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Official Citation: 1969 PLD 509
Court / Jurisdiction: Supreme Court of Pakistan
Year of Decision: 2010
Decision Date: 2010-12-31
Parties: Dr. MUHAMMAD ANWAR KURD and 2 others vs THE STATE through Regional JUDGMENT
This judicial decision was delivered by the Supreme Court of Pakistan on 2010-12-31. The matter involves proceedings between Dr. MUHAMMAD ANWAR KURD and 2 others and THE STATE through Regional JUDGMENT, officially reported as 1969 PLD 509. The court reviewed applicable Pakistani statutes, procedural requirements, and governing case-law authorities. The full text below contains the complete facts, arguments, and legal reasoning rendered by the honorable bench.
Case cited as PLD 1969 SC 509
Court Name: Supreme Court of Pakistan Judge(s): Khilji Arif Hussain, Anwar Zaheer Jamali, Javaid Iqbal Title:Dr. MUHAMMAD ANWAR KURD and 2 others vs THE STATE through Regional
JUDGMENT
Reported As: 2011 SCMR 1560 Result: Appeal dismissed Judgment JUDGMENT ' ANWAR ZAHEER JAMALI, J.---These three appeals by leave of the Court, vide common order dated 16-1-2004, arise out of judgment dated 17-2-2003, passed by a learned Division Bench of Balochistan. High Court, Quetta, whereby three identical appeals under section 32 of National Accountability Bureau Ordinance 1999 (in short Ordinance of 1999) filed by the present appellants, being Ehtesab Appeal No,41 of 2001 (re: Dr. Muhammad Anwar. Kurd v. The State through Regional Accountability Bureau, Balochistan), Ehtesab Appeal No,42 of 2001 (re: Dr. Saeedullah Khan and '.3 others v. The State through Regional Accountability Bureau, Balochistan) and Criminal Appeal.No,49 of 2001 (re: Dr. Nisar Ahmad v. The State through Regional Ehtesab Bureau, Balochistan), against the two orders of Accountability Court No,II, Quetta, dated 30-4-2001 and 24- 5-2001, challenging these orders only to the extent of their deemed conviction in terms of proviso to section 15(a), of the Ordinance of 1999 and imposition of penalties of disqualification/ losing their services etc., while granting their request for acceptance.Of plea bargain, were dismissed. Since facts/controversy involved in these. Appeals and the questions of law raised therein are common, we propose to dispose of the same by this single judgment. 2. Briefly stated, relevant facts forming background of these appeals are that based on investigation carried out by National Accountability .Bureau (in short NAB) a reference under sections 18(g) and 24(b) of the Ordinance of 1999 was drawn, showing involvement of the appellants and many others in irregularities and corrupt practices while Members of the Medical Board, which had resulted in a approximate loss of Rs,132,176,292,00 to the public exchequer. The appellants were accordingly arrested by the concerned authorities through warrants of arrest
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issued by the Chairman, Regional Accountability Bureau, but before such reference could be moved to the Accountability Couri, the appellants, availing the benefit of facility provided under section 25 of the Ordinance of 1999, Opted and applied for plea bargain in respect of allegations of procedural irregularities, corrupt practice qua ill gotten gains attributed to them, vide their respective applications dated 12/.13-4-2001 and 14-5-2001 addressed to the Chairman, NAB at Islamabad. After undergoing the due process of plea bargain, their pleas were approved and accepted by the Chairman, NAB and accordingly they deposited their respective sums payable in the - terms.Of such plea bargain; as detailed in the impugned judgment. Upon this; the two appellants Dr. Saeedullah Khan and Dr. Abdul Rasheed were produced before the Accountability Court Noll, Quetta with an application dated 30-4-2001 to the said Court . Through Deputy Prosecutor-General Accountability, apprising the Court about the terms of plea bargain arrived at between the parties and for the disposal of reference to the extent of these appellants in the light of paragraph 267 of the judgment of this Court in the case of Khan Asfandyar Wali v. Federation of Pakistan (PLD 2001 SC 607), which, inter alia, envisaged acceptance of such plea by the Chairman, NAB, subject to the approval of the Accountability Court. The Presiding Officer of the Accountability Court No,II, Quetta, after apprising the appellants about the consequence of acceptance of such plea bargain, passed his order dated 30-4-2001, in the following terms:-- "The plea of bargain between the parties is considered to be compromise. Accused persons admit their making request for plea of bargain and deposit of the amount by each of them as detailed in the application filed by Deputy Prosecutor-General. Accused when informed that in result of their making plea of bargain and deposit of amount they will be deemed to have been convicted which they accepted. Hence when both the parties are agreeing to the terms of plea of bargain, therefore, in view of judgment of Hon'ble Supreme Court plea of bargain is accepted. The alleged illegal gain obtained by accused persons has already been deposited while on acceptance of plea of bargain and deposit of amount they are deemed to be convicted for offence of corruption and corrupt practices in result of which they are to be declared disqualified for 10 years to hold any public office. Hence they shall lose their service and the benefit of the same also which is considered to be punishment. Hence keeping in view the above facts and circumstances the plea of bargain is accepted and they are deemed to have been convicted for corruption and corrupt practices. They shall stand disqualified for 10 years for seeking or from being elected, chosen, appointed as member, representative of any public office or any statutory or local authority of Government of Pakistan. Accused persons are also not allowed to apply or be granted or allowed any financial facility in the form of any loan or advance from any Bank or financial institution in the public sector for a period of 10 years. Accused are ordered to be released if not required in any other case or offence. Application accordingly stand disposed off." 3. As it appears from the record against such order appellants Dr. Saeedullah Khan, Dr. Abdul Rasheed and two other doctors invoked jurisdiction of the Balochistan High Court through Ehtesab Appeal No,42 of 2001, under section 32 of the Ordinance of 1999. Moreover, when they faced further action, inter alia, about their removal from service, they also moved a review application to the Chief Minister, Balochistan through Secretary Health Department, Government of Balochistan, but with no fruitful result. 4. As regards the case of remaining appellants Dr. Muhammad Anwar Kurd and Dr. Nisar Ahmed, they also after their nomination in the reference and arrest, adopted the similar course of plea bargain, which resulted in the passing of other impugner order of similar nature dated 24-5-2001, operative part whereof reads as under:-- " The plea of bargain, therefore, amounts to compromise and accused are deemed to have admitted their guilt, in consequence of which they will be deemed to have been convicted for offence of corruption and corrupt practices. Accused persons are apprised of the above position,
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which they accept and leave themselves to the mercy of the Court. It would be pertinent to mention that four (4) other doctors were also arrested on similar charges as made against present accused persons. They also surrendered the ill-gotten gain on which they were deemed to have been convicted and they were disqualified to hold any public office and obtained any finance/loan. The case of present accused is at par with their case. Therefore, having regard to the facts and circumstances stated above the plea of bargain of accused is accepted. They are deemed to have been convicted for offence of corruption and corrupt practices in result of which they are to be declared disqualified for 10 years to hold any public office. Hence, they shall lose their service and the benefit of the same also, which is considered to be punishment. Hence, keeping in view the above facts and circumstances the plea of bargain is accept and accused are deemed to have been convicted for corruption and corrupt practices. They, shall stand disqualified for 10 years for seeking or from being elected, chosen, appointed as member, representative of any public office or any statutory or local authority of Government of Pakistan. Accused persons are also not allowed to apply or be granted or allowed any financial facility in the form of any loan or advance from any Bank or financial institution in the public sector for a period of 10 years. Accused persons are ordered to be released if not required in any other case or offence. Application accordingly stand disposed off." 5. As it transpires from the record, these appellants also filed appeals under section 32 of the Ordinance of 1999 before the Balochistan High Court against the order dated 24-5-2001, challenging the above reproduced part of the impugned order of the Accountability No,II, to the extent of their disqualification etc., being Ehtesab Appeals Nos.41 of 2001 and 49 of 2001. Simultaneously, against the action for their removal from service, they also knocked the doors of other forums, but remained unsuccessful. 6. All these appeals were heard together Bench of Balochistan High Court, who, precisely, came to the conclusion that after the judgment in the case of Khan Asfandyar Wali (supra), following its procedural conditionalities and the law in force, deemed conviction qua disqualifications etc., inflicted upon the appellants by the Accountability Court were lawful and natural consequence of acceptance of plea bargain by them, which could not be avoided, keeping in view the binding effect of judgment in the case of Khan Asfandyar Wali (supra) by virtue of Article 189 of the Constitution, and the relevant law to this effect. Moreover, the appellate Court also came to the conclusion that two of the appeals i,e, Ehtesab Appeal No, 42 of 2001 filed by Dr. Saeedullah Khan and three others and Ehtesab Appeal No,49 of 2001 filed by Dr. Nisar Ahmed were time barred, without any plausible or cogent reason for condonation of such delay, thus, these two appeals were also dismissed on this additional ground. 7. After brief narration of relevant facts, Mr. Iftikhar Hussain Gillani, learned counsel for the appellants, in his arguments, made detailed reference as regards amendments in the Ordinance of 1999, made from time to time, particularly, in the two relevant sections 15 and 25 thereof, to show that the deeming conviction and other disqualifications/punishments, as a consequence of plea bargain entered into by appellants, inflicted upon them were not warranted by law,, inasmuch as, the said disqualifications/punishments provided in the Ordinance of 1999, were made applicable to the plea bargain, case of appellants, through amendments, which became part of the statute book subsequent to the plea bargain entered into by them respectively on 30-4-2001 and 24-5-2001. Further submission of the learned counsel was that indeed the judgment in the case of Khan Asfandyar Wali (supra), wherein requisite amendments were suggested was announced by the apex Court on 24-4-2001, but the relevant provisions of law were accordingly amended and introduced by the Legislature subsequently on 10-8-2001, vide Ordinance XXXV of 2001, thus, such suggestions/ guidelines meant for the Legislature could not have been pressed into service retrospectively against the present appellants, and no conviction/disqualification or penalty, other
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than the one prescribed by law at the relevant time of commission of such offence could be awarded to an accused retrospectively. In support of his submissions, learned counsel placed reliance upon the cases of Nabi Ahmad v: Home Secretary, Government of West Pakistan (PLD 1969 SC 509), Mehreen Zaibun Nisa v. Land Commissioner (PLD 1975 SC 397), and Muhammad Mubeen- us-Salam v. Federation of Pakistan (PLD 2006 SC 602). In the same context, learned counsel also made reference to Article 12 of the Constitution to show that deeming conviction of the appellants with retrospective effect, consequent penalties of disqualification to hold public office and other punishments awarded to them were clear negation of their fundamental rights guaranteed under the Constitution. Answering to the question of condonation of delay in filing of two subsequent Appeals Nos.42 and 49 of 2001 before the Balochsitan High Court, Quetta, learned counsel tried to explain the circumstances, which resulted in delay in the filing of these appeals. Further seeking condonation of delay, he relied upon the ratio of judgment in the case of Asghari Khanum v. The State (PLD 1980 SC 14), wherein this Court had observed that in criminal cases, unlike civil litigation, where after expiry of prescribed period of limitation opposite party gets a vested right, the Courts are generally liberal in condonation of delay. 8. Before leaving the rostrum,. Mr. Gillani also dilated upon the concept of freedom of contract qua plea bargain in terms of section 25 of the Ordinance of 1999, and contended that imposition of conditions of deeming conviction and disqualification etc., which are in the nature of punishment with retrospective effect, were against all judicial norms, highly unjust and prejudicial to the interest of the appellants as, in case they had the knowledge of such consequences of plea bargain they might not have even opted at all to follow such course, which has virtually ruined their whole career. In the same context, learned counsel also made cursory reference to Article 11 of the Universal Declaration of Human Rights. Mr. Gillani, however, could not show anything from the record to demonstrate that either the option of entering into plea bargaining exercised by the appellants was result of some coercion, undue influence or misrepresentation or even at the time of acceptance of plea bargaining before the Accountability Court, when they were apprised of all the consequences of entering into plea bargaining or 'at any stage before that, they were under any compulsion for accepting their earlier option of entering into plea bargaining with such conditionalities, instead of declining such option at any stage before its approval or acceptance. In fact it was not even the case of appellants so as to substantiate the arguments of Mr. Iftikhar Gillani, with reference to the concept of freedom of contract qua some provisions of Contract Act, 1872. Learned counsel for the appellants when confronted with the question of grant of back benefit or otherwise to the appellants, in case these appeals were allowed in their favour, further did not dispute that as such relief was not claimed by any of the three appellants in their respective, appeals, thus following the principle laid down under Order II, rule 2, C.P.C., they may not be entitled for awarding of, such benefits by this Court for the period during which they remained out of service. Moreso, as for this purpose an enquiry into the question of fact that whether the appellants during such period remained gainfully employed/engaged anywhere else or they remained idle will be required, which was not possible at this stage before this forum. 9. Conversely, Mr. M. Ibrahim Satti, learned Senior Advocate Supreme Court on behalf of the respondent contended that the impugned orders dated 30-4-2001, and 24-5-2001, passed by Accountability Court No,II Balochistan at Quetta, regarding acceptance of plea baigain with conditions of disqualification etc. Are quite lawful, equitable, just and fair in nature, being in line with the guidelines given by this Court in the case of Khan Asfandyar Wali (supra) and the law in force; thus, these orders of the Accountability Court No,II against the appellants are not open to question in these appeals. Further, he squarely placed reliance on the reasons assigned by learned Division Bench of the Balochistan High Court in the impugned judgment dated 17-2-2003, through which they upheld both the orders of the Accountability Court against the appellants. Learned
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counsel for this purpose also made reference to Article 189 of the Constitution to show that even the observations, particularly, as regards procedural matters contained in Khan Asfandyar Wali's case, so far as the Accountability Court was concerned, had binding effect, being subordinate to it. Learned counsel, in order to demonstrate unbiased and fair status of proceedings of plea bargaining before the NAB authorities and the Accountability Court, also made a candid offer before this Court that in case terms of the impugned orders of Accountability Court, accepting the plea bargaining request of appellants in accordance with law in force at the relevant time, are now not acceptable to them for any reason, the same may be set aside as a whole, and cases be remanded so that appellants may face fresh proceedings/trial before the Accountability Court at Balochistan, and get a decision on these references against them on merits and in accordance with law. Learned counsel further argued that the learned Division Bench of Balochistan High Court in its impugned judgment has rightly held that the appellants had no right to seek an order of their choice and convenience while accepting plea bargain, so as to avoid consequences of disqualification and removal from service in terms of section 15(a) of the Ordinance of 1999, which was very much part of statute book and applicable to their cases after the amendments in sections 15 and 25 (ibid), vide Ordinance IV of 2000 dated 3-2-2000, and Ordinance XXIV of 2000 dated 5-7-2000. In support of his alternate arguments for setting aside the order of the Accountability Court on the plea bargain applications of appellants as a whole, and for ordering de novo proceedings before the Accountability Court, Mr. Satti placed reliance upon the judgment of this Court in the cases of Ali Nawaz Shah v. State (PLD 2003 SC 837). In this case, it was held that if a person, involved in a case under the Ordinance of 1999, avails plea bargain in terms of section 25 of the Ordinance of 1999, by operation of law, he has to face its consequence, as provided in section 15 of the Ordinance of 1999. However, after analyzing the peculiar facts of that case, Court came to the conclusion that as there was no offer of plea bargain by the accused person, and also there was no acceptance of plea bargain by the competent authority, therefore, on this account the impugned judgment was not sustainable and the case was thus remanded to the trial Court for further proceeding in the Reference in accordance with law. 10. Mr. M. Ibrahim Satti, did not controvert the legal proposition canvassed by Mr. Iftikhar Hussain Gillani that in criminal cases no punishment other than one available under the law at the relevant time of commission of offence could be awarded to an accused, as such rights against retrospective punishment are protected under Article 12 of the Constitution. But he added that in these appeals factual position is not so, as the appellants were deemed convicted and held disqualified on the basis of statutory provision in force at the relevant time 11. We have focused our attention to the submissions of the learned counsel and also minutely perused the whole material placed on record. As the two orders of the Accountability Court, Quetta dated 30-4-2001 and 24-5-2010, accepting plea bargain and awarding deemed conviction/punishment of disqualification etc, to the appellants are, inter alia, premised on the ratio of judgment in the case of Khan Asfandyar Wali (supra), so also the impugned common judgment of the learned Division Bench of Balochistan High Court, Quetta, before proceeding further, it will be useful to reproduce hereunder some relevant paragraphs from the said judgment, which read as under:-- "227. It is well settled that matters relating to remedy, mode of trial, the manner of taking evidence and forms of actions are all matters relating to procedure. It is also well settled principle of imeipretation of statutes that only a matter of procedure would be retrospective. However, if in this process any existing rights are affected on the basis of a statute the same would not operate retrospectively unless the legislature had either by express enactment or necessary intendment given the legislation retrospective effect. Viewed from whatever angle the placing of burden of proof on the accused, in the facts and circumstances of this case in juxtaposition with section 14(d)
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of the Ordinance falls within the realm of procedural law. Thus visualized, the plea raised oh behalf of the petitioners that the ratio of Nabi Ahmed (supra) is applicable to all situations in the realm of substantive law, cannot stand a detailed scrutiny thereof. Even the assertion that Nabi Ahmed (supra) was followed in Bhai Khan (supra) by a learned Single Judge of the. Lahore High Court, Lahore and therefore, it should be considered as applicable to the facts and circumstances of the present lis as well, also falls in the same category. Clearly, the cases of Nabi Ahmed and Bhai Khan (supra) are distinguishable and confined to the facts and circumstances of those cases. 266. A perusal of the Preamble of the NAB Ordinance shows that it is a composite and an extensive law and its interpretation has to be done in a manner different from the normal interpretation placed on purely criminal statutes. This law deals with, among others, setting up of the National Accountability Bureau, which is an executive as well as administrative authority and an investigating agency; which deals with several aspects of 'corruption', etc. The NAB does not merely deal with crimes of corruption, it also deals with their investigation and settlement out of court. Bargain out of court is now an established method by which things are settled in several developed societies. It was necessary in cases where the criminal is a potential investor and is inter-linked with the economy of the society, he should be given an opportunity to play his role in the society, after he has cleared his liability. There appears to be nothing amiss insofar as it does not oust the jurisdiction of the Accountability Courts to exercise their judicial power in appropriate proceedings. Rather this is in the nature of a facility provided to the accused. There is nothing wrong with the NAB Ordinance providing for a procedure of bargaining. 267.Moreover, the scheme for exploring the possibility of settlement during investigation/inquiry stage by the Charmin NAB cannot be ignored straight away. At the outset, most of the lawyers tend to consider the question of settlement out of Court. There is need to focus attention on this significant facet of the matter. The rationale behind the Ordinance is not only to punish those who were found guilty of the charges levelled under the Ordinance but also to facilitate early recovery of the ill-gotten wealth through settlement where practicable. The traditional compromise, settlement, compoundability of offence during the course of proceedings by the Courts after protracted litigation is wasteful. Viewed in this perspective, a power has been vested in the Chairman NAB to facilitate early settlement for recovery of dues through 'plea bargaining' where practicable. Lawyers are often interested in settling the disputes of their clients on just, fair and equitable basis. There are different approaches to settlement. Plea bargaining is not desirable in cases opposed to the principles of public policy. 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 settlement. However, in the interest of revival of economy and recovery of outstanding dues, any type of alternate resolution like the 'plea bargaining' envisaged under section 25 of the Ordinance should be encouraged. An accused can be persuaded without pressure or threat to agree on a settlement figure subject to the provisions of the Ordinance. Establishing this procedure, at the investigation/inquiry stage greatly reduces determination of such disputes by the Court. However, as the plea bargaining/ compromise is in the nature of compounding the offences, the same should be subject to approval of the Accountability Court. Accordingly, section 25 of the impugned Ordinance be suitably amended. 317. We, therefore, allow these petitions with the observations that this order and the directions contained therein shall come into force with immediate effect. However, the Federal Government is directed to formally promulgate appropriate legislative instruments, as soon as possible, but preferably, within a period of two months from today in order to make necessary amendments, modifications, alterations, or substitutions, as the case may be, to give effect to the above directions. No costs."
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12. A careful reading of judgment in the case of Khan Asfandyar Wali (supra), particularly, its above reproduced paragraphs, which are quite relevant for the purpose of these appeals relating to the controversy of plea bargain, reveals that in depth examination about the vires of .The Ordinance 1999, its merits and demerits etc., was undertaken by a larger Bench of this Court, whereafter, inter alia, on one hand legislature was directed to make…
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