Plea bargain

2023 MLD 28 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

Ss. 9(a)(iii)(iv)(vi)(ix), 9(b) & 25(b)Constitution of Pakistan, Art. 199Constitutional petitionSuspension of sentencePlea bargain

Accused was convicted and sentenced by Accountability Court for commission of offence of assets beyond known sources of income, misuse of authority and cheating members of public at large

Accused sought suspension of sentence on the ground that he had filed application to enter into plea bargain

Validity

Accused after filing appeal against conviction and sentence, lodged an application under S. 25(b) of National Accountability Ordinance, 1999

Along with said application, accused also submitted bank pay order in favor of Chairman NAB of the amount which was determined by Accountability Court as his liability

Finalization of proceedings under plea bargain would require some time on completion whereof petitioner in any case would have to be released

High Court suspended his sentence awarded by Accountability Court

Bail was granted, in circumstances

2023 CLD 1025 ISLAMABAD Judicial Precedent

S. 25(b)Contract Act (IX of 1872), S. 16(3)Constitution of Pakistan, Art. 199Constitutional petitionPlea bargainIncidental chargesScopeUndue influenceProof

Petitioner accused before National Accountability Bureau (NAB) who entered into plea bargain with NAB but assailed imposition of 15% incidental charges over and above the liability so determined

Validity

National Accountability Bureau had no right to demand such incidental charges either in law or equity

Petitioner while he was deprived of his freedom agreed to the same which indicated use of undue influence

Such use of authority resulted in an unfair advantage over the other

National Accountability Bureau obtained an unfair advantage over the petitioner by extracting an amount from him not otherwise due by using its dominant position over petitioner

"Incidental charges" as part of plea bargain were unconscionable

According to S. 16(3) of Contract Act, 1872, burden of proof that contract was not induced by undue influence was on the person who was in a position to dominate the will of another when he entered into contract with such person and where transaction had appeared to be unconscionable

National Accountability Bureau was unable to explain what incidental charges, if any, were incurred in respect of a plea bargain

Law did not authorize NAB to charge the same and NAB had failed to discharge its burden of proof

Public functionaries were expected to act fairly and justly and could not be allowed to profit from predicament of a person in their custody

High Court condoned delay in invoking Constitutional jurisdiction by petitioner

In absence of law and/or expenses incurred by NAB, the clause of plea bargain whereby petitioner agreed to pay incidental charges was unenforceable for lack of free consent

High Court declared that such clause of plea bargain entered into by petitioner was void to the extent of 15% incidental charges and the same could not be recovered from petitioner

Constitutional petition was allowed, in circumstances.

2023 PLD 238 ISLAMABAD Judicial Precedent

S. 25(b)Contract Act (IX of 1872), S. 16(3)Constitution of Pakistan, Art. 199Constitutional petitionPlea bargainIncidental chargesScopeUndue influenceProof

Petitioner accused before National Accountability Bureau (NAB) who entered into plea bargain with NAB but assailed imposition of 15% incidental charges over and above the liability so determined

Validity

National Accountability Bureau had no right to demand such incidental charges either in law or equity

Petitioner while he was deprived of his freedom agreed to the same which indicated use of undue influence

Such use of authority resulted in an unfair advantage over the other

National Accountability Bureau obtained an unfair advantage over the petitioner by extracting an amount from him not otherwise due by using its dominant position over petitioner

"Incidental charges" as part of plea bargain were unconscionable

According to section 16 (3) of Contract Act, 1872, burden of proof that contract was not induced by undue influence was on the person who was in a position to dominate the will of another when he entered into contract with such person and where transaction had appeared to be unconscionable

National Accountability Bureau was unable to explain what incidental charges, if any, were incurred in respect of a plea bargain

Law did not authorize NAB to charge the same and NAB had failed to discharge its burden of proof

Public functionaries were expected to act fairly and justly and could not be allowed to profit from predicament of a person in their custody

High Court condoned delay in invoking Constitutional jurisdiction by petitioner

In absence of law and/or expenses incurred by NAB, the clause of plea bargain whereby petitioner agreed to pay incidental charges was unenforceable for lack of free consent

High Court declared that such clause of plea bargain entered into by petitioner was void to the extent of 15% incidental charges and the same could not be recovered from petitioner

Constitutional petition was allowed, in circumstances.

2022 MLD 600 KARACHI-HIGH-COURT-SINDH Judicial Precedent

Ss.25(b) & 32Plea bargainVoluntarinessProof

Accused after his arrest by National Accountability Bureau (NAB) entered into plea bargain and was released, whereas remaining co-accused persons were acquitted of the charge after trial

Plea raised by accused was that his plea bargain was result of coercion

Validity

Accused made a conscious decision to enter into a plea bargain with NAB and did not run a risk of being convicted and sentenced to imprisonment at trial

Accused only challenged legality of his plea bargain once other co-accused persons were acquitted

Appeal of accused was a belated attempt by him to get out of plea bargain which he freely entered into once he found that other co-accused persons were acquitted

If other co-accused would have convicted and imprisoned the accused could not have challenged his plea bargain

High Court declined to interfere in the matter as there was no illegality in plea bargain

Appeal was dismissed, in circumstances.

2022 YLRN 47 KARACHI-HIGH-COURT-SINDH Judicial Precedent

Ss. 9(a), 15(a), 25(b) & 32Plea bargainAppealLimitationAmount not deposited by accusedEffect

Accused was aggrieved of order passed by Accountability Court whereafter entering into plea bargain, he was disqualified to hold public office

Plea raised by accused was that pay order was not deposited by accused himself but amount/pay order was deposited by his brother

Validity

Plea raised by accused did not help his case in any way

If accused was not beneficiary of plea bargaining, he could have challenged same by making an application to Accountability Court denying plea bargain but he kept silent till filing of appeal

Accused by not challenging order of Accountability Court where he had entered into plea bargain and had deposited embezzled amount by way of pay orders through his brother and in support of contents of such plea bargain application had sworn his affidavit and had supported contents of such application as true, accused had full knowledge about plea bargain

Delay in filing of appeal after about 108 days was not condonable where S.32 of National Accountability Ordinance, 1999 only provided 10 days for filing appeal against order/judgment of Accountability Court which accused had failed to file within prescribed period of limitation

Accused had failed to explain delay in filing appeal

Appeal was dismissed, in circumstances.

2020 PLD 1 QUETTA-HIGH-COURT-BALOCHISTAN Judicial Precedent

Ss. 15, 25 & 32Criminal Procedure Code (V of 1898), S. 265-KPlea bargainAppreciation of evidenceDetermination of liability, responsibility of

Application under S.265-K, Cr.P.C. filed by accused was converted into plea bargain application by Trial Court and same was allowed on basis of liability determined by Trial Court

Validity

Plea bargain was offer and confession of accused that he received corrupted money by corruption and corrupt practice

Such accused was liable to be convicted for disqualification for a period of ten years under S.15 of National Accountability Ordinance, 1999

Accused neither filed application for plea bargain before NAB nor the Chairman NAB approved plea bargain of accused

Trial Court directly converted application filed by accused under S.265-K, Cr.P.C. into application under S.25 of National Accountability Ordinance, 1999 for plea bargain and accepted same as plea bargain

Application of accused before Trial Court to fix his liability was not maintainable

Trial Court had no power to fix liability and direct the Chairman NAB to accept the same

Fixing of amount of liability was in discretion of the Chairman NAB and Trial Court had no role in such respect

High Court set aside order passed by Trial Court and remanded matter to proceed from stage at which case stood when application of accused under S.265-K, Cr.P.C. was decided

Appeal was allowed of accordingly.

2018 PCrLJN 9 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

S. 25(b)Plea bargainRedetermination of liabilityChairman NAB, jurisdiction ofPetitioner entered into plea bargain which was finalized by National Accountability Bureau and approved by Trial CourtPlea raised by petitioner was that National Accountability Bureau did not determine his liability properlyValidity

Provisions of S. 25(b) of National Accountability Ordinance, 1999, were mutually beneficial to NAB as well as to accused

In case of approval of plea bargain, NAB received money agreed to be returned by accused while on payment of plea bargain amount, accused was benefited of disposal of case against him and had also obtained his release from the custody

High Court could not go through factual controversy in Constitutional jurisdiction, as to whether there were 23 agencies or there were only two agencies

Liability was determined for specific amount and petitioner himself had admitted his liability at the time of passing of order before Trial Court

After lapse of more than eight months, petitioner could not deviate from his earlier stance on the plea of ignorance as ignorance of law was no excuse

No provision in National Accountability Ordinance, 1999 existed under which Chairman NAB could resume his jurisdiction after passing of order by Trial Court

After passing of order by Trial Court, prima facie the Chairman NAB had become functus officio

High Court declined to interfere in the liability determined against accused

Constitutional petition was dismissed in circumstances.

2018 PLD 724 KARACHI-HIGH-COURT-SINDH Judicial Precedent

S. 25(b)Plea bargainFixing of liabilityJurisdiction

Petitioner was Bank official and was dismissed from service on charge of misconduct and was aggrieved of order passed by Chairman National Accountability Bureau where his request to enter into plea bargain was rejected

Authorities contended that petitioner had previously absconded and filed application before Trial Court seeking plea bargain, which was denied which fact was concealed by petitioner

Validity

Provisions of S. 25(b) of National Accountability Ordinance, 1999 made it absolutely clear that only if Chairman National Accountability Bureau approved plea bargain matter could be referred to court for approval

Application of petitioner to Accountability Court to fix liability was not maintainable

Trial Court had no power to fix liability and direct the Chairman National Accountability Bureau to accept the same

Fixing of amount of liability was in the discretion of Chairman National Accountability Bureau and Trial Court had no role

Trial Court gave good solid reasons backed-up with material to support rejection of offer of accused of plea bargain

Chairman/DG National Accountability Bureau properly exercised his discretion in rejecting application of petitioner for plea bargain

Decision of National Accountability Bureau was neither arbitrary, whimsical or without reason

Constitutional petition was dismissed in circumstances.

2017 PLD 614 KARACHI-HIGH-COURT-SINDH Judicial Precedent

S. 19(4)National Accountability Ordinance (XVIII of 1999), Ss.9 & 25Release from serviceCorruption and corrupt practicesPlea bargain

Reference was filed against the petitioner before the Accountability Court with the allegations that accused misused his public office and had received commission and kickbacks, bribe from the foreign suppliers in respect of supply of sub-marines, arms, ammunition and other defence material

Petitioner had availed the facility of plea-bargain during the pendency of reference and voluntarily offered to return 7.5 million dollars, which was accepted and he was released

Ministry of Defence suspended all benefits of petitioner including pensionary benefits

Validity

National Accountability Bureau had submitted reference against the petitioner for the offence of corruption and corrupt practices and proceedings against the petitioner had come to an end as he had been released on the basis of plea-bargain

Although National Accountability Ordinance, 1999 had provided that on termination of proceedings as a result of plea bargain, the accused-petitioner would be deemed to have been convicted, therefore, authorities had suspended pensionary benefits and withdrew all his subjective/honorary ranks for his proven misconduct after his retirement from the Naval Service

No illegality had been committed by the authorities by removing the name of petitioner from the list of Retired Personnel of Navy as act of the plea-bargain was an admission of his guilt, therefore, any perks, privileges and pensionary benefits could not be restored to him at any stage

Conviction of the petitioner having been based on corruption and corrupt practices, which fell within the definition of moral turpitude, he was not entitled for restoration of his perks, privileges and pensionary benefits

Authorities, before suspending the pensionary benefits of petitioner, removed his name from the list of Naval Retired Officers as such, question of payment of pension would not arise

Constitutional petition was dismissed in circumstances.

2017 PCrLJ 1211 KARACHI-HIGH-COURT-SINDH Judicial Precedent

S. 25(b)Plea BargainProcedure

Phrase 'on such terms and conditions as he may consider necessary' occurring in S. 25(b) of National Accountability Ordinance, 1999

Scope

Alleged loss caused to the government was Rs. 44,81,000 and plea bargain with petitioner was accepted by National Accountability Bureau authorities for Rs.10,85,000

Trial Court declined to approve plea bargain application filed by National Accountability Bureau

Validity

Proper approach in plea bargain cases under S. 25(b) of National Accountability Ordinance, 1999 was for the accused to make a definite and precise offer which could or could not be accepted by National Accountability Bureau through speaking order which if not accepted by National Accountability Bureau could lead to a further offer which again could or could not be accepted by National Accountability Bureau

Words in S. 25(b) of National Accountability Ordinance, 1999, 'on such terms and conditions as he may consider necessary' did not relate to amount of plea bargain but to method and mode and manner of payment including instalments within given dates which could be necessary if accused did not have full amount of agreed plea bargain amount to hand over (although a very large percentage of amount as down payment could be expected to be made), and needed to sell properties in order to make up balance which could take some reasonable but definite and precise amount of time to be recorded in writing in the plea bargain agreement

Amount involved was relatively small in terms of National Accountability Bureau's mandate to investigate corruption cases

High Court acting in discretionary Constitutional Jurisdiction set aside order passed by Trial Court and directed Trial Court to accept amount of plea bargain as agreed with National Accountability Bureau

Petition was allowed accordingly.

2017 PLC(CS) 1255 KARACHI-HIGH-COURT-SINDH Judicial Precedent

S. 19(4)National Accountability Ordinance (XVIII of 1999), Ss.9 & 25Release from serviceCorruption and corrupt practicesPlea bargain

Reference was filed against the petitioner before the Accountability Court with the allegations that accused misused his public office and had received commission and kickbacks, bribe from the foreign suppliers in respect of supply of sub-marines, arms, ammunition and other defence material

Petitioner had availed the facility of plea-bargain during the pendency of reference and voluntarily offered to return 7.5 million dollars, which was accepted and he was released

Ministry of Defence suspended all benefits of petitioner including pensionary benefits

Validity

National Accountability Bureau had submitted reference against the petitioner for the offence of corruption and corrupt practices and proceedings against the petitioner had come to an end as he had been released on the basis of plea-bargain

Although National Accountability Ordinance, 1999 had provided that on termination of proceedings as a result of plea bargain, the accused-petitioner would be deemed to have been convicted, therefore, authorities had suspended pensionary benefits and withdrew all his subjective/honorary ranks for his proven misconduct after his retirement from the Naval Service

No illegality had been committed by the authorities by removing the name of petitioner from the list of Retired Personnel of Navy as act of the plea-bargain was an admission of his guilt, therefore, any perks, privileges and pensionary benefits could not be restored to him at any stage

Conviction of the petitioner having been based on corruption and corrupt practices, which fell within the definition of moral turpitude, he was not entitled for restoration of his perks, privileges and pensionary benefits

Authorities, before suspending the pensionary benefits of petitioner, removed his name from the list of Naval Retired Officers as such, question of payment of pension would not arise

Constitutional petition was dismissed in circumstances.

2016 MLD 1902 KARACHI-HIGH-COURT-SINDH Judicial Precedent

S.25(b)Plea bargainSeeking of approvalScope

Prerogative of National Accountability Bureau authorities only to seek approval of accepted offer of accused because after such acceptance, NAB was to seek approval with reference to terms and conditions on which acceptance was made.

2014 PLD 92 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

S. 25(b)Constitution of Pakistan, Art. 199Constitutional petitionPlea bargainPrerogative of Chairman NABScopeOrder of plea bargain was passed by Chairman on application filed by accused and the same was approved by Trial CourtComplainant bank assailed order of plea bargain on the plea that Chairman NAB had wrongly exercised his discretionValidityPrerogative was a discretionary power to be exercised for public good

Exercise of prerogative could be examined by court just as any other discretionary power which was vested in the executive

Claim of absolute immunity to the decision of Chairman NAB could not be endorsed

Power of judicial review as compared to jurisdiction was available to superior Courts enshrined by the Constitution which could neither be curtailed or abridged

Petition before High Court was not filed either by convict or by NAB but jurisdiction had been invoked by aggrieved party on the grounds of exercise of discretion on wrong premises and un-reasonableness etc.

Decision of Chairman NAB was outcome of "illegality" "irrationality" and "procedural impropriety" and was also against principle of "structuring of discretion"

Decision of Chairman NAB was also based on exercise of discretion not warranted by law and against public policy while accepting terms and conditions of plea bargain particularly with reference to determination of liability and mode of payment

High Court set aside decision of Chairman NAB and order passed by Trial Court and matter was remanded to the Chairman to re-examine and decide offer of plea bargain made by accused, after providing opportunity of hearing to complainant bank by adopting any mode in accordance with law

Petition was allowed accordingly.

2014 PLD 92 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

S. 25(b)Plea bargainFinality

Order made under S.25(b) of National Accountability Ordinance, 1999, is subject to approval of Trial Court or Appellate Court, as the case may be and is not subject to challenge because nothing has been provided in National Accountability Ordinance, 1999, in such regard.

2014 PLD 92 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

S. 25(b)Plea bargain

Expression "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"

Chairman NAB, exercise of discretion

Scope

Assignment and duty cast upon Chairman NAB under S.25 (b) of National Accountability Ordinance, 1999, is not administrative in nature but is of quasi-judicial in nature

Chairman NAB has to protect and safeguard rights and interest of party as well who was victim of accused.