2004 PLP 1229 (SCMR)

Makhdoom Ali Khan, Attorney‑General for Pakistan and Irfan Qadir, Prosecutor‑General NAB for Respondents. Date of hearing: 16th January, 2004. JAVED IQBAL, J.‑‑‑--After having heard Mr. Muhammad Akram Sheikh, learned Senior Advocate Supreme Court on behalf of petitioners, Mr. Makhdoom Ali Khan, learned Attorney‑General for Pakistan, Mr. Irfan Qadir, Prosecutor‑General NAB, scanning the entire evidence and perusing the judgment impugned, we are inclined to grant leave, inter alia, in the above captioned petitions arising out of the same: judgment on the following points:‑‑ (a) What exactly the term "plea‑bargaining" stand for? What should be the exact import and significance, does it amount to "plead guilty" for the alleged offences and empowers the Accountability Court to convict and sentence the incumbent concerned by absolving the prosecution from its bounden duty to substantiate the accusation by producing cogent and concrete evidence. (b) Whether the "plea‑bargaining" amounts, to "complete discharge of the petitioners" and no consequential penalty by virtue of amendment subsequently carried out in section 25 of the National Accountability Bureau Ordinance, 1999 (hereinafter referred to as NAB Ordinance) could have been imposed upon the petitioners. (c) Whether the dictum as laid down in case titled Khan Asfandyar Wali v. Federation of Pakistan PLD 2001 SC 607 has been misconstrued and misinterpreted when the alleged ill‑gotten gains were deposited by the petitioners in favour of the Chairman NAB on 23‑4‑2001 prior to the announcement of, the, said judgment. (d) Whether any loss had been accrued to the Government merely by tendering the medical opinion by the legally constituted Medical Board wherein the petitioners were also members and payment was made by Accountant‑General Office to the Government employees in accordance with rules and on the basis of length of their service. (e) Whether the concept of "deeming‑conviction" is alleys to The criminal administration of justice in Pakistan and is in violation of provisions as contained in Articles 4, 9, 12, 13, 14 and 25 of the Constitution of Islamic Republic of Pakistan which could not A have been made applicable in the case of petitioners who were not charged for any specific offence and the notional conviction as provided under section 15 of the Ordinance did not entail the penal consequences of "deeming clause" and the Accountability Court should have fined itself to the question of acceptance and rejection of "plea‑bargaining". (f) Whether the approval for acceptance of "plea bargaining" could have been sought for from the Accountability Court without carrying the amendment on the subject pursuant to the direction of this Court given in Khan Asfandyar Wali's case (supra) and resultantly the transaction regarding "plea‑bargaining" stood finalized on its acceptance by the Chairman NAB and the Accountability Court does not figure in hence the question of any conviction and sentence does not arise. (g) Whether the cases of petitioners were governed by on acceptance of "plea‑bargaining" under section 25 of the NAB Ordinance as enacted in its original form and can conviction and sentence be awarded pursuant to the amendment made subsequently under section 25 of the NAB Ordinance which was not made applicable with retrospective effect?

2. The above captioned petitions are converted into appeal for considering the above points which may be fixed at some early date. N.H.Q./M‑96/S Leave granted.