2003 PLP 89 (SCMR)

Chairman, National Accountability Bureau, Lt.‑Gen. Shed Muhammad Amjad 10th March, 2000. "

4. The learned counsel for the petitioner contended at the outset that the petitioner had neither any concern with Bela Builders (Private) Limited nor had entered into plea bargaining and the Chairman, NAB had released him on his own and that too without leave of the Court which was mandatory under section 25 of the Ordinance. He went on to contend that the payment alluded to in the warrant of release was made by the owner of Bela Builders, namely, Abdul Sattar Lasi in order to save his own skin. He further contended that Chairman, NAB had released the petitioner on the strength of the self‑contained provisions of section 9(c) of the Ordinance without imposing any condition, therefore, he was not hit by the disqualification laid down by, proviso to section 15 of the Ordinance. According to him ' the disqualification under section 15 cannot be imported into section 9(c). He lastly contended that proviso to section 15 was not applicable for yet another reason that the petitioner had not availed any benefit under sections 26 and 27 of the Ordinance.

5. The contentions have not impressed us. The contention that the petitioner had no concern with Bela Builders (Private) Limited and the contrary return of assets or gains mentioned in the warrant of release was made by Abdul Sattar Lasi cannot be considered at all inasmuch as it tends to re‑open an unchallenged past and closed matter and involves resolution of a contentious factual controversy which cannot be done in these proceedings. It is true that the expression 'plea bargaining' does not figure in the Warrant of Release but this omission is neither fatal nor can be blown out of proportion. The tenor of the warrant of release, the language employed and the explicit reference to section 25 of the Ordinance made therein leave no room for doubt that release of the petitioner was ordered as a sequel to the process of plea bargaining. It is. also true that the warrant of release of the petitioner does not appear to have been issued with leave of the Court but this circumstance too cannot be overplayed as leave of the Court was not required at that point of time. The warrant of release having been issued on 10‑3‑2000 was governed by the provisions of the Ordinance as amended by the NAB (Amendment) Ordinance, 2000, promulgated on 3‑2‑2000 and not by the provisions of the unamended Ordinance or the Ordinance as amended by the NAB (Second Amendment) Ordinance, 2000 promulgated‑ on 5‑7‑2000 or the NAB (Amendment) Ordinance, 2001 promulgated on 10‑8‑2001. Under section 25 of the unamended Ordinance the Chairman NAB while releasing an accused before the commencement of the trial was obliged to obtain leave of the Court and the same procedure is envisaged by section 25 of the Ordinance as amended by the NAB (Second Amendment) Ordinance, 2000 and the NAB (Amendment) Ordinance, 2001. However, under section 25 of the Ordinance as amended by, the NAB (Amendment). Ordinance 2000 the Chairman, NAB was empowered to release an accused before commencement of the trial without leave of the Court. The said section reads as under:‑‑ "

25. Voluntary return (plea bargaining).‑--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 practices‑‑ (i) if the trial has not commenced, the Chairman, NAB may release the accused; and (ii) if the trial has commenced, the Court, may with the consent of the Chairman, NAB, release the accused. (2) The amount deposited by the accused with the NAB shall be transferred to the Federal Government or, as the case may be, a Provincial Government or the concerned bank or financial institution etc., within one month from the date of such deposit."

6. The contention that the proviso to section 15 of the Ordinance was not applicable as the petitioner had not availed any benefit under sections 26 and 27 of the Ordinance is also misconceived being based on the unamended Ordinance and ‑oblivious of the provisions of the Ordinance as amended by the NAB (Amendment) Ordinance, 2000. The original text of the proviso to section 15 of the Ordinance was as under:‑‑ "Provided that any accused person who has availed the benefit of sections 26 and 27 of this Ordinance shall also be deemed to have been convicted for an offence under this Ordinance, and shall stand disqualified for 21 years as above." The above proviso was amended by section 10(ii) of the NAB (Amendment) Ordinance, 2000 as under:‑‑ "(ii) in subsection (a) in the proviso for the word and figures 'sections 26 and 27' the word and figure 'section 25' shall be substituted. " As a result of the above amendment the proviso to section 15 of the Ordinance, which. was holding the field at the time of release of the petitioner, read as under:‑‑ "Provided that any accused person who has availed the benefit of section 25 of this Ordinance shall also be deemed to have been convicted for an offence under this Ordinance, and shall stand disqualified for 21 years as above."

7. This brings us to the contention that the Chairman, NAB had released the petitioner in exercise of the powers under section 9 (c) of the Ordinance without any condition, therefore, the disqualification contained in section 15 of the Ordinance was not applicable. Section 9(c) of the Ordinance reads as under:‑‑ "Where the Chairman, NAB decides to release from custody or detention a holder of a public office or any other person accused of an offence under this Ordinance, he shall do so after considering the gravity of the charge against such person and where the accusation specifies any amount in respect of which the offence is alleged to have been committed, he shall not be released unless such amount is deposited with the NAB. Provided that the Chairman, NAB may impose other conditions for release from custody or detention, "

8. The contention overlooks this striking feature of the warrant or release that the petitioner was released by the Chairman, NAB in exercise of the powers under section 25 of the NAB Ordinance, 1999 read with section 9(c) and section 15 of the Ordinance and not on the strength of the powers under section 9(c) alone. It is also misconceived because section 9(c) of the Ordinance provides guidelines for release of an accused person, recovery of the amount in respect of which the offence has been committed and imposition of conditions in respect thereof and has no nexus with disqualification of an accused person .who has availed the benefit of section 25 of the Ordinance for which there exists a specific provision in the Ordinance in the form of section

15. It is plain that if the legislative intent was that disqualification to contest elections or to hold a public office should be imposed as a condition under section 9(c) of the Ordinance then the proviso to section 15 would not have been enacted and made part of the Ordinance. Through a short order passed on 24‑9‑2002 the petitions were dismissed` and leave refused for reasons to be recorded later. The above are the reasons for the said short order. Q.M.H./M.A.K./G‑155/S Petition dismissed.