1. AKHTAR ZAMAN MALGHANI, J.--By this judgment, we intend to dispose of Constitution Petitions Nos.478, 479 and 480 of 2002 as these matters are directed against common judgment dated 12- 9-2002, passed by the Election Tribunal, Balochistan, Quetta in Election Petitions Nos.1 of 2002, 2 of 2002 and 3 of 2002 filed by the petitioner involving identical question of law and facts. We do not consider it necessary to marshall the facts of each case except mentioning that the petitioner filed his nomination papers for contesting election from NA-270 (Lasbella-cum-Awaran), PB-44 (Lasbella-I) and PB-45 (Lasbella-II) in the forthcoming election which were rejected at the time of scrutiny by the respective Returning Officers, on the ground that the petitioner had entered into plea of bargaining under NAB Ordinance, as such, he was debarred from contesting election. Being aggrieved by the said orders the petitioner preferred above mentioned Election Petitions before Election Tribunal, Balochistan, as provided by section 14(5) of the Representation of the People Act, 1976 which were dismissed vide impugned judgment. We have heard learned counsel for petitioner M/s. Muhammad Aslam Chisthi, Senior Advocate, Hadi Shakeel Ahmed, Advocate and Deputy Attorney-General assisted by learned Assistant Advocate-General and learned Deputy Prosecutor-General (on Court's notice). The edifice of arguments of Mr. Muhammad Aslam Chishti, Senior Advocate was that the petitioner's nomination papers were rejected by therespective Returning Officers on the basis of letter dated 9th February, 2002 wherein a list of 105 persons was provided, showing them disqualified under the NAB Ordinance, but Returning Officers failed to take note of the fact that said letter was cancelled by a subsequent letter dated 12-6-2002. According to him in the first letter the name of petitioner did appear at Serial No,48 but by subsequent letter the number of disqualified persons were curtailed to 23 and the name of petitioner was not amongst those persons, as such, Returning Officer as well as Election Tribunal was wrong in coming to conclusion that petitioner was debarred from contesting election. It was further argued that petitioner was Federal Minister for Labour, Manpower and Overseas Pakistanis and he had nothing to do with Bela Builders to which the contract for construction of Labour Colony was awarded on higher rates and was, in fact, owned by his brother Abdul Sattar Lasi. He maintained that although; petitioner was arrested by NAB Authorities and released under the order of Chairman but according to him, petitioner never entered into plea of bargain nor he filed any application to this effect. The amount was also not deposited by him but by Bela Builders owned by his brother. To further substantiate his arguments he invited our intention to copy of draft, Income Tax Return and application on behalf of Abdul Sattar Lasi for Pay Order against the cheque drawn by him. It was further argued that matter in hand involves depriving a citizen of right of franchise, therefore, sections 25 and 15 must be strictly construed and before debarring petitioner from taking part in election, it must be proved that he entered into plea of bargain himself and deposited the amount. He also referred to an affidavit purported to be sworn by Abdul Sattar Lasi and annexed with the petition and argued that petitioner had no concern with Bela Builders and the amount was deposited by Abdul Sattar Lasi, sole Proprietor of the said firm, as such, the petitioner cannot be held responsible for the acts of his brother nor he can be debarred from contesting election by invoking provisions of section 15 of the NAB Ordinance. On the point of jurisdiction learned counsel was of the view that this Court has the jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, to look into the legality and proprietary of the impugned judgment. He referred to judgment reported in 1994 SCMR 1299 (Ghulam Mustafa Jatoi's case). Controverting the arguments advanced by petitioner's counsel, learned Deputy Attorney-General stated that under Article 63(L) of Constitution read with Article 8-D(2)(q) of The Conduct of General Elections Order, 2002 and S.99 of the Representation of the People Act, 1976 a person is disqualified from contesting election if he is convicted or is disqualified from contesting election under any law for the time being in force. In support of his submissions he referred to proviso of section 15 of NAB Ordinance. Further advancing his case learned Deputy Attorney-General referred to warrant of release dated 10-3-2002 issued by Chairman, National Accountability Bureau in respect of petitioner and another warrant of, release dated 17-4-2002, issued in respect of co-accused Muhammad Naeem. He stressed that the petitioner was arrested under the charges of corruption and corrupt practices as defined in NAB Ordinance and released on plea of bargain, as such, the case of petitioner falls within the definition of section 15, first proviso of NAB Ordinance. In addition, the learned Deputy Attorney-General stated that the petitioner was also convicted in another Reference No,1 of 1997 by the Accountability Tribunal of this Court on 25-8-1997, and his appeal against said conviction order is pending before Hon'ble Supreme Court. Although sentence awarded to him was suspended by the Hon'ble Supreme Court but even then he will be deemed to be a convicted person for the purpose of Article 63, Article 8-D of Elections Order, 2002 and section 99 of the Representation of People Act, 1976. To substantiate his arguments he referred to Black's Law Dictionary wherein "suspended sentence" has been defined as under:-- "A conviction of a crime followed by a sentence that is given formally, but not actually served. A suspended sentence in criminal law means in effect that defendant is not required at the time sentence is imposed to serve the sentence." Regarding jurisdiction learned Deputy Attorney-General argued that under Article 225 of Constitution election disputes are immune from the jurisdiction of this Court. However, if any decision of the Election Tribunal is "coram non judice" then this Court has jurisdiction under Article 199 of the Constitution to look into the same. He referred to case-law reported in PLD 1989 SC 396, 1996 CLC 1772, PLD 1997 Quetta 115 and PLD 1999 Quetta 1. Learned Assistant Advocate-General and Deputy Prosecutor-General supported the arguments of Deputy Attorney-General. They also referred to case-law reported in PLD 1993 SC 399 and 1990 SCMR 1309. It is pertinent to mention here that counsel appearing for parties were unanimous, in view of the rule laid down by the Hon'ble Supreme Court in judgment reported in 1994 SCMR 1299 that this Court has jurisdiction to interfere in the judgment of Election Tribunal if its order is without jurisdiction, coram non judice or based on mala tide, as such, we do not consider it necessary to dilate upon the point of jurisdiction. Coming to the merit of the case in hand it would be beneficial to reproduce sections 25 and 15 of the NAB Ordinance: "15. Disqualification to contest elections or 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 or 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 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 service of Pakistan or of any Province.
25. Voluntary return/pleas bargaining.--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--
(i) if the trial has not commenced, the Chairman, NAB may release the accused; and
(ii) if the Court has taken cognizance of the offence or the trial has commenced, the Chairman, NAB may, with the approval of the Court, release the accused.
2. Amendment of section 25, Ordinance XVIII of 1999.--(i) for subsection (a) the following shall be substituted, namely by National Accountability Bureau Ordinance, 2001 No,XXXV, dated 10th August, 2001:--
(a) Where at any time whether before or after the commencement of trial the holder of a public offence 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 or the Chairman, NAB with the approval of the Court or the Appellate Court, as the case may be, may release the accused, and
(ii) In subsection (b), for the letters 'etc.' the words and commas 'corporate body, cooperative society, statutory body or authority concerned' shall be substituted."
3. Plain reading of proviso to section 15 of the Ordinance reveals that any person who has availed benefit of section 25 of the Ordinance, he will be deemed to have been convicted under the Ordinance and shall stand disqualified for a period of 10 years 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 order to examine the case of petitioner in the light of above proviso, we would like to reproduce two Warrants of Release issued by Chairman, NAB on 10-3-2000 and 17- 4-2000 respectively.
4. WARRANT OF RELEASE Section 25 of NAB Ordinance, 1999 To INSPECTOR-GENERAL OF POLICE, BALOCHISTAN Whereas Mr. Ghulam Akbar Lasi son of Jumma Khan resident of Mullah Ch. Anwar, P.O. And Tehsil Bela, District Lasbela was arrested on the allegation of committing the offence of corruption/corrupt practices, as defined in the National Accountability Bureau; And whereas the abovesaid accused person has voluntarily paid to the NAB, the assets or gains acquired through corruption and corrupt practices, vide Pay Order No,0001667 dated 21-2-2000, of Prudential Commercial Bank Ltd., Main Branch, Karachi; And whereas I have decided to release the accused from custody/detention in exercise of my powers under section 25 of the NAB Ordinance, 1999 read with section 9(c) and section 15 of the Ordinance. Now, therefore, you are directed to release the said accused from custody/detention forthwith, if not required in any other case.
5. (Sd.)
6. Chairman, National Accountability Bureau, (Lt.-Gen. Syed Muhammad Amj ad). 10th March, 2000 WARRANT OF RELEASE Section 25 of NAB Ordinance, 1999 To Inspector-General of Police, Balochistan Whereas Mr. Ghulam Akbar Lasi son of Juma Khan, resident of Mullah Ch. Anwar, P.O. And Tehsil Bela, District Lasbela and his co-accused Muhammad Naeem Tareen son of Abdul Samad Khan, Ex-Chief Engineer, Pak. PWD, Quetta, resident of H.No,514/56-A, Madrassa Road, Quetta Cantt. Were arrested on the allegation of committing the offence of corruption/corrupt practices, as defined in the National Accountability Bureau Ordinance, 1999; And whereas Ghulam Akbar Lasi, Ex-Federal Minister and Abdul Sattar Lasi (beneficiary and brother of ex-Minister) obtained pecuniary advantage in collusion with Muhammad Naeem Tareen, their co-accused Ghulam Akbar Lasi has voluntarily paid to the National Accountability Bureau, the assets or gains acquired through corruption and corrupt practices, vide Pay Order No,0001667 dated 21-2-2000, of Prudential Commercial Bank Ltd., Main Branch, Karachi; And whereas Muhammad Naeem Tareen has voluntarily paid to the National Accountability Bureau Rs.I0 lacs vide Pay Order No,563255, dated 13-4-2000; And whereas I have decided to release the accused Muhammad Naeem Tareen from custody/detention in exercise of my power under section 25 of the NAB Ordinance, 1999, read with section 9(c) and section 15 of the Ordinance. Now, therefore, you are directed to release the said accused Muhammad Naeem Tareen.
7. (Sd.) Chairman, National Accountability Bureau, (Lt.-Gen. Syed Muhammad Amjad). 17th April, 2000.
8. The contents of these warrant leave no doubt in our mind that the petitioner was arrested under the charges of corruption and corrupt practices and was released from custody after gaining the benefit of plea of bargain as provided by section 25 of the NAB Ordinance. The arguments of the learned counsel for petitioner that he had never entered into plea of bargaining haveno substance in presence of above-referred documents. It does not appeal to mind that a-person has been arrested under specific charges and then released by taking benefit of an enabling provision; even then he can say that he is not beneficiary of the said section. We also do not agree with arguments advanced by learned counsel that the amount was deposited by the brother of petitioner being proprietor of Bela Builders, as such, petitioner cannot be held responsible for that act. When a person is under custody it is natural that the amount would be deposited by any other person on his behalf, obviously he cannot deposit amount himself, therefore, the arguments that the Pay Order was not rendered by petitioner himself or for that matter amount was arranged by his brother, do not help the case of petitioner in any way. If he was not the beneficiary of the plea of bargaining, he could have challenged the same before any Court of law or at least by making an application to Chairman NAB denying the plea of bargaining but he kept silent till the rejection of his nomination papers which shows his active acquiescence by conduct in the plea of bargaining.
9. A person cannot be allowed to approbate and reprobate in the same breath. Now reverting to the question as to whether after entering into plea of bargaining and getting himself released in 'consequence thereof he is disqualified from contesting election or otherwise.
10. The relevant provisions are reproduced hereunder:-- Article 63(p) of the Constitution of Islamic Republic of Pakistan, 1973. He is for the time being disqualified from being elected or chosen as a member of the Majlis-e-Shoora (Parliament) or of a Provincial Assembly under any law for the time being in force.
11. Section 99(1-A)(I) of the Representation of the People Act, 1976.--He is found guilty of a corrupt- or illegal practice under any law for the time being in force, unless a period of five years as elapsed from the date on which that order takes effect; or Article 8-D(2)-q of the Conduct of General Elections Order, 2002.--He is for the time being disqualified from being elected or chosen as a member of the Majlis-e-Shoora (Parliament) or of a Provincial Assembly under any law for the time being in force.
12. Above-quoted provisions clearly provide that a person who has been disqualified from being elected under any law for the time being in force will be disqualified from contesting the elections.
13. As the petitioner was disqualified by virtue of proviso to section 15 of NAB Ordinance read with section 25 of said Ordinance, therefore, we, are of the considered view that his nomination papers from all the three constituencies were rightly rejected by the respective Returning Officers. We find no jurisdictional defect in the decision of Election Tribunal whereby appeals filed by petitioner were dismissed. As regards the arguments of learned counsel that the nomination papers of petitioner were, rejected on the basis of letter dated 9-2-2002, which was later on cancelled by another letter dated 12-6-2002, are concerned it is suffice to observe that the petitioner was disqualified by virtue of section 15 of NAB Ordinance, as such, it would not matter whether the said letter was cancelled or otherwise. Moreover, careful perusal of subsequent letter shows that it relates only to taking of loan, financial assistance etc. From banks and has no bearing on the other disqualification which a person has earned by virtue of NAB Ordinance. The said letter is reproduced hereunder:-- CHIEF EXECUTIVE'S SECRETARIAT NATIONAL ACCOUNTABILITY BUREAU, ISLAMABAD SUBJECT: PROVISION OF PLEA-BARGAIN RECORD TO GOVERNOR, STATE BANK OF PAKISTAN. REFERENCE: (a) NAB's H.Q. U.O.NO.7(616)/2001-ADDI&M-4, DATED THE 9TH FEBRUARY, 2002.
(b) CE'S SECT. U.O.NO.1-1/SO(A-1)/2002/628, DATED 25-2-2002. The undersigned is directed to inform that list of 105 individuals earlier forwarded vide above- quoted letters for appropriate action (to debar them to take any loan/advances from any Bank or Financial institution for a period of ten years may be treated as cancelled).
14. Fresh list of 23 individuals (Annexure) wherein Accountability Court has debarred them from taking loan/advances from any Bank or Financial Institution for a period of 10 years is being forwarded for appropriate action to comply with the provision of respective section of NAB Ordinance. Inconvenience is regretted please.
15. (Sd.)
16. Capt. (R.) Basharat Ahmed, PN, Additional Director (IM-1).
17. Phone 9208620 It was also contended that the beneficiary of contract for construction of Labour Colony was Bela Builders, owned by brother of petitioner, as such, he cannot be held responsible for his deeds. First of all it would be suffice to observe that it involves factual controversy which cannot be looked into in writ jurisdiction. Secondly, under NAB Ordinance "corrupt practice" has been used in a wider term.
18. It not only includes pecuniary advantage gained by spouse or dependants but also by any other person. The petitioner was arrested under the said charge and he accepted the charge by entering into plea of bargaining, as such, this ground is not available to him. Upshot of above discussion is that we find no merit in the present petitions and same are dismissed accordingly.