Efficacy and potency of NAB’s plea bargain

Corruption is part of every society and Pakistan is no exception to it. Every society has introduced and adopted a criminal justice system to curb the menace of corruption. Although justice is at the heart of every criminal justice system, yet these systems face enormous challenges across the globe.

In order to reach the logical conclusion of the cases at the earliest and to go around these vast challenges/hurdles, to secure convictions in the cases, and to avoid lengthy trials, alternate remedies like alternative dispute resolution, plea bargain etc are always considered as options on the table, especially in white collar crimes.

Plea bargain (PB) has always been a hot button issue and segments of our society still haven't entirely acknowledged this relatively new concept which was enshrined in the National Accountability Ordinance, promulgated in 1999.

The efficacy and potency of PB can be asked from the thousands of victims of the crimes of cheating public at large who lost their hard earned money to scams like Mudarba, housing societies etc and had pinned their hopes on NAB’s law of plea bargain. The National Accountability Bureau successfully recovered their plundered money through the tool of plea bargain. Had it been possible without PB, absolutely not.

A victim, who lost his money to any such scam, is more interested in getting his money back rather than seeing the culprit behind the bars and undergo a tedious, lengthy and tiresome trial process, which usually concludes at the Supreme Court, being the highest appellate forum.

Does the culprit get a jail-free pass after returning the plundered money? Is it true that NAB coerces or intimidates the accused to enter into plea bargain? Who accepts the PB and who is responsible for determination of liability? The answers to these queries are misconceived to many and sometimes deliberately misconstrued, which needs clarification.

Section 25(b) of NAO 1999 deals with the law of plea bargain, which clearly indicates that the accused person, at any time after the authorisation of investigation can opt for PB.

The offer for PB is made by the accused and NAB chairman determines the liability and if the ascertained amount is acceptable to the accused, only then chairman refers to Accountability Court for approval. It has been clearly enshrined in the said law that gains or assets acquired or made by the accused in the course or consequence of the offence will be made the part of PB and recently NAB Rawalpindi has made monumental recovery in a housing society scam wherein the principle liability was Rs1.07 billion approx, upon which illegal gains worth of Rs880 million was returned by the convict, hence making the final PB amount 1.95 billion and all of the amount received is being disbursed amongst the victims of the housing scheme. In the said case, the whole process from initiation of inquiry till finalisation of PB only took 6 to 7 months, whereas the infamous Mudarba cases are under trial for last 10 years and affected people are still looking for their looted amount.

Under no circumstances the amount of the PB can be less than the actual liability of the case. A team comprising of relevant professionals, including legal consultant, banking expert, civil Engr etc along with the Investigation Officer of the case, work out the liability of the case in the supervision of Supervisory Case Officer and concerned director, which is then presented in regional board meeting or executive board meeting as the case maybe, wherein the competent authority decides the matter in consultation with the board members. To ensure and secure the transparency of the proceedings, the minutes of the meeting are recorded and circulated.

NAB has recovered more than Rs36 billion approx on account of PB since its inception and disbursed the same to the victims of white collar crime and national exchequer account. Only in the year 2019, NAB has successfully recovered more than Rs3827 million through PB, which clearly substantiates the significance of PB.

It is pertinent to mention here that the accused entering into plea bargain shall be deemed to have been convicted, cease to hold public office, disqualified from becoming a member of any public body and shall not be allowed to avail any facility from any financial institution for a period of 10 years under Section 15 of NAO, 1999.

Moreover, PB is kind of a death bell to the very existence of the public office holders and govt servants, therefore there are rare occasions when they opt for the plea bargain, instead they prefer to stay at their posts and try to adversely influence and hamper the investigation process and trial, while enjoying the perks and privileges of their powerful posts. So no individual enters into plea bargain unless they realise that NAB possesses irrefutable evidence and there is no way the trial will conclude in their favour.

The only benefit which the accused draws out of PB is that once he offers to return his liability along with gains and assets acquired by him through the commission of offence of corruption and corrupt practices, he no longer remains behind the bars, rest all the implications of Section 15 of NAO, 1999 as mentioned above are applied on him by the order of Accountability Court.

Another quandary which times and again have made the headlines is judicial custody and NAB physical remand or NAB custody. It is imperative to differentiate the both. When the accused is apprehended by NAB, his custody is obtained from the Accountability Court for the purpose of interrogation, investigation, recovery and confrontation with documents etc. and when he is no more needed with the NAB or when the Accountability Court may deem appropriate, the accused is sent to judicial remand or judicial custody.

During the physical remand with NAB, the accused is incarcerated in a clean cell with all the basic necessities along with regular medical checkups and medicine, and even home cooked food is served with the permission of court and the access to relatives and lawyer is also given. Although, 90-day physical remand is available with NAB as per law, but courts do not extend the physical remand exceeding 15 days and even physical custody of accused is given to NAB by the courts after considering the medical condition/medical reports of the accused. NAB believes that self-respect is the most important aspect of human life and never violates its sacredness. When the accused is sent to judicial custody, his custody is entrusted with the Accountability Court and the prison authorities and NAB has got nothing to do with the affairs of prison.

The fact is, that there is always a room for improvement. Positive, healthy and constructive criticism should always be embraced. Any change or amendment for the interest of members of public at large in laws should be the prime objective of legislature and intents of the legislature speaks through the text of legislation.

The writer is Deputy Director of NAB with more than 10 years of experience in Law & Investigation

He tweets @adnanbutt07, and can be contacted at adnanbtt92@gmail.com