Makhdoom Syed Ali Raza Shah, applicant, seeks suspension of his conviction and sentence awarded to him by the learned Judge, Accountability Court, Rawalpindi, vide his judgment, dated 15-7-2000, under section 15 of the National Accountability Bureau Ordinance, 1999 (hereinafter called as NAB Ordinance), on the basis of plea bargaining provided by section 25 of the ibid. Ordinance disqualifying him for 21 years from seeking or from being elected, chosen, appointed and nominated as a member or representative of any public office or any statutory or local bodies of the Government of Pakistan on account of corruption/corrupt practices. He was further disentitled to avail of any financial facilities in the form of any loan or advances from any Bank or Financial Institutions owned or controlled by the Government for a period of 10 years. The applicant has challenged his conviction and sentence through Criminal Appeal No. 1127 of 2000.
2. A Reference bearing No. 14 of 2000 under section 18 read with section 24 of the NAB Ordinance, 1999 (XVIII of 1999) was filed by the NAB against the applicant and five others namely Muhammad Nawaz son of Karmoo, Muhammad Iqbal son of Muhammad Nawaz, Rana Altaf Hussain, Mirza Akhtar Hussain, S.D.O. LG & RD Toba Tek Singh and Riaz Ahmad, Sub---Engineer, LG & RD Toba Tek Singh, with the allegations that the said applicant had sponsored the scheme for construction of Community Centres in the areas of Shah Pur Abadi Nasarnagar, Jewapanwar and in Chak No. 61- GB, District Toba Tek Singh, in utter disregard of national interest reposed on them. The Community Centres were constructed at the places owned by the applicant himself or by his influential supporters. There has been basic condition that the land earmarked for Community Centres should have been Government land or the same should have been transferred in the name of the Government before raising the buildings. Consequently, the said Community Centres were not being used by the public in general and the accused got constructed such Centres for his own use and in this way he had caused loss to the Government of Pakistan to the tune of Rs.2,50,050, Rs.2,46,951 and Rs. 2,19,000 respectively.
3. Learned Special Prosecutor for NAB had tiled an application before the learned Judge, Accountability Court, Rawalpindi, to the effect that the present applicant is an accused in the Reference and that he had filed an application under section 25 of the NAB Ordinance in order to settle the matter with the NAB whereby he agreed to return acquired gains. The Chairman NAB after considering the offer of the applicant and circumstances of the case accepted the application, as a consequence whereof he made the payment in full charged against him. It was prayed by the Special Prosecutor, National Accountability Bureau that Makhdoom Syed Ali Raza Shah/applicant be released under section 25 read with section 15 of the NAB Ordinance.
4. Learned Judge, Accountability Court, Rawalpindi, vide his order, dated 15-7-2000 passed in the Reference, accepted the prayer of the prosecution and directed the release of the applicant forthwith. The applicant was convicted for the offence under section 15 falling under the NAB Ordinance and had declared him disqualified for 21 years from seeking or from being elected, chosen, appointed and nominated as a member or representative of any public office or any statutory or local authority of the Government of Pakistan, and also not to avail of financial facility for 10 years from any Bank or Financial Institution.
5. Learned counsel for the applicant argued that the case of the applicant is not covered under the proviso to sections 15 and 25 of the NAB Ordinance. Further submitted that the applicant had deposited rupees two lacs on 24-1-2000 prior to the proceedings of plea bargaining with the Chairman NAB on 18-5-2000. Further added that while disqualifying the applicant, the. Judge Accountability Court had not issued any notice to the applicant, convicting ands disqualifying him under section 15 of the Ordinance. Further contended that the applicant had transferred the land for the Community Centres in favour of the Government. Further submitted that Mr. M. Hamza, Chairman, Public Accounts Committee, National Assembly Pakistan (as he then was), an opponent of the appellant had involved him, levelling the allegations of corruption and misuse of authority.
Learned counsel relied upon a judgment passed in Criminal Appeal No. 722 of 2002, whereby a Division Bench of this Court (constituted for hearing the NAB appeals) had set aside the conviction and sentence of the accused person which was awarded by a Judge of Accountability Court in terms of section 25 of the Ordinance. He lastly prayed that the applicant is a known politician and the election schedule is expected to be announced within a few days, so the applicant be allowed to file his nomination papers so that he may participate in the forthcoming general elections.
6. On the other hand, learned Special Prosecutor for NAB has vehemently opposed the arguments of the learned counsel for the applicant, contending that plea bargaining was made on the application of the applicant by the NAB and that when Special Prosecutor filed an application in the Accountability Court, the Court had issued notice to the applicant and at the time of announcement of the impugned order, the applicant was present in the Court.
7. We have heard the arguments addressed by the learned counsel for the parties carefully and also perused the record with their kind assistance.
8. Before commenting upon the objections raised by the learned counsel for the applicant it would be appropriate to reproduce the relevant provisions of section 25 of the NAB Ordinance' which provides plea bargaining procedure:--
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, returns to the NAB the assets or gains acquired through corruption or corrupt practice, the Court or the Chairman NAB with the approval of the Court or the Appellate Court, as the as may be, may release the accused."
(b) ------------------------------------------------
(c) Notwithstanding anything contained in section 15 or in any other law for the time being in force, where a holder of a public office or any other person voluntarily comes forward to return the illegal gain made by him or loss caused by him to, the State exchequer through corruption and corrupt practice, the Chairman NAB may accept the offer and after determination of the amount of illegal gain or loss caused, as the case may be, and its deposit with NAB, discharge such person of all his liabilities relating to the matter or transactions in issue: Provided that the matter is not under inquiry or investigation or sub judice in any Court of law."
9. From the plain reading of the above---referred provisions of section 25, it is manifestly clear that NAB would make plea bargaining or effect settlement with the accused if he comes forward voluntarily to return the illegal gain acquired or loss caused by him to the State exchequer through corruption/corrupt practice. If the offer to return the illegal gain is made by the accused after the commencement of the trial, the Chairman NAB may release the accused with the approval of the Court or if the bargaining is made before taking cognizance by the Accountability Court, then, the Chairman NAB will be competent to accept the offer and determine the amount of illegal gain or loss caused, as the case may be, and after deposit of the same with the NAB, discharge such person. The Chairman NAB is not competent to release a person without his own offer to return the acquired illegal gains or loss caused by him. The applicant-appellant had made the application on 12-6-2000 to they Chairman NAB Islamabad praying therein, to settle down the reference out of the Court and to deposit the amount charged against him and on his application plea bargaining proceedings were conducted and after satisfying the illegal gains obtained by the, applicant through corruption/corrupt practices and misusing of his authority as a holder of public office, under his instructions, the Special Prosecutor for NAB has applied to the Court for the release of the' applicant.
The allegations against the applicant were that three community centres were constructed on the private land for which the applicant had caused loss to the Government to the tune of rupees mentioned above. If for the sake of arguments, the plea of the applicant is accepted that he had deposited two lacs on the report and objection of the Public Accounts Committee of National Assembly, even then, there was huge amount outstanding against him which he had to pay to the NAB after filing of reference against him and the whole amount was adjusted or repaid by the applicant on his own application, submitted to the Chairman NAB C on 12-6-2000, so these arguments of the learned counsel for the applicant, being misconceived, are repelled.
10. The Special Prosecutor NAB had applied to the Court for the release of the applicant due to the settlement under plea bargaining under section 25 of the Ordinance on 15-7-2000. The notice was issued to the applicant by the Accountability Court for the said date and he was present in Court when a copy of the application filed by the NAB was handed over to the defence counsel and after hearing the arguments from both sides, the Court had passed the impugned order. To meet with this argument of the learned counsel for the applicant that the Court had not issued any notice to the applicant while convicting and disqualifying him under section 15 of the Ordinance, it would be proper to reproduce section 15 of the Ordinance:--
15. "Disqualification to contest election 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 pubic 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."
(b) Any person convicted of an offence of corruption and/or corrupt practice as described at Serial No. 1 of the Schedule shall not be allowed to apply for or be granted or allowed 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 10 years from the date of conviction. "
From the bare reading of the above-referred provision of law, it reveals that there is no special provision for the issuance of show-- cause notice for disqualifying the accuses person. The person who avails of the benefit of section 25 shall automatically be deemed to have been convicted for an offence under the Ordinance and shall forthwith cease to hold the public office, if any, held by him and shall be disqualified for a period of 21 years. In addition thereto he would be disentitled to avail of the financial facility as provided in section 15 of the Ordinance. Accordingly, this argument of the learned counsel, having no force is also repelled.
11. The applicant has not contested the reference rather he opted to return the gains acquired by him through illegal means and the applicant has not been able to rebut the allegations levelled by the Chairman, Public Accounts Committee and reiterated in the' instant reference filed against him. Furthermore, -this argument pertains to the merits of the appeal, therefore, we are constrained not to comment upon tire same.
12. Learned counsel for the applicant has placed reliance upon a judgment passed in Criminal Appeal No. 722 of 2002 by a Division Bench of this Court. The facts of that case are not applicable on all fours to this case. The circumstance of that case were quite different and distinguishable. In that case, the accused appellant had trade an agreement with Punjab Cooperative Board for Liquida--tion which was finalized by an Hon'ble Judge High Court before filing the reference against that appellant but in the instant case the deal was finalized after the filing of the reference against the present applicant, so the applicant cannot take any benefit of the same.
13. The applicant is a convict as a consequence of his own bargaining made with the NAB, therefore, we are not inclined to accept the prayer of the applicant to allow him to participate in the forthcoming general elections.
14. Learned counsel for the applicant has not been able to persuade us to suspend the conviction and sentence of the applicant passed by the Accountability Court in the reference.
15. Resultantly, the instant C.Ms. Being devoid of force are dismissed.
S.M.A.H./A-655/L