2003 PLP 374 (YLR)
Makhdoom Syed ALI RAZA SHAH‑‑‑Petitioner Versus THE STATE‑‑‑Respondent
| Citation | 2003 PLP 374 (YLR) |
| Forum / Court | Lahore |
| Bench Members | M. Akthar Shabbir and Mian Muhammad Jahangir, JJ |
| Parties | Makhdoom Syed ALI RAZA SHAH‑‑‑Petitioner Versus THE STATE‑‑‑Respondent |
Q1: What are the key laws and sections cited in 2003 PLP 374 (YLR)?
This judgment primarily cites: statutory provisions as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case 2003 PLP 374 (YLR)?
The case was heard and decided by the Lahore bench comprising: M. Akthar Shabbir and Mian Muhammad Jahangir, JJ.
Q3: What is the official citation format for this judgment on Pakistan Law Portal?
Cite this legal precedent as: 2003 PLP 374 (YLR) (Makhdoom Syed ALI RAZA SHAH‑‑‑Petitioner Versus THE STATE‑‑‑Respondent). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Representation
- Kh. Tariq Rahim, Mirza Abbas and Mehr Muhammad Iqbal for Petitioner.
Headnotes / Summary
(a) National Accountability Ordinance (XVIII of 1999)‑‑‑ ‑‑‑‑Ss. 32, 15, 25, 18 & 24‑‑‑Plea bargaining‑‑‑Disqualification to contest elections or hold public office ‑‑‑Appreciation of evidence‑‑‑Accused had contended that his case was not covered under the proviso to Ss. 15 & 25 of the NAB Ordinance‑‑‑Accused had deposited rupees two lacs on 24‑1‑2000, on the report and objection of Public Accounts Committee of the National Assembly, prior to the proceedings of plea bargaining with the Chairman, NAB on 18‑5‑2000‑‑‑Accused had contended that the Judge Accountability Court had not issued any notice to him convicting and disqualifying him under S.15 of the National Accountability Bureau Ordinance, 1999‑‑ Validity‑‑‑Accused had made application on 12‑6‑2000 to the Chairman, NAB praying therein to settle the reference out of the Court and offering to deposit the amount charged against him‑‑‑Plea bargain proceedings had been conducted upon his application and after satisfying the illegal gains obtained by the accused through corruption/corrupt practices and misuse of his authority as a holder of public office, the Special Prosecutor for NAB had applied to the Court for release of the accused‑‑‑Even if the accused had deposited rupees two lacs on the report and objection of the Public Accounts Committee of the National Assembly, even then there had been a huge amount outstanding against him which he had to pay to the NAB after filing of reference against him and the whole amount had been adjusted or repaid by the accused on his own application submitted to the Chairman, NAB on 12‑6‑2000‑‑‑Accused had not contested the reference rather he had opted to return the gains acquired by him through illegal means and the accused had not been able to rebut the allegations leveled by the Chairman, Public Accounts Committee and reiterated in the present reference filed against him‑‑‑Accused had finalised a deal after the filing of reference against him‑‑ Accused was a convict as a 'consequence of his own bargaining with, the NAB‑‑ Arguments of the accused were repelled as being misconceived and devoid of force‑‑ Conviction and, sentence passed against the accused were maintained and his prayer to allow him to participate in the forthcoming general elections was refused in circum stances. (b) National Accountability Bureau Ordinance (XVIII of 1999)‑‑‑ ‑‑‑‑S.15‑‑‑Disqualification to ‑contest elections or to hold public office‑‑‑Show‑cause notice, want of‑‑‑Perusal of S.15 of the National Accountability Bureau Ordinance, 1999, reveals that there is no special provision for the issuance of show‑cause notice for disqualifying the accused person‑‑‑Person who avails of the benefit of S.25 shall automatically be deemed to have been convicted for an offence under the Ordinance and shall forthwith cease to hold the public office held by him and shall be disqualified for a period of 21 years, besides he would be disentitled to avail of the financial facility as provided in S.15 of the said Ordinance‑‑ Special Public Prosecutor NAB had applied to the Court for the release of the accused under plea‑bargain under S. 25 of the National Accountability Bureau Ordinance, 1999 on 15‑7‑2000‑‑‑Notice had been issued to the accused by the Accountability Court for the said date and he had been present in the Court when a copy of the application filet by the NAB had been handed over to the accused and after hearing the arguments from both sides, Court had passed the impugned order‑‑‑Contention of the accused that he had not been issued a show‑cause notice before being disqualified was repelled in circumstances. (c) National Accountability Bureau Ordinance (XVIII of 1999)‑‑‑ ‑‑‑‑S.25‑‑‑Voluntary return (plea bargain ing) ‑‑‑Scope‑‑‑National Accountability Bureau would make plea bargaining or effect settlement with the accused if he comes forward voluntarily to return the illegal gain acquired or loss caused by him to the State exchequer through corruption/corrupt practice‑‑‑If the offer to return illegal gain is made by the accused after the commencement of trial, the Chairman NAB may release the accused with the approval of the Court or if the bargaining is made before taking cognizance by the Accountability Court, then the Chairman NAB will be competent to accept the offer and determine the amount of illegal gain or loss caused and after deposit of the same with the NAB, discharge such person‑‑‑Chairman NAB is not competent to release a person without his own offer to return the acquired illegal gains or make good loss caused by him. Malik Abdul Haq, Special Prosecutor for NAB.
Judgment & Decree
7. We have heard the arguments addressed by the learned counsel for the parties carefully and also perused the record with their kind assistance.
8. Before commenting upon the objections raised by the learned counsel for the applicant it would be appropriate to reproduce the relevant provisions of section 25 of the NAB Ordinance' which provides plea bargaining procedure:‑‑
25. Voluntary return plea bargaining:‑ (a) Where at any time whether before or after the commencement of trial the holder of a public office or any other person accused of any offence under this Ordinance, returns to the NAB the assets or gains acquired through corruption or corrupt practice, the Court or the Chairman NAB with the approval of the Court or the Appellate Court, as the as may be, may release the accused." (b)
(c) Notwithstanding anything contained in section 15 or in any other law for the time being in force, where a holder of a public office or any other person voluntarily comes forward to return the illegal gain made by him or loss caused by him to, the State exchequer through corruption and corrupt practice, 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 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."
9. From the plain reading of the above- referred provisions of section 25, it is manifestly clear that NAB would make plea bargaining or effect settlement with the accused if he comes forward voluntarily to return the illegal gain acquired or loss caused by him to the State exchequer through corruption/corrupt practice. If the offer to return the illegal gain is made by the accused after the commencement of the trial, the Chairman NAB may release the accused with the approval of the Court or if the bargaining is made before taking cognizance by the Accountability Court, then, the Chairman NAB will be competent to accept the offer and determine the amount of illegal gain or loss caused, as the case may be, and after deposit of the same with the NAB, discharge such person. The Chairman NAB is not competent to release a person without his own offer to return the acquired illegal gains or loss caused by him. The applicant‑appellant had made the application on 12‑6‑2000 to they Chairman NAB Islamabad praying therein, to settle down the reference out of the Court and to deposit the amount charged against him and on his application plea bargaining proceedings were conducted and after satisfying the illegal gains obtained by the, applicant through corruption/corrupt practices and misusing of his authority as a holder of public office, under his instructions, the Special Prosecutor for NAB has applied to the Court for the release of the' applicant. The allegations against the applicant were that three community centres were constructed on the private land for which the applicant had caused loss to the Government to the tune of rupees mentioned above. If for the sake of arguments, the plea of the applicant is accepted that he had deposited two lacs on the report and objection of the Public Accounts Committee of National Assembly, even then, there was huge amount outstanding against him which he had to pay to the NAB after filing of reference against him and the whole amount was adjusted or repaid by the applicant on his own application, submitted to the Chairman NAB C on 12‑6‑2000, so these arguments of the learned counsel for the applicant, being misconceived, are repelled.
10. The Special Prosecutor NAB had applied to the Court for the release of the applicant due to the settlement under plea bargaining under section 25 of the Ordinance on 15‑7‑2000. The notice was issued to the applicant by the Accountability Court for the said date and he was present in Court when a copy of the application filed by the NAB was handed over to the defence counsel and after hearing the arguments from both sides, the Court had passed the impugned order. To meet with this argument of the learned counsel for the applicant that the Court had not issued any notice to the applicant while convicting and disqualifying him under section 15 of the Ordinance, it would be proper to reproduce section 15 of the Ordinance:‑‑ 15. "Disqualification to contest election or to hold public office:‑ (a) Where an accused person is convicted for the offence of 'corruption or corrupt practices as specified in the Schedule to this Ordinance, he shall forthwith cease to hold pubic 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 section 25 shall also be deemed to have been convicted for an offence under this Ordinance, and 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 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 of corruption and/or corrupt practice as described at Serial No. 1 of the Schedule 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. " From the bare reading of the above‑referred provision of law, it reveals that there is no special provision for the issuance of show cause notice for disqualifying the accuses person. The person who avails of the benefit of section 25 shall automatically be deemed to have been convicted for an offence under the Ordinance and shall forthwith cease to hold the public office, if any, held by him and shall be disqualified for a period of 21 years. In addition thereto he would be disentitled to avail of the financial facility as provided in section 15 of the Ordinance. Accordingly, this argument of the learned counsel, having no force is also repelled.
11. The applicant has not contested the reference rather he opted to return the gains acquired by him through illegal means and the applicant has not been able to rebut the allegations levelled by the Chairman, Public Accounts Committee and reiterated in the' instant reference filed against him. Furthermore, ‑this argument pertains to the merits of the appeal, therefore, we are constrained not to comment upon tire same.
12. Learned counsel for the applicant has placed reliance upon a judgment passed in Criminal Appeal No. 722 of 2002 by a Division Bench of this Court. The facts of that case are not applicable on all fours to this case. The circumstance of that case were quite different and distinguishable. In that case, the accused appellant had trade an agreement with Punjab Cooperative Board for Liquida tion which was finalized by an Hon'ble Judge High Court before filing the reference against that appellant but in the instant case the deal was finalized after the filing of the reference against the present applicant, so the applicant cannot take any benefit of the same.
13. The applicant is a convict as a consequence of his own bargaining made with the NAB, therefore, we are not inclined to accept the prayer of the applicant to allow him to participate in the forthcoming general elections.
14. Learned counsel for the applicant has not been able to persuade us to suspend the conviction and sentence of the applicant passed by the Accountability Court in the reference.
15. Resultantly, the instant C.Ms. being devoid of force are dismissed. Application dismissed. S.M.A.H./A‑655/L