Nadeem Ahmad Versus Judge Accountability Court NO. IX Qazi Misbah-ul-Hassan

Order

Through this writ petition, two orders dated 19.10.2023 were assailed by the petitioner through which ACR No.89 of 2018 was transferred to learned Sessions Judge for trial whereas ACR No.12/PB//22 relating to plea bargain of the petitioner was sent back to Chairman, National Accountability Bureau ("NAB") for further proceedings.

2. Nadeem Ahmad, petitioner filed an application before Director General NAB, Lahore for entering into plea bargain under section 25 (b) of The National Accountability. Ordinance 1999 ("NAO 1999") in connection with Accountability Court Reference ("ACR") No. 89/2018 which was accepted and NAB forwarded the reference to the Court for approval on 15.11.2022, with the plea that despite amendments of year 2022 in NAO 1999 plea bargain of Yasir Mukhtar convict has already been approved by the Court on 13.06.2022. Though reference was allotted the number (ACR No. 12/PB/2022), yet on pending application under section 265K of Cr.P.C., the main ACR bearing No. 89/2018 was returned to NAB through order dated 24.11.2022 for its entrustment to the concerned court or forum because subject matter fell short of threshold of Rs. 500 million and public at large was less than 100 people, however, no order was passed on plea bargain in ACR No. 12/PB/2022.

3. After final judgment of Supreme Court, the NAB for giving effect to the amendments of year 2022 in NAO 1999, once again filed an application for transfer of ACR No. 89/2018 pursuant to amendments of year 2023 in NAO 1999 which relates to powers of Accountability Court to directly transfer the pending cases (below the threshold) to the concerned Court or forum. In such application, NAB did not suggest any remedy about plea bargain in reference already filed but learned Accountability Court by virtue of order dated 19.10.2023 after reviewing its earlier order of 24.11.2022 (whereby case was sent back to Chairman NAB) directed the transfer of case in ACR No. 89/2018 to learned Sessions Judge, Lahore for trial, and similarly with order of even date ACR No. 12/PB/2022 relating to plea bargain of the petitioner was also sent back to Chairman NAB for proceedings in accordance with law. Both the orders were assailed through present writ petition.

4. Learned counsel for the petitioner states that no doubt trial in a reference below the threshold could be transferred to the concerned forum or court but only after observing the preliminaries like an appropriate order on plea bargain reference, and if it is accepted by the Court, the matter shall stand concluded. He was of the view that amendments of year 2022 only affect the trial and not the proceedings like plea bargain, therefore, learned Accountability Court should have -decided the plea bargain reference, after hearing the parties, but such opportunity was not provided to the petitioner which is against the principle of natural justice.

5. Learned Special Prosecutor for NAB though on the last date of hearing sought time to furnish additional comments after post remand scenario but today he is not equipped with such comments, however, opposed the contention of the petitioner.

6. Heard: record perused.

7. Before entering into discussion on the question in hand, it is appropriate to reproduce clause (b) of section 25 of the NAO 1999, which is as under;

(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, 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.

This clause clearly detaches the accused from the main stream of trial on the charges which shall deem suspended and cannot proceed further until the plea bargain reference sent by the Chairman NAB is decided by the Court. In such situation when trial is presumed to be adjourned sine die, it cannot be transferred considering it falling short of threshold.

8. One of the objects and purposes of NAO was to recover state money and other assets from those persons who have misappropriated or removed such money or assets through corruption, corrupt practices and misuse of power or authority which necessitated to introduce a plea bargain process to save the precious time of Court and parties as well as to reduce the prosecution cost on the case. Section 4(d) of NAO, 1999 is the relevant provision for transfer of case which is as under;

(d) where the Court seized with a case is of the opinion that it is not triable by that Court under this Ordinance, the Court shall, after examination with assistance of the National Accountability Bureau, refer it to the appropriate court, tribunal, forum, agency, authority or department, as the case may be, for exercise of jurisdiction in accordance with the applicable law;

According to this provision, Court was to apply mind with respect to trial of case and not to the procedural formalities of plea bargain process which even cannot be equated with confession of accused, nor conviction or sentence in its true essence is recorded on such plea bargain; however, some disqualification attached to delayed plea bargain is regarded as penalty which is deemed as conviction as per proviso to clause (a) of section 15 of NAO 1999 but it is not product of a trial. Plea bargain process is based on the principle of Nolo Contendere' which means 'no contest'. Thus, before sending the case to concerned forum, it was necessary for the Accountability Court to pass an appropriate order on the ACR No. 12/PB/2022 relating to plea bargain request of the petitioner duly accepted and forwarded by the Chairman NAB. However, if it fails, then process for transfer of case shall follow, otherwise on approval of plea bargain, normal procedure and consequences shall be observed.

9. It has been observed that petitioner has not agitated the matter before the Accountability Court concerned because both the orders were passed in his absence. Consequently, the order dated 19.10.2023 passed in ACR No.89 of 2018 (to the extent of petitioner) and order dated 19.10.2023 passed in ACR No.12/PB/22 are set aside. The matter shall be deemed pending before the learned Judge Accountability Court concerned who shall after hearing the parties, decide it afresh, as early as possible. With this observation, this petition is disposed of.

MH/N-12/L Case remanded.