S. ALI ASLAM JAFRI, J.---Through this Constitution petition, the petitioner has prayed for a declaration that filing of the fresh reference/proceedings against him including Reference No,25 of 2002 filed before the Accountability Court, Karachi, by the Chairman, NAB/respondent No,2 is absolutely illegal and without any force of law. The petitioner has further prayed for a restraint order against the respondents from instituting any further enquiries/proceedings and references against him in view of the plea bargain settled before the Accountability Court at Rawalpindi in Reference No,43 of 2001 wherein the petitioner has paid more than double the amount as shown in the said reference. The petitioner has also prayed for a direction to the respondents for compliance of the order passed by the Accountability Court No,3, Rawalpindi, on 15th June, 2002 for return of petitioner's assets as well as those of his relations as listed in the said order.
2. The facts as disclosed in this petition are that in April, 1997 the petitioner while serving as Chief of Naval Staff was forced to resign prematurely by the then Prime Minister of Pakistan Mian Muhammad Nawaz Sharif with an assurance that all retirement benefits shall be given to the petitioner and he shall not be subjected to any harassment or unwarranted enquiries. The petitioner accordingly resigned and proceeded on leave preparatory to retirement for one year: After completion of his leave preparatory to retirement, the petitioner with the knowledge and approval of authorities concerned left for United States, however, in his absence the then Chairman, Ehtesab Bureau (Saif-ur-Rehman) allegedly on account of malice instituted some enquiries against the petitioner. The said enquiries remained pending till 12-10-1999 when the government of Mian Muhammad Nawaz Sharif was dismissed and after establishment of National Accountability Bureau the said enquiries were transferred to NAB.
3. As a result of enquiries Chairman, NAB filed Reference No,43 of 2001 before the Accountability Court at Rawalpindi against the petitioner and one Amir Lodhi on the allegation of corruption and corrupt practices for obtaining commissions and kickbacks in defence deals. The petitioner who was in United States at that time was arrested and extradited to Pakistan. According to the petitioner he did not contest the extradition proceedings and after arriving in Pakistan entered into "plea bargaining" provided under section 25 of the NAB Ordinance. His application in the first instance was rejected by the Chairman, NAB, however, it was subsequently entertained by the Accountability Court as the petitioner agreed to pay amount of US $ 33,69,383 as shown in the reference. It is contended that the petitioner was persuaded by Lt.-General Munir Hafiz, Chairman, NAB to pay 7.5 million US Dollar, that is more than double the amount mentioned in the reference on an undertaking that the petitioner shall be released and there shall not be any other proceedings of whatsoever nature against him in future.
4. After recording the statement of the then Prosecutor-General Accountability, Mr. Raja Bashir to the effect that the petitioner was not required in any other case the petitioner was released. It is alleged that the Prosecutor-General Accountability had given such statement that if any amount over and above the aforesaid amount of US $ 7.5 million was discovered lying in the accounts maintained by the petitioner or in the account of entities personally controlled by him or in any Banami Account, NAB shall have the right to recover the same through proper "judicial process".
The properties belonging to the petitioner and his wife and his relations which were ordered to be frozen initially by the Chairman, NAB by an order dated 17-4-2001 and, confirmed by the Accountability Court vide order dated 30-4-2001 were defrozen and released by the Accountability Court No,III, Rawalpindi, on 15-6-2002 on the basis of statement of DPGA, NAB that the petitioner was nbt required in any other case.
5. It is further contended that in spite of acceptance of plea bargain and payment of United States $ 7.5 million in place of United States $33,69,383 by the petitioner and despite his release from custody and order for defreezing the properties in terms of full and final settlement of all claims, allegation and enquiries, the petitioner was again arrested on 15-7-2002 and detained at Karachi Central Prison without any justification in pursuance of Reference No,25 of 2002.Filed before the Accountability Court at Karachi on the allegation that in the year 1994 when the petitioner was Chairman, Pakistan National Shipping Corporation (PNSC), he obtained an approval for acquisition/purchase of ships for PNSC. Subsequently, when he was appointed as Chief of Naval Staff and by virtue of his office as Advisor to Prime Minister on Maritime Affairs and was entrusted with the work to supervise/oversee the process of acquiring the ships already approved, he deceitfully got approved from the Board of Directors purchase of three ships on much higher price than that prevailing in the market. The petitioner is said to have caused loss to the tune of Rs,1,85,17,43,000 to the. PNSC/Government exchequer, the details whereof have been mentioned in the said reference. The petitioner has, therefore, invoked the extraordinary Constitutional jurisdiction of this Court and prayed for the relief as mentioned in the opening paragraph of this order.
6. Comments have been filed on behalf of respondent No,2, Chairman NAB, stating therein that the case of the petitioner does not stand covered under Article 13 of the Constitution or section 403, Cr.P.C. As Reference No,25 of 2002 has been filed in respect of a different offence committed by the petitioner in his capacity as Chairman of PNSC having caused loss of Rs,1,851,743,000 to the Government exchequer and amassed such huge money through corrupt practices. Settlement through plea bargain in one case does not amount to absolve the petitioner of all other offences of corruption and corrupt practices which could not be uuearthed at the time of filing of earlier Reference No,43 of 2001. It is further contended that no such undertaking was given by Lt.-General Munir Hafiz that if the petitioner paid Rs,7.5 million he shall stand absolved of all his liabilities and shall not be tried for any other offence under the NAB Laws at any time in future. It is further contended that alternate remedy under sections 249-A, Cr.P.C. And 265-K Cr.P.C. As the case may be before the trial Court or under section 561-A Cr.P.C. Before this Court has not been availed by the petitioner, hence this petition is not maintainable according to law.
7. We have heard M/s. Shaiq Usmani and I.A. Hashmi, learned counsel for the petitioner, and Mr. Muhammad Anwar Tariq, learned Deputy Prosecutor-General, NAB.
8. The main thrust of the arguments of the learned counsel for the petitioner is that filing of subsequent Reference No,25 of 2002 is absolutely illegal and against norms of ethics and morality in view of plea bargain settlement between the parties in earlier Reference No,43 of 2001 wherein the petitioner has paid double the amount claimed by the respondents allegedly received by the petitioner as kickbacks and commission. It is interesting to hear invocation of norms of ethics and morality on behalf of a salaried Government employee volunteering to pay 7.5 million dollars for avoiding normal punishment for a penal offence. Moreover, the payment of more than the amount mentioned in the reference was also of no consequence as a plea bargain could be accepted by the Chairman, NAB or the Court after considering all facts which could also include material collected during the course of further investigation in the case. It is further contended that filing of the subsequent reference is violative of Article 13 of the Constitution of Pakistan and section 403, Cr.P.C. Which say that a person once tried by a Court of competent jurisdiction for an offence and convicted or acquitted for such offence shall not be tried for the same again.
9. In support of their contention that the petitioner cannot be tried again, learned counsel for the petitioner have referred to the case of Rudolph Santobello v. New York decided by the Supreme Court of United States on December 20, 1971 (404 US 257) to show that after being indicted on two felony counts under New York Statutes, and after negotiating with the prosecuting attorney, the defendant withdrew his not guilty plea and entered a guilty plea to a lesser included offence, the prosecutor agreeing to make no recommendation as to the sentence to be imposed, on certiorari, the United States Supreme Court vacated the conviction order and remanded the case expressing the unanimous view that disposition of criminal charges by agreement between the prosecutor and the accused which was an essential component of the administration of justice, is to be encouraged when properly administered.
10.We find that facts of the case of Rudolph Santobello (supra) are quite different. In that case the New York Trial Court had accepted the guilty plea and set a date for a sentencing hearing, which was subsequently postponed, and at that date a new prosecuting attorney appeared who was apparently ignorant of his colleague's commitment, as such recommended that maximum one year sentence be imposed. Even otherwise, in the above-cited case the plea bargain was in respect of two felony counts under the New York Statutes for which negotiations were made between the defendant/accused and the prosecuting attorney. Here in this case the petitioner/accused was not indicted for the charges which are subject-matter of Reference No,25 of 2001. The earlier Reference No,43 of 2001 was decided on 15-6-2002 whereas Reference No,25 of 2002 was filed on 2nd July, 2002, hence we do not find any force in the contentions of the learned counsel for the petitioner.
11. After going through the contents of two References viz. No,43 of 2001 and No,25 of 2002 we find that the subject-matter of two references are quite different from each other. Reference No,43 of 2002 related to the corruption and corrupt practices committed by petitioner and one Aamir Lodhi during the period when petitioner was serving in Pakistan Navy as Chief of the Naval Staff and received commissions and kichbacks/bribes from suppliers who were under contract with Government of Pakistan to supply defence material to Pakistan Navy. The second Reference No,25 of .2002 relates to a different acts of corruption and corrupt practices committed by the petitioner and two other persons, namely, Rear Admiral (R) Javed Ali, Ex-Chairman PNSC, and Commodore Mirza Ashfaq Baig, Ex-Director (Ship Management), PNSC, during a different period, and the above- named two others have also been nominated as accused with the petitioner. We have also gone through the case diaries of the Accountability Court, Rawalpindi, in Reference No,43 of 2001 filed with this petition and do not find that a clean bill of health was issued to the petitioner by the respondents or the Accountability Court by giving an undertaking that in case he deposited United States $7.5 million as against the amount shown in the said reference, he shall not be liable for any other trial for any offence of corruption and corrupt practices as defined in section 9(a) of the NAB Ordinance committed by him at any time. The learned counsel for the petitioner failed to point out any such undertaking on behalf of the Government or the Chairman NAB given to the petitioner that he shall not be tried for any other offence even if detected afterwards. Even otherwise, it could not be done so. Law does not permit grant of any such blank cheque to an accused that if he shall plead his guilt in a particular offence, he shall not be tried in future for any other offence committed by him if detected afterwards. Article 13 of the Constitution of Pakistan or section 403, Cr.P.C. Also do not stand attracted. Trial or prosecution of a person for different offences committed at different times and if detected at a later stage is not violative of the principle of double jeopardy or doubt prosecution or punishment. Further, we find that the petitioner could have approached the Accountability Court under section 249-A or 265-K, Cr.P.C. For challenging the proceedings if the same were defective, illegal or not maintainable under the law, hence invoking the Constitutional jurisdiction is not an appropriate remedy. This view taken by us finds support from the rule laid down in Sindh Quality Control Board of Drug and another v. M/s. Pioneer Laboratories, Karachi and 6 others 1993 SCM R 1177 wherein it has been held as under:-- ".. ... ....However, in our view there is more important question involved in principle, namely, whether in a criminal prosecution it is proper to exercise jurisdiction under Article 199 of the Constitution particularly when remedies have been provided under the Statute to the accused. In a prosecution under the Drugs Act the provisions of the Code of Criminal Procedure are application and the trial by the Drugs Court is conducted as provided by the Drugs Act as well as the Code of Criminal Procedure. Under section 31(4) of the Drugs Act a Drug Court has all the powers conferred by the Code of Criminal Procedure on a Court of Session exercising original jurisdiction. Therefore, whether the cognizance of offence could be taken under section 30 in view of the objection raised by the respondents in the Constitution petition could be pressed before the Drug Court. The respondents could have approached the Drug Court under section 265-K, Cr.P.C. For challenging the proceedings if they were defective and not as provided by section 30 of the Drugs Act. In such.
Circumstances, the High Court should have refused to exercise discretion under Article 199 of the Constitution. In A. Habib Ahmad v. M.K.G. Scott Christian and others PLD 1992 SC 353 it was observed as follows:-- Undoubtedly, the case of Ghulam Muhammad had come before the Supreme Court through an interruption by the High Court under section 561-A, Cr.P.C. The order of the High Court quashing the proceedings before the trial Court was set aside and it was directed that the criminal cases were to proceed before the Court concerned in accordance with the normal law' . "
12. In view of the discussion made above we do not find any merits in C this petition, which stands dismissed accordingly.
13. By a short order dated 25-9-2002 we had dismissed this petition and the above are the reasons for the same. 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.