ISLAMABAD: The Supreme Court held on Friday that default in payment under the Voluntary Return (VR) arrangement with the National Accountability Bureau (NAB) would spoil the entire settlement and allow the bureau to proceed against an accused.
“Voluntary Return is a one-time facility of depositing a determined amount and not a long-term repayment arrangement,” observed Justice Syed Mansoor Ali Shah, member of a three-judge Supreme Court bench which took up an appeal by NAB against a judgement delivered by the Sindh High Court (SHC) on June 3, 2016.
Justice Mushir Alam had headed the bench.
The Supreme Court is seized with a question about legality of VR in a different case in which the court had given an opportunity to the federal government to determine the fate of Section 24-a of the National Accountability Ordinance (NAO) through amendments in the law. Section 25-a empowers the NAB chairman to allow an offender found guilty of committing corruption to go scot-free without any stigma after voluntary return (VR) of the embezzled money.
Authored by Justice Shah, the nine-page verdict ruled that the facility of VR becomes effective once the entire determined amount was paid in full or else, the facility comes to an end.
And even if an accused is allowed to pay the amount in instalments, VR will only be effective once the determined amount is deposited in full, the judgement emphasised. In case NAB grants time to the accused to arrange money for discharging liability under VR settlement, any such concession has no bearing on the essential constituent of VR, i.e. the payment of the determined amount.
The VR envisages a voluntary deposit against the liability and there is no concept of any outstanding amount, the judgement observed.
After the Supreme Court set aside the High Court judgement, the accountability references against the respondents — Shabbir Ahmed Malik and Abdul Ghaffar Kalwar — will be deemed to be pending before the Sukkur accountability court, to be decided in accordance with the law.
The two respondents were food inspectors who, at the time, also held the charge of a wheat procurement centre in Jacobabad (Sindh). The NAB inquiry against the respondents suggested misappropriation of wheat bags, causing a loss to the national exchequer.
The respondents voluntarily came forward for settlement by offering VR under section 25(a) of NAO.
The NAB chairman determined that Shabbir Ahmed Malik had to pay Rs19.7 million and Abdul Ghaffar Kalwar Rs29.8m.
The amount was to be paid in three instalments, but no time-frame was given. The respondents made a down payment of Rs10.3m and Rs14.7m, respectively.
But they did not pay the remaining amount despite the issuance of four notices by NAB in 2014. Consequently NAB cancelled the VR settlement on Feb 4, 2015, and opened an investigation on March 16.
According to the National Accountability Bureau, the investigation led to discovery of further misappropriation by the two respondents, causing a rise in their liabilities. Mr Malik’s liability rose to Rs21.1m and that of Mr Kalwar to Rs36.9m, leading to the filing of references against both of them.
A Sukkur-based accountability court issued non-bailable warrants (NBWs) against them on Jan 9, 2016.
The appellants approached the high court, challenging the NBWs and seeking bail before arrest, as well as quashment of the references, through separate petitions. These petitions were clubbed together by the court and finally through its June 3, 2016, it quashed the references on grounds that after VR agreement, the outstanding amount can only be recovered under section 33E of NAO as land revenue arrears.
Since there is no time-frame provided in VR agreement, the agreement could not have been rescinded or enforced and that parallel criminal proceedings for the same offences before an anti-corruption court amounted to double jeopardy, the court maintained.
The judgement said sufficient time of two years was given to the respondents to pay up, but they did not do so despite several notices. Hence NAB was right in cancelling the voluntary return settlement.
Published in Dawn, January 25th, 2020