Tanvir Bashir Ansari, J.--This appeal preferred under Section 32 of the N.A.B Ordinance 1990 is directed against the order dated 15.7.2000 whereby a learned Judge Accountability Court Rawalpindi while acting under Section 25 and Section 15 of the N.A. B Ordinance 1999 issued the following directions:--
1. Syed Ali Raza Shah, Accused No, 1 shall be released forthwith in this reference as he has reached a settlement with the NAB in terms of Section 25 of the NAB Ordinance.
2. Under Section 15 of the NAB Ordinance he shall be deemed to be convicted for an offence under the said Ordinance and therefore, he shall stand disqualified.for 21 years from seeking or from being elected chosen, appointed and nominated as member or representative of any public office or any statutory or local authority of the Government of Pakistan.
3. He shall not be allowed to apply for or be granted or allowed 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 ten years from the date of his order.
2. Briefly the facts are that Reference Bearing No, 14/2000 under Section 18 read with Section 24 of the NAB Ordinance 1999 was filed on 25.5.2000 against the appellant Makhdoom Syed Ali Raza Shah and five others namely Muhammad Nawaz son of Karmoo Muhammad Iqbal son of Muhammad Nawaz, Rana Altai Hussain, Mirza Akhtar Hussain SDO L.G. & R.D Toba Tek Singh and Riaz Ahmed Sub-Engineer LG & RD T.T. Singh, with the allegations that the appellant had sponsored the scheme for construction of Community Centres in the areas of Shahpur Jewan Nagar, Abadi Nasir Nagar and Chak 61. G.B. District T.T. Singh. The community Centres were constructed at the places owned by the appellant himself or by his influential supporters. The said community Centres were utilized by the accused 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, 2,19,00/- respectively. The Accountability Court took cognizance of the matter and commenced proceedings against the appellant and other co-accused and directed that the accused be summoned and brought before the Court. As per the record of the Accountability Court the appellant and all the other accused appeared and/or were produced before the Accountability Court upon the subsequent dates of hearing.
3. During the course of proceedings the learned Special Prosecutor filed an application signed by the then Prosecutor General Accountability on 15.7.2000 to the effect that the appellant who is an accused in the reference has made an application under Section 25 of the N.A.B Ordinance and has reached a settlement with N.A.B. It was also averred therein that the appellant has returned the gain acquired. It is also disclosed from the said application that the Chairman N.A.B had also accepted the application of the appellant and decided to release the accused under Section 25 read with Section 15 of the N.A.B Ordinance. Notice of this application was issued to the appellant for the same day as the main reference was also fixed.
4. After hearing both the parties, the learned Accountability Court considered the action under Section 25 to be a conviction of the appellant under Section 15 of the Ordinance and proceeded to release the appellant forth with but disqualified and debarred the appellant in the terms herein before detailed.
5. The learned counsel for the appellant has urged that the case of the appellant was not covered under Section 25 of the N.A.B Ordinance and thus he was not liable to be disqualified or debarred as ordered by the learned Judge Accountability Court. It was elaborated that the requirement' of Section 25, attracting the deeming clause of conviction would not be attracted for the following reasons:- (a)that although it is mentioned in the application filed by the learned Special Prosecutor on 15.7.2000 that the Chairman NAB has considered the circumstances of the case and keeping in view that the accused has returned- the gain acquired had accepted the application and decided to release the accused, no such order of the Chairman NAB is available on the record. He referred to the order dated 13.5.2003 passed by this Court, wherein, the statement of the Deputy Prosecutor General was recorded to the effect that there was no order passed by the Chairman NAB in the matter of plea bargain in question.
(b)that there was nothing on the record to show that the appellant had either returned to NAB any alleged assets or gain alleged to be acquired through corruption or corrupt practices. It is alleged that any payment which was made by the appellant was paid in head of account No, 1390-Misc - on 24.1.2000. The payment was made as arrears of land revenue and also much before the filing of the reference.
6. The learned counsel for the appellant relied upon the case of Javed Tariq Khan vs. The State PLD 2002 Lahore 607 to contend that where the essential requirement of plea bargaining in terms of Section 25 of the Ordinance 1999 were not fulfilled, the penalty of disqualification etc under Section , 15 ibid can not follow. According to the learned, counsel in the present case as well as in the above referred case, it was not proved if any gains were deposited with the NAB or if any conscious order was passed by the Chairman NAB.
7. On the other hand, the learned Special Prosecutor vehemently contended that the pleas bargaining was made upon the application of the appellant. Notice of the application made thereafter by NAB was duly issued to the appellant who had availed of the opportunity and had raised the same contentions before the Accountability Court, which he has raised in this appeal.
According to the learned Special Prosecutor the penalty was imposed upon the appellant by the Accountability Court after duly considering all the pros and cons of the case.
8. Arguments have been heard and record perused.
9. A detailed examination of the Reference itself would show 'that only payment relevant to the present case is shown to have been made by the appellant through challan dated 24.1.2000 whereby a sum of Rs, 2,62,000/- was deposited in the head of Account No, 1390-Misc. The said payment was made in favour of Naib Tehsildar Sindhilianwali District T.T. Singh. There is force in the submissions made by the learned counsel for the appellant that the said payment was made in pursuance of the demand placed upon the appellant for recovery as arrears of land revenue.
10. As regards, the payment to the NAB Authorities under Section 25 of the Ordinance 199 is concerned, nothing has been produced on the record to indicate any such payment. Except the averment in the application moved under the signatures of the Prosecutor General Accountability before the Accountability Court that "he has reached the settlement with the N.A.B" and that he has returned the gain acquired" no details were set forth by the Special Prosecutor before the Accountability Court showing the date time or extent of any such payment in favour of NAB which should fulfill the requirement of Section 25. A perusal of the impugned order would also show that the learned Judge Accountability Court has not undertaken any exercise to ascertain whether any gains have been returned to the NAB or any amount deposited with the NAB by the appellant.
11. At this stage, it is expedient to reproduce Section 25 of the NAB Ordinance as it stood at the time when the reference was filed and as it was amended through Ordinance XXIV of 2000 dated 5.7.2000.
19. Substitution of Section 25, Ordinance IV of 2000.Section 25 Amended vide Ordinance XXIV of 2000 dated 5.7.2000. --In the said Ordinance for Section 25, the following shall be substituted namely:--10. Amendment of Section 25, Ordinance XVIII of 1999.-- 25 Voluntary return (Plea bargaining).-Where at any time whether before or after the commencement of trial the holder of a public office or any person accused of any offence under this: Ordinance returns to the NAB the assets or gains acquired through Corruption or Corrupt practices:--In the said Ordinance in Section 25.-- (a) for clause (ii), the following shall be substituted, namely:--
(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," and
(b) after sub-section (b), the following new sub-section shall be added namely :- (i)If the trial has not commenced, the (c) Chairmana. Notwithstanding anything contained in Section 15 or in any NAB may release the accused and
(ii) If the trial has commenced the Court may, with the consent of the Chairman NAB release the accused.
(2) 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 etc., within one month from the date of such deposit."other law for the time being in force where a holder or a public office or any other person volunt arily comes forward to return the illegal gain made by him or loss caused by him to the State exchequer through corruption and corrupt practices, the Chair-man NAB may accept the offer and after determinat-ion 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.
It is noticed that the following requirement regarding the payment to NAB in order to constitute plea bargaining are mandatory whether Ordinance IV of 2000 or Ordinance XXIV of 2000 is applicable. In the former amending Ordinance, the requirement is couched in the following term:-- "Returns to the NAB the assets, or gains acquired through corruption or corrupt practices."
In Section 25 as amended through Ordinance XXIV of 2000 the requirement is that 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 a person of all his liabilities relating to the matter or transactions in issue."
12. It is also noticed that the application received from Prosecutor General NAB did not carry with it an undertaking signed by the appellant requesting for plea bargain in terms of Section 25. As per practice there is a proforma which has to be signed by the accused before he is granted the benefit of plea bargain. The absence of such undertaking shall also demolish the efficacy of the proposed action under Section 25 of the Ordinance.
13. In view of the above, it can be safely concluded that none of these requirements have been established on the record. Thus it cannot be said that the case of the appellant fell within the purview of plea bargaining as contemplated in Section 25 of the. Ordinance.
14. The necessary corrollary of the above shall be that Penal Action taken under Section 15 in disqualifying and debarring the appellant is beyond the para-meters of Section 15 ibid.
15. The release of the appellant, however, shall be considered to be a discharge under Section 63 Cr.P.O which mandates as under:-- "Discharge of person apprehended. No person who has been arrested by a police officer shall be discharged except on his own bond or. on a bail under Special Order of a Magistrate".
16.Accordingly it is found that the release of the appellant ordered by the Accountability Court is neither an acquittal nor does it terminate the investigation for all times to come. This view is in line with the judgment cited as Javed Tariq Khan. vs. The State PLD 2002 Lahore 607 and Muhammad Waseem vs. Addl. Sessions Judge 1985 P.Cr.L.J 244.
17.In view of the above we accept this appeal and set aside the order of the learned Accountability Court as far as it relates to the imposition of the penalty of disqualification etc. purportedly made under Section 25 and Section 15 of the Ordinance.