SC disposes of NAB case after lacuna removed

ISLAMABAD: The Supreme Court on Wednesday disposed of a suo motu hearing it initiated to consider vires of Section 25(a) of the National Accountability Ordinance (NAO), which empowers National Accountability Bureau (NAB) chairman to approve voluntary return, with the observation that the lacuna in the law had been removed through last year amendments in the accountability law.

Headed by Chief Justice of Pakistan (CJP) Umar Ata Bandial, a three-judge bench disposed of the matter since it achieved the objective for which the top court had invoked its inherent jurisdiction under Article 184(3) of the Constitution in Sept 2, 2016.

On Oct 24, 2016, the Supreme Court had restrained NAB chairman from approving voluntary return – a provision under the National Accountability Ordinance (NAO) 1999 that allows the guilty of corruption to pay certain portions of the embezzled money and be released.

When the case was taken up on Wednesday, Additional Attorney General Chaudhry Aamir Rehman told the court that through the last year amendments to the ordinance, a wrongdoer entering into the voluntary return would also be considered a convict in a similar fashion as an accused entering into plea bargain. Likewise, the accused who enters into the voluntary return would also be barred from re-joining or holding any public office for a term of 10 years, the AAG explained, adding the purpose for which the suo motu proceedings had commenced had thus been achieved.

Court took suo motu notice on voluntary returns to NAB, seen as an ‘escape’ for embezzlers

The SC, however, disposed of the case with the observation that the matter had achieved fruition since the lacuna in the law had been removed through the amendments in the accountability law.

The suo motu was initiated by the Supreme Court on a note to the then chief justice of Pakistan in which the registrar had mentioned Sept 2, 2016 observations made by former judge Amir Hani Muslim while heading a two-judge bench in Karachi on a NAB appeal.

In his observations, Justice Muslim had deplored about the powers of NAB chairman under Section 25(a) of NAO since the accused gets off scot-free without any stigma after the voluntary return of the embezzled money. Prima facie, Section 25(a) seems to be in conflict with the provisions of the Constitution, therefore, the vires of this provision needs to be examined, the judge had stated while dictating the orders.

Justice Muslim had also stated that the issue concerns question of public importance having far-reaching effect that have a direct bearing on the fundamental rights of citizens of Pakistan.

The order had emphasised the need of laying down certain principles regarding cognisance of NAB in corruption matters under Section 9 of NAO to further examine whether NAB can extend its jurisdiction to take cognisance of the case that falls within the domain of the anti-corruption authorities or the Federal Investigation Agency (FIA).

The Supreme Court felt the need of examining Section 9 of NAO after realising that NAB has started taking cognisance of petty matters that involved amounts less than Rs100 million when NAB ordinance was legislated primarily to counter mega scams.

In its order, the SC had noted that once the offender, accused of plundering colossal sums of money, deposits a portion of embezzled money, as determined by the NAB chairman voluntarily, that too, in installments, he stands discharged from all of his liability and goes back to join his job. “This frequent exercise of powers of voluntary return by the NAB chairman has in fact multiplied corruption on the one side and defeated the object of the NAB ordinance on the other,” the court had regretted.

Published in Dawn, March 9th, 2023