Mian MANZOOR AHMAD WATTOO Versus THE STATE

RUSTAM ALI MALIK, J.-- -Through this judgment we intend to dispose of four connected appeals titled (1) Mian Manzoor Ahmad Wattoo v. The State Criminal Appeal No. 1350 of 2002, which on the request of the learned counsel for the appellant is being treated as appeal in A.C. Reference No.2 of 2000), (2) Malik Haider Usman v. The State, Criminal Appeal No.691 of 2002 which relates to A.C. Reference No.6 of 2000), (3) Malik Haider Usman v. The State, Criminal Appeal No. 692 of 2002 relating to A. C. Reference No. 1 of 2000), (4) Sheikh Muhammad Bashir v. The State (Criminal Appeal No.693 of 2002, relating to A.C. Reference No.6 of 2000). All the four appeals have arisen out of the order dated 13-4-2002 whereby the learned Judge, Accountability Court No.2, Lahore, had dismissed three applications of the appellants filed under section 25 of the NAB Ordinance (as amended) and had declared that they stood disqualified under section 15 of the NAB Ordinance, 1999 by availing 'plea bargaining' under section 25.of the said Ordinance.

2. The brief facts of the case are that Mian Manzoor Ahmad Wattoo and other appellants who have filed these appeals were facing trial in Accountability References Nos. 1 of 2000, 2 of 2000 and 6 of 2000 pending before the learned Accountability Court No.2, Lahore. All these references had been previously filed under the provisions of Ehtesab Act, 1997, which was subsequently replaced by the NAB Ordinance, 1999. The appellants filed several applications under section 25 of the NAB Ordinance, 1999, one after the other. The outstanding amount as alleged against them alongwith the penalty demanded by the NAB was also paid by them. They were facing trial in Accountability References Nos. 1 of 2000, 2 of 2000 and 6 of 2000, all of which had been filed in the year 1997. It was averred by the appellants that notwithstanding the controversy, they in order to settle the matter and to end the agony faced by them, wanted to avail of 'plea bargaining' as envisaged under section 25 of the NAB Ordinance, 1999 as amended by Ordinance No.XXXV of 2001 which had vested the power in the Court to have the matter decided by virtue of section 25 of the NAB Ordinance and that the amending Ordinance of 2001 had widened the scope of plea bargaining by extending this benefit even up to Appellate Court and as no intentional loss had been caused to the Government exchequer and as the petitioners/appellants had already deposited the alleged amount about 1-1/2 years ago, the matter be decided by virtue of section 25, as amended. As indicated in the impugned order, they also prayed that the conditions of disqualification (as envisaged by section 15 of the NAB Ordinance, 1999), be declared as inoperative, non-existent and of no legal effect against them.

3. The applicants were resisted by the prosecution and reply was filed thereto by the NAB. The appellants also filed a replication. After hearing the arguments, the learned Accountability Court vide its order dated 13-4-2002 dismissed the applications and held the petitioners/appellants to be disqualified for a period of 10 years under section 15 of the NAB Ordinance, 1999. Aggrieved of the said order, the appellants have filed the instant appeals.

4. We have heard the arguments at length and have also gone through the record. The learned counsel for Mian Manzoor Ahmad Wattoo appellant has argued that the total amount allegedly claimed by the NAB from the appellants was Rs.1,07,00,000 which had been returned/deposited with a penalty of Rs.16,05,000. He has argued that section 17 of the defunct Ehtesab Act, 1997 related to voluntary return of the gain, etc but there was no further disqualification under the Ehtesab Act. He has argued that although in cases which were filed under the provisions of the defunct Ehtesab Act, 1997, proceedings were to be continued/completed under the provisions of the NAB Ordinance, 1999, but in those cases, only that punishment could be awarded which was provided by the Ehtesab Act.

5. The learned counsel for the appellant has further argued that 'plea bargaining' of the appellant under section 25 of NAB Ordinance should have been treated as the voluntary return of gain, etc. under section 17 of the Ehtesab Act, 1997 because at the time when the offence in question was allegedly committed, the NAB Ordinance, 1999, did not exist. He has argued that there was no further disqualification under the provisions of the Ehtesab Act, 1997. He has argued that as section 17 of the Ehtesab Act, 1997 did not envisage any further disqualification and section 15 of the NAB Ordinance, 1999 could not be pressed into service because the law which was prevalent at that time i.e. when the alleged offence was committed, no such disqualification was provided by law. Referring to different applications under section 25 of the NAB Ordinance filed by the appellants, he has argued that these applications had been actually filed under section 25 of the NAB Ordinance, 1999, read with section 17 of the Ehtesab Act, 1997 and the prayer as contained in these applications did not refer to any disqualification. The learned counsel for Mian Manzoor Ahmad Wattoo referred to the application under section 25 of the NAB Ordinance, 1999 filed on 21-6-2001 wherein it has been prayed that the plea bargain' raised by the petitioner alongwith his co-accused may be decided in terms of section 25 of the NAB Ordinance, 1999 as modified by the Hon'ble Supreme Court of Pakistan in the case reported as PLD 2001 SC 607 (Khan Asfand Yar Wali v. Federation of Pakistan). Thereafter the next application was filed on 10-10-2001 on behalf of Mian Manzoor Ahmad Wattoo, etc. and wherein it was again prayed that this case be decided by virtue of section 25 of the NAB Ordinance as amended up to date and necessary steps consequential to the petition may be ordered accordingly to meet the ends of justice.

6. The learned counsel for Mian Manzoor Ahmad Wattoo appellant has argued that the applications of the appellant were to be decided under the provisions of the Ehtesab Act and which did not provide for any penalty/disqualification. He has argued that the accused/appellant was seeking relief under section 17 of the Ehtesab Act, 1997 but the Court presumed to it to be under section 25 of the NAB Ordinance and the NAB also thought it so. He has argued that there was no meeting of minds of the two sides and that there could not be any conditional acceptance. He has argued that the appellants had not asked for the disqualification envisaged under section 15 of the NAB Ordinance, 1999 and that while deciding the application, the learned Accountability Court had not adverted to that aspect of the matter and which resulted in failure of justice. Quoting a para. from Halsbury's Laws of England (4th Edition, Volume 9) he has submitted that an agreement is usually reached by the process of offer and acceptance and, where this is so, the law requires that there be an offer on ascertainable terms which receives as unqualified acceptance from the person to whom it is made. He has argued that there could be no contract without meeting of the minds of the parties and this is still the general rule of the law of contract.

7. The learned counsel for Mian Manzoor Ahmad Wattoo appellant has argued that by filing the applications under section 25 of the NAB Ordinance, 1999, the petitioner had never asked for, or expressed willingness, to accept any disqualification and if the NAB or the learned trial Court had construed it to be so, it could be on account of some misunderstanding. He has argued that no contract can be formed if there is no correspondence between the offer and the acceptance and if one party makes to the other an offer which should the other party accept in a fundamentally different sense from that intended by the offer, the contract will be void. He has submitted that the language used by one party, whatsoever the real intention may be, is to be construed in the sense in which it would be reasonably understood by the other or at least in the sense in which a reasonable person would construe it. He has argued that a contract is necessarily based on the meeting of two minds in accepting its terms which determine their mutual rights and obligations and it necessarily involves and requires the consent of both the contracting parties. The learned counsel has argued that a perusal of all the applications filed under section 25 of the NAB Ordinance, 1999, would indicate that the appellant by filing the aforesaid applications had never intended to incur disqualification under section 15 of the NAB Ordinance, 1999. He has submitted that the impugned order is not based on sound reasoning and that the learned trial Court has not properly appreciated the facts and the law before passing the impugned order and as such the order under appeal is liable to be set aside. He has argued that Mian Manzoor Ahmad Wattoo/appellant is ready to furnish an affidavit to the effect that by filing the applications under section 25 of the NAB Ordinance, 1999 he had never intended to incur disqualification under section 15 of the NAB Ordinance, 1999. The learned counsel for the other appellants namely Malik Haider Usman (who has filed Criminal Appeal No.691 of 2002 and Criminal Appeal No.692) and also the learned counsel for Sheikh Muhammad Bashir (who has filed Criminal Appeal No.693 of 2002) have adopted the arguments of the learned counsel for Mian Manzoor Ahmad Wattoo/Appellant.

8. From the other side, the learned counsel for the National Accountability Bureau has argued that 'plea bargain' is different from voluntary return of gain, etc. He has argued that 'plea bargain' is not concerned with law of contract and that it is a concept of criminal law and it provides for a reduced sentence. However it is not something to be borrowed from the contact. He has argued that in cases of voluntary return of gain, section 15 of the NAB Ordinance, 1999 does not apply at all but when an accused avails of plea bargaining under section 25 of the NAB Ordinance, 1999, he has to incur disqualification under section 15 of the NAB Ordinance. He has argued that the reply filed by the NAB to the applications of the accused under section 25 of the NAB Ordinance and the replication filed by the accused fully indicates that the disqualification-in-question was in the knowledge of the appellants. He has argued that the reply filed by the NAB was absolutely categorical and the NAB had taken a definite stand. He has argued that by filing applications, the appellant had been seeking indulgence of the Court in the matter in order to get released from custody by depositing the amount alleged against them. He has argued that the concept of 'plea bargaining' amounts to acceptance of guilt by the accused and it can be presumed that by availing of plea bargaining, the accused/appellant had pleaded guilty. Referring to section 35-B of the NAB Ordinance he has argued that the aforesaid provision of law requires that all the proceedings, after the repeal of the Ehtesab Act, 1997, will be completed under the provisions of NAB Ordinance 1999. He has argued that the disqualification as envisaged under section 15 of the NAB Ordinance, 1999 cannot be considered as 'punishment' and therefore, it cannot be argued that it could not have retrospective effect. In this respect he has referred to section 53 of the Pakistan Penal Code, 1860 and which makes mention of different punishments provided under the said Code and wherein there is no mention of the 'disqualification' such as envisaged under section 15 of the NAB Ordinance, 1999. He has argued that the learned Accountability Court had rightly dismissed the applications of the appellants and had correctly declared them to be 'disqualified' under section 15 of the NAB Ordinance, 1999.

9. We have carefully considered the arguments and have also gone through the record.

10. It will be advantageous to reproduce sections 25(a) and 15(a) of the NAB Ordinance, 1999 as below:--

Section 25(a). "Where at any time whether before or after the commencement of trial the holder of a public office or any other person accused of any offence under this Ordinance, returns to the NAB the assets or gains acquired through corruption or corrupt practices, the Court or the Chairman NAB, with the approval of the Court or the Appellate Court, as the case may be, may release the accused."

Section 15(1). "Where an accused person in convicted for the offence of corruption or corrupt practices as specified in the Schedule of this Ordinance, he shall forthwith cease to hold public office, if any, held by him and further he shall stand disqualified for a period of ten years to be reckoned from the date he is released after serving the sentence, for seeking or from being elected chosen, appointed or nominated as a member or representative of any public body or any statutory or local authority or in service of Pakistan or of any Province."

11. The main argument of the learned counsel for the appellants is that by filing applications under section 25 of the NAB Ordinance, the appellants did not intend to incur disqualification envisaged under section 15 of the NAB Ordinance because they had all along in mind that they had been charged under the Ehtesab Act of 1997, as well as under the NAB Ordinance, 1999 and as at the relevant time when the alleged offences had been committed, the NAB Ordinance did not exist, therefore; they could not be made to face the disqualification envisaged by section 15 of the NAB Ordinance. On the other hand, the learned counsel appearing on behalf of the NAB has argued that availing plea bargaining in fact amounts to pleading guilty and that law clearly provides that the accused availing plea bargaining will incur disqualification as provided under section 15 of the NAB Ordinance and there was no confusion about it. However, the learned counsel for Mian Manzoor Ahmad Wattoo appellant has argued that his client would even prefer to face trial in the three Accountability References instead of incurring disqualification under section 15 of the NAB Ordinance. He has submitted that his client had been Chief Minister of the Punjab and for many long years had been in politics and he could not afford to spoil his political career merely in order to avoid trial in Accountability References.

12. After hearing the arguments, we have reached the conclusion that there was no meeting of minds between the parties, so far as the 'plea bargaining' of the appellant was concerned. The appellants have taken the plea that by returning the amount alleged against them, alongwith the penalty, they had in fact returned the alleged gain and by doing so they never intended to incur disqualification because the Ehtesab Act, 1997 did not provide for any such 'disqualification' and the offences in question were allegedly committed when the NAB Ordinance, 1999 was not in existence. Before us, the appellants vehemently agitated the point of 'retrospectivity' of disqualification under section 15 of the NAB Ordinance and also the point as to whether this 'disqualification' can be considered as punishment. We feel that the learned Accountability Court, while deciding the applications of the appellants, had not taken into account the fact that there was no meeting of minds between the parties regarding disqualification envisaged under section 15 of the NAB Ordinance, 1999, while the appellants were availing plea bargaining. We A feel that the appellants may have filed the applications with the bona fide belief that by doing so they will not incur any 'disqualification' as it is possible that they might have taken it as merely 'return of gain' as envisaged by section 17 of the efunct Ehtesab Act. Therefore, instead of expressing our own views on the points agitated before us, we consider it proper to send the case back to the learned trial Court for a fresh decision of the applications of the appellants.

13. As a result of what has been stated above, we accept all the four appeals and set aside the impugned order dated 13-4-2002 passed by the learned Judge, Accountability Court No.2, Lahore and send the matter back to the learned trial Court with the direction to hear fresh arguments on the applications of the appellants. The appellants shall be allowed to raise all the points which they want to agitate, such as the question of retrospectivity of 'disqualification', or for that matter, any other point, before the learned trial Court. After hearing the arguments, the learned trial Court will decide the applications of the appellants afresh. However, it is clarified that if any of the appellants wishes to withdraw his application in respect of plea bargaining and opts to face the trial, the learned trial Court, after hearing arguments, shall pass appropriate order in that respect also.

N.H.Q./M-1800/L ?????????????????????????????????????????????????????????????????????????????? Case remanded.