IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Criminal Appeal No. D – 108 of 2015

                                                Present:

Mr. Justice Muhammad Iqbal Mahar

Mr. Justice Amjad Ali Sahito

                       

Appellant:                              Riaz Hussain Kalhoro

                                                through Mr. Athar Abbas Solangi, Advocate

 

Respondent:                         The State, through Mr.Ubedullah Abro, Special Prosecutor NAB Sukkur

                                               

Date of hearing:                   03.10.2018

Date of decision:                  03.10.2018

 

J U D G M E N T

 

AMJAD ALI SAHITO, J-. The instant Criminal Appeal is directed against the order dated 18.08.2015 passed by learned Accountability Court Sukkur on application under Section 25(b) of the National Accountability Ordinance, 1999 (hereinafter referred as the Ordinance 1999) filed by the appellant in Reference No.Nil/2015               re- State vs. Abdul Naeem Soomro and others, whereby convicted the appellant under Section 15(a) of the Ordinance, as under:-

 

1.    He shall forthwith cease to hold public office, if any, held by him.

 

2.    He shall stand disqualified for a period of ten years, to be reckoned from the date he is released for seeking or from being elected, chosen, appointed or nominated as member or representative of any public body or any statutory or local authority or in service of Pakistan of any Province.

 

3.    He can not to get (sic) any financial benefit from any Bank or Financial Institution.

 

 

2.         A perusal of record reveals that the allegations in the Reference against the appellant are that he was posted as Tender Clerk in the year 2012-2013 in Highways Division, District Kamber-Shahdadkot and he in connivance with the other accused persons caused a heavy loss to the government by misuse of his authority and embezzled of funds amounting to Rs.393750.00.The appellant during his remand period entered into Plea Bargain with the NAB authorities. The NAB authorities assessed the liabilities of the embezzled Funds of Rs.393750.00 + 15% incidental charges i.e. Rs.59,063.00 and the total liabilities against the appellant was Rs.452813.00 which was agreed by the appellant and he moved an application under Section 25(b) of the Ordinance along with Affidavit. Thereafter his brother also  signed the application and Affidavit, the appellant paid/deposited the amount of Rs.4,52,813.00  through bank pay order No.DRA/756835/344280 amounting to Rs.393,750.00 and DRA/756836/344280 amounting to Rs.59,063.00 issued by the Bank Islamic Station Road Sukkur. The same amount was accepted by the NAB authorities and Director General NAB recommended such Plea Bargain in between NAB and the appellant/accused. The application under Section 25(b) of the Ordinance was submitted by learned Special Prosecutor NAB before the Accountability Court Sukkur along with application/affidavit submitted by the applicant Riaz Hussain Kalhoro through his brother Fayaz Hussain Kalhoro, after hearing the parties, the application under Section 25(b) of the Ordinance was allowed and the appellant was convicted under Section 15(a) of the Ordinance, as stated above vide order dated 18.08.2015, which he impugned before this Court by way of filing instant criminal appeal.

3.         It is pertinent to mention here that this appeal was presented on 05.12.2015 before this Court and fixed for hearing on 26.01.2016. On the first date of hearing, learned Special Prosecutor NAB raised an objection regarding maintainability of the appeal, as according to him the instant appeal has been filed after the limitation period as provided under Section 32 NAO 1999, but the appeal was admitted to regular hearing subject to objection relating to limitation.

4.         Mr. Ather Abbas Solangi, learned counsel for the appellant contended that no show cause notice was given to the appellant by the learned trial Court for apprising him of the consequences of entering into plea bargain; that the application was not submitted by the appellant and the cheques/pay order was paid/deposited by the brother of the appellant; hence the appellant cannot be held responsible for the act; that after the arrest of the appellant he was tortured and was compelled to enter into a plea bargain which is against the law. He lastly prayed for setting aside the order dated 18.08.2015 to the extent of conviction/ embargo for not holding public office and disqualification for a period of ten years.

5.         On the other hand, Mr. Ubedullah Abro, learned Special Prosecutor NAB has vehemently opposed the arguments of the learned counsel for the appellant, contending that plea bargain was made on the application as well as affidavit filed by the appellant to the NAB authorities and Director General NAB has recommended such plea bargain in between NAB and the appellant /accused; that after filing application by Special Prosecutor NAB notice was issued to the appellant and in the presence of the appellant, the impugned order was announced/passed. He lastly prayed for dismissal of the instant appeal. In support of his contentions, he relied upon the cases of Muhammad Sharif v. National Accountability Bureau and others (2017 SCMR 1666) and Dr. Muhammad Anwer Kurd 02 others v. The State through Regional Accountability Bureau, Quetta (2011 SCMR 1560).

6.         We have heard the learned counsel for the appellant, learned Special Prosecutor NAB and have minutely examined the record with their able assistance. Before commenting upon the objection raised by the learned counsel for the appellant, it would be appropriate to reproduce the relevant provision of Section 25 of the NAB Ordinance 1999:-

25. Voluntary return and plea bargain.---(a) 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, voluntary comes forward and offers to return the assets or gains acquired or made by him in the course, or as the consequence, if 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:

            Provided that the matter is not sub judice in any Court of law.

            (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, 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.

            (c) 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, company, body corporate, co-operative society, a statutory body, or authority concerned within one month from the date of such deposit.”

 

7.         From the bare reading of the above referred provisions of Section, it is clear that NAB would make plea bargain or effect settlement with the accused, if he comes forward voluntarily to return the illegal gains acquired or loss caused by him to the State Exchequer through corruption / corrupt practices, whereas, in the present case, on 13.08.2015, the brother of the appellant moved an application under Section 25(b) of the Ordinance for plea bargain, the said application was duly signed by the appellant before the Accountability Court along with affidavit sworn by the appellant, in which he admitted that he has embezzled the amount of Rs.393750.00, hence committed the offence of corruption and corrupt practices as defined in Section 9(a) of the Ordinance, while filing the application and affidavit the appellant also deposited two pay orders total amounting to Rs.452813.00.

8.         At the time of filing an application under Section 25(b) of the Ordinance, the learned Special Prosecutor NAB also filed letter which bears recommendation of the Director General NAB. While passing the order, the learned trial Court enquired from the appellant/accused as to whether he opted plea bargain with NAB authorities voluntarily without coercion and with his own free will and consent, and that he will have to face the embargo/conviction contained in Section 10 of the Ordinance to which the accused submitted that he opted the plea bargain voluntarily without coercion and with his free will and consent, and he will have to face the embargo/conviction contained in Section 10 of the Ordinance, hence it suffices to say that the appellant entered into the plea bargain voluntarily without any fear and force. So far the plea raised by the learned counsel for the appellant that no show cause notice was given to the appellant. From the perusal of the above referred Section of the Ordinance, it reveals that there is no special provision for the issuance of show cause notice to the person who avails the benefit of Section 25 of the Ordinance shall automatically be deemed to have been convicted for an offence under the Ordinance and shall forthwith cease to hold the public office and shall be disqualified for a period of ten years. In addition, thereto, he would be disentitled to avail the financial benefit from any bank or financial institution. Accordingly, this argument of the learned counsel for the appellant having no force, but at the time of hearing the application under Section 25 of the Ordinance, it is prime duty of the learned Accountability Court to enquire from the accused whether he has entered into the plea bargain voluntarily, without coercion and with his free will and consent, same has been done in this case and he has availed the remedy provided under Section 25 of the Ordinance. In this context, reliance is made to the case of Muhammad Sharif v. National Accountability Bureau and others (2017 SCMR 1666), wherein the Hon’ble Supreme Court of Pakistan has held that:-

 

“……The record further reflects that the petitioner vide his letter dated 8.9.2014, asked the NAB authorities to intimate him his liability ascertained by the inquiry officer and also the grounds for ascertaining such liability so that he could opt for the option. It appears that the petitioner was duly informed about his liability and ultimately he paid an amount of Rs.96,26,363/- without raising any grievance in respect of the amount or the method adopted by the inquiry officer to ascertain his liability. The petitioner ultimately availed the benefit of voluntary return.”

In another case of Dr. Muhammad Anwer Kurd and 02 others v. The State, through Regional Accountability Bureau, Quetta, wherein the Hon’ble Supreme Court of Pakistan has held that:-

 

“18. In view of the above position, there remains no doubt in our mind to hold that at the time of entering into an acceptance of plea bargain before the Accountability Court, the appellants, who are even otherwise well educated, were well apprised/aware of its legal consequences about their deeming convictions and disqualifications, as imposed by the Accountability Court, which were based on up-to-date amended Ordinance of 1999, vide two earlier amending Ordinance No.IV of 2000 and XXXIV of 2000 respectively promulgated on 03.02.2000 and 5.7.2000. Any confusion as to the exact language of section 25 (ibid) at the time of, entering into plea bargaining is also clarified from its reproduction in the comparative table, at page No.831 and 832 of the judgment in the case of Khan Asfandar Wali, confirming the same position about its language as reproduced above.”

 

9.         We do not agree with the arguments advanced by the learned counsel for the appellant that the pay order was deposited by the brother of the appellant, as such, the appellant cannot be held responsible for that act. When a person is under custody it is natural that the amount/pay order would be deposited by any other person on his behalf, obviously he cannot deposit amount himself, therefore, the arguments that the pay order was not deposited by the appellant himself, but the amount/pay order was deposited by his brother, do not help the case of the appellant in any way. If he was not the beneficiary of the plea bargaining, the appellant could have challenged the same by making an application to the Accountability Court/trial Court denying the plea bargaining, but he kept silent till the filing of this appeal.

 

10.       Apart from the above facts and circumstances, the appeal has been filed by the present appeal before this Court on 25.12.2015 with the delay of about 108 days, though he was in full knowledge about filing of the application under Section 25(a) of the Ordinance and its decision by the Accountability Court, but even then he has remained silent and did not challenge the said order either before the trial Court or even before this Court, though such remedy of filing appeal was available to him under Section 32 of the Ordinance. It appears that by not challenging the order of the trial Court where he has entered into plea bargain and has deposited the embezzled amount in the Bank Islami Station Road Sukkur by way of pay orders through his brother and in support of the contents of such plea bargain application the appellant has sworn his  affidavit and has supported the  contents of such application as true, meaning thereby that he has full knowledge about the plea bargain, hence the delay in filing appeal after about 108 days is not condonable, whereas, Section 32 of the of the Ordinance only provides 10 days for filing appeal against the order/judgment of the Accountability Court, which the appellant has failed to file within the prescribed period of limitation. Learned counsel for the appellant has failed to explain the delay in filing instant appeal. Consequently, instant appeal merits no consideration, accordingly the same is hereby dismissed.

11.       These are the detailed reasons of the short order announced by us vide order dated 03.10.2018, whereby the instant criminal appeal was dismissed.

 

Judge

Judge

 

ARBROHI