ORDER SHEET

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

C. P No. D- 388 of 2019

Date Order with signature of Hon’ble Judge

Hearing of case

1. For hearing of CMA No.1435/2019 (S/A)

2. For hearing of main case

23.04.2019

Syed Amir Ali Jillani Advocate for the petitioner

Mr. Liaquat Ali Malik, Special Prosecutor NAB

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Irshad Ali Shah, J; The facts in brief necessary for disposal of instant Constitutional petition are that the petitioner is alleged to have misappropriated the huge funds of TMA Garhi Khairo in connivance of rest of the culprits and during pendency of Reference before learned Accountability Court at Sukkur filed an application thereby he opted for plea bargain, his application was not accepted by Chairman NAB vide his order / letter dated 20.12.2018, which is impugned by the petitioner before this Court by way of instant Constitutional petition with the following relief;

“(a) To declare declining the plea of bargaining by the NAB Authority is not warranted by law in as much as the same is without jurisdiction.

(b) To direct the Chairman NAB to honour the plea of bargaining as provided in law.

(c) To restrain the respondent No.2 from proceeding with the reference till final decision of petition.

(d) To award cost of petition.

(e) To grant any other relief, as deemed fit and proper and in the ends of justice.”

2. The NAB authorities by way of filing parawise comments sought for dismissal of the instant Constitutional petition, inter-alia, contending therein that supplementary Reference and further investigation report is to be read in as integral part of the main Reference which is pending against the petitioner.

3. It is contended by learned counsel for the petitioner that petitioner has committed no active role in the alleged corruption or corrupt practices; the petitioner was under bonafide impression that the co-accused had deposited the amount in his account as dues towards the amount owed by them from the petitioner and learned Chairman NAB has assigned no cogent reason while rejecting the application of the petitioner for plea bargain. By contending so, he sought for direction against Chairman NAB to honour the plea bargain of the petitioner.

4. It is contended by learned Special Prosecutor NAB that the liability of the petitioner is more than the one which is disclosed in the main Reference filed against him, the supplementary Reference and further investigation report is to be treated as a part and parcel of the main Reference and Chairman NAB has exercised his discretion properly and no harm would be caused to the petitioner, if he is allowed to face the trial before the Court of law. By contending so, he sought for dismissal of the instant Constitutional petition.

5. We have considered the above arguments and perused the record.

6. Section 25 (a) of the National Accountability Ordinance reads as under;

“Notwithstanding anything contained in section 15 or in any other law for the time being in force, where a holder of public office or any other person, prior to the authorization of investigation against him, voluntarily comes 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 this Ordinance, 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:

7. Bare perusal of the above provision of law would make it clear that use of word ‘may’ signifies that it is not mandatory for Chairman NAB to accept every application for plea bargain. It is his discretion, which he has to exercise in accordance with law. In the instant matter, the reasons which prevailed with the Chairman NAB to reject the application of the petitioner for his plea bargain as are detailed in the impugned order / letter, which reads as under;

“DG (Ops) presented the matter in the meeting regarding plea bargain (PB) offer of the accused Mir Ali Nawaz Khan Shaliani. The matter was discussed in detail in the light of reference, investigation report and liability of each accused, DG (Ops) suggested that Plea Bargain was not recommended keeping in view the facts of the case. APGA-II endorsed the view point of DG (Ops) and narrated Section 25 (b) of the NAO, 1999. On the recommendations of Ops & Prosecution Divs, the Chairman turned down the offer of PB by the accused and directed that reference be decided by Learned Accountability Court as per law.”

8. It is obvious from the narration made in the above said order / letter, that the application of the petitioner for plea bargain was not accepted by the Chairman NAB in the larger interest of the case. Impliedly it was to secure the public money as a whole as it was misappropriated. It was in national interest.

9. In case of Rauf Bukhari Qadri vs. The State and others ( 2003 MLD 777), it has been held by Honourable High Court of Sindh that;

“---Qualifications laid down in cl. (ix) will also have to be read in the other clauses of S. 9(a) of the NAB Ordinance in other words the discretion of the Chairman NAB or an officer authorized by him to file a Reference before the Accountability Court is not absolute or arbitrary---Such Reference could be filed only when then Chairman or the Authorized Officer is satisfied that the amount involved is of large magnitude and resort to the facility of pre-bargaining with the accused would be in the national interest---.”

10. Prima facie, the petitioner has failed to make out a case for infringement of his rights which may justify acceptance of the instant Constitutional petition, it fails and it is dismissed accordingly.

Judge

ARBROHI