Mr. Justice Ali Baqar Najafi and Mrs. Justice Erum Sajad Gull in their judgment have decided the issue regarding plea bargain and imposition of incidental charges by NAB in Writ Petition No. 18098 of 2014.
1. Through this writ petition, the petitioner has challenged the legality of the imposition of 15% as incidental charges amounting to Rs. 1,13,25,268 levied by the respondents on the total liability to be paid by the Petitioner amounting to Rs 7,55,01,788.
2. Brief facts of the case are that the Petitioner while posted as Patwari in Mauza Balhar, Tehsil Model Town, Lahore Cantt issued fake fard malkiats to different private land owners beyond their entitlement/ownership. This was done in connivance with the land owners and land contractors of State Life Employees Co-operative Housing Society, Lahore. Thereafter, the said land owners sold that land to the State Life Insurance Corporation Employees Co-operative Housing Society Lahore and received consideration of Rs 6,56,53,729. This amount was deposited in the accounts of the landowners who after cashing the cheques handed over the amount to the Petitioner/accused in cash. During Investigation the Petitioner was declared guilty for committing the fraud by misusing his official capacity and causing huge financial loss to the State Life Insurance Corporation Employees Co-operative Housing Society Lahore.
3. The petitioner, was arrested on 08-04-2014and confessed to his guilt and offered to return Rs.7,55,01,788/- as total loss caused to the Society and agreed to pay in addition to that 15% as incidental charges. The DG NAB Lahore accepted the Plea Bargain offer made by the Petitioner/accused, the said application of the Plea Bargain was duly signed by the Petitioner. And approved by the Administrative Judge Accountability Court, Lahore, vide Order dated 17-05-2014. The petitioner has paid a sum of Rs.2,88,02,306/- as 34% while for balance amount of Rs.4,66,99,482/- petitioner has submitted properties as surety.
4. During the pendency of this writ petition, learned counsel for the petitioner did not press instant writ petition to the extent of relief claimed at Serial No.(i), (iii) and (iv) and only pressed the relief claimed at Serial No.(ii) which is reproduced below:
“To declare that incidental charges amounting to Rs.1,13,25,268/- (15%) be declared as illegal, unlawful and void ab-initio on the rights of the petitioner. To declare that petitioner is only liable to make payment of Rs.6,41,76,520/- and no extra amount as incidental charges can be charged by respondents.”
5. We have heard the arguments and perused the record.
6. It is admitted that the petitioner availed the benefit of plea-bargaining and pursuant to which the petitioner deposited an amount of Rs.2,88,02,306/- as 34% while for the balance amount of Rs.4,66,99,482/- the petitioner has submitted properties as sureties. An amount of Rs.98,48,059/- as 15% incidental charges upon the total amount was deposited by the petitioner with the Deputy Registrar (Judicial) of this Court on his request vide order dated 02.07.2014.
7. Section 25 of the National Accountability, Ordinance, 1999 and in fact the whole afore said Act does not mention the imposition and recovery of 15% as incidental charges from an accused person who has agreed to an out of Court settlement as envisaged under Section 25 of the National Accountability, Ordinance, 1999. That while preferring an out of Court settlement an accused should not be under any duress and the settlement should be transparent and according to law. A person who is under arrest with the NAB authorities cannot be said to be a free person and for his freedom he will agree to sign any document however illegal it may be but then it is for the NAB authorities to ascertain that while entering into a Plea Bargain with an accused person, the procedure according to law is strictly followed.
8. It has been held by the Honorable Supreme Court of Pakistan in PLD 2010 Supreme Court 265 “Dr Mobashir Hassan and others Versus Federation Of Pakistan and other that “The Chairman NAB/Governor, State Bank of Pakistan, while involved in plea bargaining negotiations, should avoid using their position and authority for exerting influence and undue pressure on parties to arrive at a settlement.”
9. In PLD 2003 Supreme Court 837 Syed Ali Nawaz Shah and 2 others Vs The State and others, in which reliance was placed upon PLD 2001 SC 607 Khan Asfandyar Wali and others versus Federation of Pakistan through Cabinet Division Islamabad and others. It was also held that the NAB authorities could persuade an accused person to opt for an out of Court Settlement by entering into a Plea of Bargain under section 25 of the NAB Ordinance but this had to be done without duress, threat or pressure.
10. In 2013 P.Cr.L.J 1571 Balochistan “Haji Khan Muhammad Vs Government Of Pakistan National Accountability Bureau through Chairman and 2 other. The Petitioner/Accused chose to request for an out of Court settlement / plea bargain. This offer was accepted by the NAB authority but 15 % interest was charged upon the total outstanding amount. But as no provision of law could substantiate the imposition of 15 % interest on the total outstanding amount, therefore the Court declared the imposition of 15% interest as illegal and without lawful authority and in violation to section 25 of the NAB Ordinance 1999.
11. In the case before us instead of 15% interest, on the total outstanding amount 15%, incidental charges have been levied. Incidental charges have not been defined under the National Accountability Ordinance 1999. It has been noticed that the NAB authorities use their discretion and by way of pick and choose apply the 15 % incidental charges to some accused persons and waivers it off for some, as in”2010 YLR 2604 (Lahore) Farhat Shamshad Vs Court of National Accountability Bureau Lahore and an other”. That under the SOP (Standard Operating Procedures) issued by Chairman NAB vide letter No. 7(807)2012(SOP)/NAB(VR/PB) dated 20-09-2012 he has formulated Rules for the determination of the liability mentioned in Paragraph No.11 &12 of the afore mentioned SOP. Even while applying the SOP, discretion of the Chairman NAB plays a vital role, hence once again makes the whole procedure very vague. Under the National Accountability Ordinance 1999 section 34 the Chairman NAB must take approval of the President for making Rules and without the approval of the President rules cannot be formulated on the discretion of the Chairman NAB as this will be in violation to S.34 of the said Ordinance. It cannot be said that SOP issued by the Chairman NAB will have the force of rules as envisaged by S.34 Of The said Ordinance. Section 25(b) of the National Accountability Ordinance 1999 mentions “—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”. It cannot be presumed that 15% incidental charges is the condition as mentioned in S.25 (b) because law has to be clear and precise. Meaning that imposition of 15% incidental charges is illegal having no force of law and is imposed in violation of section 25 of the NAB Ordinance 1999.
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