ATTAULLAH KHAN, J . ---Muhammad Nadeem Anwar appellant has filed this appeal under section 10(2) of the Companies Ordinance, 1984, against the order of the learned Company Judge, passed on 7-12-2009. During proceedings before the Company Judge C.M. No.22 of 2009 was filed, wherein it was prayed that the respondent-accused has been convicted by the Accountability Court in, the same offence, therefore, the applicant-accused cannot be proceeded against for the second time under the provisions of Companies Ordinance, keeping in view Article 13 of the Constitution of Islamic Republic of Pakistan, 1973 and section 403, Cr.P.C. Read with section-26 of the General Clauses Act.
2. After hearing arguments the honourable Company Judge dismissed the application by holding that both the offences are different, therefore, he can be proceeded under the Companies Ordinance. Feeling aggrieved the appeal in hand has been filed under section 10(2) of the Companies Ordinance, 1984.
3. Learned counsel for the appellant as well as respondent heard and record on file perused, in the light of which our discussion is as under:--
4. The learned counsel for the appellant submitted that once the accused was convicted under the Accountability Ordinance by an Accountability Court, Rawalpindi, therefore, he cannot be charged and proceeded under the Companies Ordinance as both the offences are of the same nature and it would amount to double jeopardy and is barred under section-403 of the Cr.PC.
5. On the other hand Barrister M.Zahoorul Haq, the learned counsel for the respondent contended that the offences under Accountability Ordinance and those under Companies Ordinance are not similar but quite different, therefore, in spite of conviction by the National Accountability Court, the accused is liable to be proceeded under the Companies Ordinance He further submitted that provision of Article 13 of the Constitution of Islamic Republic of Pakistan, 1973, and section 403, Cr.P.C. Would not apply.
6. The controversy in this case is mainly regarding interpretation to the effect that whether the offence under Accountability Ordinance, for which the accused-appellant was charged and convicted, is similar to the charges levelled under the Companies Ordinance or not.
7. Section 403, Cr. PC deals with prohibition of trial of an accused for the same offence. Same offence is important in this case and we would see as to whether both the offences are same or not.
8. We may move to the definition of same offences. Same offence is defined in Black's Law Dictionary as follow:-- "Same offence.--As used to Constitution, providing that no person shall be twice put in jeopardy for the same offence, does not signify the same offence to nomine, but the same criminal act, transaction, or omission. Term "same offence" as used in statute relating to enhancement of punishment for subsequent conviction of same offence means a similar offence, one of the same character or nature. Cherry v. State, Tex Cr.App., 447 S.W. 2d 154,
158. However, under "same offence" test of double jeopardy, if there is any difference in elements to be proven, two instances are not the same offence. U.S. v. Martino, C.A.Fla., 648 F.2d 367, 382. See also jeopardy; Same; Same evidence test."
It would reveal that if there is any difference in elements to be proven, two instances are not the same offence. To determine the issue the nature of ingredients are to be examined.
9. We would examine the case in hand keeping in view the above definition, the nature of offences under both the Laws and the Judgments of Superior Courts.
10. The copy of reference is available on file. Reference discloses that the accused is charged for the offence of fraudulently obtaining running finance in the name of HBL. He subsequently availed another loan facility in the name of someone else and used it for his personal benefit. He is also charged for purchasing property at exorbitant prices and receiving kickback. Record further reveals that the Accountability Court at Rawalpindi, charged the present accused for the offences, which mainly pertain to embezzlement and misappropriation of public amount. In the Accountability Court, charge levelled against them were under section 9(a) and section 10(a) of the National Accountability Ordinance, 1999. For the sake of convenience, we would like to reproduce the Provisions of section-9(a) and section 10(a) of the National Accountability Ordinance, 1999; "9. Corruption and Corrupt Practices:---(a) A holder of a public office, or any other person, is said to commit or to have committed the offence of corruption and corrupt practices:- (i)......................
(ii).........................
(iii) If he dishonestly or fraudulently misappropriates or otherwise converts for his own use, or for the use of any other person, any property entrusted to him, or under his control, or wilfully allows any other person so to do; or
(iv) If he by corrupt, dishonest, or illegal means, obtains or seeks to obtain for himself, or for his spouse or dependents or any other person, any property, valuable thing, or pecuniary advantage; or
(v) (vi) (if he) misuses his authority so as to gain any benefit or favour for himself or any other person, or (renders or attempts to render) (or wilfully fails to exercise his authority to prevent the grant, or rendition of any undue benefit or favour which he could have prevented by exercising his authority).
(vii) .............
(viii) ................
(ix) ...................
(x) ...................
(xi) ..................
(xii) ......................
Section-10 (a) is reproduced below: "Punishment for corruption and corrupt practices.---(a) (A holder of public office or any other person) who commits the offence of corruption and corrupt practices shall be punishable with (rigorous) imprisonment for a term which may extend to 14 years, (and with fine), and such of the assets and (pecuniary resources) of such (holder of public office or person, as are) found to be disproportionate to the known sources of his income or which (are) acquired by money, obtained through corruption and corrupt practices whether in his name or in the name of any of his dependents, or benamidars shall be forfeited to the appropriate Government (or the concerned bank or financial institution as the case may be)."
11.The above provisions reveal that both the sections relates to fraudulent, misappropriation, dishonest/corrupt practices or obtaining C any benefit wilfully, which he could not obtain lawfully.
12. In the present complaint/proceedings the accused is allegedly guilty of section 282-K, section 230(7) and section 234(6) of the Companies Ordinance, 1984. The above provisions are reproduced below for ready reference: "230. Books of account to be kept by company.--(1) every company shall keep at its registered office proper books of account with respect to-
(a) All sums of money received and expended by the company .And the matters in respect of which the receipt and expenditure takes place;
(b) All sales and purchases of goods by the company;
(c) All assets of the company;
(d) All liabilities of the company; and
(e) In the case of a company engaged in production, processing, manufacturing or mining activities, such particulars relating to utilization of material or labour or the other inputs or items of cost as may be prescribed, if such class of companies is required by the Commission by a general or special order to include such particulars in the books of accounts; "
"230(7). If a company fails to comply with any of the requirements of this section, every director, including chief executive and chief accountant, of the company who has knowingly by his act or omission been the cause of such default shall,-
(a) in respect of a listed company, be punishable with imprisonment for a term which may extend to one year and with fine which shall not be less than (twenty) thousand rupees nor more than (fifty) thousand rupees, and with a further fine which may extend to (five) thousand rupees for every day after the first during which the default continues; and
(b) in respect of any other company, be punishable with imprisonment for a term which may extend to six months and with fine which may extend to (ten thousand) rupees."
"234. Contents of balance-sheet.-(1) Every balance-sheet of a company shall give a true and fair view of the state of affairs of the company as at the end of its financial year, and every profit and loss account or income and expenditure account of a company shall give a true and fair view of the profit and loss of the company for the financial year so, however, that every item of expenditure fairly chargeable against the year's income shall be brought into account and, in case where any item of expenditure which may in fairness be distributed over several years has been incurred in any one financial year, the whole amount of such item shall be stated, with the addition of the reasons why only a portion of such expenditure is charged against the income of the financial year."
"234(6) The provisions of subsection (7) of section 230 shall apply to any person who is a party to the default in complying with any of the provisions of this section."
"282-K. Penalty for making false statement, etc.-- (I) Notwithstanding anything contained in any other provision of this Ordinance, if any person, being the chairman, director, chief executive, by whatever name called or official liquidator or any officer of a NBFC in any document, prospectus, report, return, accounts, information or explanation required to be furnished in pursuance of this Ordinance or the rules made thereunder, wilfully makes a statement which is false in any material particular knowing it to be false, or wilfully omits to make a material statement, mismanages the affairs of the NBFC or misuses his position for gaining direct or indirect benefit for himself or any of his family members, he shall be punishable with imprisonment for a term which may extend to three years and shall also be liable to fine which shall be not less than one hundred thousand rupees, and shall be ordered by the Court trying the offence, to deliver up or refund within a time to be fixed by the Court any property acquired or gained by him in his own name or in the name of his family members by so mismanaging the affairs of the NBFC or misusing his position or, in default, to suffer imprisonment for a term which may extend to three years."
13. The above provisions of Companies Ordinance reveal that the offences for which the accused is charged relates to violation and non= compliance of requirements made in the section in respect of books of accounts, keeping true and fair contents of balance-sheet and making false statement.
If the offences under National Accountability Ordinance, are kept in juxta position with the offences under Companies Ordinance, it would be crystal clear that both are distinct offences and not similar. The essential ingredients of the offences under both the enactments are quite different and no similarity can be found. Even the substance of both the offences under the two enactments, are quite different. We may rely upon PLD 1990 FSC 62, wherein it is held that: "In the light of the above discussion we are of the view that whereas the offence under section 2 read with Sections 16 and 156 (8) arises on the violation of restriction or prohibition issued at the option of the Federal Government, the Articles 3 and 4 not only make "import and export" an offence but even possession, transport, manufacture, processing and sale etc, also. Again the maximum sentence of imprisonment provided under section 156(8) is 10 years while it is imprisonment for life under Articles 3 and 4 of P.4 of 1979. Further appeal against a conviction under Articles 3 and 4 lies before the Federal Shariat Court whereas the High Court is the appellate authority in respect of offences under the Customs Act. Finally the Customs Court has the exclusive jurisdiction under the Customs Act whereas the Sessions Court and the Courts subordinate to it have the exclusive jurisdiction under Articles 3 and 4. There are thus two separate and distinct, offences.
Thus, section 156(8) deals with all such things with regard to which there is prohibition or restriction of bringing into or taking out of Pakistan. The power to impose restriction or prohibition is given to the Federal Government in section 16 of the Customs Act. As said above the P.4 of 1979 makes every process or any dealing with the intoxicants an offence. Again it is one of the Hudood laws. The Customs Act on the other hand is an administrative law based on the residuary power of legislation entrusted to human beings. The result is that the two laws deal with different situations and create distinct offences and there is no conflict, repugnancy or resulting implied repeal. Again, the Customs Court has got exclusive jurisdiction under the Customs Act in respect of smuggling and it has not been given any power to try or decide the cases falling under other provisions of law or the P.P.C."
We may also rely upon PLD 1977 Karachi 145, wherein the proposition has been discussed in detail.
The relevant observations are reproduced below: "The test for the 'same offence' is whether the former offence and the offence subsequently charged have the same ingredients in the sense that the facts constituting the one are sufficient to justify the conviction of the other, not that the facts relied on by the prosecution are the same at the two trials."
It is further held at page-151 that: "We have already shown that the ingredients which constituted the offences, for which respondents 1 to 6 were being prosecuted before the learned S.D.M. Thatta, are materially different from the ingredients constituting the offences for which they were prosecuted and convicted by the N.I.R.C. The mere fact that the two prosecutions arose out of the same incident or some of the facts in the two prosecutions are common, in our opinion, will make no difference."
14. If we test the above proposition in the light of provisions of both the enactments and the Judgments of superior courts, we would reach to a safe conclusion that the offences under the Companies Ordinance are quite different from the offences under the National Accountability Ordinance, 1999, under which the accused has been convicted, for the F reason that the ingredients of both the offences are not the same, therefore, these are not similar and the accused- appellant can be prosecuted under the Companies Ordinance and it would not hit under the Provision of Article-13 of the Constitution of Islamic Republic of Pakistan, 1973, and section 403 of the Cr.P.C. And would also not amount to double jeopardy.
15. The result of our above discussion is that the honourable Company Judge has correctly dismissed application of the appellant and no exception can be taken to the impugned order.
Resultantly, we dismiss the appeal being without force.