1 Stove ws ali Muhammad Azer ‘order (IN THE COURT. OF SOHAIL NASIR, DISTRICT 4 SESSIONS JUDGE/TUDGE “ACCOUNTABILITY. ‘COURT NO-IEE, RAWALPINDI (Reference No, 09 of 24042016) State through Chairman NAB Vs. Malik Muhammad Azam son of Muhemmed Khan resident of 88-A, Walayat homes, Chaklala Scheme-ZIZ, Rawalpindi present: — Malik Muhammad Azam accused in custody ‘Mr, Najeeb-Ur-Rehman Advocate for accused “hn: Muhammad Wager Abbasi Senior Prosecu7or for NAB Mrs. Sadia Kalsoom I. oO ORDER 1. By way of this order request of Chairman NAB seeking approval for decision of this case on the basis of plea bargain is being decided. 2. Facts of the case are that from 2010 onwards NAB authorities received various applications from public at large that Malik Muhammad Azam accused (present) along with Khalid Shah (convict on the basis of plea bargain vide order dated 25. 02,2016) had introduced “3 prajeet in the name of ‘Lake Vista Residencia and received millions of rupees from them but no plot was ‘given to anyone. 3. During investigation claims against both accused were found for Rs.16435360/- (one crore, sixty four ees, thirty five thousand, three hundred and sixty). Both of them submitted independent applications ana offered decision of case on the basis of plea bargain (P8) 4, After doing needful total liability against both accused was determined as Rs. 27295846/- (two crore, seventy two lacs, ninety five thousands, eight hundred and. forty six) which included interest. 5, Share of Khalid Shah (convict) in the project was 40% 50 liability against him was for (Rs, 10918338/- (one crore, nine lees, eighteen thousand, three hundred and thirty eight) Khalid Shah paid total ability| | 2 State ve Mek shanna Azan against him through pay orders in the name of Chairman NAB and his matter was decided vide an order dated 25.02.2016 imposing disqualifications against him under section 15 of the National Accountability Ordinance, 1999 (Ordinance), 6. With regard Malik Muhammad Azam accused his offer for plea bargain was also accepted by Regional Board in its meeting dated 17.03.2016 by determining the amount against him as Rs.24090663/- (two crore, forty lacs, ninety thousand, six hundred and sixty three) including interest. This amount was incorrectly recorded in minutes as Rs.23947508. Mode of payment was said to be as per standing operating procedure. 7. A development subsequent to above decision was that during investigation various employees of Pakistan Post Office (PPF) approached NAB and claimed that they were also given plots by the accused but without any development and outside the Lake Vista Residencia According to them they had paid an amount of Rs,6914000/- (sixty nine lacs & fourteen thousand) to Malik Muhammad Azam accused, 8. It was 06.04.2016 when accused moved an application to this Court in the name of Chairman NAB for reconsideration of amount determined in pursuance of his application for plea bargain. It was forwarded to Chairman NAB through learned Prosecutor, who on 15.04.2016 submitted a report according to which earlier decision of Regional Board Meeting was kept intact and with regard to PPF employees it was settled as under - Accused a. Sell the land and return the amount along with KIBOR to Pakistan Post Foundation within 06 months, Registries will be cancelled accordingly. . Adjust their plots in the land of Lake Vista Residencia for which provisional NOC has been issued and deliver the developed plots to PPF employees, then collect the remaining payment as per already agreed rates.State ve Mali Muhammad Azam 9. Learned defence counsel contends that imposition of interest jin any manner against the actual amount is not within the authority of Chairman NAB, nor it is provided under section 25 of the Ordinance, therefore, accused (s liable to return the actual amount which is Rs.15536216/- (one crore, fifty five lacs, thirty six thousand, two hundred and sixteen). In support of this specific contention he has made reliance on sAgghor-Ali:Vs National Accountebility Bureau 2016 PCr. Ly 477 10. On the other hand Mr. Muhammad Wagar Abbasi learned Prosecutor while referring Asghar Al's ease (sypra) maintains that in that case the Hon' able High Court had declared incidental charges as illegal and not the interest which is always in favour of aggrieved persons; the Hon’ able High Court aid not take into consideration the word "Bargain" used in section 25 of the Ordinance, which according to dictionary means “an agreement between parties settling what each shall give and take or perform and receive as transaction"; Accoraing to Mr. Abbasi once accused offers for bargain then it is for the Chairman to settle the amount with imposition of interest hence it clearly falls under section 25 of the Ordinance. He finally says that in view of his above submission the case law referred by learned defence counsel is not applicable. 11, Arguments heard, 12, The question of imposition of interest by Chairman NAB on actual amount can be validly answered now on the strength of Asghar Al's case, In this case NAB imposed 15% incidental charges against ‘accused which was approved by Accountability Court Lahore, The order was assailed through a writ petition and the Hon’ able High Court was pleased to hold that the claim of 15% ap incidental charges by the NAB authorities are illegal and in violation of section 25 of the Ordinance. The relevant paragraphs are as under: + | “Section 25 of the National Accountability Ordinance, 1999 and in fact the hole aforesaid Act|does not mentin the imposition and recovery of 15% as incidental charges frpm on accused person who has agreed to an ea of Court sertiement4 ‘State ve, Malik: Muhammad Azar | ae | | as envisaged under Section 25 ‘of the National Accountability Ordnance, 1999. That while preferring an out Court | settlement an accused should not be under ary duress and the | Settlement should be transparent and according to law. A person who is under arrest with the NAB authorities cannot be oid 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. Tn the case before us instead of 15% interest;‘on she 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 ond choose apply the 15% incidental charges to some ‘accused persons and waivers it off for some, as in “2010 YLR 2604 (Uchore) Farhat Shamshad v. Court of National ‘Accountability Bureau Lahore and another”. 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 Nos.11 and 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 toke approvel 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 5.34 of the said Ordinance. It cannot be said that SOP issued by the Chairman NAB will have the force of rules as enviseged by 8.34 of the scid 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 hos 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" 13, Besides above the Hon’ able High Court also made reliance ‘on Haji Khan Muhammad Vs, Government of Pakisten National Accountabili Bureau through Chairman and 2 others 2013 Perlj-1571 (Balochistan). In that case 15% additional amount as interest towards the total amount ri)z State vs Melk Muhammed Azar Order was imposed against an accused and same was also declared illegal and without lawful authority and in violation of section 26 of the Ordinance. 44, I cannot endorse the view of learned Prosecutor that in Asghar Ali's case question was of incidental charges and not the interest and my view stands supported from Haji Kahn Muhammad's case where clearly interest was declared as illegal and without lawful authority. Relevant portion is as under: - “Plain reading of proviso to section 15 of the Ordinance reveals that any person, who availed the benefit of section 25 of the Ordinance, will be deemed to have been convicted under the Ordinance, and shall stand disqualified for a period of 10 years 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. Such person is also disqualified to avail a finance facility. Besides, the accused has to deposit the actual amount as per the charge. These are the consequences of the admission of the guilt. So far as the question of an interest upon the actual amount is concern, section 25 of NAB Ordinance, 1999 is silent. The imposition of 15% as an additional amount from the petitioner is unjustified, The learned Prosecutor did not cite any provision of law, entitling the NAB authorities to collect the amount, in excess of what the actual amount is, Under such circumstances, the claim of 15% interest or the additional amount by the NAB authorities, is totally illegal and without lawful authority, being in violation of section 25 of the NAB Ordinance, 1999." 15. When I asked from learned Prosecutor that if order passed in Asghar Ali's case was ever assailed by NAB in the Honorable “* supreme’ Court of Pakistan? He had shown his ignorance, Even after consulting from relevant quarter he was unable to tell in this regard. ‘As an important question is before me which can also arise in biker cases of plea bargain where NAB has imposed eee sol Imade personal efforts to find out that if any appeal was filed by a NAB and if so what was the result? I got success and found that cp No. 3419/2015 was preferred by Chairman NAB] in the hondrable Supreme Court of Pakistan, and same was, dismissed on 27.10,2015, ieba | a honorable (as Court was pleased to hold that was as under:- | | besinssion ha Beet granted to the learned counsel for | the petitioner to argue the case. The only question raised in | this matter is whether slicing away of the incidental charges from the plea bargain amount by the lecrned High Court is | invalid. When questioned learned Special Prosecutor has not been able to show us from the provisions of section 25 of the National Accountability Ordinance, 1999 any so called accidental charges can be recovered by the NAB even if ultimately payable to some beneficiary, thus impugned judgment does not call for interference. Dismissed accordingly.” 16, The decision of apex court has also clearly answered the contention of learned prosecutor that interest has to be paid to an aggrieved when it was held that it cannot be recovered by the NAB even if ultimately payable to some beneficiary. 417, Learned Proseuctor has also drawn my attention to certain decisions of this Court made earlier where interest was approved. The position is absolutely correct but till that time Asghar Alis case (reported in March-2016) was not before me and similarly case of Haji Khan Muhammad was too never referred during any proceedings, . 18, In view of above discussion I do not approve the imposition of interest towards the actual amount therefore accused is liable to pay only principal amount which is Rs, 15536216/- (ane crore, fifty five lacs, thirty six thousands, two hundred and sixteen) The remaining recommendations of Chairman NAB however are approved and the order is as under: ~ 1 Accused shall pay through pay order an amount of Rs.5282313/- (fifty two lacs, eighty two thousands, three hundred and thirteen) which is 34% of principal amount in the name of Chairman NAB. oa 2 Remaining amount of Rs. 10253.903/- (one crore, two lacs, fifty three thousands, nine hundred and three) shall be paid in two equal installments after every three months. 3. Accused along with pay order of initial amount shall so sthomit two chequ|es of two installments in the Ree. HSAGETETNE ASHE SHES HONE SEE,z ‘State vs Mali Muhamed Azon Order Accused shall submit two sureties equal to each installment of Rs.5126951/- (fifty one lacs, twenty six thousands, nine hundred and fifty one) who shal! undertake trough a bond for payment of remaining liability if not paid by accused, ‘Accused shall also submit another surety for equal to amount of Rs.7000000/- (seventy lacs) who shall undertake through a bond that in case matter with regard to PPO employees is not settled as agreed within six months, the amount shall be paid by the said surety. 19. Coming to the consequences of plea bargain Malik Muhammad Azam accused has to face disqualifications under section 15 of the Ordinance, 1999. Hence it is directed as under: - Announced. 21.04.2016 Th is certified that this order consists of seven page: have been dictated, read and signed by me. a) He shall be deemed to have been convicted for the offence under section 9 (a) (ix) red with 10 of NAO, 1999. He shall stand disqualified for a period of ten years, to be reckoned from today 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. 4 (spat NASIR) (Judge, Accountability Court No-III, Rawalpindi. (Jue