MUHAMMAD NAWAZ ABBASI, J.---This Criminal Appeal No,414 of 2002 has been directed against the consolidated judgment dated 1-10-2002 passed by a Division Bench of High Court of Sindh at Karachi in two criminal appeals arising out of Reference No,28 of 2001 under section 18(g) of National Accountability Ordinance, 1999 (hereinafter called the Ordinance') filed by the Chairman, National Accountability Bureau (NAB) against the appellants and 53 others containing the allegation of committing of offence of corruption and corrupt practices. The Accountability Court No,IV Sindh, Karachi, established under the Order while taking cognizance in the matter framed charge under section 9 read with section 10 of the Ordinance against the accused in attendance whereas the appellant and few others who have returned the amount of compensation received by them in excess of their entitlement were discharged much before the commencement of the trial. The trial against the accused who were declared proclaimed offenders was separated.
2. The learned trial Judge on the conclusion of the trial held under point No,4 in the judgment as under:- "The accused Abdul Khaliq, Muhammad Alam, Syed Khadim Ali Shah, Syed Ali Nawaz Shah, Syed Imtiaz Ali Shah, Syed Ali Qutub Shah, Muhammad Yasin, Naseer, Karim Bux, Ghai Nazeer Ahmed, Mukhtar Ahmed, Muhammad Saiiq, Fateh Khan Mari, Muhammad Anwar and Abdul Ghafoor have been released on their return of amounts alleged (sic) to Accountability Bureau Ordinance, 1999 and their return of amount is an admission and they are deemed to have been convicted for the offence of corruption and corrupt practices and, therefore, they stand disqualified for period of ten years from the date of this judgment for seeking or from being elected, chosen, appointed or nominated as member of representative of any public body or any statutory or local authority or in service of Pakistan or of any province. They shall also be not allowed to apply or be granted any financial facility in the form of any loan or advances byany bank or financial institutions owned or controlled by the Government for a period of ten years from the date of this judgment. The absconding accused Hassan Zaem Aftab has appeared when the case was fixed for pronouncement of judgment and made an application for dispensing with his personal attendance in the trial on the ground of his sickness, vide separate orders his case has been bifurcated and ordered to be tried separately. The case of remaining absconding accused be kept on dormant file after proceedings under section 88, Cr.P.C.
3. The brief facts of the prosecution case as contained in the Reference are that the Government of Pakistan, during the year 1995, provided funds for the construction Sim Nala on the project of Left Bank Outfall Drain (LBOD), WAPDA and the Land Acquisition Collector, Hyderabad, having acquired the land for the project announced the award for the payment of compensation to the landowners. The Minister of State for Water and Power on receipt of a complaint regarding misappropriation/embezzlement of funds in the acquisition of land directed for holding an inquiry and subsequently the matter was handed over to the Federal Investigation Agency (F.I.A.) for investigation.
The F.I.A. On the completion of investigation submitted report to the Chairman, NAB on the basis of which a reference under the Ordinance was filed against the appellants and other in Accountability Court No,IV, Sindh, Karachi. The allegation against the appellant and other was that they in connivance and collaboration with the officials of LBOD, WAPDA, received payments in lieu of compensation of the land on the basis of fake and forged documents and caused loss of Rs,3,81,81,923 to the exchequer. The Accountability Court while taking cognizance of the matter vide order dated 2-10-2001 issued non- bailable warrants of arrest of the appellants whereupon the appellants approached the High Court of Sindh at Karachi for grant of bail before arrest and the main ground urged in the bail application was that the case against the appellants under the Ordinance was mala fide and the police by conducting raids frequently at their houses for their arrest was humiliating their families including the womenfolk so much so the police contingent was also being deployed outside their residence. In the High Court the appellants with a view to avoid their arrest and protect their families from humiliation, disrespect and disgrace made an offer of return of the excess amount of compensation allegedly received by them and the Deputy Prosecutor-General representing the NAB agreed to the grant of relief being sought by the appellants subject to the deposit of amount in question. Consequently the bail application of the appellants wad disposed of by a learned Division Bench of High Court of Sindh at Karachi vide order dated 3-10-2001 in the following terms:-- "Learned Deputy Prosecutor-General agrees that NBWs against the applicants may be suspended upon deposit of Rs,563,200 by applicant Ali Nawaz Shah, Rs,431,106 by applicant Imtiaz Ali Shah and Rs,363,000 by applicant Qutab Ali Shah in the name of Chairman National Accountability Bureau. Mr. Mangi undertakes to Court of National Accountability Court No,IV, Karachi and upon deposit the NBWs shall stand suspended."
4. In pursuance of the above order, the appellants moved an application on 4-10-2001 before the Accountability Court No,IV, Sindh, Karachi, for their discharge from the reference on deposit of the amount of excess payment and the learned trial Judge vide order dated 5-10-2001 disposed of the said application in the following manner:- "This is a joint application filed on behalf of the accused (1) Syed Ali Nawaz Shah, (2) Syed Imtiaz Ali Shah and (3) Syed Ali Qutab Shah, praying that the alleged amounts received by the applicants above named have been returned through Pay Orders. It has been stated in the application that on having knowledge of this reference the above named applicants have preferred a Criminal Bail.
Application bearing No,1315 of 2001 before the Honourable High Court of Sindh and the Honourable High Court has been pleased to suspend the NBWs against them issued by this Court vide orders dated 2-10-2001 subject to the payment of the amount alleged against them and in compliance of the said orders of the Honourable High Court of Sindh, they have deposited the amounts hence they be discharged.
Alongwith the application, they have filed Pay Orders as detailed below:-- S. No,Name Pay Order Number Amount Name of Bank
1. Syed Ali Nawaz s/o S. Shuja Muhammad PAB/4---0188235- 729Rs.563,200 MCB, Zam Zama D.H.A., Karachi
2. Syed Imtiaz Ali Shah s/o Ghulam Haider ShahPAB/4---0188237- 731Rs.431,106 MCB, Zam Zama D.H.A., Karachi
3. Syed Ali Qutub Shah s/o S. Shuja Muhammad ShahPAB/4---0188236- 730Rs.363,000 MCB, Zam Zama D.H.A., Karachi
5. The appellants also moved an application for exemption from personal appearance in the Court and yet they moved another application tothe Prosecutor-General, NAB under section 31(b) of the Ordinance the withdrawal of the reference on the ground that civil litigation on the same subject was pending. The learned trial Judge without passing an express order on the above applications or summoning the appellants to face the trial, proceeded with the trial in the reference only against the accused in custody and on conclusion of trial held that the appellants having availed the benefit of section 25 of the Ordinance were liable to face the penal consequences as provided under section 15 of the Ordinance for a period of ten years from the date of judgment.
6. The appellants being aggrieved of the verdict given against them by the Accountability Court No,IV, Sindh, Karachi, preferred an appeal before the High Court of Sindh at Karachi and a learned Division Bench while upholding the judgment of the trial Court held that the appellants having accepted their liability voluntarily deposited the excess amount received by them on account of compensation of their land acquired by the Land Acquisition Collector for the project in question, entered into the plea bargain and in consequence thereto the Accountability Court No,IV, Sindh, Karachi, released them under section 25 of the Ordinance and dismissed the appeal.
7. Learned counsel for the appellants has contended that the appellants having come to know about the issuance of their non-bailable warrants by the Accountability Court No,IV, Sindh, Karachi, approached the High Court, Sindh for bail before arrest and for the said purpose they accepted the condition of deposit of the alleged excess amount of compensation and the learned Judges in the High Court with the consent of Deputy Prosecutor-General, directed for the suspension Of non- bailable warrants subject to the deposit of the extra payment allegedly received by them. In pursuance of the order, passed by High Court the appellants were released by the Accountability Court subject to the execution of personal bond in the sum of rupees ten lacs each and the appellants neither negotiated plea bargain with the NAB Authorities nor entered into an agreement based on such plea before the High Court or the Accountability Court, rather the amount in question was deposited for the limited purpose of bail before arrest. The learned counsel submitted that the transaction of plea bargain must contain the elements of an offer and acceptance as provided in section 25 of the Ordinance in express words and in support of the above arguments while placing reliance on Javed Tariq Khan v. State (PLD 2002 Lahore 607) has vehemently contended that the trial Court as well as the learned Judges of the High Court were misdirected in coming to the conclusion that the appellants deposited the amount in question with the intention to avail the benefit of section 25 of the Ordinance.
8. Raja Muhammad Bashir, Advocate Supreme Court representing the NAB, on the other hand has argued that the transaction would be divided into two parts. The first part would relate to the proceedings before the High Court of Sindh in which the appellants seeking suspension of operation of non-bailable warrants voluntarily made an offer of return of amount in question which was accepted by the Deputy Prosecutor-General and the transaction would be in the nature of an agreement of plea bargain in terms of section 25 of the Ordinance. The second part would relate to the proceedings before the Accountability Court which culminated in discharge of appellants on their deposit of the amount of excess payment in implementation of the agreement entered by them before the High Court. Precisely the learned counsel submitted that the discharge of an accused from the case under the Ordinance on return of ill-gotten money, would be possible only in consequence to his entering into the plea bargain and notwithstanding an express agreement, the transaction for all intents and purposes would be covered by the provisions of section 25 of the Ordinance.
9. The concept of plea bargain in judicial system is an arrangement to facilitate the accused facing criminal charge for taking guilty plea through negotiations to get maximum benefit in sentence and the idea of plea bargain in the Ordinance was to reduce the veil of searching of ill-gotten wealth and to provide a chance to an accused for entering into an agreement for return of such wealth for the concession of acquittal in terms of section 345(6), Cr.P.C. It is permissible for the NAB Authorities to persuade an accused person to enter into an agreement of plea bargain under section 25 of the Ordinance without any pressure and threat, for return of ill-gotten wealth, during the investigation/inquiry or at any subsequent stage with or without the intervention of the Court. The Chairman NAB may on acceptance of an offer of accused of plea bargain determine the quantum of payment to be made by the accused and refer the case for approval of the Court. In case the plea bargain in terms of section 25 of the Ordinance is entered by an accused during the investigation/inquiry or at a subsequent stage, he on acquittal from the charge must face the consequence given in section 15 of the Ordinance. The provisions of sections 25 and 15 are read as under in the Ordinance:-- "S.25. Voluntary return/plea bargaining.--(a) Notwithstanding anything contained in section 15 or in any other law for the time being in force, whereas holder of public office or any other person, prior to the authorization of investigation against him, voluntarily comes forward and offers to return the assets or gains acquired or made by him in the course, or as the consequences, of any offence under this Ordinance, the Chairman, NAB may accept such offer and after determination of the amount due from such person and its deposit with the NAB discharge such person from all his liability in respect of the matter or transaction in issue: Provided that the matter is not sub judice in any Court of law.
(b) Where at any time after the authorization of investigation, before or after the commencement of the trial or during the pendency of an appeal, the accused offer to return to the NAB the assets or gains acquired or made by him in the course, or as a consequence, of any offence under this Ordinance, the Chairman, NAB, may in his discretion, after taking into consideration the facts and circumstances of the case, accept the offer on such terms and conditions as he may consider necessary, and if the accused agrees to return to the NAB, the amount determined by the Chairman, NAB the Chairman, NAB, shall refer the case for the approval of the Court, or as the case may be, the Appellate Court and for the release of the cussed.
(c) The amount deposited by the accused with the NAB shall be transferred to the Federal Government or, as the case may be, a Provincial Government or the concerned Bank or Financial Institution, company, body corporate, cooperative society, statutory body, or authority concerned within one month from the date of such deposit."
S.15. Disqualification to contest election or hold public office.---(a)Where an accused person is convicted of an offence under section 9 of 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 subsection (b) of section 25 shall be also deemed to have been convicted for an offence under this Ordinance, and shall forthwith cease to hold public office, if any, held 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 under section 9 of this Ordinance 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."
11. In the original section 25 of the Ordinance certain amendments were subsequently made under the directions of this Court in the case titled Khan Asfandyar Wali Khan and others v. Federation of Pakistan (PLD 2001 SC 607). The relevant portion of the judgment in the above case is reproduced hereunder:-- "266. A perusal of the Preamble of the NAB Ordinance shows that it is a composite and an extensive law and its interpretation has to be done in a manner different from the normal interpretation placed on purely criminal statutes. This law deals with, among others, setting up of the National Accountability Bureau, which is an executive as well as administrative authority and an investigation agency; which deals with several aspects of 'corruption', etc. The NAB does not merely deal with crimes of corruption, it also deals with their investigation and settlement out of Court. Bargain out of Court is now an established method by which things are settled in several developed societies. It was necessary in cases where the criminal is a potential investor and is interlinked with the economy of the society, he should be given an opportunity to play his role in the society after he has cleared his liability. There appears to be nothing amiss insofar as it does not oust the jurisdiction of the Accountability Courts to exercise their judicial power in appropriate proceedings. Rather this is in the nature of a facility provided to the accused. There is nothing wrong with the NAB Ordinance providing for a procedure of bargaining.
267. Moreover; the scheme for exploring the possibility of settlement during investigation/inquiry stage by the Chairman, NAB cannot be ignored straightaway. At the outset, most of the lawyers tend to consider the question of settlement out of Court. There is need to focus attention on this significant facet of the matter. The rationale behind the Ordinance is not only to punish those who were found guilty of the charges levelled under the Ordinance but also to facilitate early recovery of the ill-gotten wealth through settlement where practicable. The traditional compromise, settlement, compound ability of offence during the course of proceedings by the Courts after protracted litigation is wasteful.
Viewed in this perspective, a power has been vested in the Chairman, NAB to facilitate early settlement for recovery of dues through 'plea bargaining' where, practicable. Lawyers are often interested in settling the disputes of their clients on just, fair and equitable basis. There are different approaches to settlement. Plea bargaining is not desirable in cases opposed to the principles of public policy. Chairman, NAB/Governor, State Bank of Pakistan, while involved in plea bargaining negotiations, should avoid using their position and authority for exerting influence and undue pressure on parties to arrive at settlement. However, in the interest of revival of economy and recovery of outstanding dues, any type of alternate resolution like the 'plea bargaining' envisaged under section 25 of the Ordinance should be encouraged. An accused can be persuaded without pressure or threat to agree on a settlement figure subject to the provisions of the Ordinance establishing this procedure at the investigation/inquiry stage greatly reduces determination of such disputes by the Court. However, as the plea bargaining/compromise is in the nature of compounding the offences, the same should be subject to approval of the Accountability Court. Accordingly, section 25 of the impugned Ordinance be suitably amended."
12. The examination of the statutory provision on the subject in the light of the verdict given by this Court would reveal that policy of law is that plea bargain must be executed in writing in plain and express words showing the intention to avail the benefit of section 25 of the Ordinance which must be voluntary and free of an element of threat, pressure, compulsion and duress. The Court may direct the discharge or release of an accused person during the investigation/inquiry or at any subsequent stage before or after the commencement of the trial if he enters into a plea bargain which is a compromise in the nature of compounding the offence. The plea of bargaining being a guilty plea, the agreement of the accused with prosecution must contain the essential elements of offer and acceptance in express words and, the Court must pass a speaking and proper order, of its approval.
The general law is that if an accused pleads guilty to the charge zot the trial, he can be straightaway convicted and sentenced but the conviction and sentence on the basis of an admission made by an accused in a/i ancillary proceedings before commencement of the trial would not be sustainable.
However, the concept of plea bargain in the Ordinance is slightly different as an accused can negotiate such plea during the course of inquiry/investigation or at any subsequent stage before or after the commencement of the trial or in appeal. The plea bargain is not like a civil contract between the parties rather it contains the elements of culpability of crime as result of which a person facing accusation under the Ordinance, on entering such plea saves himself from conviction and substantive sentence but entails the penalties provided in section 15 of the Ordinance and this is well-known principle of criminal justice system that an accused cannot be held guilty merely on the basis of probabilities rather finding of guilt should rest squarely and firmly on the evidence. It is the fundamental rule of criminal administration of justice that basic onus always rests on the prosecution to prove the guilt of the accused and the special provision can neither be construed to mean that the onus of the prosecution to prove the guilt is shifted to the accused to prove his innocence or a presumption of guilt can be raised against an accused without discharge of initial burden by the prosecution. The only exception to the above rule in special law can be that on the discharge of the initial burden of proving guilt by the prosecution through the evidence, the onus is shifted to the accused to disprove the allegation and if he fails to discharge his burden satisfactorily, as presumption of guilt can be raised against him. We may point out that the plea bargain being a sort of guilty plea cannot be presumed without an express offer of accused and its acceptance clear words by the prosecution and the mere refund of alleged ill-gotten money as a consideration for grant of bail would not amount to admit the criminal liability and enter into plea bargain. In the present case, we find that the essential elements of offer of accused to enter into the plea bargain and acceptance of the same by the competent authority was missing but the trial Court while passing the order of discharge of accused in pursuance .Of the order of the High Court treated it a case of plea bargain under section 25 of the Ordinance. There is no cavil to the proposition that a person who is involved in a case under the Ordinance, if enters into plea bargain before the commencement of trial and framing the formal charge, can be discharged by the Court and notwithstanding an express order of the Court he shall face the consequence as provided in section 15 of the Ordinance by operation of law. In the present case, the perusal of record would show that the appellant did not enter into an express agreement with the prosecution for disposal of case against them in terms of section 25 of the Ordinance and the essential element of plea bargain of offer and acceptance being missing, the transaction would not be given the status of plea bargain in term of section 25 of the Ordinance. We, thus conclude that plea bargain must be made part of the judicial record in the form of offer and acceptance through an express agreement containing the term of the settlement.
13. In the light of foregoing discussion, we allow this appeal alongwith the connected petitions in terms of the short order dated 8-1-2003 with direction to the trial Court to proceed in the reference against the appellants on merits for its decision in accordance with law. However, the appellants, if so desire, may negotiate with the NAB Authorities for exercise of the option of entering into plea bargain under section 25 of the Ordinance in proper manner. The appellants are on bail and they shall remain on bail pending disposal of reference against them subject to the furnishing of fresh bail bond in the sum of Rs,500,000 each to the satisfaction of trial Court. This appeal, in the above terms, stands allowed. competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.