1. ' GULZAR AHMED, J.---Badar Alam Bachani, the petitioner in both these petitions has challenged the common order dated 14-2-2005 passed in Reference No, 34 of 2001 and Reference No, 35 of 2001 by the Accountability Court No, II Sindh, Karachi, by which petitioner's applications under sections 235, 265D and 403, Cr.P.C. Read with Article 13 of the Constitution, 1973 filed in both the references were rejected.
2. ' Mr. A.Q. Halepota, the learned counsel for the petitioner has contended that the Chairman NAB has already filed Reference No, 6 of 2001 against the petitioner containing gist of allegations including the items of Quaid-e-Azam Plaza, Defence Plaza and 22 shops and in this respect charge was also framed. The petitioner objected to the inclusion of the said three items in the charge which was over-ruled and trial proceeded on all the charges and ultimately the petitioner was convicted and sentenced vide judgment dated 24-10-2001 on all charges i,e, under section 9(a)(v) and (vi) of the NAB Ordinance in Reference No,6 of 2001. Learned counsel further contended that while the prosecution evidence was about to be concluded in Reference No, 6 of 2001. Reference No, 34 and 35 of 2001 were also filed against the petitioner in respect of the same charges and allegations as contained in Reference No, 6 of 2001. Learned counsel contended that the filing of Reference Nos.
3. 34 and 35 of 2001 against the petitioner amounted to his double jeopardy and petitioner is entitled to be discharged from the said two references.
4. ' Mr. A slam Butt, the leaned Deputy Prosecutor-General NAB, on the other hand, contended that though the charge in respect of Quaid-eAzam Plaza, Defence Plaza and 22 shops was framed against the petitioner in Reference No, 6 of 2001 but the prosecution led no evidence on these charges and the petitioner was even not convicted on the said three items of the charge as it was mentioned in para 5 of Reference No, 6 of 2001 that separate reference will be filed. He further contended that Reference No, 6 of 2001 was for wrongful accumulation of assets by the petitioner whereas References No, 34 and 35 of 2001 are in respect of misuse of authority by the petitioner and other accused under section 9(a)(vi) punishable under section 10(b) and item 4 of the Schedule of the NAB Ordinance. He contended that gist of allegation was unnecessarily filed with Reference No, 6 of 2001. He contended that NAB has processed the case of the petitioner for filing of 3 references and the 3 references are in respect of distinct offences provided by the law which can be tried together under section 17(d) of NAB Ordinance. He contended that fraud is the result of misuse of authority and both References Nos. 34 and 35 of 2001 are maintainable.
5. ' In rebuttal, Mr. A.Q. Halepota the learned counsel for the petitioner contended that clauses (ix) to
(xii) to section 9(a) and section 10(b) were inserted in the NAB Ordinance through Ordinance (CXXXIII"of 2002 dated 23-11-2002) and these offences were not available when the 3 references were filed. He contended that Schedule has no application as it does not provide for or create offence. He contended that reference No, 6 of 2001 was filed in 2001 and decided in 2001 and that Article 12 of the Constitution provides protection. He contended that fraud and misuse of authority are one and the same category of offence and cannot he separated. He contended that gist of allegations was filed with Reference No, 6 of 2001 has relevance to the framing of charge and the charges were not framed specifying clauses of section 9(a) of the NAB Ordinance which has no material effect in terms of section 225, Cr.P.C. He contended that the petitioner has to be acquitted under Article 13 of the Constitution read with section 403, Cr.P.C. As there cannot be a second trial in respect of same property and same charges which also included the misuse of authority against the petitioner. In support of his submission, the learned counsel has relied upon the case of Kishan Singh v. Emperor (AIR 1928 PC 254), Zulfiqar Ali Shar v. The State (PLD 2007 Karachi 536), Ismail A.
6. Rehman v. Muhammad Sadiq and 3 others (PLD 1990 Karachi 286), Ch. Zulfiqar Ali v. Chairman, NAB and others (PLD 2003 Lahore 593) and State through Deputy Prosecutor-General, Camp Office, Karachi v. Ramesh M. Udeshi, Ex-Secretary, Board of Revenue (Land Utilization), Sindh and others (PLD 2003 SC 891).
7. ' We have considered the submissions made by the learned counsel and have also gone through the record.
8. ' Brief facts of the matter are that Reference No,6 of 2001 under sections 18(g) and 24(b) of the NAB Ordinance was filed against the petitioner alleging that the petitioner while employed as Chief Executive Officer, Cantonment Board Hyderabad has accumulated movable/ immoveable properties and other assets which are incompatible to his known legitimate source of income.
9. Charge was framed and after recording evidence and hearing the counsel, the Accountability Court No, Ii, Sindh at Karachi passed Judgment dated 24-10-2001 by which the petitioner was convicted and sentenced to R.I. Of 8 years and fine of rupees two crores in default whereof to undergo S.I. Of 3 years and forfeiture of properties in his name and the names of his sons with ceasing to hold public office and incurring disqualification of 10 years from holding public office or being elected member of any public, statutory and local body. Against this judgment of Accountability Court petitioner filed appeal in the High Court which was decided vide judgment dated 10-9-2003 (PLD 2004 Karachi 160) by which conviction of the petitioner was maintained but sentence was modified. Against this judgment of the High Court appeal is pending in the Supreme Court. While Reference No, 6 of 2001 was still pending Reference Nos.34 and 35 of 2001 under sections 18(g) and 24(b) of the NAB Ordinance were filed against the petitioner and 3 other accused. The petitioner filed application Under sections 235, 265-D and 403, Cr.P.C. Read with Article 13 of Constitution in both the references. The Accountability Court through order dated 19-1- 2002 stayed the trial of the petitioner in both the references subject to the order of the appellate Court in Reference No, 6 of 2001 and that both the references will proceed to trial against petitioner after decision of the appellate Court in Reference No, 6 of 2001. The petitioner challenged this order of the Accountability Court by filing in the High Court of Sindh at Karachi two Revision Application Nos. 31 and 32 of 2002. The NAB also challenged this order of the Accountability Court by filing in the High Court of Sindh at Karachi two Revision Application Nos.51 and 52 of 2002. All the four Revision Applications came to be heard and decided by a common order dated 14-6-2005 by which the order dated 19-1-2002 of the Accountability Court was set aside with direction to Accountability Court to give specific finding i,e, whether or not it is a case of double jeopardy and whether or not the petitioner should be discharged in these pending matters. It is upon this order of the High Court that the Accountability Court heard the matter and decided the same through the impugned order.
10. ' With Reference No, 6 of 2001 a gist of allegations was filed which is as follows:-- ' "Gist of Allegations agains "BADAR ALAM BACHANI, Ex-CEO, Cantt. Board, Hyderabad"
(a) In the construction of Defence Plaza Hyderabad, he fraudulently deprived Cantonment Board Hyderabad of approximately Rs,17,34,25,000.
(b) In the construction of Quaid-e-Azam Plaza Hyderabad, he fraudulently deprived Cantonment Board Hyderabad of approximately Rs, 8,24,00,000.
(c) In construction of 22 shops he fraudulently deprived Cantonment Board Hyderabad of approximately Rs,99,00,000.
(d) Contrary to the rules for construction of various projects by the Cantonment Boards, he awarded the contract to civilian firms.
(e) He did not apprise the authorities concerned about the exact status and rules of cantonment lands on which different projects/plazas were constructed."
11. ' On 25-4-2001, the Accountability Court has framed the charge against the petitioner in Reference No,6 of 2001 which is as follows:-- "I, Riaz Ahmed Phulpoto, Judge, Accountability Court No, II, Karachi do hereby charge you: ' Badar Alam Bachani son of Mohammad Hashim Bachani as follows: ' That you in your capacity as Chief Executive Officer (BPS-18) Cantonment Board Hyderabad had in construction of Defence Plaza Hyderabad fraudutartly, deprived the Cantonment Board Hyderabad a loss of approximately Rs, 17,34,25,000 also in the construction of Quaid-e-Azam Plaza Hyderabad fraudulently caused loss to the Cantonment Board Hyderabad of approximately Rs,8,24,00,000. In construction of 22 shops you fraudulently deprived the Cantonment Board Hyderabad a loss of approximately Rs, 99,00,000 awarding the contracts to the Civilian firms contrary to the rules for construction of the Cantonment Board and had allegedly accumulated moveable and immovable properties and other assets which are incompatible to your known legitimate sources of income.
12. You, your Spouse, dependents and other benamidars holding properties which are owned, controlled and possessed by you. The agricultural land 116.01 acres situated at Deh Rajpari, Tapo-A Tando Qaisar Taluka Hyderabad, in the name of your two minor sons Fahad Badar and Bilawal Badar, purchased in year 1998, for sum of Rs,75,00,000 (assessed value Rs,1,160,00,000). Agriculture land 80.10 acres situated in Tapo Shaikh Moso Taluka Tando Allahyar, in your name purchased in year 1993 for Ri.8,68,700 (Assessed value Rs,80,20,000). One Bungalow No, 1/1 Survey No, 26 measuring 420 Square Yards (Double Storey) Phase-VI, Defence Housing Authority Karachi purchased in year 1998 in the name of your minor sons Fahad Badar and Bilawal for Rs,17,00,000 (Assessed value Rs, 60,00,000/-) Total immoveable property is assessed at 2,56,20,000 (Rupees two crores fifty six lac and twenty thousands only). You and your wife Mst. Shamsu-un-Nisa operating the Bank accounts as under:-- Name of account HolderAccount No.Bank Branch Balance (Rs.)Relationship with accusedTransactions (Rs.)
13. Badar Alam PLS-2521-2 NAB Cant Board Br.Karachi9202/- Self 10400520 Badar Alam PLS-4854-3 BBP Drig Road Br.Karachi3362 Self 72124554 Badar Alam PLS 011001880-3Askri Commercial Bank Ltd336/33 Self 109118333 Mst.
14. Shamsun NisaPPA-36 Allied Bank of Pakistan Hussainabad Br. Hydrabad2439917 Wife 2891697 Mst.
15. Shamsun Nisa1/16918-8 HBL Shoe Market Br.Karachi------ Wife 9250000 ' Two cars in the name of your wife Mst. Sham-un-Nisa Baleno (Act-846) Price Rs,6,25,000 and Hunda City (ACD-388 of Rs,5,75,000. That you are drawing a salary of Rs,8,745 per month. Your expenditure appears to be over 50,000 per month. The assets mentioned above had been acquired by you by corrupt, dishonest and illegal means. The properties obtained by you for yourself, Your spouse Mst. Shams-un-Nisa and dependent your minor sons Fahad Badar and Bilawal Badar. The said property is beyond the known sources of income which you owned, possessed and acquired, which you cannot reasonably account for and thereby you had committed offence of corruption and corrupt practice which falls under the ambit of section 9(a) of the NA Ordinance 1999, and which is punishable under section 10 of the NA Ordinance 1999, and within the cognizance of this Accountability Court.
16. ' And I hereby direct that you be tried by this Court on the above mentioned charge."
17. ' On these charges, the petitioner was tried and ultimately convicted and sentenced as already mentioned above. While this reference was still pending, the NAB filed two more Reference Nos.34 and 35 of 2001 against the petitioner and other 3 accused. In. Reference No, 34 of 2001 allegation against the petitioner and accused Nos.2 and 3 is that by abuse of authority they dishonestly and fraudulently gained pecuniary benefits for themselves in awarding contract for construction of Defence Plaza Hyderabad to accused No, 4 contrary to rules of construction which caused loss to the Cantonment Board to the tune of Rs, 14,33,00,000. In Reference No, 35 of 2001 the allegation against the petitioner and accused. Nos. 2 and 3 is that by abuse of authority they dishonestly and fraudulently gained pecuniary benefits for themselves in awarding contracts for the construction of Quaid-e-Azam Plaza, Hyderabad and 22 shops in Cantonment Board Hyderabad to accused No,4 and one Ghulam Ahmed Memon since expired contrary to rules of construction causing loss to the Cantonment Board Hyderabad of Rs,6,01,00,000 in respect of Quaid-e-Azam Plaza and Rs,99,00,000 in respect of 22 shops.
18. ' The common set of facts in all the three references alleged against the petitioner are that he fraudulently deprived and caused loss to the Cantonment Board, Hyderabad of Rs, 17,34,25,000 (or Rs,14,33,00,000) in construction of Defence Plaza Hyderabad, of Rs,8,24,00,000 (or Rs,6,01,00,000) in construction of Quaid-e-Azam Plaza, Hyderabad and of Rs, 99,00,000 in construction of 22 shops, awarded contracts to civilian firms contrary to the rules of construction of Cantonment Board and accumulated properties and assets not compatible to his known source of income. The only difference in Reference No, 6 of 2001 and Reference Nos.34 and 35 against the petitioner is that in the latter two references offense of misuse of authority is additionally alleged. Whether this offence based on same transaction and same set of facts as in Reference No, 6 of 2001 provide legal justification to maintain Reference Nos.34 and 35 of 2001. In the case of Ramesh M. Udeshi (supra) the Hon'ble Supreme Court has observed as follows:--
5. The sole question requiring determination before us is as to whether different leases forming part of the same summary would constitute separate transactions or it was a case of single transaction and all the accused would be tried jointly at one trial. There is no cavil to the proposition that if same kind of offences are committed in separate transactions, the joinder of the charges in such cases would be in contravention of law but if the similar nature of offences are committed in the same transaction a joint charge would be framed. It is provided in section 233, Cr.P.C. That in case of distinct offences, separate charge should be framed and each charge should be tried separately except in the cases mentioned therein whereas under section 235, Cr.P.C. All the offences which are committed in the same transaction should be charged together. Sections 233 and 235, Cr.P.C. Provide as under:- "233. "{Separate charges for distinct offences.- For" every distinct offence of which any person is accused there shall be a separate charge and every such charge shall be tried separately, except in. The .Cases mentioned in sections 234, 235 and 239."
19. "235. "Trial for more than one" offence. --(1) If, in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with, and tried at one trial for, every such offence.
20. "Offence falling within two definitions.--(2)" If the acts alleged constitute an offence falling within two or more separate definition: of any law in force for the time being by which offences are defined or punished, the person accused of them may be charged with, and tried at one trial for, each of such offences.
21. "Acts constituting one offence but constituting when combined a different offence.--(3)" If several acts, of which one or more than one would by itself or themselves constitute an offence, constitute when combined a different offence, the person accused of them may be charged with, and tried at one trial for, the offence constituted by such acts when combined, and for any offence constituted by any one, or more, of such acts.
(4) Nothing contained in this section shall affect the Pakistan Penal Code, section 71."
7. It is evident from the above provisions that series of acts connected together and forming part of same transaction would constitute a single transaction while the separate transactions would consist upon independent facts and constitute separate offences and if more than one offender committed the same offence in the same transaction all would be charged together at the joint trial. The general law is that if several persons committed the same nature of offence relating to the same transaction, they should be tried jointly but to ascertain the question as to whether a case should be tried jointly or not, the Court must look into the nature of accusation set forth in the charge and if the accusation is that several persons committed the same offence in the course of same transaction, it would be the case of joint trial. The continuity of purpose or design or continuity of action with different acts, can be regarded as part of the same transaction and obviously the various acts may form one series and if several acts are responsible for producing particular result, the same may also constitute one series but if there is no identity or commonality of purpose, and separate offences of the same kind were committed, it would not form part of the same transaction for the purpose of joint trial. The acts of two sets of accused with commonality of purpose if are so intimately connected with each other that two acts necessarily are the part and parcel of same transaction, all the offenders in such a case should be tried jointly the commonality of the purpose and design and continuity of an action are sine qua non to treat the series of acts as one and same transaction and thus if -more than one person committed same offence in the course of same transaction the would be charged together and tried jointly. In the present case 26 leases were approved through a joint summary and all the beneficiaries would be responsible of committing the same offence arising out of the same transaction and notwithstanding the individual responsibility of all the beneficiaries, the separate trial of the respondent in each reference by splitting up one transaction into number of transactions would not be legal in the light of rule that no one should be vexed twice for one and the same cause."
22. ' In the case of Ch. Zulfiqar Ali (supra) a Division Bench of the Lahore High Court observed as follows:-- "A trial on the same charge would be violative of section 403 of the Criminal Procedure Code as well. In State v. Hadi Bakhsh (1981 SCMR 1008), the State appeal was dismissed by the august Supreme Court as trial was violative of Article 13 of the Constitution and section 403, Cr.P.C. At page 1012, the Court observed as under:-- "However, it is not merely a question of anomalous consequences. What is involved in this appeal is something much more fundamental. Whether the respondent's acquittal on the charge of murder be tight or wrong there has to be an end to litigation in every legal system, and in the instant case, on the dismissal of the respondent's appeal by the High Court, his acquittal on the charge of murder by a competent Court became final. It is true that the learned Single Judge, by whose judgment this acquittal became final, had misgivings about the judgment which he was upholding. But, he had the power to prevent that verdict from becoming final by adjourning the hearing of the appeal before him in order to enable the State to decide whether it should file an appeal against the respondent's acquittal on the charge of murder. And, as I will presently show, this is precisely what Munir, CJ, had done in sultan Mahmood's appeal when this appeal had come up for hearing before him in the Lahore High Court. But, as the learned Single Judge did not follow this precedent, the result was that the judgment of the Sessions Court acquitting the respondent on the charge of murder became final, and it cannot be re-opened on the principle of res judicata.
23. Additionally, in my humble opinion, it would be shocking to the judicial conscience to try a man for the second time for the same offence and that is what would happen if we allow this appeal. I also venture to think that a violation of this rule about double jeopardy would be shocking to the public conscience and that is why Article 13 of the present Constitution prescribes that 'no person shall be prosecuted or punished for the same offence more than once'. This provision is of course not available to the respondent by this Article only embodies the maxim 'Nemo debet bis vexan pro una et eadem causa', on which the learned Judges relied. And as observed by Broom (Legal Maxims, tenth edition, page 223), this maxim 'expresses a great fundamental rule of our criminal law, which forbids that a man should be put in jeopardy twice for one and the same offence. It is the foundation of the special pleas of autrefois acquit and autrefois convict. When a criminal charge has been once adjudicated upon by a Court of competent jurisdiction, that adjudication is final, whether it takes the form of an acquittal or a conviction, and it may be pleaded at bar of a subsequent prosecution for the same offence, whether charged with or without matters of mere aggravation, and whether such matters relate to the intent with which the offence was committed or to the consequence of the offence."
24. ' In the case of Ismail A. Rehman (supra) a Division Bench of Sindh High Court has observed as follows:-- "In order to get the benefit of section 403 of Criminal Procedure Code or Article 13 of the Constitution, it is necessary for an accused person to establish that he had been tried by a Court of competent jurisdiction for an offence and he is convicted or acquitted of that offence and the said conviction or acquittal is in force. If that much is established, it can be contended that he is not liable to be tried again for the same offence nor on the same facts for any other offence for which a different charge might have been made under section 342, Cr.P.Code or for which he might have been convicted."
25. Above referred case law amply lays down the rule that where number of offences arise out of one and the same transaction and the sage set of facts should be tried jointly as there is commonality of purpose and therefore cannot become a cause for separate charge in a separate references which will be violative of section 403, Cr.P.C. And Article 13 of the Constitution of Islamic Republic of Pakistan, 1973. It may also be noted that the learned Deputy Prosecutor General, NAB in his arguments has contended that fraud is the result of misuse of authority. If that be the case, then also charge framed against the petitioner in Reference No, 6 of 2001 included the charge of commission of fraud by the petitioner and petitioner having been tried on such charge and convicted too, therefore, no separate references in respect of such charge can justifiably be filed and the petitioner be charged under it.
26. ' After hearing the Advocates for the parties, by a short order dated 19th February, 2010 we had allowed these two petitions and quashed the Reference Nos. 34 and 35 of 2001 against the petitioner. Above are the reasons for the same.