IN THE SUPREME COURT OF PAKISTAN

(Appellate J u risdiction)
PRESENT:
MR. JUSTICE GULZAR AHMED, HCJ
MR. JUSTICE MAZHAR ALAM KHAN MIANKHEL
MR. JUSTICE MUHAMMAD ALI MAZHAR

CIVIL APPEAL NO.1 4 8 6 OF 2 0 17

(Against t he judgmen t dated 29.03.2016
passed by Peshawar High Cour t, Peshawar in
W.P.1457-P / 2013)
AND C.M.A.4 9 8-P / 2 016 in C.A.148 6 / 2 0 17
(Stay application)

Provincial Selection Board, Govt. of Khyber

Pak h t u n k hwa t h rough its Chairman / Chief
Secretary, KPK ….…Appellant

VERSUS

Hidayat Ullah Khan Gandapu r

..…Responden t

For t he Appellan t(s): Mian Shafaqat Jan, Addl. AG KPK

For t he Responden t) In-person.

Date of Hearing: 01.10.2021

JUDGMENT

MUHAM MAD ALI MAZHAR, J. — This Civil Appeal is directed

against t he judgmen t passed by learned Peshawar High Cou rt on
29.03.2016 in W.P.No.1457-P / 2013 whereby the petition of
responden t was allowed and t he Provincial Selection Board,
Gover n men t of Khyber Pak ht u n k hwa was directed to issue
pro-for ma promotion order of t he respon den t in (BS-20) wit h effect
from 10.09.2001.

2. The t ransient facts of t he case are as u nder:-

The respondent / petitioner was serving as Superintend ing Engineer in

Ir rigation Depar tment of Government of KPK, who was ar rested by NAB
bu t on accou nt of plea bargain he was released. After initiating
disciplinary p roceedings by his depart ment, he was dismissed from
Service. Against the dismissal order, the respondent filed an appeal
before t he Service Trib u nal, KPK which was allowed and he was
reinstated in service vide j udgment dated 29.12.2008 passed in Service
Appeal No.1143 / 2001. The petitioner filed Civil Petition No.57-P & 61-
P / 2009 in this cou rt which was subsequently wit hdrawn vide order
dated 5.5.2009 for the reasons t hat t he respondent had attained the age
of superann uation and retired from service. Since t he depar tment was
rel uctan t to implement t he j u dgment of Service Tribu nal, hence, the
respondent had filed a Writ Petition No.889 / 2009 in the Peshawar High
Cou rt which was disposed of with direction to the petitioner to implement
the j u dgment within one mont h. In addition, t he responden t had also
claimed p ro-forma promotion b u t his request was ref used by t he
C.A.1486 of 2017 -2-

Provincial Selection Board d ue to plea bargain with NAB and admission

of guilt by the respondent. Being aggrieved, the respondent filed anot her
Writ Petition No.1457-P / 2013 in the Peshawar High Cou r t for seek ing
directions for h is pro-forma p romotion which was allowed vide impu nged
j udgment.

3. Leave to appeal was gran ted on 09.11.2017, consisten t with t he

observations allude to in t he earlier order dated 16.10.2017 which
is reproduced as u nder:-
“The Respondent avoided criminal prosecu tion in a
Reference filed u nder the NAB Ordinance by entering
into a plea bargain. Despite t he fact t hat he stood
convicted and not entitled to hold p ublic office, he has
been reinstated and given all back benefits. Now, he is
agitating for an tedate p ro-forma p romotion”.

4. The learned cou nsel for t he appellan t argued t hat t he

responden t was ar rested by NAB. Soon after, he en tered in to a plea
bargain and admitted his gu ilt of cor r uption. In t he wake of
retirement, he claimed pro-for ma promot ion. The case was placed
before Provincial Selection Board bu t keeping in mind his gross
misconduct and plea bargain wit h NAB, he was not fou nd fit for
pro-for ma promotion. It was fu rt her con tended t hat t he responden t
had no legal or moral righ t to claim p ro-for ma promotion as a
vested righ t. The learned High Cou rt failed to consider t his
important aspect and allowed t he petition wit h t he directions to t he
appellan t to issue pro-forma promotion order in BS-20.

5. The responden t appeared in person. He could not deny t he

fact u m of his arrest by NAB as well as his act of plea bargain.
However he vigorously relied on t he case of Engineer Zahid Arif,
Assistant Director Wor ks & Services Depar tmen t, who was also
proceeded u nder t he Removal from Service (Special Powers)
Ordinance, 2000 for his involvemen t in NAB case and he also
en tered in to a plea bargain. He was dismissed from service bu t
reinstated by the Service Tribu nal an d later on, he was also
gran ted pro-for ma promotion. The responden t claimed his case at
par and lodged t he grievance that t he benefit of pro-for ma
promotion should also be gran ted to him.

6. Heard t he argu men ts. It is an admit ted position t hat t he

responden t was ar rested by NAB u nder Section 9 and 10 of
National Accou ntability Ordinance 1999 for his involvemen t in
cor r uption and cor r upt practices. He confessed his gu ilt an d
himself pu t forward an application for plea bargain u nder Section
C.A.1486 of 2017 -3-

25 read with Section 15 of t he National Accoun tability Ordinance

1999. He also su r rendered Rs.17.5 Million which he gained on
accoun t of cor r uption or cor r upt practices. The responden t was a
civil servan t and once he availed the benefits of plea bargain and
his request was accepted by t he cou rt, he at one fell swoop wou ld
be deemed to have been convicted of t he offence of cor r uption and
cor r upt practices.

7. The case in hand predominantly germane to t he claim of

responden t for pro-forma promotion after retiremen t which was
allowed by t he High Cou rt withou t considering t he impact and
after mat h of plea bargain. The objectives of prom ulgating National
Accou ntability Ordinance, 1999 is to provide for effective measu res
for detection, investigation, prosecu tion and speedy disposal of
cases involving corr uption, corr upt practices, misuse or abuse of
power or aut hority, misappropriation of property, taking of
kickbacks, commissions and for mat ters con nected and ancillary
or inciden tal t hereto. As a special law, it is mean t to eradicate and
exter minate cor r uption and corr upt practices and grab hold of
persons accused of such practices accou ntable to safeguard and
protect public exchequer and ensu ring its swift recovery. The
niceties of Section 15 inter alia stipu lates t hat if accused person is
convicted u nder Section 9, he shall fort hwith cease to hold public
office if any held by him and fu rt her he shall be disqualified for a
period of ten years to be reckoned from t he date his release. The
proviso at tached to t his section provides t hat any accused person
who has availed t he benefit of Sub-section (b) of Section 25 (plea
bargain) shall also be deemed to have been convicted for offence
u nder t his ordinance and shall for t hwit h cease to hold public
office.

8. In t he case of State t h rough Chair man NAB Vs. Hanif Hyder

and anot her (2016 SCMR 2031), t his cou rt held t hat t he option of
Volu n tary Ret u r n by a public servan t and or a civil servan t falls
wit hin t he ambit of “misconduct” and needs to be depar t men tally
proceeded against once he admits t hat he had earned money by
cor r uption. After admitting t his fact, he cannot hold any public
office eit her in Federal or in Provincial Govern men t or in any state
owned organization. In t he case of Mu ham mad Aslam, Ex-Deputy
Director (Au dit) Dist rict Govt. Lahore Vs. Auditor-General of
C.A.1486 of 2017 -4-

Pakistan, Islamabad. (2013 SCMR 1904)., t he appellan t en tered

into a plea bargain du ring pendency of t he t rial, which was
accepted and NAB cou rt ordered his release. The plea was taken by
t he appellant that no regular inquiry was conducted and he was
removed from service after issuance of show cause notice. This
cou rt held t hat the appellant has not dispu ted t he fact u m of
en tering in to plea bargain, which was docu mented as a mat ter of
record. In such li ke cases where t he docu ments on t he basis of
which depart men tal proceedings have been initiated are not in
dispu te, t he competent au t hority can dispense wit h t he regular
inquiry as no material is requ ired to be collected for proceeding
against t he delinquen t officer. Likewise, t he appellan t can not take
a plea t hat he was deprived of oppor t u nity to rebu t t he charge
when t he docu ments on t he basis of which depart men tal
proceedings are initiated against the appellan t have not been
denied. Whereas in t he Suo Mot u Case No. 17 / 2016. (Un reported
Order dated 24.10.2016), t his cou r t held t hat once a person
accused of corr u ption or corr upt practices volu n teers to offer to
ret u r n the amou n t he has pocketed or gained t h rough illegal
means, prima facie, cannot hold any Gover n men t / Public Office, as
t he very act of his offering t he volu ntary ret u rn falls wit hin t he
definition of “misconduct” under t he service law and calls for
initiation of disciplinary action against t he accused persons.

9. We noted t hat while passing impugned judgmen t, t he lear ned

High Cou rt only concen t rated and focused on t he case of Zahid Arif
alone and held t hat t he case of responden t and Engineer Zahid Arif
were iden tical on all cou n ts and since Zahid Arif was gran ted pro-
forma promotion in t he similar circu mstances t herefore t he
responden t should be t reated alike. At t he momen t, t he case of
Zahid Arif is not before us bu t we are const rained to observe here
t hat if any such special benefit or relaxat ion beyond the spheres or
tenets of law was given to him that can not change t he position or
stat us of such person ot her t han t he stat us already described and
depicted in t he NAB laws as a consequence of plea bargain. Any
such benefit gran ted beyond t he exactit udes or rigors of law can not
be t reated as a good preceden t in t he case of responden t for
implemen tation in t he st ricto sensu, rat her it is an u nlawful act of
t he au t hority which recom mended t he case of pro-forma promotion
of a person who was booked by NAB i n a cor r uption case and
C.A.1486 of 2017 -5-

released after plea bargain. We are sangu ine t hat t he catchph rase
and expression "two wrongs don't make a right" symbolizes a
philosophical benchmar k in which a wrongdoing is made level or
cou ntered with anot her wrongdoing. In fact t his maxim is used to
reprimand or rep udiate an u nlawful deed as a reaction to anot her’s
misdemeanor. A wrong order or benefit cannot become a
fou ndation for avowing equality or equal oppor t u nity for
enforcemen t of t reat ment alike rat her such righ t should be
fou nded on a legitimate and legally implemen table righ t. A wrong
order cannot be allowed to carry on which hardly confers any right
to claim parity or equality. The responden t could not claim t hat if
somet hing wrong has been done in the case of Zahid Arif,
t herefore, t he same direction should be given in his case also for
com mitting anot her wrong which would not be set ting a wrong to
righ t b u t would be moving ahead and perpet uating anot her wrong
which is disapproved and highly deprecated. No case of any sort of
discrimination is made ou t. The concept of equal t reat men t could
not be pressed into service by t he respondent which presupposes
and ded uces t he existence of righ t and remedy st r uct u red on legal
foothold and not on wrong notion or whims. The learned High
Cou r t failed to analyze and discer n t hat in t he pecu liar
circu mstances of t he case, t he responden t was not en titled to claim
pro-for ma promotion as a vested righ t, t herefore, on t he face of it,
t he direction issued by t he High Cou rt to gran t t his benefit was not
based on cor rect exposition and elucidation of law and facts.

10. This Civil Appeal was allowed vide ou r short order dated
01.10.2021 whereby t he impugned j udgmen t of t he Peshawar High
Cou r t was set aside. Above are t he reasons in t he aid of shor t
order.

Chief J ustice

J udge

J udge
Islamabad, t he
01.10.2021
Approved for reporting
Khalid