NAB has settled some 2,300 cases since 2006 through plea bargain and voluntary return – 1,700 were settled through VR and the criminals were allowed to walk free and return to their previous jobs after returning their money.
On February 18, an accountability court rejected the plea bargain agreement of Syed Masoom Shah, aka, SMS, which had been approved and forwarded by the National Accountability Bureau (NAB) Chairman Qamar Zaman Chaudhry. This was a highly unusual step — accountability courts are not in the habit of overturning deals approved by the NAB chairman and yet, an accountability judge Muhammad Ibrahim Khan did exactly that.
Syed Masoom Shah, who had been special assistant to former KP chief minister Ameer Haider Hoti, had submitted a plea bargain for Rs258.7 million. But in order to understand the context of the accountability court’s decision, we have to go back.
Voluntary Return and Plea Bargain are two of the tools available to NAB to recover looted money from the corrupt and return it to the national exchequer. Section 25 (a) of The National Accountability Ordinance 1999 says that if “a holder of public office or any other person, prior to the authorisation of investigation against him, voluntarily comes forward and offers to return the assets or gains”, the NAB chairman has the authority to determine the amount, and once it has been deposited, it “discharge[s] such person from all his liability in respect of the matter or transaction in issue”.
A plea bargain, on the other hand, is treated like a conviction. Any person who avails this provision shall be “deemed to have been convicted for an offence” and will therefore stand disqualified to hold a public office for a period of ten years. They will also be disqualified from seeking an election or holding a job with the government. They are also disqualified from getting a loan from a bank or some other financial institution controlled by the government for a period of ten years. In this case also, the NAB chairman is given the authority to accept an offer from the accused, discharge him of his liabilities and release him.
While NAB had been given these extensive powers to effectively combat corruption in the country, it appears that over the years, NAB has been too eager to make deals with those under investigation, especially voluntary return deals. Between January 2006 and June 2015, NAB’s plea bargain and voluntary returns data shows that while 587 cases were settled on the basis of plea bargain, more than 1,700 cases were those in which the accused returned the money on a voluntary basis, which means that they were free to continue with their jobs and hold their offices, while they would also be eligible for new loans.
Another dramatic example of the same pattern is revealed if you look at the cases of the patwaris that NAB has dealt with over the years.
Between January 2006 and June 2014, the time period for which the data is available, five patwaris settled their cases through plea bargain, which means that they lost their jobs, while 560 patwaris returned the money on a voluntary basis, which means that they were allowed to go back to their jobs, simply by ‘returning’ the money that they had embezzled. Some of these patwaris returned millions of rupees and yet they were allowed to return to their lives without any further action from NAB.
Suleman S/o Imran, for example, returned Rs1 million to NAB; Masood Shah S/o Phool Badshah also returned Rs1 million; Arbab Ghulam Habib S/o Faqir Muhammad returned Rs1.2 million; Fiaz Ahmed and Azmat Hussain both returned Rs1.3 million each; Abdul Latif Gandapur S/o Faiz Muhammad, Muhammad Saeed and Abdul Rauf S/o Abdul Sattar all returned Rs1.7 million; Azmat Hussain, Mansoor Ahmed, Mehmood Sadiq and Abdul Salam S/o Muhammad Amin all returned Rs1.9 million each; Ghazala Asad W/o Aurangzeb Asad, Muhammad Iqbal S/o Dilasa Khan and Muhammad Akhtar Khan all returned between Rs2 million and Rs3 million each; Mst. Neelam Azam, Saeed Rehman and Fazal Hussain S/o Faqir Hussain all returned more than Rs5.5 million each; Mazharul Haq, Ihsan Ullah S/o Aziz Khan and Zafar Iqbal all returned between Rs6 million and Rs8 million each; Muhammad Sharif returned Rs9.6 million, Khalid Mansoor S/o Ghulam Sadiq paid Rs9.8 million; Syed Mohsin Shah paid Rs10 million; Asmatullah Khan S/o Ghulam Fazal paid Rs13 million; Niaz Ali Shah S/o Syed Taj Mir Shah returned Rs20 million; Dr Muhammad Tariq Khan Hashim returned Rs23 million, Haroon Ghazanfar S/o Ghazanfar Ullah returned Rs72 million, Muhammad Asif S/o Muhammad Zaman returned Rs101 million while Arshad Majeed S/o Abdul Majeed returned Rs102 million to NAB.
And yet, despite returning staggering amounts of money, every single one of them was allowed to return to their jobs without any further action from NAB. The Bureau has even allowed some patwaris to pay part of the amount settled upon and return the rest later. While there are many who still owe NAB millions of rupees — some have even not returned the money since 2010 — the top ones include Zaki Ullah S/o Amanullah who owes Rs21 million, Navid Qadir S/o Abdul Qadir who owes Rs68.5 million while Muhammad Asif S/o Muhammad Zaman who has already paid Rs101 million to NAB, but still owes Rs196.6 million.
But NAB is more than an innocent bystander, which just happened to have been dealt a good hand. It has jealously protected its right to make deals with those under investigation.
Between January 2006 and June 2014, five patwaris settled their cases through plea bargain, which means that they lost their jobs, while 560 patwaris returned the money on a voluntary basis, which means that they were allowed to go back to their jobs, simply by ‘returning’ the money that they had embezzled.
On June 13, 2015, an accountability court ruled that once an investigation had been started, NAB could not take the money through voluntary return, it had to do a plea bargain instead. This decision was promptly challenged by NAB in the Peshawar High Court. One of the judges in the accountability court which barred NAB from taking voluntary returns after an investigation had already started was Muhammad Ibrahim Khan.
NAB Deputy Prosecutor General Muhammad Jamil Khan, who argued the case before the Peshawar High Court, told the court that “the accountability court’s decision deprives the accused of fundamental rights.”
He went on to say, “Under the NAB Ordinance 1999, the suspect reserves the right to return the embezzled amount to the Bureau during the inquiry stage, following which the accused is neither disqualified from service nor sentenced for the offence.”
He quoted section 25 of the National Accountability Ordinance: “Where at any time, whether before or after the commencement of trial, the holder of a public office or any other person accused of any offence under this ordinance, returns the assets or gains acquired through corruption or corrupt practices to NAB, then the [Bureau] chairman may release him. If the trial has commenced, the court may with the consent of the chairman release the accused.”
However, the NAB deputy prosecutor general had quoted section 25(b) of the NAO, which is generally understood to relate to plea bargain, not voluntary return.
When we asked NAB Special Prosecutor Muhammad Farhad Tirmazi if section 25(b) referred to plea bargain or to voluntary return, he said that the section indeed referred to plea bargain. However, he said that it is possible that there was something in the lower court’s order which warranted the mention of section 25(b).
“I’m very clear that NAO says that voluntary return can happen before the inquiry stage, while a plea bargain can take place anytime during the investigation,” Tirmazi said, but added that, in practice, things were not completely black and white, “Sometimes a person under investigation enters a request that he wants to return the money voluntarily, but the request is not approved at that stage or a decision is pending while the status gets updated to inquiry stage. Later, both parties want to return to the voluntary return offer. That’s when a cushion is required.”
The special prosecutor said that it was beyond doubt that on the investigation stage, there could only be a plea bargain and not a voluntary return. But he said that the accountability court may have left some ambiguity in its order, or given a direction which the Peshawar NAB wanted to clarify and that may be why they appealed the decision.
“Once someone admits their guilt and returns the looted sum, they obviously go back to their institutions. Why can’t the institution or the concerned departments sack them or give them punishment,” NAB Special Prosecutor Muhammad Farhad Tirmazi.
When asked if he thought it was fair that NAB was doing so many voluntary returns deals as compared to plea bargains and when he was told the figures for patwaris, he said that the ratio was not up to NAB, neither could it force anyone to make a deal.
“The deal has to come voluntarily. NAB can never force a deal on anyone and it’s not up to NAB if someone says that they want to return the money voluntarily. NAB is bound by law to heed the offer of a voluntary return at the initial stage and of plea bargain if the investigation has reached inquiry stage.”
When he was asked if he thought it constituted justice that once someone returns the stolen or embezzled money ‘voluntarily’, they are simply allowed to return to their jobs, he said that if the NAB Ordinance did not provide for punishment, how could NAB enforce it?
“Once someone admits their guilt and returns the looted sum, they obviously go back to their institutions. Why can’t the institution or the concerned departments sack them or give them punishment?”
When asked if NAB, as an accountability organisation, could not give them punishment, what hope was there for the institutions or the departments, he said NAB had gotten them to acknowledge their wrongdoing, it was now up to the departments to take action on it and not simply admit them back.
“NAB obviously cannot interfere in other departments and organisations.” the special prosecutor said. When asked that the NAB Ordinance itself says that once the accused returns the money voluntarily, he or she is considered having repaid their liabilities, he agreed but said that the plea bargain is considered a conviction under section 15. As for the voluntary return, he said that this was the way the parliament had enacted the bill.
“Devising the laws is parliament’s prerogative, the way the NAB law has been formulated is not up to us to change,” he said.
Amjad Pervez, a private counsel who specialises in NAB cases, however, does not think that NAB is in the business of doing justice or giving punishments. He agreed that the impression about NAB that they simply pick up a person, obtain his remand and put him behind bars endlessly and then ask him how much money he is willing to pay is completely accurate.
“NAB’s top priority is to get the person under investigation to cough up money,” he said, and added that there were many issues with NAB. “To begin with, it’s a draconian law. There is no other law like it,” he said, referring to NAB’s extensive powers. There are a lot of complaints of corruption inside NAB, he said. The current NAB chairman himself was involved in the NICL scandal.
When asked if it was okay for NAB to resort to voluntary return and plea bargain so often, he said that the intent of the law was never to go after run-of-the-mill corruption.
“The intent of the law was to prosecute high level corruption. There are bureaucrats who are involved in billions of rupees of corruption, but NAB does not go after them. Instead, it goes after patwaris and policemen. NAB law has never been applied against high level corruption and there is no hope that it ever will,” Pervez said.
When asked how many people who get convicted after NAB’s prosecution actually serve their sentence, he said that the number wasn’t big.
“Almost 75 per cent of the convictions by the accountability courts, when appealed in the higher courts, are set aside,” he said. After he was told that the percentage seemed too high, he said that it was still true.
NAB Special Prosecutor Farhad Tirmazi did not agree with the number. He said that only 10 to 15 per cent of the accountability court’s decisions were actually set aside by the higher courts. He clarified that plea bargain, which is considered a conviction under section 15, is not challengeable in court. However, in cases where an accused has been convicted by an accountability court and awarded a sentence, there is a 50 per cent chance of the sentence getting suspended from the higher courts.
“But once the final decision comes, and the conviction is upheld, the convicted is arrested again and sent back to prison,” he said.
PPP Senator Saeed Ghani agreed that NAB had prosecuted very few politicians or completed high profile investigations. He said that in the first few years after NAB was formed, there was a good faith effort towards accountability, but as the 2002 elections neared, Pervez Musharraf started using NAB politically to target his opponents.
“Obviously, if you create the bureau for accountability but then task it with something else, it will do the something else, and not accountability,” Ghani said.
He said he could not tell off-hand how many convictions were set aside in the higher courts or how many people served full sentences after NAB’s prosecution, but when asked if he remembered any high profile cases off the top of his head where, after NAB’s prosecution, a person had ended up serving his full sentence, he said that he remembered the case of former admiral Mansurul Haq.
“He was brought back from the US with a lot of fanfare, but I think they released him later,” Ghani said. Haq, who was chief of naval staff, was indeed brought up on charges of corruption in 2001. However, he signed a plea bargain soon after and was released.
Senator Ghani said that the concept of plea bargain and voluntary return could not be defended. However, he said that the court which had heard the case of the NAB’s plea bargains and voluntary returns had been told that if there’s no plea bargain, then punishment is the only option and then nobody would return any money.
“But if the corrupt officers can return to the same seats after paying the voluntary return money and they are then free to do what they had been doing before, and they also know now that if they get caught again, they can just do it again — then this is a complete farce,” Ghani said, and added that after a person’s guilt has been established there was no reason why he shouldn’t be made to pay. He said that the proposed accountability bill in Sindh was not going to have a provision for either plea bargain or voluntary return.
Minister for Information and Broadcasting Pervez Rashid said that he did not want to comment on the story as he had spoken on the issue several times in the past and his views regarding NAB were widely known.
NAB spokesman Nawazish Ali Asim was approached several times for his version on the story, but he did not comment.
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