P L D 2003 Peshawar 94 (PLP)

6. We have carefully considered the submissions of the learned counsel for the parties and perused the record. The powers to grant pardon to an accused person by the Chairman, NAB is exercised under section 26 of NAB Ordinance. For the proper appreciation of the point in issue, it would be appropriate to reproduce the said section 26 as under:‑‑‑ "26.‑ Tender of pardon to accomplice/plea bargaining. ‑‑‑(a) Notwithstanding anything contained in‑ the Code, at any stage of investigation or inquiry, the Chairman may, ‑with a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in or privy to any offence, tender a full or conditional pardon to such a person on condition of his making a full and true disclosure of the whole of the, circumstances within his knowledge relating to the said offence including the names of the person involved therein whether as principals or abettors or otherwise. (b) Every person accepting a tender of pardon under subsection (a) shall be examined by a Magistrate and shall also be examined as a witness in subsequent trial. (c) Subject to subsection (d), the person to whom pardon has been granted under this section shall not‑‑ (i) in the case of a full pardon be tried for the offence in respect of which the pardon was granted, and (ii) in the case of a conditional pardon be awarded a punishment or penalty higher or other than that specified in the grant of pardon notwithstanding the punishment or penalty authorized by law. (d) Where the Chairman NAB certifies that in his opinion, any person who has accepted such tender has, either by wilfully concealing anything essential or by giving false evidence through wilful or reckless misstatement not complied with the condition on which the tender was made; such a person may be tried for the offence in respect of which the pardon was so. tendered or for any other offence of which he appears to have been guilty in connection with the said matter including the offence of giving false evidence which he knows or ought to know is false. (e) Any statement made before a. Magistrate by a person who has accepted a tender of pardon may be given in evidence against him at the trial." The plain perusal of the above provisions suggests that the jurisdiction of NAB Authorities to tender pardon to the accomplice is limited to the stage of investigation or inquiry. The definitions of "investigation" and "inquiry, are not provided in the NAB Ordinance. However, section 4(k) and (1), Cr.P.C, define these as under:‑‑ (k) "inquiry" includes every inquiry other than a trial conducted under this Code by a Magistrate or Court. (1) "Investigation" includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf. The provision of section 26, NAB Ordinance is more or less copied from its corresponding provision contained in section 337, Cr.P.C. which reads as under:‑‑

337. Tender of pardon to accomplice.‑‑‑(1) In the case of any offence triable exclusively ‑by the High Court or Court of Session, or any offence punishable with imprisonment which may extend to ten years, or any offence punishable under section 211 of the Pakistan Penal Code with imprisonment which may extend to seven years, or any offence under any of the following sections of the Pakistan Penal .Code, namely, sections 216‑A, 369, 401, 435 and 477‑A (officer incharge of the prosecution in the District) may, at any stage of the investigation or inquiry into, or the trial of the offence, with a view to obtaining the evidence of any person supposed to have directly or indirectly concerned in or privy to the offence, tender a pardon to said person on condition of his making a full and true disclosure of the whole of the circumstances within his knowledge relative to, the offence and to every' other person concerned, whether, as principal or abettor, in the commission thereof: Provided that no person shall be tendered pardon who is involved in an offence relating to hurt or Qatl without permission of the victim or, as the case may be, of the heirs of the victim. (1‑A) Every Magistrate who tenders` a pardon under subsection (1) shall record his reasons for so doing, and shall, on application trade by the accused, furnish him with a copy of such record: Provided that the accused shall pay for the same unless the Magistrate for some special reasons thinks tit to furnish it free of costs. (2) Any person accepting a tender under this section shall be examined as a witness in the subsequent trial, if any. (2‑A) In every case where a person has accepted a tender of pardon and has been examined under subsection (2), the Magistrate before whom the proceedings are pending shall, if he is satisfied that there are reasonable grounds for believing that the accused is guilty of an offence, commit him for trial to the Court of Session or High Court, as the case may be. . (3) Such person, unless he is already on bail, shall be detained in custody until determination of the trial. The above provision of the Code has expressly empowered a Magistrate to grant pardon to the accused even at the stage of trial. Thus it appears that the Legislature in its wisdom has intentionally omitted the word "trial" from the relevant provision of NAB Ordinance. The term "trial" has neither been defined in the Code of Criminal Procedure nor in the NAB Ordinance. Its dictionary meaning, is "judicial" examination and determination of issues between the parties by the "Judge". However, there can be no dispute that the trial commences on framing of the charge against the accused. Though in the case of Muhammad Anwar v. Haji Malik Khair Din (PLD 1952 Balochistan 39) it was held that the proceedings before as well as after charge is framed be treated as trial but this issue has now been settled once for all by the august Supreme Court of Pakistan in the case of Haq Nawaz v. State (2000 SCMR 785). It is held that commencement of the trial takes place when the charge is framed against the accused. However, it is totally a misconceived view taken by the learned trial Court that before framing of the charge, the Court indulges into inquiry under section 265‑D, Cr.P.C. and the case can be considered at the stage of inquiry. This is a novel view introduced by the trial Court without any backing from law.

7. As observed above, the jurisdiction of Chairman, NAB in tendering pardon is limited to the stage of investigation or inquiry, If one goes through the provisions of NAB Ordinance, it would be observed that sections 18 to 24 thereof deal with the investigation and inquiry of the case. Under I section 18(g), the Chairman, NAB shall appraise the material and evidence placed before him during inquiry and investigation and if he decides that it would be proper and just to proceed further and there is sufficient material to justify tiling of a reference he shall refer the matter to the Accountability Court. Filing of the reference before the Accountability Court is like filing G of complaint/challan in the Court of competent jurisdiction within the contemplation of section 173, Cr.P.C. Once a reference is filed, the Chairman, NAB loses jurisdiction and becomes functus officio. It then becomes the exclusive jurisdiction of the trial Court. However, after submission of the challan/reference, if some substantive step is required to be taken in the case by the prosecution, it shall only be with the permission of the Court. This view is fortified by the provisions of section 31‑B, NAB Ordinance which reads as under:‑ The Prosecutor‑General, Accountability may, with the consent of the Court, withdraw from the prosecution of any person generally or in respect of anyone or more of the offences for which he is tried and upon such withdrawal‑‑ (i) if it is made before a charge has been framed, the accused shall be discharged in respect of such offence or offences; and (ii) if it is made after a charge has been framed, he shall be acquitted in respect of such offence or offences. Under the above provisions of law, if the Prosecutor‑General, Accountability, after submission of the reference, wishes to withdraw from the prosecution even before charge is framed, he has to obtain the consent of the Court. In the matter of plea bargaining where at any time whether before or after commencement of the trial, the Chairman, NAB has to consider the offer of plea bargaining made by an accused person under section 25 of NAB Ordinance, the approval of the Court is made mandatory. It is only for the reason that the Court as well as the co‑accused shall know the nature of the proceedings against them and they shall not be taken by surprise:

8. We have mentioned above that reference against the petitioners as well as against Shah Jehan was filed by Chairman, NAB on 30‑12‑2000 which was received in Accountability Court, Attock on 6‑1‑2002. Shah Jehan made application for becoming an approver to NAB Authorities on 8‑1‑2002: He was granted pardon by the Chairman, NAB on 24‑2‑2001. His statement under section 164, Cr.P.C. was recorded by Judicial Magistrate on 20‑3‑2001. Copies of the Reference etc. as required under section 265‑C, Cr.P.C. were supplied to the accused on 15‑6-2001. The charge against the accused was framed on .16‑1‑2002. The statements of sixteen P.Ws. including examination‑in‑chief of Shah Jehan was completed on 21‑6‑2002 when on the same date an application was moved by Mr. Aziz Akhtar Chughtai, learned counsel for Mst. Neelofar Khalid petitioner for supply of copies of application moved by Shah Jehan to be an approver, the reasons recorded by Chairman, NAB for tendering pardon and statement of Shah Jehan under section 164, Cr.P.C. read with section 26 of NAB Ordinance. The said copies were supplied to the petitioner on 27‑6‑2002. Under the law, all such copies should have been made part of the reference and also supplied to the accused/petitioners under section 265‑C, Cr.P.C. at least seven days before framing of charge. Supply of the copies of proceedings qua tender of pardon after the statements of some of the witnesses and the examination‑in- chief of the, approver, is not only violative of law but also against the principles of natural justice as without any notice to the remaining accused, Shah Jehan is made approver and transformed as prosecution witness.

9. It is also not ‑understood as to how Shah Jehan who was remanded to judicial lock‑up under the orders of Accountability Court was taken out of the jail without permission of the Court for recording his statement under section .164, Cr.P.C. whereafter he was granted pardon by the Chairman, NAB. We did not see any order of the competent forum allowing the approver to be taken out from the jail for recording his statement under section 164, Cr.P.C. Similarly, no opportunity of cross‑examining the approver was afforded to the petitioners/co‑accused as required under section 164, Cr.P.C. If statement of the approver under section 164, Cr.P.C. is not recorded in presence of the accused and the accused are not provided with opportunity of cross‑examining him, the same shall not be used against him under section 265‑J, Cr.P.C.

10. Consequent upon what has been discussed above, we, while allowing these revision petitions, hold that grant of pardon to Shah Jehan under section 26 of NAB Ordinance by the Chairman, NAB without approval of the trial Court was illegal, without lawful authority and void ab initio. The same is hereby set aside. The examination‑in‑chief of Shah Jehan as well as his statement recorded under section 164, Cr. P. C. are not to be considered as part of prosecution evidence. However, there will be no bar on the prosecution to tender pardon to co‑accused in accordance with law, if so desired. S.M.A.H./663/P Petitions allowed.