Chairman, NAB therefore, in view of para. 267 of the judgment of the Hon'ble Supreme Court passed on NAB Ordinance subject to the approval of the learned Accountability Court the accused can be released from custody.
The learned Accountability Court vide order dated 30-4-2001 after hearing the learned Special Prosecutor and the accused persons produced before the Court and having gone through the contents of the application, record and papers submitted to the learned Court and the judgment passed by the Hon'ble Supreme Court observed in the order that the accused persons by making request for plea of bargain and having deposited the amount of liability will be deemed to have been convicted of the offence under the law, thus; the accused persons/appellants produced before the Court were informed accordingly by the learned Judge, which they accepted and as both the parties agreed to the terms of bargain, therefore in view of the judgment of the Hon'ble Supreme Court plea-bargaining was accepted and it was specifically mentioned in the order passed by the learned Court that the accused persons shall be deemed to have been convicted of the offence of corruption and corrupt practices as a result whereof they were declared to be disqualified to hold any public office therefore, they shall lose their services and benefits thereof as a punishment consequently; it was ordered that they shall be deemed to have been convicted for the corruption and corrupt practices and shall stand disqualified for ten years for seeking or from being elected, chosen, appointed as member, representative of any public office or any statutory or local authority of Government of Pakistan and they are also not allowed to apply or be granted or allowed any financial facility in the form of any loan or advance from any bank of financial institution in the public sector. The application submitted by the D.P.G. Was disposed of in terms of the impugned order.
These appellants have assailed the impugned order insofar as it relates to the findings and order that they shall be deemed to have been convicted for the offence and shall lose their services and benefit thereof etc.
8. Mr. Muhammad Aslam Chishti the learned counsel for the appellants, Mr. Azizullah Memon, Advocate and Mr. M.S. Rakhshani, the learned D.P.G. Have been heard at length. Mr. Muhammad Aslam Chishti contended that unless the law was amended on the subject in terms of the direction of the Hon'ble Supreme Court as contained in its judgment passed in the case of Khan Asfandyar Wali and others v. Federation of Pakistan through Cabinet Division, Islamabad and others reported in (PLD 2001 SC 607), according of approval for the acceptance of plea-bargaining could not have been lawfully sought for from the learned Accountability Court nor any such jurisdiction could have been exercised by the said Court prior to the amendment made in section 25 of the NAB Ordinance vide Ordinance No. XXXV of 2001 dated 10-8-2001 hence; the transaction regarding plea- bargaining which stood finalized on its acceptance by the Chairman NAB pursuant to which the alleged ill-gotten gain was deposited in favour of the NAB by each of the appellants, as determined by NAB Authorities and thereupon the appellants were entitled to be released from custody. He next argued that the direction made by the Hon'ble Court as contained in the above- said judgment was only directory in nature and being not mandatory was not required to have been given effect to by the Accountability Court unless the law was amended to such effect but prior to the amendment made in terms of the order of the Hon'ble Apex Court, the penal provisions of deeming clause to section 15 of NAB Ordinance, 1999 could not have been pressed into service therefore, the consequential order passed by the learned Accountability Court is coram non judice, void and without jurisdiction. According to the learned counsel; the case of the appellants was governed by on acceptance of the plea---bargaining under section 25 of the NAB Ordinance; 1999 as enacted in its original form therefore, no consequential penalty by virtue of the amendment subsequently carried out in section 25 of the NAB Ordinance could have been lawfully enforced.
Moreover; the learned counsel contended that since no analogous provisions as contained in Article 203-D of the Constitution of Islamic Republic of Pakistan, as is available to the Hon'ble Federal Shariat Court under the Constitution or any other law for the time being in force existed, therefore, the direction as contained in the judgment of the Hon'ble Supreme Court referred to above was to take effect after two months on formal promulgation of appropriate law, but prior to expiry of such period the impugned orders were passed by the learned Accountability Court.
Further the learned counsel argued that since cognizance in the matter or for any offence was not taken by the learned Accountability Court nor any reference was filed before it by the Chairman, NAB, rather; a miscellaneous application was moved by the learned D.P.G. Seeking for approval of the learned Court of the plea-bargaining, accepted by the Chairman, NAB, therefore, without prejudice to the grounds urged during arguments noted above, the deeming clause to section 15 of the NAB Ordinance could not have been made applicable and enforced against the appellants as they were not charged or accused of any specific offence and the notional/fictional conviction as per proviso to section 15 of the Ordinance did not entail the penal consequences of the deeming clause and; at best the learned Accountability Court could have exercised powers for according approval of the acceptance of the plea-bargaining.
9. Mr. Azizullah Memon, Advocate assisted by Mr. Muhammad Aslam Chishti, Advocate in Criminal Ehtesab Appeal No.42 of 2001, in addition to the arguments put forth by Mr. Muhammad Aslam Chishti, Advocate contended that acceptance of the plea-bargaining is in the nature of the compounding of the offence, needed only approval of the Court which on grant of approval by the Court does not attract or entail the penal consequences and the jurisdiction so exercised by the Accountability Court directing for the forfeiture of the service rights of the appellants in addition to the other specified consequences amounted to the mis-exercise of jurisdiction by the said Court for the reason that even prior to the judgment passed by the Hon'ble Supreme Court in the case of Khan Asfandyar Wali and others, the alleged ill---gotten gain was deposited in favour of the Chairman, NAB i.e. On 23-4-2001 in the National Bank of Pakistan, deposit receipts whereof have been filed on record through Criminal Miscellaneous Application No.327 of 2002 and thus; the transaction ended and finalized between the parties which being a past and closed one did not entail penal consequences as envisaged by the proviso to section 15 of the NAB Ordinance. The learned Accountability Court in the circumstances of the case at best was required to have accorded approval of the acceptance of plea-bargaining, but in the misexercise of powers vesting in the learned Court the penal provisions of the proviso to section 15 were enforced, consequently; the impugned order to such an extent being not sustainable is liable to be set aside. The learned counsel for the appellants in Criminal Ehtesab Appeals Nos.42 and 49 of 2001 further argued that since on identical points Criminal Ehtesab Appeal No.41 of 2001 has been admitted for hearing, therefore, in all fairness the delay in tiling the appeal may in the interest of justice be condoned and secondly; the copy of the impugned order was not supplied to the appellants by the learned Accountability Court and they were unaware of the contents of the order except that they were informed about the approval of the plea-bargaining by the learned Court and thirdly; as the order to the extent of forfeiture of the appellant's service rights and benefits thereof was in the excess of the authority exercised by the learned Accountability Court therefore, no limitation shall run against such void order.
10. Mr. M. S Rakhshani, the learned D.P.G. Contended that the appellants were arrested by the NAB Authorities pursuant to the arrest warrants issued by the Chairman, NAB and during the course of investigation of the case on the charge of corruption and corrupt practices; the ill-gotten gain of each of the appellants was determined, which they acknowledged and accepted out of their free- -will and accord and in order to avail the benefit of plea-bargaining as envisaged by law, they voluntarily offered to deposit the same. The request so made was considered by the Committee so constituted under law and finally the same was accepted by the competent authority i.e. Chairman, NAB being equivalent to the loss caused to the State Exchequer by the appellants during the performance of their official duties by committing corruption and corrupt practices and thereupon on acceptance of plea---bargaining each of the appellants deposited the amount of ill-gotten gain. Consequently; in view of the judgment passed by the Hon'ble apex Court or 24-4- 2001 in Khan Asfandyar Wali and others' case the appellants were produced before the Accountability Court-II, Quetta by tiling a miscellaneous application by the learned D.P.G., NAB containing above mentioned facts, seeking for approval of the acceptance of plea-bargaining from the learned Court in view of paragraph.267 of the above-said judgment. After hearing the parties, according to the learned D.P.G. The impugned orders were passed by the learned Accountability Court, to which no exception can be taken. As the appellants availed benefit of plea-bargaining by admitting their criminal liability; pursuant to which the ill-gotten gain was also deposited in favour of the Chairman, NAB by each of the appellants therefore, the penal consequences irrespective of non-substitution of section 25 of the NAB Ordinance, till the date of promulgation of Ordinance No.XXXV of 2001; in terms of the directions of the Hon'ble Supreme Court, approval of the Accountability Court with regard to plea---bargaining was required and penal consequences in terms of the proviso to: section 15 of the Ordinance shall follow to which, specific reference was made in the impugned orders. He further contended that the direction as contained in the above-said judgment passed by the Hon'ble Supreme Court shall take effect immediately and since the approval plea of bargain was not accorded prior to the judgment passed by the Hon'ble Supreme Court, therefore the direction as contained therein was to take effect forthwith and the period specified in the judgment for promulgation of the legislative instruments or substitution of section 25 of the said Ordinance on 10-8-2001 will have no bearing in the case. According to the learned D.P.G. The Criminal Ehtesab Appeals Nos.42 and 49 of 2001 also being hopelessly barred by time and there being no valid and legal ground for condonation of the delay, are liable to be dismissed, inasmuch as; the appellants were duly informed by the learned Judge, Accountability Court about the contents of the orders and the penal consequences to follow on approval of the plea-bargaining by the learned Court in terms of proviso to section 15 of the NAB Ordinance, 1999.
11. The contentions put forth on behalf of the parties by their learned counsel have by in considered in the light of the impugned orders, relevant provisions of the Ordinance with specific reference to the provisions of sections 15 and 25 of the NAB Ordinance, 1999: the amendments made and carried out in respect of these sections of the Ordinance. Also, the pleadings as well as the judgment passed by the Hon'ble Apex Court on NAB Ordinance in the case of Khan Asfandyar Wali and others reported in PLD 2001 SC 607 have been considered and perused including orders impugned in these appeals. The admitted position is that the appellants were arrested by the NAB Authorities pursuant to the arrest warrants issued by the Chairman, NAB on the accusation of having committed offence of corruption and corrupt practices while holding assignment as members of the Medical Board in Sandeman (Prov.) Hospital, Quetta during their tenure of office as public servants in the course whereof they accepted illegal gratification from various Government servants and issue illegal, false unfitness invalidity in service certificates in favour of such Government employees and thereby caused loss to the State Exchequer as well received ill-gotten gain. During the period of their custody with the NAB Authorities and investigation of the case; the ill-gotten gain of each of the appellants was determined which none of them disputed and they moved for plea---bargaining by offering to deposit the determined amount of ill-gotten gain in favour of the Chairman, NAB. The request so made was considered by the Committee constituted for the purpose under the law on 19-4-2001 in respect of accused persons/Dr. Saeedullah Khan, Mehrullah Hashmi, Abdul Rasheed Lango and Mehboob Ali (Criminal Ehtesab Appeal No.49 of 2001) and on 22-5-2001 in respect of Dr. Nisar Ahmed Achakzai and Dr. Muhammad Anwar Kurt, (subject- matter of Criminal Ehtesab Appeals Nos.41 and 42 of 2001). Finally the committee having considered the plea---bargaining of the accused persons in the light of the accusation against each of them and the determined liability of the appellants with regard to the ill-gotten gain being equivalent to the amount gained through corruption accepted the offer pursuant to which the appellants in Criminal Ehtesab Appeal No.4t of 2001 i.e. Dr. Abdul Rasheed Lango on. 21-4-200.1 and the other appellants on 23-4-2001, deposited the amount of ill-gotten gain in favour of the Chairman, NAB prior to the judgment passed by the Hon'ble Supreme Court in the above-quoted case, decided by the Hon'ble Supreme Court on 24-4-2001 whereas; Dr. Anwar Kurd and Dr. Nisat Ahmed (appellants) in Criminal Ehtesab Appeals Nos.41 and 49 of 2001, subsequent to the plea- bargaining Committee meeting held on 22-5-2001 and prior to the impugned order dated 24-5- 2001 each deposited the amount of determined ill-gotten gain it favour of Chairman, NAB. The learned D.P.G. Accountability submitted miscellaneous application in the Accountability Court-II, Baluchistan. Quetta mentioning therein that the ill-gotten gain by each of the appellants has been deposited in favour of the Chairman, NAB on acceptance of their plea-bargaining, therefore, in terms of the direction of the Hon'ble Apex Court as contained in paragraph 267 of the judgment approval of the acceptance of plea-bargaining may be accorded and the accused persons be ordered to be released from custody.
Also, it is an admitted position that the appellants availed the benefit of their plea-bargaining and their unqualified offers as to the ill-gotten gain obtained by corruption was accepted by the competent authority pursuant to which each of them deposited the amount in favour of the Chairman, NAB, amounts to the acceptance of guilt/accusation to which no exception can be taken nor any one of them when produced before the Accountability Court expressed any reservation. The order assailed in the Criminal Ehtesab Appeal No.49 of 2001 abundantly shows that the appellants in this appeal were specifically informed by the learned Judge, Accountability Court that approval by the Court of their bargaining would amount to the admission of accusation and the guilt, which they categorically accepted and further they were informed by the learned Court, that the penal consequences as provided under the law shall follow, which too were accepted by them. Further the order shows that the terms and conditions of the plea-bargaining were admitted by the said appellants. Irrespective of the acceptance of penal consequences by the accused persons, it is pertinent to note that the statutory provisions of law on the subject takes its own effect which cannot be made subject to the consent of the accused on approval of the plea-bargaining by the Accountability Court and thus; the provided consequences of the statute to follow automatically being mandatory in nature as envisaged by proviso to section 15 of the NAB Ordinance, 1999 which may or may not be specifically mentioned in the order by the Accountability Court.
12. Reverting to the contentions of the appellants' learned counsel; the judgment passed in the ease of Khan Asfandyar Wali and others, on NAB Ordinance reported in PLD 2001 SC 607 was passed on 24-4-2001 it was held by the Hon'ble Apex Court that plea-bargaining/compromise being in the nature of compounding the offences the same should be subject to approval of the Accountability Court and further it was observed in paragraph No.267 of the judgment that in the interest of revival of economy and recovery of outstanding dues, any type of alternate resolution like 'plea-- bargaining' as envisaged under section 25 of the Ordinance should be encouraged and an accused can be persuaded without pressure or threat to agree on a settlement figure subject to the provisions of the Ordinance. Further the Hon'ble Court observed that establishing this procedure at the investigation/inquiry stage greatly reduces determination of such disputes by the Court, accordingly; it was directed that section 25 of the impugned Ordinance be suitably amended. The Hon'ble Supreme Court while parting with the judgment observed that the order and the directions contained therein shall come into force with immediate effect. However, the Federal Government was directed to formally promulgate appropriate legislative instruments, as soon as possible, within a period of two months, from the date of order to make necessary amendments modification, alteration or substitution, as the case may be, to give effect to the above directions.
The bare reading of the order and direction as contained in the judgment of the Hon'ble Supreme Court evidently shows that the same shall come into force with immediate effect, however; time was allowed to the Federal Government to suitably amend the law, as soon as possible, but preferably within a period of two months from the date of the order and thus; it would not mean that the directions and the order passed by the Hon'ble Apex Court will take effect from the date of necessary and suitable amendments, which were to be made in terms of the judgment of the Hon'ble Supreme Court.
By virtue of provisions of Article 189 of Constitution of Islamic Republic of Pakistan any decision of the Supreme Court shall have to take effect, to the extent that it decides question of law or is based upon or enunciates a principle of law-- be binding on all other Courts in Pakistan and there being no analogous provision in the Constitution as contained in Article 203-D the decision of the Hon'ble Supreme Court insofar as it decides a question of law which is based upon or enunciates a principle of law not only shall be binding on all other Courts of Pakistan but shall also take effect immediately unless directed otherwise by such Court or made subject to any express qualification.
The provisions of this Article of the Constitution stands fully attracted in view of the decision rendered by the Hon'ble Supreme Court: on questions of law i.e. Law declared by the Court also involving enunciation of principles of law, containing necessary order and directions to come into effect and enforced immediately, therefore, substitution of section 25 of the Ordinance by promulgation of Ordinance XXXV of 2001 on 10-8-2001 shall (not prior to the date of impugned orders) have no bearing in the case of the appellants, accordingly the approval of plea-bargaining was required to have been sought for from the Accountability Court and necessitated in terms of the direction of the Hon'ble Supreme Court as contained in paragraph 267 of the judgment notwithstanding the promulgation of the above-said Ordinance on 10-8-2001: substituting subsection (a) of section 25 of NAB Ordinance, 1999 as under:-- "(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 returns to the NAB the assets or gains acquired through corruption or corrupt practices, the Court of the Chairman, NAB with the approval of the Court or the Appellate Court, as the case may be, may release the accused."
The contention of Mr. M. Aslam Chishti is devoid of any substance that the direction of the Hon'ble Apex Court was only directory in nature. The bare reading of the order and directions of the Hon'ble Apex Court as contained in the judgment unambiguously and in clear terms indicates its being mandatory in nature, which shall have to be given effect to immediately without waiting for the promulgation of the necessary and required legislation in terms of such directions and the order, therefore, very appropriately the learned D.P.G. Submitted application in the Accountability Court seeking for approval of the plea-bargaining of the accused persons, who were also produced in the Court at the same time. The plea that transaction regarding acceptance of plea---bargaining stood finalized by the Chairman. NAB, pursuant to which the alleged ill-gotten gain was deposited by the accused persons as determined by the NAB Authorities, entitled the appellants to be released from custody for being a past and closed transaction is without any substance for the reason that the same was made subject to the approval of the Accountability Court in terms of the order of the Hon'ble Apex Court, irrespective of the fact that the amounts of ill-gotten gain was deposited by the appellants prior to the approval of the Accountability Court. Consequent upon approval of the plea---bargaining by the Accountability Court, the penal provisions as contained in the proviso to section 15 of the NAB Ordinance, 1999 being mandatory in nature shall as per on its own force, would be applicable and therefore the consequential order passed by the learned Accountability Court containing specific reference of the disqualification and other entailing penalties provided by the proviso to section 15 of the NAB Ordinance, 1999 would not render the order to this extent as void and without jurisdiction.
13. Admittedly, before any reference could be filed; the appellants deposited the ill-gotten gain as determined during the course of the investigation of the case by, availing plea-bargaining accepted by the competent authority and subsequently; ap--proved by the learned Accountability Court; amounts to the acceptance of the accusation and the guilt on the part of the accused persons and therefore, in view of such admitted factual aspect of the matter, although; the accused persons having not' been actually tried for any offence under the NAB Ordinance, yet; by virtue of proviso to section 15 of NAB Ordinance, 1999 only having availed the benefit of section 25 shall be deemed to have been convicted for an offence under the NAB Ordinance, who shall forthwith cease to hold public office held by them and further they shall stand disqualified, for a period of ten years to be reckoned from the date they have discharged their liabilities relating to 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 the service of Pakistan or any province, however, as the appellants were not tried and convicted for any offence as described at Serial No. 1 of the Schedule to Ordinance, therefore, their dis-- entitlement to be allowed to apply for or be granted or allowed for any financial facilities in the form of any loan or advances or other financial accommodation by any bank or financial institution owned or controlled by the Government for a period of ten years from the date of their conviction as provided in clause (b) of section 15 of the Ordinance, will not be applicable, therefore, to this extent only the impugned orders being not sustainable are set aside.
14. The orders impugned in Criminal Appeals Nos.42 and 49 of 2001 respectively were passed by the learned Accountability Court on 30-4-2001 and 24-5-2001. Appellants in Criminal Ehtesab Appeal No.42 of 2001 applied for grant of copy of the order dated 30-4-2001 on 2-6-2001 which was supplied to the appellants on the same date whereas; appellant (Dr. Nisar Ahmed Achakzai) in Criminal Ehtesab Appeal No.49 of 2001 applied for certified copy of the order dated 24-5-2001 on 20-6-2001, which too was supplied to him on the same date. Appellants Dr. Saeedullah Khan and three others assailed the impugned order by filing Criminal Ehtesab Appeal No.42 of 2001 on 4-6- 2001 challenging the impugned order dated 30-4-2001 and appellant Nisar Ahmed tiled appeal on 30-6-2001 challenging the impugned order dated 24-5-2001 (Criminal Ehtesab Appeal No.49 of 2001). These appeals were required to have been filed within a period of ten days from the date of the impugned orders passed by the learned Accountability Court under section 32(a) of NAB Ordinance, 1999. As admittedly both the appeals were filed beyond the prescribed period of limitation, in both the appeals Criminal Ehtesab (Miscellaneous) Application No.43 of 2001 and Criminal Ehtesab (Miscellaneous) Application No.50 of 2001 were filed seeking for condonation of delay in filing the appeals on almost identical grounds. Reply to these applications were not filed on behalf of the State, however: it is an undisputed position that the accused persons/appellants were produced before Accountability Court and in their presence the impugned orders were passed and tour the first tune they applied for the copy of the impugned orders on the date mentioned above which were supplied to them on the same dates. It was urged during tile course of arguments that copy of the impugned orders were not supplied to the appellants by the Court and only on obtaining copy of the impugned orders they carne to know that adverse orders, were passed by the learned Accountability Court simultaneously on approval of the plea of bargain, they tiled the appeals without further loss of time. It may be seen that the learned Accountability Court on passing, of the impugned orders was not obliged or required to have supplied copy of the orders to the appellants on acceptance of plea of bargain. Perusal of the orders indicate that they were present in Court and both the parties were also heard whereafter the impugned orders were passed. Appellants in Criminal Ehtesab Appeal No.42 of 2001, as per contents of the impugned order were specifically informed by the learned Judge, Accountability Court that on having availed the benefit of plea of bargain they shall be deemed to have convicted and the penal 'consequences shall accordingly follow; which they acknowledged and accepted, hence; it cannot be said that they were unaware about the adverse order having been passed by the learned Court.
Apart from such an aspect of the case, as the appellants in both the appeals were present in Court and the impugned orders were passed in their presence, therefore, it cannot be conceived that they were unaware about the contents of the impugned orders, which respectively were passed on 30-4-2001 and 24-5-2001 in their presence and secondly; in case the appellants were aggrieved of the order and wanted to challenge the same, they could conveniently file application for grant of the copy of the impugned orders but they did not do so till the above mentioned dates when already the prescribed period of limitation for filing of appeals had elapsed. It appears that as contended in Criminal Ehtesab (Miscellaneous) Application No.51 of 2001 (filed in Criminal Ehtesab Appeal No.49 of 2001) and Criminal Ehtesab (Miscellaneous) Application No. 328 of 2002 (filed in Criminal Ehtesab Appeal No.42 of 2001) that pursuant to the action contemplated to be taken in terms of the impugned order effecting service rights of the appellants, they filed application for grant of the copy of impugned orders to them on the abovesaid dates, therefore, in such circumstances of the case, condonation of delay in filing the appeal beyond the prescribed period of limitation cannot be mechanically granted notwithstanding the fact that reply was not filed on behalf of the State to the applications for condonation of delay. Also condonation of the delay has been sought for on the ground that as the impugned orders were passed by the learned Accountability Court in the excess of authority vesting in it, therefore, the same being void and nullity in the eye of law did not attract the normal consequences for these appeals having not been tiled within the prescribed period of limitation; in our considered view, is devoid of any substance for the reason that the learned Accountability Court, as above held on approval of plea- bargaining within the specified statutory parameters rightly observed that since they availed the benefit of section 25 of the Ordinance, they shall also be deemed to have been convicted for the offence under the Ordinance entailing the consequences as laid down in the proviso to section 15 of the Ordinance, moreover;, as above-noted as the impugned orders were passed in presence of these appellants, therefore, the plea that the same were passed in excess of the authority vesting in the Court by itself does not result into the extending of the prescribed period of limitation for filing of appeal allowing premium to them for filing of appeal as and when so needed or desired.
Consequently; for the added reasons, Criminal Ehtesab Appeals Nos.42 and 49 of 2001 being barred by time, are dismissed. The Criminal Ehtesab (Miscellaneous) Applications Nos.43 and 50 of 2001 for condonation of delay stand rejected.
Thus, for the above mentioned reasons except to the extent mentioned in para. No.13 of this judgment, Criminal Ehtesab Appeals Nos.41, 42 and 49 of 2001 being without any merit, are dismissed.