IFTIKHAR MUHAMMAD CHAUDHRY, J.--This petition hasbeen filed to question the order dated 10th April, 2002 passed by the High Court of Balochistan, Quetta, whereby Ehtesab Appeal No,6 of 2000 filed by respondent Dr. Dad Muhammad Khawaja Khail has been disposed of on accepting the plea of bargaining.
2. Precisely stating the facts of the case are that respondent faced trial before the Accountability Court. He was found guilty for the commission of the offence charged against him vide judgment dated 27th September, 2000 as such was convicted and sentenced under section 10 of the National Accountability Bureau Ordinance, 1999 (hereinafter referred to as "the NAB Ordinance") to suffer R.I.
For nine years and to pay fine of Rs,2,65,75,179.72 and in default whereof to further undergo three years' R.I. In addition to it he was debarred from contesting any election or holding public office or obtaining any financial loan from any financial institution for ten years in accordance with the provisions of section 15 of the NAB Ordinance. The respondent challenged his conviction/sentence by filing Ehtesab Appeal No,6 of 2000 before learned High Court of Balochistan. Perusal of the impugned order indicates that besides the case out of which present proceedings have arisen, petitioner had also filed Criminal Ehtesab Appeals Nos.5 and 14 of 2000 and 15 of 2001. According to the contents of the judgment in those proceedings it was held that the amount of Rs,49,00,719 has been excusably charged from the respondent by way of 15% interest and the same learned Bench has held that Accountability Court has no jurisdiction to impose interest. The appeal being No,6 of 2000 was heard on merits and judgment was reserved on 3rd April, 2002 but surprisingly on 10th April, 2002 when the case was not listed for pronouncement of the judgment somehow case was called and an application was obtained from the respondent to the effect that he intends to enter into plea bargain and requested that the amount of Rs,49,00,719 deposited by the respondent in the above mentioned appeal may be adjusted as amount of plea bargaining in the instant case. Notice of the application was given to Mr. M.S. Rakhshani, learned Deputy Prosecutor-General, NAB who was present in Court but he sought time to take instructions from the NAB Authorities but time was not given to him and the learned Members of the Bench noted in the order "that since the application has been filed therefore they deem it proper to dispose of the same in the interest of justice". Accordingly, vide impugned order application for the plea of bargaining was accepted.
Relevant para.From the impugned judgment is reproduced hereinbelow:-- "5. Thus in view of above position, the application for plea bargaining is accepted. It may be seen that the liability of the appellant would be more or less Rs,49 lacs. We have already held that since there was no provision of interest in the NAB Ordinance therefore, appellant was not liable to pay the said amount. In suchview of the matter, the said amount of Rs,49,00,719 is allowed to be adjusted towards the liability of the appellant in the instant case.
6. Consequently the impugned judgment is modified to the extent that the appellant shall be barred from contesting any election, holding any public office obtaining loan from any financial institution for ten years. Thus he shall be released forthwith if not required in any other case."
3. The petition is barred by 39 days and an application seeking condonation of delay has been filed.
4. The petition was heard on 28th June, 2002 and after hearing the learned counsel for petitioner notice was issued to the respondent. In response to the notice the respondent had entered appearance.
5. Learned counsel appearing for petitioner inter alia contended:--
(i) That the plea of bargaining has been accepted by the Appellate Court contrary to the provisions of section 25 (a) of the NAB Ordinance.
(ii) No opportunity was given to petitioner's counsel for obtaining instructions from NAB petitioner and without calculating the liability of the respondent in terms of money he has been ordered to be released subject to adjustment of Rs,49,00,719 which has been charged/received from him as 15% interest in the cases arising out of Appeals Nos.5 and 14 of 2000 and 15 of 2001 against the liability of Rs,2,65,75,179.72.
(iii) The Appeal being No,6 of 2000 has already been heard and judgment was reserved on 3rd April, 2002 and it was not fixed for 10th April, 2002 but somehow it was got enlisted for hearing and impugned order was passed without affording proper opportunity of hearing to the petitioner.
(iv) The learned Division Bench kept intact the portion of the judgment of the Accountability Court to the extent of disqualification of the respondent of holding of office or borrowing money from any financial institution for a period of ten years but nothing was expressed in respect of the sentence for the period of nine years.
(v) The judgment being ab initio void in the eye of law is not sustainable against which limitation will not run.
(vi) Even otherwise on accepting application, delay may be condoned in the interest of justice.
6. Mr. Muhammad Aslant Chishti, Advocate Supreme Court forrespondent strenuously opposed the petition inter alia on the following grounds:--
(i) That the petition is hopelessly barred by time. Sufficient reasons have not been disclosed in the application seeking condonation of delay, therefore, appeal is liable to be dismissed on this sole ground.
(ii) The Appellate Court had provided opportunity to the petitioner as notice of the application was given to its Prosecutor-General but he did not file reply, therefore, for such reason impugned judgment cannot be termed to be a void order in the eye of law.
(iii) The Appellate Court is competent to accept the plea of bargaining in terms of section 25(a) of the NAB Ordinance, therefore, there is nothing wrong with the impugned order.
(iv) The Appellate Court was also empowered to calculate the liability and as an amount of Rs,49,00,719 was already lying with the petitioner, therefore, on the adjustment of the same the appeal was disposed of in the interest of justice.
7. After hearing the learned counsel for the parties and having gone through the impugned order as well as other documents so made available, we are inclined to grant leave to appeal, inter alia, to examine above-noted contentions subject to question of limitation which will be decided at the time of hearing of the appeal.
8. We are prima facie of the opinion that the petitioner has made out a case for suspension of sentence, therefore, the impugned order dated 10th April, 2002 passed by High Court of Balochistan Quetta is hereby suspended. Let the police authorities take the respondent into custody pending decision of appeal arising out of this petition.