FAISAL ARAB, J.---The appellant held the office of Secretary Labour and Manpower Balochistan/Chairman Workers Welfare Board, Balochistan between the period 25.6.1997 to 31.10.1999. In 2001, the National Accountability Bureau filed Reference No, 27/2001 against the appellant. In this reference the appellant was charged for causing financial loss to the public exchequer in the purchase of a number of 4x4 vehicles. He was tried and convicted by the Accountability Court vide judgment dated 27.11.2001. Thereafter, he served out his sentence.
2. In 2008, the National Accountability Bureau filed another reference against the appellant bearing number 5/2008 in the Accountability Court-IL Balochistan for causing loss to the exchequer for authorizing purchase of several items of Mine Rescue Equipment at exorbitant rates. In this reference, the appellant moved an application under Section 265-K, Cr.P.C. Seeking his acquittal on the ground that once he was tried for an offence in Reference No, 27/2001 he cannot be again tried in Reference No, 5/2008 as in both the cases one time approval was granted by the appellant for the purchase of the vehicles as well as of Mine Rescue Equipment. The bar contained in Article 13 of the Constitution and Section 403(1), Cr.P.C. Was pleaded. The said application was however dismissed by the Accountability Court-II, Balochistan vide order dated 31.3.2009. Being aggrieved by such decision, the appellant filed Constitution petition in the High Court of Balochistan, which too was dismissed vide impugned order dated 1.7.2010, hence, this appeal with the leave of the Court.
3. Mr. Wasim Sajjad, learned counsel for the appellant argued that where an act is part of a series, of acts committed by an accused then he can be tried for all acts simultaneously but if any act, out of the series of the acts, is omitted from being tried then the accused cannot be tried in a subsequent case for such omitted act on account of the bar contained in Article 13 of the Constitution read with the prohibition contained in Section 403(1), Cr.P.C. In support of his contention, he relied upon the cases of State v. Remesh M. Udeshi (PLD 2003 SC 891), Tanveer Khan v. Chairman NAB (PLD 2002 SC 572), Mark Mifsud Mrs. Rosmarie Morley v. Investigating Officer, Customs (PLD 1999 Karachi 336), Badar Alam Bachani v. State (2010 P.Crl.L.J. 1988) and Ramesh M.
Udeshi v. State (2002 P.Crl.LJ 1712).
4. Learned Special Prosecutor General NAB, on the other hand, argued that in Reference No, 27/2001 in which appellant was tried and punished, the offence was with regard to causing financial loss to the exchequer to the tune of Rs, 5.3 million on account of giving approval for purchase of vehicles at exorbitant rates whereas in Reference No, 5/2008 the appellant gave approval for the purchase of Mine Rescue Equipment at rates that were phenomenally higher than the rates fixed in PC-1 and this caused a loss to the tune of Rs, 34.375 million to the public exchequer. He submitted that when such an offence came to light during investigation, the Reference No, 5/2008 was filed. To lay distinction between the two acts, learned Special Prosecutor General NAB read the charges that were framed in both the references by the Accountability Court. He concluded by submitting that as the appellant has been charged in Reference No, 5/2008 for an offence that is distinct from the charge framed in Reference No, 27/2001, the prohibition contained in Section 403(1), Cr.P.C. Is not attracted.
5. We have considered the respective contentions of both the counsel. Section 403(1), Cr.P.C. Bars the prosecution to try an accused for an offence for which he has either been convicted or acquitted in an earlier trial but this prohibition is not extendable in a trial where the offence in the earlier case was distinct from the offence with which an accused is charged in a subsequent case.
Section 403(2), Cr.P.C. Provides "a person acquitted or convicted for any offence may be afterwards tried for any distinct offence for which a separate charge might have been made against him in the former trial under section 235, sub-section (1)". In the present case, the offence with which the appellant was charged in Reference No, 27/2001 was that he in connivance with one Muhammad Ishaq sanctioned purchase of vehicles at the rate of Rs, 1,750,000/- per vehicle which was available in the market for Rs, 850,000/- each thereby caused loss to the public exchequer to the extent of Rs, 5,323 722/- whereas in Reference No, 5/2008 the allegation against the appellant was that he phenomenally enhanced the rates of various items of Mines Rescue Equipment that were even well beyond the rates fixed in PC-I thereby caused loss of Rs, 34.375 million to the exchequer. Thus the offences in both the References clearly appear to be distinct and separate, which aspect of the case is also reflected from a bare reading of the charges framed against the appellant in the two References. In our view, therefore, the provisions of Section 403(2), Cr.P.C. Are fully attracted to the case in hand. Mr. Wasim Sajjad mainly relied upon the case of State v. Remesh M. Udeshi (PLD 2003 SC 891). In this case leases which were granted for 30 years for poultry farming were converted to 99 years leases in relaxation of the existing policy and the rules through a single summary sent by Secretary, Provincial Board of Revenue on the applications of 26 lessees of the poultry farm made to the Chief Minister and hence the conversion of 26 separate, leases pursuant to approval of a single summary was treated to be a single transaction and hence a single offence whereas in the present case the offences reported in the References are distinct and for each offence a separate charge was required to be framed against the appellant, which were accordingly framed in each of the two References. Hence the judgment cited by Mr. Wasim Sajjad is distinguishable from the facts of the present case.
6. In the circumstances narrated above, the High Court rightly dismissed the Constitution petition filed by the appellant against the order dated 31.3.2009 passed by the Accountability Court whereby appellant's application under Section 265-K, Cr.P.C. Read with Section 403(1), Cr.P.C.
Seeking his acquittal was dismissed.