ORDER SHEET

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Constitution Petition No.D-134 of 2022.

 

Date of hearing

               Order with signature of Judge

 

                             PRESENT;

                             Mr. Justice Muhammad Faisal Kamal Alam

                             Mr. Justice Amjad Ali Sahito.

         

          1. For Orders on CMA No. 729/202.

2. For Orders on office objection.

3. For Orders on CMA No. 730/2022.

4. For hearing of main case.

 

O R D E R.

22-02-2022.

 

                                      M/s Nisar Ahmed Bhanbhro and Sheeraz Fazal advocates for petitioner.

                            

AMJAD ALI SAHITO J., Through the instant Constitution Petition, the petitioner has assailed the order dated 14-12-2018 passed by learned Accountability Court Sukkur on application under section 25 (b) filed by the petitioner and others in Reference No. 01/2019, Re. The State Vs. Ayaz Ahmed & others. The petitioner further prayed to extend him the benefit of judgment dated 29-01-2021 passed by learned Trial Court in the above said Reference.

2.       Brief facts of the case are that Principal Seat of this Court, Karachi vide order dated 20-01-2016 passed in Constitution Petition No.D-6105/2014 directed NAB Sukkur to initiate inquiry. In compliance of the said order, an inquiry was authorized to scrutinize the works for the Annual Development Program of Irrigation East and West Division, Khairpur, which was upgraded into Investigation, vide authorization Letter No.-720078/IW/CO-D/T-3/NAB Sk/2018/1809 dated 6th July, 2018. It is mentioned in the Reference that Investigation report was treated as part and parcel of the Reference. The Reference further reveals that in 11 schemes, executed under Annual Development Plan (ADP) schemes for the year 2013-2014 and 20-14-2015 either no work was found to have been executed or the work that was executed was partial. 3.    It is alleged that accused Ayaz Ahmed Soomro, Ali Gul Phul and Ghulam Nabi Babar officers/officials of Irrigation Department, East Division, Khairpur, accused Ghulam Sarwar Abbasi, Sadoro Khan, Mir Muhammad Sariyo Abro and Tarique Hussain Abbas contractors jointly and severally committed offence of corruption, corrupt practices in connivance and collaboration with each other by not executing work at all in schemes and executed partial work in four (4) schemes. The payment that was withdrawn was illegal. Accused Ayaz Ahmed Soomro, Ali Gul Phul and Ghulam Nabi Babar misused their authority and rendered undue benefits to accused Ghulam Sarwar Abbasi, Sadoro Khan, Mir Muhammad Sariyo Abro and Tarique Hussain Abbasi. There are other officers/officials and contractors accused which were involved in the commission of the offence and case against them was pending adjudication being under trial. All the accused in the case caused loss to the National Exchequer to the tune of Rs. 893,034,70/- (Eight Crore, Ninety Three Lac, Three thousand, Four Hundred and Seventy rupees only).  Perusal of record reflects that the individual liability of petitioner/accused Ayaz Ahmed Soomro has been determined by the NAB at Rs. 17,860,694. In that response, the petitioner/accused has deposited with the NAB through 7x pay orders viz. PO#GLP013680 dated 30-11-2019 amounting to        Rs. 25,00,000/-. Pay order Nos.PO#GLP013681 dated 30-11-2019 amounting to Rs. 9,00,000/- issued from JS Bank Ltd, Gulshan-e-Iqbal Branch, Karachi, pay orders Cheque No-16076859 dated 29-11-2019 amounting to Rs.10,00,000/-, cheque No.16076858 dated 29-11-2019 amounting to Rs. 10,00,000/-, Cheque No. 16076857 dated 29-11-2019 amounting to Rs. 10,00,000/- issued from UBL, Civic Centre, Karachi, pay orders BC#06452126 dated 29-11-2019 amounting to Rs. 50,00,000/-, pay orders BC#06452125 dated 29-11-2019, amounting to Rs. 65,00,000/- issued from Bank Al-Habib Limited, Ghaffar Plaza, Branch of Sub-Br of University Road, Karachi in favour of NAB as full and final settlement. Such proposal was accepted by the Chairman, NAB. Petitioner/accused Ayaz Ahmed Soomro and co-accused Ali Gul Phul, Ghulam Nabi Babar, Ghulam Sarwar, Sadoro Khan, Tarique Hussain and Mir Muhammad have committed offence of corruption and corrupt practices as defined in section 9 (a) (iii), (iv), (vi) and (xii), hence they filed applications under Section 25(b) of National Accountability Ordinance, 1999 read with section 15 (a) of the Ordinance along with their Affidavits before the Accountability Court Sukkur for approval and their release, which were allowed and they were released vide order dated 14-12-2018. Later-on the remaining accused Sher Muhammad and Iftikhar, who have faced the trial, were acquitted by the learned Trial Court vide judgment dated 29-01-2021 and the petitioner seeks same benefit which was awarded to accused Sher Muhammad and Ifitkhar through the instant petition. 

4.       Learned counsel contended that petitioner was on ad-interim bail before arrest granted by this Court, but said concession was withdrawn and he was taken into custody; that after the arrest of the petitioner, his wife sold out her house hold articles including jewellery and without his consent, sought his release by opting the plea of bargain as provided under section 25 (b) of the NAO, 1999; that the petitioner was not ready to compromise but he was under pressure and threatened by his family members that if he did not get out of incarceration, the marriage proposal of his daughter might be cancelled; that the application Under section 25 (b) NAB 1999 of the petitioner was approved by the learned Trial Court, releasing him of the charges and convicted him under section 15 (b) vide order dated 14-12-2018; that after release of the petitioner, his son filed application with NAB Sukkur & Department for reconsidering his case requesting therein that petitioner was ready to face trial and requested for withdrawal of plea bargain, but to no effect; that co-accused in the Reference No. 01/2019 namely Sher Muhammad Veesar & Iftikhar Ahmed Langah faced complete trial and they were acquitted by the learned Accountability Court vide Judgment dated 29-01-2021 with clear finding that there was no material on record to faintly suggest that National Exchequer suffered any loss and charges of corruption and corrupt practices were not proved and learned Trial Court had recommended for appropriate action against Investigating Officer, Technical Expert NAB Sukkur and Technical Expert WAPDA under section 31 of the NAO, 1999; that NAB Sukkur also filed an Acquittal Appeal before this Court, which is pending adjudication and the petitioner intends to join those proceedings and the petitioner seeks same benefit, through the instant petition, which was awarded to accused Sher Muhammad and Ifitkhar through judgment dated 29-01-2021 and he may also be deemed to be acquitted. 

5.       We have heard learned counsel for the petitioner and have minutely examined the record.

6.       Before commenting upon the objection raised by the learned counsel for the petitioner on a plea bargain, 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 Provision/ Section, it is clear that NAB would make plea bargain or effect settlement with the accused, if he comes forward voluntarily to return illegal gains acquired or loss caused by him to the State Exchequer through corruption/corrupt practices, whereas, in the present case, the petitioner has moved application Under Section 25 (b) of the Ordinance for plea bargain, the said application was duly signed by him in which he admitted that he is ready to return the liable amount which stands against him. Moreover, the petitioner and other co-accused in their affidavits filed before the Trial Court states that they have offered to return alleged amount of plea bargain. They further stated that the plea bargains have been done on their own as required under Section 25 (b) read with Section 15 of National Accountability Ordinance, 1999 only for the allegations leveled against them in this Reference and would not cover any other allegations unearthed later against them. They further states that they have entered into plea bargain with the NAB on their own accord without any pressure or coercion. They also admitted that they have committed the offence of corruption and corrupt practices as defined in Section 9 (a) of National Accountability Ordinance, 1999. It has further been stated by them that the NAB has worked out their liabilities and they offered the payments of amount determined by the NAB in lump-sum and deposited Demand Drafts in favour of Chairman NAB as full and final settlement. Thereafter, the learned Trial Court passed the order and accepted the offer made by the petitioner and the said application was allowed for the payment in a certain condition and after payment, the petitioner was released from jail.

8.       We do not agree with the arguments advanced by the learned counsel for the petitioner that under pressure and depression, the petitioner has filed the application for plea bargain as after his release, he did not bother to file an appeal before the competent Court of law or made any application by submitting the facts which he has agitated in this petition, hence it suffices to say that the petitioner entered into plea bargain voluntarily without any fear and force. In this context, the case of Dr. Muhammad Anwer Kurd and 02 others Vs. The State, through Regional Accountability Bureau, Quetta (2011 SCMR 1560), is relevant, 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 judgment in the case of Khan Asfandyar Wali, confirming the same position about its language as reproduced above.”

 

9.       Furthermore, in view of Section 369 Cr.P.C. no Court including High Court when it has signed its judgment/order shall alter or review its own judgment/order except correct a clerical error, hence the learned Trial Court has rightly dismissed the application as the petitioner has not impugned the order dated    14-12-2018 before any competent Court of law by way of filing the appeal, which is still in field.

10.     Apart from the above facts and circumstances, the Petitioner was convicted through judgment dated 14-12-2018 and after about more than 03 years he has filed the instant Petition. The petitioner was fully aware about filing and consequence of the plea bargain application under Section 25 of the Ordinance, but even then he remained silent and did not challenge the said order before the Trial Court or even before this Court. Though, such remedy of filing an appeal was available to him under Section 32 of the Ordinance. It appears that by not challenging the order of the Trial Court where the petitioner has entered into a plea bargain and he has deposited liable amount hence, the delay in filing the appeal about more than 03 years is not condonable. Whereas Section 32 of the Ordinance only provides 10 days for the filing of an appeal against the order/judgment of the Accountability Court, but the petitioner has failed to file the same within a prescribed period of limitation. Learned counsel for the petitioner has failed to point out any material illegality or irregularity committed by the Trial Court while passing the impugned order. Consequently, the instant petition merits no consideration and the same is hereby dismissed in limini along with pending applications.  

11.     These are detailed reasons of the short order announced by us vide order dated 22-02-2022 whereby the instant Constitution Petition was dismissed.

 

J U D G E

                                                J U D G E

 

Nasim/P.A              

 

the Irrigation Department Government of Sindh invited tenders for rehabilitation of irrigation system of Khairpur East Division and on completion of tendering process the works for execution of the schemes were awarded to different contractors; that the process of tendering irked one Kamran Jalbani, who filed petition before this Court seeking indulgence to revoke the tendering process, in which the NAB authorities were directed to probe the matter, hence the NAB authorities issued call up notice to the petitioner, who appeared before the Investigating Officer and recorded his statement, wherein he has categorically denied the allegations levelled against him; that NAB authorities without collecting any tangible evidence filed Reference No.01 of 2019 against the petitioner and others, hence they were summoned by the learned Accountability Court to face trial; that the