2018 P Cr (PLP)

SARDAR MUHAMMAD SARFRAZ DOGAR, J.

Zaheer Afzal Chatha, petitioner through instant writ petition invokes the constitutional jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, with the following prayer; "In view of the submissions made herein above, it is most respectfully prayed that the amount imposed on the petitioner for the agencies as mentioned in ACR No. 14/2016 (D/1) be declared as illegal, unlawful and void ab intio on the rights of the petitioner except two i.e. "Zaheer Traders Code No.313379" and "Rizwan Traders Code No. 313366". It is also prayed that the petitioner may please be allowed for the rendition of account as he has already paid all his liability except KIBOR/Incidental Charges/consequential gain as Rs.1,34,55,426/-, and direct the respondent/NAB to pay back the extra amount which were duly received from the petitioner; moreover the remaining amount may be recovered by other agencies holder which may kindly he subject to law. Any other relief, this Hon'ble Court deems fit, may also be awarded.

2. Precisely, the facts of the case are that NAB authorities filed Accountability Court Reference No. 14 of 2016 against 13 accused persons, out of which 10 were employees of National Fertilizers Marketing Limited, Lahore Region (hereinafter referred as "NFML"), 2 were Bankers and the petitioner was made an accused being registered Urea Dealer. The petitioner was arrested on 19.10.2015 on the allegations that he in connivance with co-accused persons managed to book urea in the name of different agencies in excess of approved limits of prescribed quota. The petitioner also got prepared MCB CDRs in connivance with accused Tauqir-ul-Hassan and Muhammad Farooq Khan.

3. During the course of investigation, the petitioner voluntarily came forward and offered/requested to return to the NAB the illegal gains/assets acquired by him i.e. Rs. 17,416,477/- in the 4course of aforesaid offences through application under section 25(b) read with section 15 of The National Accountability Ordinance, 1999 (hereinafter referred as "N.A.O., 1999")..After taking into consideration the facts and circumstances of the case, the liability of the petitioner was calculated as Rs. 17,416,477/- including consequential gains. In consequences thereof, the competent authority accepted the plea bargain offer of the petitioner vide RBM held on 29.1.2016 in the following terms:- (a) Down payment (34%) amounting to Rs.5,921,602.181- at the time of acceptance of plea bargain. (b) First installment (33%) amounting to Rs. 5,747,437.41/- within 03 months of acceptance of Plea Bargain. (c) Second installment (33%) amounting to Rs.5,747,437.41/- within 06 months of acceptance of Plea Bargain.

4. Consequently, on acceptance of an application submitted by the NAB under section 25(b) read with section 15 of N.A.O., 1999 for interim approval of Plea Bargain Agreement of accused Zaheer Afzal Chatha, by the learned Judge, Accountability Court No. V, Lahore, the petitioner was directed to be released forthwith if not required in any other case/reference, vide order dated 7.3.2016.

5. The grievance voiced through instant writ petition is that while determining the liability of the petitioner the respondents have imposed the liability of all 23 agencies on the petitioner, whereas, the petitioner held only two agencies namely, "Zaheer Traders Code No. 313379" and "Rizwan Chatta Traders Code No. 313366". As such, the respondents have miscalculated the liability of the petitioner, hence, respondent No.1 may be directed to recalculate his liability and to correct the liability to the extent of only two agencies as mentioned above.

6. We have heard the learned counsel for the petitioner at some length. and also gone through the available record with his assistance.

7. The provision of section 25 of the N.A.O., 1999 speaks of two classes of cases. In the first category where a holder of public office or any other persons, prior to the authorization of investigation against him, voluntarily conies forward and offers to return the assets or gains acquired or made by him in the course, or as the consequence, of any offence under the N.A.O., 1999 the Chairman, NAB may accept such offer and after determination of the amount due from such person and its deposit with the NAB discharge such person from all his liability in respect of the matter or transaction in issue, provided that the Flatter is not sub judice in any Court of law. The case (if the petitioner does not fall within the category of section 25 (a) but it falls in the other category under section 25(b) of N.A.O., 1999 where the petitioner has voluntarily offered to the NAB authorities for payment of an amount of Rs.17,416,477/- under a settlement, after authorization of investigation and such settlement under plea bargain between the NAB and the petitioner required mandatory approval of the Accountability Court. In the case in hand, the petitioner himself opted to enter into plea bargain subsequent to the authorization of investigation, therefore, the case of the petitioner falls in the second category where consent of the Accountability Court is mandatory in terms of section 25(b) of Ordinance ibid.

8. The provisions of section 25(b) of N.A.O., 1999 apparently are mutually beneficial to the NAB as well as to the accused as in case of approval of plea bargain NAB receives the money., agreed to be returned by the accused while on payment of plea bargain amount, the accused gets benefit of disposal of case against him and also obtains his release from the custody: .Even otherwise, this Court cannot go through the factual controversy in writ jurisdiction as to whether there were 23 agencies or there were only two agencies. The liability was determined for specific amount and the petitioner himself has admitted his liability at the time of passing of order before the learned Judge Accountability Court on 7.3.2016. Now after lapse of more than eight months, he cannot deviate from his earlier stance on the plea of ignorance as it is settled proposition of law that ignorance of law is no excuse.

9. Moreover, in exercise of constitutional jurisdiction, the petitioner has to approach the Court with clean hands. In the present case, we do not find one good justifiable reason as to why the petitioner has failed to make payment Of remaining two installments of the plea bargain. In the case in hand, once the petitioner has entered into plea bargain he cannot back out from his word and say that his liability has been miscalculated by the NAB authorities. We are clear in our mind that defaulter cannot have a premium over his default and, in the given circumstances, the NAB authorities cannot be directed to recalculate the liability of the petitioner which will open a Pandora box. Moreover, there is no provision in the N.A.O., 1999 under which Chairman NAB can resume its jurisdiction after passing of order by the learned Judge Accountability Court. Even otherwise, after passing of order by the learned Judge Accountability Court, prima facie, the Chairman NAB would become functus officio and if for the sake of arguments this practice is allowed, it will give a premium to the NAB authorities to sit on each and every order passed by the learned Judge Accountability Couit and reopen the matter of plea bargain as per their whims.

10. The contention raised by the learned counsel for the petitioner that the petitioner was not present at the time of passing of order by the learned Judge Accountability Court has been found incorrect by us as the order passed by the learned Judge Accountability Court clearly depicts the presence of petitioner Zaheer Afzal Chatha in custody with counsel Mr. Adnan Shuja Butt, Advocate. It cannot be said that the petitioner was coerced to sign the agreement. The petitioner thus cannot be allowed to take summersault for avoiding to pay the remaining amount when he has already taken the fruit. Even otherwise the question raised by the petitioner involves factual controversy, which cannot be resolved by this Court in writ jurisdiction. We have fortified our view by the judgments reported as "Fida Hussain v. Mst. Saiqa" (2011 SCMR 1990) and "Pervez Alam v. Pakistan Dairy Products (Pvt.) Limited, Karachi" (2005 SCMR 1840).

11. Even otherwise, provision of Article 129 (e) of Qanun-e-Shahadat Order, 1984, provides presumption of regularity to all acts performed in a judicial proceedings and during the course of official proceedings though with rebuttable presumption. The judicial proceedings are blessed with presumption of truth and Court is bound to believe judicial record unless in case of existence of exceptional circumstances. file true principle intended to be conveyed by the rule, Omnia praesutnuntur rite et solenniter esse acta, i.e. all acts are presumed to have been rightly and regularly done. The Hon'ble Supreme Court of Pakistan in the case of "Fayyaz Hussain v. Akbar Hussain and others" (20(14 SCMR 964), has held that credibility is attached to proceedings before a judicial forum and strong and unimpeachable evidence is required to rebut such presumption.

12. For the foregoing reasons, we do not see any merit in the instant petition; consequently, the same is dismissed in limine. MH/Z-28/L Petition dismissed.