P L D 2020 Balochistan 1 (PLP)

ROZI KHAN BARRECH, J.

This matter is listed for Kacha Peshi and during hearing with consent of the parties it was agreed that the matter would be heard and decided at Kacha Peshi stage. This appeal has been filed by the State through Prosecutor General, NAB against the order dated 26.03.2019 ("impugned order") passed by the Accountability Court-I, Quetta ("trial court"), whereby the applicati6n filed by respondent No.1 under Section 265-K, Cr.P.C. was converted into plea bargain application and was accepted by the trial court.

2. Briefly stated the facts, relevant for disposal of this appeal are that one Arshad Habib the then Divisional Superintendent Post Offices Quetta Division, Quetta lodged a complaint vide letter No.1-3/5/2001- 2002 dated 10th June 2002 before the Director FIA Quetta for registration of a case against the accused/respondent namely Munawar Masih, ex-Postmaster Shelia Bagh Post Office. On the direction of Director FIA an inquiry was initiated into the matter and on finalization of the same, case was registered vide FIR No. 3 of 2003 under Sections 402, 420, 471, 477-A, 109, P.P.C. read with section 5(2) of the Act-II, 1947 against the accused/respondent, who had allegedly misappropriated an amount of Rs.14,40,570/- pertaining to money orders issued from the said post office, but the amount received against subject money orders was not credited in the relevant account. On merger of crime wing of FIA into NAB, the case was transferred to NAB Balochistan and the investigation of case was authorized by Director General NAB Balochistan on 26th June 2005.

3. After completion of inquiry/investigation Reference No.7 of 2007 was filed before the trial court on 3.5.2007 and warrants of arrest of accused/respondent were issued but could not be executed as the accused/respondent was fugitive. Despite issuance of proclamation under Section 87, Cr.P.C. and publication in the newspapers, the accused/respondent did not appear and he was declared proclaimed offender vide order dated 24.7.2007, by the trial court, and was convicted under Section 31-A of the National Accountability Ordinance, 1999 (the "NAB Ordinance") for a period of three years and case file was kept in dormant till his arrest. Thereafter the accused/respondent was admitted to ad-interim bail by this court with direction to appear before the trial court, whereafter the accused/respondent appeared before the trial court. The trial court framed charge and read over to the accused/respondent on 4.9.2018, to which he did not plead guilty and claimed trial. During trial the prosecution produced three witnesses. Meanwhile, the accused/respondent filed an application under Section 265-K with the ground that the accused/respondent has deposited the alleged misappropriated amount of Rs.14,40,570/- with the department and the department has closed the case against him. Under such circumstances, the trial court by converting the application under Section 265-K Cr.P.C into plea bargain and accepted the same. Hence, this appeal.

4. We have heard the arguments of Ch. Mumtaz Yousuf, DPG NAB assisted by Mr. Jaffar Raza ADPG NAB on behalf of the state and Mr. Shahid Javed on behalf of the accused/respondent and have also perused the material available on record.

5. Plea Bargain (PB) is the offer and confession of the accused that he has received corrupted money by corruption and corrupt practices and he is liable to be convicted for disqualification for a period of ten years under Section 15 of NAB Ordinance 1999. Admittedly the accused/respondent neither filed an application for plea bargain before the NAB authorities nor the Chairman NAB approved the plea bargain of the accused/respondent. The trial court directly converted the application filed by accused/respondent under Section 265-K Cr.P.C. into an application under Section 25 of the NAB Ordinance for plea bargain and accepted the same as a plea bargain. Now the question arises as to what are the requirements of section 25(b) of the NAB Ordinance, which deals with the case of plea bargain. For ease of reference Section 25(b) of the NAB Ordinance is set out below: "S.25(b) Where at any time after the authorization of investigation, before or after the commencement of the trial or during the pendency of an appeal, the accused offers to return to the NAB the assets or gains acquired or made by him in the course, or as a consequence, of any offence under this Ordinance, the Chairman, NAB, may, in his discretion, after taking into consideration the facts and circumstances of the case, accept the offer on such terms and conditions as he may consider necessary, and if the accused agrees to return to the NAB the amount determined by the Chairman, NAB, the Chairman, NAB shall refer the case for the approval of the Court, or as the case may be, the Appellate Court and for the release of the accused. (bold added)"(sic).

6. A perusal of Section 25(b) NAO explicitly makes it clear that it is only the Chairman NAB who can refer the PB matter to the court for approval. Thus, the application of the petitioner before the Accountability Court to fix the liability was not maintainable. The trial court has no power to fix the liability and direct the Chairman NAB to accept it. Fixing of the amount of liability is in the discretion of the Chairman NAB and the trial court bas no role in this respect. It is well settled principle of law that where a procedure has been provided for doing a thing in a particular manner that thing should be done in that manner and in no other way or it should not be done at all, indeed it impliedly prohibits doing of thing in any other manner, the compliance for such thing in no way could be either ignored or dispensed with. Even if the Chairman NAB refers the PB then it must be approved (or not approved) by the trial court through a speaking order.

7. We have also noticed that the trial court had erred in entertaining the application under Section 265-K Cr.P.C on behalf of accused/respondent and converting his applicain in the plea bargain at the time when the prosecution's evidene was yet to be recorded and no request was made by the Chairman NAB for accepting the application for plea bargain. We are conscious of the fact that there was no bar of limitation as to the trial or the stage of the proceedings for filing an application for acquittal of the accused, but propriety demands that a fair opportunity should be provided to the prosecution to prove its case by producing evidence and the matters should be decided on merits as envisaged under section 245 of the Cr.P.C. after providing proper opportunity to the prosecution for producing its evidence and recording the statements of the accused persons under section 342 of the Cr.P.C.

8. In cases of corruption and misappropriation of public money, the Courts were required to act with extreme care and caution in deciding such cases and should not proceed hastily in acquitting the accused persons involved therein either under section 249-A or 265-K of the Cr.P.C., as the case may be, but should provide the prosecution every possible opportunity to prove its case and establish the guilt of the accused after a full-fledged trial. Reliance is placed on the case titled as The State through Advocate General, Sindh High Court of Karachi v. Raja Abdul Rehman (2005 SCMR 1544). The accused/respondent directly deposited the alleged misappropriated amount of Rs.14,40,570/- with the department i.e. Office of the Postmaster General on 3rd August 2016. The question arises that, whether the said office has the authority to receive the misappropriated amount from respondent/accused. Basically the amount would be deposited in the account of Provincial or Federal Government. It is important to mention here that the accused/respondent has misappropriated an amount of Rs.14,40,570/- in the year 2001 and allegedly he deposited the alleged misappropriated amount on 3rd of August 2016. For the foregoing facts and discussions, the impugned order dated 26.03.2019 passed by the trial Court is set-aside and we direct that the case of accused/respondent Munawar Masih son of Inayat Masih shall proceed from the stage, at which the case stood when the application of accused/respondents under section 265-K of the Cr.P.C. was decided. Appeal is, accordingly, disposed of. The accused/respondent will be at liberty if so advised to file an application to the NAB authorities for plea bargain in accordance with law and the NAB shall if such offer is made, consider the same as per law. MH/72/Bal. Case remande