P L D 2008 Supreme Court 697 (PLP)

CH. EJAZ YOUSAF, J.

This appeal by leave of the Court is directed against judgment dated 12-11-2007 passed by a learned Division Bench of the Lahore High Court, Lahore, whereby Reference pending against respondent No.1 before the Judge Accountability Court No.3, Rawalpindi, was quashed.

2. Facts of the case, in brief, are that Reference bearing No.43 of 200J, titled as "State v. Admiral Mansoor ul Haq and Aamir Lodhi" (respondent No.1), was filed before the Accountability Court No.1 in which principal accused Admiral Mansoor ul Haq was taken into custody on the charge that on account of purchase of defence material for Pakistan Navy, he had received commission, kickbacks and bribe from the suppliers/contractors. In the same case respondent No.1 was also charged for facilitating the crime. Principal accused Mansoor ul Haq was released on the basis of plea bargain whereas, according the prosecution, the respondent No.1 did not appear before the accountability Court despite issuance of process. Resultantly another Reference i.e. 69 of 2002 was also filed against him. During the proceedings in absentia, respondent No.1 filed writ petition No.53 of 2003 praying that the proceedings in Reference No.69 of 2002 pending before the Accountability Court No.3, Rawalpindi may be declared as illegal and without lawful authority. Stay order was also sought against the proceedings which were pending adjudication before the accountability Court. Another writ petition i.e. No.385 of 2003 for quasi-anent of the proceedings in reference No.43 of 2001 was also filed. Since during pendency of both the above said writ petitions, National Reconciliation Ordinance, 2007, (hereinafter referred to as the "NRO") was promulgated, therefore respondent No.1 filed application before the High Court for quashment of the cases, thereunder. The application was allowed and the Lahore High Court vide the impugned judgment/order dated 12-11-2007, quashed reference No.43 of 2003, hence this petition.

3. Dr. Danishwar Malik, learned Prosecutor-General NAB, has contended; that the learned Court below has gravely erred in law by holding that since, as a result of plea-bargain, Admiral Mansoor-ul-Haq was 'acquitted. of the charge" therefore, continuation of proceedings against respondent No.1 is tantamount to abuse of the process of Court. He stated that under the law, since on acceptance of plea bargain, a person is deemed to have been convicted, therefore, the reference against respondent No.1 could not have been quashed. It is further his case that section 33F as amended by National 'Reconciliation Ordinance, 2007, was applicable only to holders of public office and effect thereof could not have been extended to a private individual. He maintained that since on the basis of evidence collected by the prosecution, a case-against respondent No.1 was made out for facilitating the principal offender in commission of the offence, therefore, the references could not have been quashed. Having been questioned as to what sort of evidence was available against the respondent No.1, the learned Prosecutor General NAB stated that one Jamil Ansari had in the course of investigation made a statement thereby admitting that he i.e. said Jamil Ansari had paid certain amounts to the respondent No.1 out of the kickbacks received by him i.e. Jamil Ansari. However, admitted that said Jamil Ansari was neither challaned in the case nor arrayed as an accused. In answer to the query, as to whether the loss was made good, the learned Prosecutor General NAB candidly conceded that the allegedly misappropriated amount was paid by co-accused Mansoor-ul-Haq.

4. Mr. Mushtaq Ahmad Khan, Senior Advocate Supreme Court, learned counsel for respondent No.1, on the other hand, while controverting the contentions raised by the learned Prosecutor General, NAB, submitted that since as a result of plea bargain proceedings against Mansoor-ul-Haq were dropped therefore, Reference against respondent No.1 too, was not maintainable. He added that the allegation contained in the Reference was that one Jamil Ansari had, on respondent No.1's instructions established offshore companies in whose accounts commission and kickbacks from defence deals were received and it were later on shared by the accused persons, but since said Jamil Ansari was not challaned therefore, the respondent No.1 too, could not have been prosecuted. He maintained that proceedings against respondent No.1 were therefore, rightly quashed as its continuation was an exercise in futility and abuse of the process of Court.

5. We have given our anxious consideration to the respective contentions of the learned counsel for the parties and have also perused the record of the case with their assistance minutely.

6. As to the first contention of the learned counsel for the appellant that the reference was wrongly quashed, it may be mentioned here that the allegations contained in the reference against the respondent No.1 were that he was instrumental in obtaining commission and kickbacks in defence deals for and on his own behalf and on behalf of Admiral Mansoor ul Haq and that on his instructions certain offshore companies, in whose accounts commission and kickbacks from defence deals were received, which amounts, later on, were distributed amongst the accused persons, were established by one Jamil Ansari. Quashment of the reference and proceedings carried out in pursuance thereof was sought, primarily on the ground that respondent No. 1 was not beneficiary of the kickbacks received by co-accused Admiral Mansoor ul Haq and that in view of the NRO it was not maintainable.

7. The learned Judges in the High Court having found that the Reference in question i.e. bearing No.43 of 2001 relating to the period between 1st day of January, 1986 to 12th day of October, 1999, was squarely covered by the newly inserted section 33-A (vide the NRO), of the National Accountability Ordinance and therefore, was not maintainable against the respondent No.1. It was further observed that even if no plea bargain had taken place in the case, no proceedings, in view of the NRO, could have continued. against the principal accused, namely, Admiral Mansoor-ul-Haq and that since reference qua principal accused Admiral Mansoor ul Haq was withdrawn, therefore, there was hardly any logic in proceeding against the respondent No.1 irrespective of the fact as to whether he was holder of a public office or not and that continuation of the proceedings, in the above backdrop was nothing but an abuse of the process of the Court. It was further held that since the National Reconciliation Ordinance, 2007 was a remedial statute, therefore, provisions thereof had to be applied liberally.

8. Admittedly proceedings against Admiral Mansoor ul Haq, the principal offender, came to an end as he was released on the basis of plea bargain whereas Jamil Ansari was not indicted. Though it has been provided in the NAB Ordinance that on termination of proceedings as a result of plea bargain the 'accused shall be deemed to have been convicted yet, the fact remains that guilt of co-accused Mansoor ul Haq was., at the trial, not substantiated through evidence nor the case was decided on merits so as to establish as to how and in which manner the offence was committed and facilitated by the respondent No.1, as to whether he had abetted the main offence or his role was limited to the extent of just securing commission and kickbacks for the principal offender, a part whereof was allegedly paid to him by said Jamil Ansari. It is also not clear as to how and on what 'count the amount in question was deposited in the accounts of those offshore companies which were statedly established for the purpose, because the person who had allegedly established the same was neither challaned by the NAB authorities, nor summoned, by the Court.

9. It would be pertinent to mention here that leave to appeal has been granted by this Court in the case of Dr. Muhammad Anwar Kurd v. The State and another 2004 SCMR 1229 to consider, inter alia, as to what exactly the term "plea-bargaining" stands for and what should be its exact import and significance, does it amount to "plead guilty" for the alleged offences or whether it amounts to complete discharge of the persons entailing no consequential benefits and whether the concept "deeming conviction" was alien 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 the Islamic Republic of Pakistan?

10. Though it cannot be laid as a general rule that in every case where an abettor and the principal are tried together, the abettor if charged with having abetted the principal in the commission of an offence, must be acquitted if the principal is acquitted because there may be certain exceptions to the proposition, for instance where the abettor on his own confession or plea of guilty to the charge is convicted though the principal accused is acquitted for insufficiency of evidence or where substantive offence at appellate stage is found to have been committed by an unknown person or persons in consequence of the abetment by the culprit. However, it goes without saying that when principal offence is not substantiated, abetment falls through. This view receives support from the following reported judgments (i) Amena Khatun and others v. Munshi Miah PLD 1960 Dacca 723, (ii) Shama alias Jinnat Ali v. The State PLD 1966 Dacca 269 (iii) Umadasi Dasi v. Emperor 1924 Calcutta 1031, and (iv) Thakur Shah v. Emperor AIR 1943 PC 192.

11. It is also well settled that liability of an abettor is limited to the extent of the offence abetted and therefore, the 'sentence inflicted on him cannot, as a propriety, be greater than that of the principal accused. In this connection the cases reported as (i) Raees Jumma v. The State and. another 1991 SCMR 2018, (ii) Aijaz Ahmed v. The State 1999 SCMR 2760 may be referred to. In a number of cases it has been held that when the principal accused is acquitted then it is not proper to make the abettor a scapegoat and convict him on the basis of same evidence. Reference in this regard may usefully be made to the following reported judgments: (i) Shamma alias Jinnat Ali v. The State PLD 1966 Dacca 269 and (ii) Sohna v. The State 1968 PCr.LJ

50. Since in the instant case neither the respondent pleaded guilty to the charge, nor made confession, nor Jamil Ansari,' who had allegedly paid him certain amounts, was arrayed as an accused, therefore, in our view, the reference was rightly quashed by the High Court. The contention therefore, is devoid of force.

12. As to the next contention raised by learned counsel for the appellant that since section 33F, as amended by' the NRO 2007, is applicable only to the holder of, a public office, therefore, effect thereof cannot be extended to a private individual, it may be pointed out here that the point raised, no doubt, is of general public importance and 'therefore leave has already been granted by this Court in the case of The State through Prosecutor-General National Accountability Bureau, Islamabad v. Nasim ur Rehman and others 2004 SCMR 1943 to consider as to "what is the scope of NAB Ordinance in respect of an accused who was not holder of public office but had indulged himself into corruption and corrupt practices, being the beneficiary from the accused who .was holder of public office and was facing trial with other accused for the same charge? And the proposition would be answered appropriately in the said case yet, to the extent of the case in hand, it may be observed here that if an abettor or any other person can be charged, tried or convicted along with holder of a public office then if the principal offender is acquitted or proceedings against him are dropped under the NRO then as to why benefit thereof shall not be extended to the ordinary person because both sail in the same boat. This contention too, therefore, is without force.

13. Upshot of the above discussion is that the consideration which weighed with the learned Judges in passing the impugned judgment fully conform to the requirements of law and do not call for interference by this Court. Resultantly this appeal, having been found without merits, is hereby dismissed. NHQ/N-7/SC????????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.