ISLAMABAD: The provisions of “voluntary return” and “plea bargain” in the NAB law continue since the dictatorial rule of General (R) Pervez Musharraf but neither the PML-N nor the PPP government during their last over eight years rule opted to undo these legal provisions or set up an independent accountability commission as per their commitment made in the Charter of Democracy CoD).
More importantly, in Asfandyar Wali Khan Vs State case, the Supreme Court had reviewed and amended certain parts of the NAB Ordinance including its Section 25-b, dealing with Voluntary Return and Plea Bargain powers.
Although the NAB is presently facing criticism over its latest decision to accept the plea bargain appeal of former secretary finance Balochistan Mushtaq Raisani, it is the NAB law duly scrutinized by the apex court that empowers chairman NAB to take such decisions.
The question here arises why those who have been ruling the country since 2008 and still have comfortable majority in parliament are reluctant to amend the NAB law or overhaul it to make it an independent anti-corruption body.
In the CoD, the PPP and PML-N had committed to giving this country an independent accountability commission for across the board accountability. However, despite the lapse of over eight years, which include five-year tenure of PPP and three and a half years tenure of the PML-N — both the parties are still not showing any keenness to overhaul NAB or replace it with an independent commission.
In Asfandyar Wali Khan Vs State case, the apex court had made certain changes to the NAB law to validate it. The provisions of “Voluntary Return” and “Plea Bargain” were also reviewed and following the apex court’s decision it was decided that from then onward the court’s endorsement would be must for any “Plea Bargain” accepted by the NAB.
In the said case, the SC judgment said: “One of the objectives of the NAB Ordinance is the retrieval of the looted public money. It also provides for ‘plea bargaining’, which appears for the first time in such a law in Pakistan and in consequence 1064.600 million rupees has been recovered during a short span; up to 2.4.2001, 759 authorized investigations have been undertaken by the NAB out of which 143 have been completed while 586 are in progress and 30 have been closed or suspended.
Similarly, out of 261 filed with the accountability courts, 120 have been decided with 73 convictions and 16 acquittals. 46 ‘plea bargaining’ cases were concluded while 13 were rejected. Only 36 accused are in the NAB custody for interrogation, 156 are in the judicial lockups, 56 have been released and 69 are at large.”
The SC added, “As to the case of voluntary return, i.e. ‘plea bargaining’ under Section 25, the provision stands amended by virtue of Amendment Ordinance No. XXIV of 2000 and now, by virtue of Section 25 (a) (ii), after cognizance of the offence has been taken Criminal Appeal No. 140 of 2005, etc. 17 by the Court or the trial has commenced, Chairman NAB may release the accused only with the approval of the Court.”
However, recently the NAB stopped using its powers in regard to “Voluntary Return” after the apex court stopped it from accepting offers of ‘voluntary return’ of ill-gotten money by a wrongdoer under the NAB law.
NAB senior official in December last year wrote an article in The News. He argued that plea bargain was a concept that had been intensively debated and criticised, but was much misunderstood. He asserted that the concept exists in many other countries of the world, better known being the United States of America, New Zealand, Brazil, Nigeria, India; however, in Pakistan it is not fully understood and is viewed with suspicion.
The NAB contended that plea bargain had been envisaged as a measure through which an accused person can return illegal assets acquired by him through corrupt practices in exchange for a settlement of his case.
Under the law, the NAB official said the plea bargaining can be initiated under Section 25 (b) along with Section 15 of the NAB Ordinance through an application made to the chairman NAB, whereby an accused, or any other person representing his interests, agrees to return illegal assets acquired by him through corrupt practices, or agrees to make good the loss caused deceitfully and fraudulently to a bank or financial institution, co-operative society, government department, statuary body, or other authority established or controlled by the federal government or a provincial government.
He added that any public office holder or other person who enters into a plea bargain is deemed to have been convicted under the NAB Ordinance. Such a convict, according to NAB, ceases to hold office and is disqualified for appointment to any public office for a period of 10 years.
However, in practice there are such convicts of NAB including the PPP leader Sharmila Farooqi, who held public for years and no one bothered to proceed against her.
