P L D 2016 Balochistan 69
Before Jamal Khan Mandokhail and Shakeel Ahmed Baloch, JJ
Syed ATIQ ANWAR SHERAZI ---Petitioner
Versus
DIRECTOR GENERAL, NATIONAL ACCOUNTABILITY BUREAU, BALOCHISTAN -
--Respondent
Constitutional Petition No.1048 of 2014, decided on 25th April, 2016.
(a) National Accountability Ordinance (XVIII of 1999) ---
----S. 25 ---Federal Government (Finance Department) Letter No.(2) DFA (CAB)/2000 dated 6 -
7-2000 ---Amount of voluntary return and plea bargaining ---Deduction of any po rtion of
recovered amount as a share of NAB ---Scope ---Neither the Constitution nor National
Accountability Ordinance, 1999 allowed the Federal Government or the NAB to deduct any
portion of the recovered amount ---Entire recovered amount on behalf of concer ned Government
should be deposited in its respective accounts ---Any deduction out of such amount would be
contrary to the provisions of Constitution and National Accountability Ordinance, 1999 ---No
authority, department, organization or any Government was authorized to receive or collect any
amount for any purpose from any person or body corporate or business entity except by
enactment promulgated by Parliament or Provincial Government ---Instructions and procedure
provided by the Finance Department (vide no tification) for deduction of 25% out of recovered
amount had no statutory backing ---Such deduction was contrary to the Constitution and was
declared void by High Court; NAB authorities were restrained from deducting any amount from
the amount recovered on account of voluntary return and plea bargaining ---High Court directed
that such amount be deposited in the Public Account of the Federation or in the Public Account
of the Province within one month.
(b) National Accountability Ordinance (XVIII of 1999) ---
----S. 25 ---Constitution of Pakistan, Art.77 ---Federal Finance Ministry Letter No.2(2) DFA
(CAB) 2000 dated 6 -7-2000 ---Deduction of 25% out of recovered amount by NAB authorities;
amount received by NAB through voluntary return and plea bargaining und er the Ordinance;
amount received on behalf of Bank, Financial Institutions, company, body corporate, cooperative
society statutory body or Authority; amount of fine other than the amount of voluntary return and
plea bargaining with assistance of court and any asset and pecuniary resources found to be
disproportionate to the known sources of income of holder of public office; Scope ---Instructions
and Procedure provided by the Federal Finance Department for deduction of 25% out of the
recovered amount had no statutory backing, therefore such deduction was contrary to Art.77 of
the Constitution and was illegal ---Grant of reward to the Officers/Officials and making the NAB
self-sufficient with regard to funds was to be managed in accordance with the Rules of th e NAB
authorities and within its allocated budget, instead of deducting 25% from the amount recovered
under S.25 of the National Accountability Ordinance, 1999 ---High Court issued directions with
regard to amount recovered under S.25 of the Ordinance.
Following are the directions by the High Court with regard to amount recovered under
S.25 of the National Accountability Ordinance, 1999: -
(i) That the procedure/instructions issued by the Finance Ministry for deduction of
amount as NAB's share from the amount recovered on account of voluntary return and
plea bargaining is void.
(ii) That the NAB authorities are restrained from deducting any amount from the amount
recovered by them on account of voluntary return and plea bargaining as provided by
S.25 of the Ordinance.
(iii) That the entire amount received by the NAB through voluntary return and plea
bargaining as per the NAB Ordinance shall be deposited in the Public Account of the
Federation or in the Public Account of the Province as the case may b e, within a period of
one month.
(iv) That the entire amount received by the NAB authorities on behalf of the concerned
bank, financial institution, company, body corporate, cooperative society, statutory body
or authority concerned shall be transferred in their respective accounts.
(v) That the entire amount of fine other than the amount of voluntary return and plea
bargaining recovered under the NAB Ordinance with the assistance of Court, shall
directly be deposited in the Public Account of the Federa tion and Public Account of the
Province, or any other authority, as the case may be.
(vi) That any asset and pecuniary resources found to be disproportionate to the known
sources of income of holder of public office, either in his name or in the name of any of
his dependants or binamidars shall be forfeited to the concerned Government of which a
person holding such public office belongs.
Munir Ahmed Kakar for Petitioner.
Ikhlaq Shah, Standing Counsel, Mumtaz Yousaf, DPG, NAB and Ameer Zaman Jogezai,
Special Prosecutor NAB for Respondent
Date of hearing: 20th April, 2016.
ORDER
JAMAL KHAN MANDOKHAIL, J. ---Facts of the case are that the competent
authority sanctioned an investigation against the petitioner under the provisions of NAB
Ordinance ( the Ordinance). The petitioner filed the instant petition for grant of bail, during the
pendency whereof, the parties entered into plea bargaining as provided by section 25 of the
Ordinance. The petitioner agreed to pay, an amount of Rs.7.732 Million. The learned DPG NAB
on 6th May 2015 informed this Court that the agreed amount has been received by the NAB
Balochistan and 25% of the amount would be deducted as NAB's share. In view of such
statement, the learned DPG and the learned Standing Counsel were ask ed to explain as to in
which account, the recovered amount has been deposited and under which provision of law, 25%
of the amount of voluntary return and plea bargaining is being deducted as share of NAB? In
compliance, the learned DPG submitted a report, supported by relevant documents.
2. Learned counsel for the petitioner stated that since the petitioner has entered into plea
bargaining and the agreed amount has been deposited in the NAB account, therefore, the
investigation/inquiry against him has bee n dropped and he is no more enquired by the NAB
authorities. Learned DPG NAB confirmed his statement, as such the petition to the extent of the
petitioner stands disposed. However the queries put to the learned DPG requires consideration,
therefore, the le arned counsel for the petitioner was to assist the Court on this legal point.
3. Learned counsel for the petitioner stated that the entire amount which the NAB
authorities are receiving from a person, holding a public office of the province, must be
deposited in account of the concerned provincial Government or a local body of the Province. He
further added that the NAB authorities are not authorized by the law to deduct 25% of the
recovered amount received through voluntary return or plea bargaining, as such, the deduction is
illegal.
4. Learned Standing counsel and the learned DPG NAB opposed the contention and relied
upon the documents annexed with the report. The learned counsel stated that the amount
received by the NAB under the Ordinance is be ing deposited with the Ministry of Finance
Government of Pakistan, which deducts 25% of the recovered amount for the NAB and the
remaining amount is being delivered to the concerned Government. He made a reference to the
letter No.2(2) DFA(CAB)/2000, Gover nment of Pakistan, Finance Division, office of the
AFS(Exp) dated the 6th July 2000, and a procedure provided by the Federal Government
regarding the amount recovered through plea bargaining and voluntary return. They in the end
contended that even otherwi se 25% of the amount so deducted is being utilized in accordance
with the NAB Recovery and Reward Rules 2002 for the NAB employees, therefore, the deducted
amount is just and proper.
5. We have heard the learned counsel for the parties and have gone thro ugh the record. The
NAB Ordinance extend to whole of Pakistan [all citizens of Pakistan] and persons who are/have
been in the service of Pakistan, whereever they may be. It is therefore clear that the NAB
authorities can investigate and prosecute cases of corruption and corrupt practices against a
person holding a public office of the Federal Government or the Provincial Government or a
statutory authority or against any person as defined in the Ordinance.
6. According to section 10 of the Ordinance, if i t is proved that the assets and/or pecuniary
resources of holder of a public office found to be disproportionate to the known sources of his
income or which is/are acquired by money obtained through corruption, shall be forfeited to the
appropriate Governm ent. Similarly, under Section 25 of the Ordinance, where a holder of a
public office or any other person voluntarily comes and offers the return of assets or gains
acquired or made by him in the course or as the consequence of any offence, or enters into p lea
bargaining, the Chairman NAB may accept such offer, and such person has to deposit the agreed
amount with the NAB with permission of the court. The procedure for disposal of the amount so
deposited by the accused, pursuant to clause (a) of section 25 o f the Ordinance has been
described in subsection (c) of the said section, which is reproduced herein -below:
"The amount deposited by the accused with the NAB shall be transferred to the Federal
Government or as the case may be, the provincial Government or the concerned bank, or
financial institution, company, body corporate, cooperative society, statutory body or
authority concerned within one month from the date of such deposit."
7. Besides, Article 78 and Article 118 of the Constitution of the Islami c Republic of
Pakistan 1973 prescribe a financial procedure of the Federation and the Provinces respectively,
which are reproduced as under:
"78. Federal Consolidated Fund and Public Account (1) All revenues received by the
Federal Government, all loans raised by that Government and all moneys received by it
in repayment of any loan shall form part of a consolidated fund, to be known as the
Federal Consolidated Fund.
(2) All other moneys --
(a) received by or on behalf of the Federal Government; or
(b) received by or deposited with the Supreme Court or any other Court established under
the authority of the Federation; shall be credited to the public account of the Federation.
"118. Provincial Consolidated Fund and Public Account (1) All revenues rec eived by
the Provincial Government, all loans raised by that Government and all moneys received
by it in repayment of any loan, shall form part of a consolidated fund, to be known as the
Provincial Consolidated Fund.
(2) All other moneys ---
(a) received by or on behalf of the Provincial Government; or
(b) received by or deposited with the High Court or any other Court established under the
authority of the Province; shall be credited to the public account of the Province."
8. One of the docum ents dated 6th of July allows the Finance Department Government of
Pakistan to deduct amount at certain percentage mentioned therein, whereas, the other document
contains a procedure provided by the Finance Department for the recovery and disposal of the
amount recovered by NAB on account of corruption money through plea bargaining and
voluntary return. Step six of the procedure is relevant, which is reproduced herein -below:
"e) Step Six: Recoveries -Provincial Governments:
All the amounts received by N AB from any source pertaining to the provincial
governments departments/offices autonomous/ semi autonomous bodies or any other
office/authority established under the provincial government shall be deposited in their
respective accounts with State Bank of Pakistan after deduction of NAB share as
approved by the Chief Executive vide Chief Executive Secretariat letter No.1 -1(b)DD(A -
1)/2000 -1242, dated 06.04.2000. Details of the individual recovery effected shall be
given to all concerned as detailed in step o ne. However, NAB share deducted from the
recoveries will be deposited with Federal Account No.01 in the head of account
mentioned in step two and NAB shall claim equivalent amount deposited with Federal
Government from Finance Division according to procedu re specified in step three to step
five."
These documents do not have a statutory backing nor are these notified in an official Gazzate. To
consider legality of these documents, it is necessary to go through the Constitution and the
relevant provision of law.
9. After going through the above provisions of the NAB Ordinance which deals with the
recovery of the amount voluntary or through plea bargaining, there is no Provision in the
Ordinance allowing NAB or any other authority to retain any portion of t he recovered amount.
According to Section 10 of the Ordinance, the property moveable or immovable proved to be
obtained through corruption, shall be forfeited to the appropriate Government. With regard to the
amount of corruption recovered through voluntar y return or on account of plea bargaining, shall
be transferred to the Federal Government or as the case may be, the Provincial Government etc,
as provided by sub -clause "C" of section 25 of the Ordinance. The Constitution provides
financial procedure wher ein, any amount received by or on behalf of the Federal Government or
the Provincial Government shall be deposited in the public account of the Federation or the
Province as the case may be. Thus it is very much clear that neither the Constitution nor the
NAB Ordinance allows the Federal Government or the NAB to deduct any portion of the
recovered amount. Rather there is direction in Articles 78 and 188 of the Constitution, and in
sub-clause "C" of Section 25 of the Ordinance to deposit the entire amount re covered on behalf
of the concerned Government in its respective accounts, on whose behalf, the amount is
recovered. Once the amount is deposited as per directions of the Constitution, the procedure for
disposal of such amount has been elaborated in Article s 79, 80 and 81 of the Constitution with
regard to Federation, whereas, in Articles 119, 120 and 121 of the Constitution with regard to
Provinces. Any deduction out of such amount according to the directives and procedure made by
the Federal Government is therefore, contrary to the provision of the Constitution and the NAB
Ordinance, hence the NAB authorities or the Ministry of Finance, Government of Pakistan are
not authorized to deduct any amount from the amount so recovered in lieu of voluntary return or
plea bargaininig.
10. Without prejudice to above, even otherwise, the instruction and procedure for deduction
of 25% amount from the recovery of corruption money issued by the Finance Ministry
Government of Pakistan is upon the NAB's proposal. The purpo se and reasons advanced for such
proposal was to reward the NAB officials for rendering their services, and to make the NAB
establishment self -sufficient with regard to funds. Such deduction at source is a sort of tax.
Article 77 of the Constitution deals with the levy of the tax, which is reproduced as under:
"77. Tax to be levied by law only. No tax shall be levied for the purposes of the
Federation except by or under the authority of the Act of [Majlis -e-Shoora (Parliament)]."
According to this provi sion of the Constitution, no authority, department, organization or any
Government is authorized to receive or collect any amount for any purpose from any person, or
body corporate or business entity, etc. except by enactment promulgated by the authority o f the
Parliament or by the Provincial Assembly. Since the instruction and the procedure provided by
the Finance Department Government of Pakistan for deduction of 25% out of the recovered
amount has no statutory backing, therefore, such deduction is contra ry to Article 77 of the
Constitution, hence is illegal on this score as well.
11. As far as the grant of reward to the officers/officials and making the NAB self -sufficient
with regard to funds is concerned, the officials/officers of the NAB may be rewar ded in
accordance with the rules by competent authority of NAB, within its allocated budget, instead of
rewarding them by deducting 25% from the amount so recovered under section 25 of the
Ordinance.
Thus in view of above, it is declared as under:
(a) That the procedure/instructions issued by the Finance Ministry for deduction of
amount as NAB's share from the amount recovered on account of voluntary return and
plea bargaining is void.
(b) That the NAB authorities are restrained from deducting any amo unt from the amount
recovered by them on account of voluntary return and plea bargaining as provided by
section 25 of the Ordinance.
(c) That the entire amount received by the NAB through voluntary return and plea
bargaining as per the NAB Ordinance shal l be deposited in the Public Account of the
Federation or in the Public Account of the Province as the case may be, within a period of
one month.
(d) That the entire amount received by the NAB authorities on behalf of the concerned
bank, financial instit ution, company, body corporate, cooperative society, statutory body
or authority concerned shall be transferred in the their respective accounts.
(e) That the entire amount of fine other than the amount of voluntary return and plea
bargaining recovered u nder the NAB Ordinance with the assistance of Court, shall
directly be deposited in the Public Account of the Federation and Public Account of the
Province, or any other authority as the case may be.
(f) That any asset and pecuniary resources found to be disproportionate to the known
sources of income of holder of public office, either on his name or in the name of any of
his dependants or binamidars shall be forfeited to the concerned Government of which a
person holding such public office belongs.
The petition is disposed of accordingly.
Copy of this order be sent to the Chairman NAB, DG NAB Balochistan and the
Accountability Courts at Balochistan.
ZC/31/Bal. Order accordingly.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
let us know.