Alternate remedies on corruption cases

Plea Bargain has always been a hot button issue and segments of our society still haven’t acknowledged this concept

No society is free from corruption. Thus a criminal justice system meant to curb the menace of corruption is in place in the countries the world over. The justice systems, however, face enormous challenges across the globe. In order to swiftly reach logical conclusion on corruption cases and to go around these vast challenges and hurdles, to secure convictions in the cases, and to avoid lengthy trials; alternate remedies like Alternative Dispute Resolution and Plea Bargain are always considered as options on the table, especially in case of 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 is enshrined in the National Accountability Ordinance, 1999. The PB’s efficacy and potency can be asked from the thousands of victims of cheating who lost their hard-earned money to scams related to Modarba companies and housing societies and had pinned their hopes on the NAB’s PB law. NAB successfully recovered the plundered money through the tool called PB. Those who lost their money to any such scam are more interested in getting their money back rather than seeing the culprit behind the bars after a lengthy and tiresome trial which usually concludes at the Supreme Court.

Does the culprit get a jail-free pass after returning the plundered money? Does NAB coerce or intimidate an accused to enter into PB? Who accepts the PB and who is responsible for determination of liability? Answers to these queries — which are misconceived by many and sometimes deliberately misconstrued — need 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 the NAB Chairman determines the liability; and if the ascertained amount is acceptable to the accused, only then the Chairman refers it to the 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. Recently the NAB Rawalpindi has made a huge recovery in a housing society scam, wherein the principal liability was Rs1.07 billion, and illegal gains worth Rs880 million were returned by the convict, hence taking the final PB amount to Rs1.95 billion. All 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 the finalisation of PB took six to seven months, whereas the infamous Modarba cases have been under trial for 10 years and the affectees 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 relevant professionals along with the Investigation Officer of the case work out the liability of the case under the supervision of the Supervisory Case Officer and the Director concerned. It is then presented during a Regional Board meeting or an Executive Board meeting as the case maybe, wherein the competent authority decides the matter in consultation with the Board Members. To ensure transparency of the proceedings, the minutes of the meeting are recorded and circulated.

NAB has recovered more than Rs36 billion on account of PB since its inception and disbursed the same to the victims of white collar crimes and deposited it in the national exchequer. Only in 2019, NAB recovered more than Rs3.827 billion through 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. So, no individual enters into PB 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 after entering the deal, he no longer remains behind the bars. All the implications of Section 15 of NAO, 1999 as mentioned above are applied to him by the order of Accountability Court.

Another quandary which has time and again made the headlines is Judicial Custody and NAB Physical Remand or NAB Custody. It is imperative to understand the difference. When the accused is apprehended by NAB, his custody is obtained from the Accountability Court for the purpose of interrogation, recovery and confrontation with documents etc; and when he is no more needed by 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; home-cooked food is served with the court’s permission; and access to relatives and lawyer is also granted. Although 90 days of physical remand is available with NAB as per law, the courts do not extend the physical remand beyond 15 days and even physical custody of accused is given to NAB by the courts after considering the medical condition of the accused. And when the accused is sent to judicial custody, his custody is entrusted with the Accountability Court and the prison authorities, and NAB has nothing to do with the affairs of prison.

There is though always a room for improvement. Any change in laws in the interest of members of the public at large should be the prime objective of legislature, and intents of the legislature speak through the text of legislation.

Published in The Express Tribune, December 9^th, 2020.

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