' WAQAR AHMAD SETH, J.--- Through this single judgment we propose to decide the instant writ petition as well as connected Writ Petitions bearing Nos. 144, 164, 690, 1897, 2280, 2281, 2369, 2651, 2736, 2833, 2889 and 2979-P of 2016, as common question of law and fact are involved therein.
2. Facts, relevant for the disposal of this writ petition are that, respondents/NAB authorities initiated an inquiry regarding corruption and corrupt practices related to award of compensation/payment to affectees/IDPs of Mohmand Agency by the officers/officials of FDMA and accordingly petitioner was arrested on 2.4.2015, on the allegation that being Director General FATA, Disaster Management Authority, you facilitate the withdrawal of funds on fake and bogus record/documents and found involved with other accused persons in corruption and corrupt practices by embezzling public money which was meant for compensation to affectees, affected during military operation in Mohmand Agency and thereby failed to exercise your authority to prevent the loss to National Exchequer through fake/bogus record. After arrest, petitioner was produced before Judge Accountability for physical remand, which was obtained and on 23.4.2015, was remanded to judicial lockup. Thereafter he invoked the jurisdiction of this Court under Article 199; however, his plea for bail was regretted; then approached the apex Court where too met the same fate however, NAB authorities were directed to conclude the trial within three months. On 13.8.2015 another ground of arrest against him was issued on the allegations that being Director General FATA, Disaster Management Authority, knowingly misused your authority with mala fide intention and connivance of others prepared fake survey forms for fake/ineligible affectees under "Housing Uniform Assistance Subsidy Project", in Bajour Agency and approved payment list containing fake forms in order to embezzle public money, thereby caused huge loss to the public exchequer; hence was arrested and after codal formalities obtained physical remand.
3. Felt aggrieved petitioner had filed the instant writ petition, which was heard and allowed as prayed for on 10.12.2015, but the said judgment was impugned before the apex Court by NAB authorities, which came up for hearing on 19.5.2016 and the case was remanded to this Court for decision afresh in accordance with law including maintainability of the writ petition, hence the petition in hand. Writ Petition No,144-P of 2015.
' Petitioner, who was posted as Divisional Accounts Officer in Pak PWD Batkhela with effect from 16.11.2009 to 21.9.2011 was arrested by NAB authorities in inquiry conducted in respect of NA-30 and after codal formalities sent to judicial lockup; whereafter he moved for bail before this Court in W.P.
No, 3411-P of 2015 which was accepted and allowed on 19.11.2015 and was accordingly released on bail, but again preferred the petition in hand with the plea that respondents/NAB authorities are bent upon to arrest him in other so-called inquiries of the same period of different constituencies, which is illegal and unlawful.
Writ Petition No, 164-P/2016.
' The petitioner of instant case is the Assistant Executive Engineer (Acting Charge) in Pakistan Public Works Department (Pak PWD) Batkhela Division and was arrested on 19.8.2014 on the allegation that you being SDO Pak PWD Batkhela, approved and execute ghost schemes worth of millions of rupees by preparing and signing bogus bills/entries in measurement book (MB) which caused colossal loss to the public exchequer. After arrested, petitioner interrogated and after investigation sent to judicial lockup. Petitioner submitted petitions for bail before this Court as well as apex Court, which were dismissed, however reference No,3 of 2015 before trial Court is pending trial. On 7.1.2016, another warrant of arrest against the petitioner was issued on the allegations that more than 100 schemes were shown to be executed as per record, wherein grave illegalities and ghost schemes were identified during the course of investigation and you being Assistant Engineer, passed bills amounting to millions of rupees on the basis of fictitious measurement causing huge loss to the government exchequer, which as per assertion of petitioner is illegal and unlawful, hence the instant writ petition. Writ Petitions Nos. 2369 and 2280-P/2016.
' The petitioners of these w it petitions aggrieved from the letter No, 556- 63/F&P/DC(M) dated 30.5.2016, whereby they were directed to accompany the NAB authorities during field visit of developmental schemes in NA-21 District Mansehra/Torghar, which as per their assertion is illegal and unlawful on the ground that NAB authorities have already after inquiry have investigated the schemes i,e, 181 schemes out of 567, wherein petitioners were arrested, however, after due course of law they succeeded in obtaining bail and to this effect reference No, 5 of 2016 has been filed against them, hence the writ petition. Writ Petition No,2281-P of 2016.
' Petitioner being District Coordination Officer/Administrative Head, Mansehra, has supervised/executed construction work under Prime Minister Directives, upon which NAB started inquiry which was converted into investigation and accordingly petitioner being Head/authority was arrested and later on was released on bail by apex Court on 11.4.2016, however is aggrieved from other inquiries initiated by the NAB in the said constituencies/District, has filed the instant writ petition. Writ Petition Nos. 1897, 2651, 2736 and 2979-P of 2016.
' Petitioners Muhammad Asif, Muhammad Iftikharullah Qureshi, Abdul Wahab and Faridon, Executive Engineers, Assistant Executive Engineer and Sub-Engineer, Pak PWD, respectively, have filed the instant writ petition with the prayer that to declare the subsequent inquiries conducted by the NAB authorities against them in one and same period, as illegal, unlawful and against the settled principle of law. Writ Petition No, 2833-P/2016.
' Petitioners of the instant writ petition aggrieved from the actions/acts of respondents/NAB authorities have filed the instant writ petition with the prayer that the so called inquiries/investigations which the NAB authorities are conducting, are based on mala fide, malice as they have revived the inquiries after six years that too; at the behest of respondent No,5 and are repeatedly calling/harassing the petitioners, which is illegal and unlawful. Writ Petition No,690-P of 2016.
' Petitioner of the instant writ petition is aggrieved from the interim reference No,04/2015 and subsequent references if any which the respondents/ NAB intends to file, have filed the instant writ petition with the averments that reference No, 01/2015 and interim reference No,04/2015 arising out of the same facts and pertaining to the period during which petitioner remained Secretary Worker Welfare Board (WWB) therefore, reference No,4/interim reference be considered part and parcel of reference No,1 and both the references be joined together as one reference and a single charge be framed. Writ Petition No, 2889-P/2016.
' Petitioner of the instant writ petition aggrieved from four separate references filed against him by respondents/ NAB authorities and further authorization of fresh inquiry have filed the instant writ petition with the averments that References Nos.03/2015, 11/2015, 03/2016 and 07/2016, arising out of the same facts and pertaining to the period during which the petitioner remained Divisional Accounts Officer, Malakand and if any subsequent references which the respondents intends to file be joined together as one reference and single charge be framed.
4. We have heard learned counsel for the parties and available record gone through.
5. Since, the matter has been remanded by the apex Court for attending to the legal objections raised by the petitioner i,e, National Accountability Bureau including the maintainability of the writ petition, learned DPG was invited to argue the case on the point of maintainability and other legal aspects, but he was not aware regarding legal aspects of the matter on the basis of which the matter has been remanded, and same is the position of learned counsel for the petitioners as they are of the view that at the time of hearing these petitions before the apex Court none of them was present.
6. Learned DPG, while referring to section 173 of the Criminal Procedure Code, 1898 and then reading Chapter-XIX dealing with the form of charges from sections 221 to 240 of the Code, stated that it's the job of the trial Court and a writ cannot be entertained. He also referred to 1973 PCr.LJ 457, PLD 1965 Peshawar-65 and 2000 MLD 1504. As against this, counsel for the petitioners contended that the trial Court is bound by the reference so submitted by the NAB authorities and is not empowered to change or modify the reference. They are of the view that supplementary challan can only authorize the trial court to go for joinder of charges.
' Section-17 of the National Accountability Ordinance, 1999, sub-clause (a) reads as under:-- "Notwithstanding anything contained in any other law for the time being in force, unless there is anything inconsistent with the provision of this Ordinance, the provisions of the Code of Criminal Procedure, 1898 (Act V of 1898), shall mutatis mutandis, apply to the proceedings under this Ordinance."
7. Admittedly, National Accountability Ordinance, 1999 is a special law, promulgated to eradicate corruption and corrupt practices and hold accountable all those persons accused of such practice. One of the main considerations for promulgation of National Accountability Ordinance, 1999, was to recover the amount which accused persons did not pay and misappropriated the amount and assets. Section 3 of the Ordinance, ibid reads, Ordinance to override the other law, "the provisions of this Ordinance shall have effect notwithstanding anything contained in any other law for the time being in force", which clarifies that provision of National Accountability Ordinance, 1999 shall have effect notwithstanding anything contained in any other law for the time being in force and to have overriding effect to the extent of any inconsistency and provisions of the Ordinance, and shall prevail over the procedure provided in Criminal Procedure Code, 1898. In this respect reliance is placed on the case of Sardar Ahmad Sial and others v. National Accountability Bureau reported in 2004 SCMR-265 (b) which reads as under:- "---Ss. 3 & 17---Criminal Procedure Code (V of 1898), Preamble---Provisions of National Accountability Ordinance, 1999 shall have effect notwithstanding anything contained in any other law for the time being in force---Provisions of National Accountability Ordinance, 1999 have overriding effect to the extent of any inconsistency and provisions of the Ordinance shall prevail over the procedure provided in Criminal Procedure Code, 1898."
8. The Accountability Court which is defined in section 5(g), NAB Ordinance, 1999, is empowered to take cognizance of offences under section 18 (a) which reads as under:-- "The Court shall not take cognizance of any offence under this Ordinance except on a reference made by the Chairman NAB or an officer of the NAB duly authorized by him."
9. According to section 18-(b) a reference under the Ordinance, 1999 shall be instituted by the National Accountability Bureau, meaning thereby that any reference filed by the Bureau is to be adjudicated/cognizance be taken by the Accountability Court and not otherwise. The reference so filed neither can be modified nor can be altered by the Accountability Court except to frame the charge and then to proceed in accordance with the procedure so provided, therefore, for the purpose of joinder of charges etc. The Accountability Court is tied up. Charge under the law had to be framed by the Court on the basis of the material placed before it and in doing so, the Court was not bound by the report submitted under section 173, Cr.P.C. And the Court can alter or change under section 227, Cr.P.C. If it was so warranted by the circumstances, but all this is possible when there is a supplementary challan under the general law. Here the question is that when a reference is filed, the Court is only competent under the National Accountability Ordinance, 1999 to frame the charge on the said reference and these petitions have been filed by calling in question and interpreting the provision of section 17(d) of the NAB Ordinance, practically requiring the prosecuting agency to submit one reference in respect of all the charges of similar nature, without bifurcating one and the same offence, of a particular period, tenure and cause of action and as such the accountability court cannot do so and it's the constitutional jurisdiction of this Court, to do so. The larger bench of Lahore High Court has held regarding the maintainability and jurisdiction under Article 199 of the Constitution as under:-- "---Ss. 5(o) (r), 9, 10 & 11---Constitution of Pakistan (1973), Art. 199---Constitutional petition--- Maintainability---Wilful default --Reference---Person who was neither sponsor nor owner of the defaulting corporate entity; nor exercised any dominative influence in the working of defaulting company and his wife's share in the company was nominal and Creditor Bank had not impleaded him as defaulting party when suit for recovery of loan in the Court of Special Judge Banking filed, was not a person within the terms of S. 5(o) of the National Accountability Bureau Ordinance, 1999 nor a "wilful defaulter" within the ambit of S.5(r) of the said Ordinance--- Proceedings against such person, therefore, were clearly without jurisdiction and of no lawful consequences---Reference to the extent of such person was ordered to be quashed by the High Court under its jurisdiction under Art. 199 of the Constitution in circumstances."
10. Even otherwise interpretation of law comes within the domain of Article 199 and in the instant case the prosecuting agency is not doing what he is required under the law to do.
11. On merits petitioners have called in question the applicability of section 17(d) of National Accountability Ordinance, 1999, alleging that the repeated arrest, detention, investigation and the references so filed are against the spirit of said section, thus are illegal, unlawful, void and baseless.
In order to interpret said section of law i,e, 17(d) it would be imperative to read the same carefully which says:- "Notwithstanding anything in section 234 of the Code, a person accused of more offences than one of the same kind committed during the space of any number of years, from the first to the last of such offences, may be charged with and tried at one trial for any number of such offences."
' Under line by us to have emphasis.
' Section-234 of the Code of Criminal Procedure 1898 reads as under:-- "Three offences of same kind within one year may be charged together. (1) When a person is accused of more offences than one of the same kind committed within the space of twelve months from the first to the last of such offences, whether in respect of the same persons or not he may be charged with and tied at one trial for and number of them not exceeding three.
(2) Offences are of the same kind when they are punishable with the same amount of punishment under the same section of the Pakistan Penal Code or of any special or local law;
12. The object and intention of the legislature is very much clear by introducing section 17(d) in the NAB Ordinance, in reference to section 234 of the Code, and section 3 of the NAB Ordinance, 1999 gives the overriding effect over all other laws including the Code and specially section 234. The bare reading of section 17(d) would provide an emphasis that a person accused of more offences than one of the same kind committed during the space of any number of years, from the first to the last of such offences may be charged with and tried at one trial for any number of such offences.
The underline portion of the said section is relevant for the present controversy and as such learned DPG was directed to address the Court on the same.
13. We have before us section 234 of the Code of Criminal Procedure which requires 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 cases 234, 235, 236 and 239 of the Code; whereas section 235 of the said Code requires:-- (i). 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.
(2) Offence falling within two definitions. If the acts alleged constitute an offence falling within two or more separate definitions 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.
(3) Acts constituting one offence, but constituting when combined a different offence. If several acts, of which one or more than one would be 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.
14. We have before us judgments reported in PLD 2014 Balochistan-33 titled Gen. (Retd.) Syed Pervez Musharraf v. The State, in reference to repeated arrests etc. And the distinct offences defined and explained, the perusal of the same would give the idea in this respect which reads as follow:-- "---Ss. 167, 173 & 497---Bail, grant of---More than one case--- Investigation--- Procedure--- Different criminal cases were registered against accused in different provinces and after his arrest in one case, he applied for bail in other case registered in other province--- Validity--- Accused, under S. 167, Cr.P.C., required in more than one criminal cases, when arrested was deemed to have been arrested in all cases, registered against him---No legal bar existed for interrogating accused with regard to allegation against him in another case; it was rather desirable that when a person required or accused in more than one case or when more than one FIR were registered against him was arrested and remanded to physical custody then he should be interrogated about allegations against him in all cases---Different cases against accused could be investigated under S. 167, Cr.P.C. By keeping him at one place---Once investigation was completed and challan/police report submitted under section 173, Cr.P.C., physical custody of accused had to be forwarded to the jurisdiction of concerned court---Once such custody was acquired by Court concerned it could proceed with the trial and pass all ancillary orders including grant of bail---Concept of considering grant of bail to accused after his arrest by a Court which did not have his physical custody was alien to law---Accused, though arrested in case in question, was not produced in custody /brought before Trial Court or within the territorial jurisdiction of trial Court, therefore, Trial Court had rightly rejected application as being premature---Accused being not in custody within the jurisdiction of High Court, therefore, application was not maintainable---Bail was refused in circumstances.
' Likewise in the case of Mst. Razia Pervez and another v. Senior Superintendent of Police, reported in 1992, PCr.LJ 131, it has been held as under:--
(a) Constitution of Pakistan (1973)--- ----Art. 199---Criminal Procedure Code (V of 1898), Ss.54 & 167- ' Accused was kept in continuous detention for more than fifteen days in police lock-up as a result of his repeated arrest by Station House Officer in more than one cases registered at the same police station .And his successive physical remands given by the Magistrate to police---Such conduct of S.H.O. And Magistrate was unwarranted and not in accordance with law---Magistrate and S.H.O. Both, however, tendered unqualified apology to the High Court with the promise to be careful in future-- State Counsel also gave assurance that police would not apply for further physical remand of the accused in cases already registered against him at the same police station and that he would immediately be sent to judicial lock-up---Proceedings' against the Magistrate and the S.H.O. Were consequently dropped and writ petition was disposed of accordingly.
(b) Criminal Procedure Code (V of 1898)--- ----Ss. 54 & 167---Law does not authorize police to arrest an accused required in more than one cases in one case and to wait for his arrest in the other case till the expiry of the period of remand under S.167, Cr.P.C. Or till he is released on bail in the first case--- Such commonly committed mischief not only defeats the object of S.167, Cr.P.C. Of limiting the period of physical detention of an accused person to fifteen days, but is obviously a joke with the powers of the Magistrate in the matters of remand and custody of an accused person.
(c) Criminal Procedure Code (V of 1898)--- ----Ss. 54 & 167---Scope and object of Ss.54 & 167, Cr.P.C.--- Person required in more than one cases--- Arrest--- Procedure---Guidelines. No doubt, the Police Officer can arrest a person where a reasonable suspicion exists of his having been concerned in any cognizable offence but power given to the Police Officer under section 54, Cr.P.C. Being an encroachment on the liberty of a citizen is not unlimited. It is subject to the condition stated therein. An arrest purporting to be under this section would be illegal unless the circumstances specified in the various clauses of the section exist. This section does not give free license to a Police Officer to arrest anybody he may like. In order to act under this section, there must be a reasonable suspicion of the person to be arrested having been concerned in a cognizable offence. An arrest of a citizen in a reckless disregard of the conditions imposed in this section would make the arrest and detention of the subject illegal and the Police Officer arresting or detaining the subject would be exposed to prosecution under the Pakistan Penal Code and also for departmental action under the relevant rules. Similarly, section 167, Cr.P.C. Does not visualize successive and repeated arrests of a person required in more than one cases. An accused required in more than one criminal cases when arrested will be deemed to have been arrested in all the cases registered against him. There is no legal bar for interrogating an accused person with regard to the allegations against him in another case. It is rather desirable that when a person required or accused in more than one cases or where more than one FIRs are registered against him is arrested and remanded to physical custody, then he should be interrogated about the allegations against him in all the cases. Instead of acting strictly in accordance with law, the police is following the illegal practice of showing the arrest of the person in one case and on the expiry of remand it again arrests him in another case. It is commonly known that in selected case, police would arrest the accused on his release on bail in the first case. It is nowhere stated in the Criminal Procedure Code and Police Rules that a person required in more than one case when arrested will be deemed to have been arrested in one case and he cannot be arrested simultaneously in more than one case. Section 167, Cr.P.C. Simply says that whenever a person is arrested or detained in custody, the Magistrate may authorize his detention in such custody for a term not exceeding fifteen days in the whole. The section does not talk of 'case' it talks of custody only. The longest period for which an accused can be ordered to be detained continuously in police custody by one or more such orders, is only fifteen days. So, the detention of the accused person required in more than one cases already registered against him, for more than fifteen days would be illegal. It would be quite in accordance with law that when a person required in more than one criminal cases of the same police station is arrested in one case, he shall be deemed to have been arrested in all the cases. After continuous physical custody of the accused with the police, the Magistrate will not be justified in granting his physical remand in another case and similarly after the accused is released on bail in one case, he will not be arrested by the police in the other case. It is desirable that the Police Officer, while applying for the physical remand of an accused person should certify that he is not required in any other case and if there are more than one cases against him, then the. S.H.O./ Investigating officer will state this fact in the remand application. Similarly while granting physical remand, the Magistrate shall inquire from the S.H.O./ Investigating Officer as to whether the accused is required in other cases or whether any other case is registered against him at the police station. If the accused has remained with police pursuant to the remand granted under section 167, Cr.P.C. Then the Magistrate will be justified in refusing further physical remand of the accused in another case. It goes without saying that whenever the police indulges in these tactics of arresting the accused successively in different case, it is not taken in good taste by the public and the Courts.
' In the case of Ramesh M. Udeshi v. The State, reported in 2002 PCr.LJ 1712, the learned Bench of Karachi High Court, in reference to NAB Ordinance, 1999 has held as under:-- ----Ss. 9 & 10---Criminal Procedure Code (V of 1898), Ss.233, 234, 235, 403 & 407---Constitution of Pakistan (1973), Art. 406---Corruption and corrupt practices---Accused, as Secretary Provincial Land Utilization Department had allegedly submitted a joint summary to the Provincial Chief Minister benefiting 26 persons who were leased out lands in various Dehs---Distinct offence--- Concept-- Multiplicity of trials on same set of facts---Validity---Once the accused was tried and convicted on the basis of joint summary from which benefits flowed 26 persons and on account of single direction to the Competent Authority, subsequent prosecution and trial on the same set of facts was barred under the law-- Such bar, however, was confined 'to the accused only who already stood tried and convicted in the earlier reference, which had nothing to do with the present trial of the beneficiaries who had not been earlier convicted and tried for the commission of corruption and corrupt practices-- Principles---Maxim "Nemo debet bis vexari pro una et eadem causa"-- Scope and applicability.
' Perusal of section 233, Cr.P.C. Shows that the purpose of the enactment is to prevent embarrassm ent/difficulties to the accused in defending himself in respect of the charge or charges brought against him. However, at the same time Legislature has recognized that when in a given circumstance no embarrassme nt would be caused to an accused in defending himself, he should be tried for more than one offence in same trial in order to avoid the multiplicity of trials. The circumstances are mentioned in sections 222(2), 234, 235, 236 and 239, Cr.P.C. While applying the principles laid down in section 233, that for every distinct offence of which any person is accused there shall be a separate charge and every charge shall be tried separately, it should always be kept in view that the general rule laid down in section 233 was enacted for the benefit of the accused persons and not for that of the prosecution. It is also to be borne in mind that the accused should not be exposed to the risk of conflicting decisions.
' Sections 233 to 240, Cr.P.C. Deal with joinder of charges and they must be read together and not in isolation. When the exceptions contained in sections 234, 235, 236 and 239 are read with the general rule contained in section 233, Cr.P.C., it appears that the object of exception is to avoid the necessity of same witnesses giving the same evidence two or three times in different trials and to join in one trial those offences with regard to which the evidence would overlap.
' A perusal of the illustration of section 233, Cr.P.C. Shows that the expression "distinct offences" connotes the offences which have no connexion with each other. The illustrations of "distinct offences" may be categorised as.
(a) 'Offences falling under different sections of the same penal enactment.
(b) Offences falling under different penal enactments.
(c) Offences committed on different occasions even though they may fall under the same section.
(d) Offences committed against different persons.
(e) Offences committed by different persons individually though they may be of the same kind, as where three persons were charged with being drunk.
(f) Allegations of misappropriation against accused not in respect of any single amount but relating to different specific amounts received by him on different dates from different persons.
' In the following cases, the offences of the same kind committed on one occasion were to be taken as one offence and not distinct offences:--
(1) Theft of several articles from one person or more at the same time.
(2) The receiving of stolen property belonging to different owners or the gangs of different theft but received at the same time.
(3) The making of any number of false allegations in one statement.
(4) The misappropriation of several amounts of money not proved to be committed on different occasions.
(5) A single use of several forged documents as genuine in a Court of law.
(6) Receiving of bribe partly on one day and partly on another.
(7) Attempt to murder two persons by firing a single shot at them.
' Now coming to section 235, Cr.P.C. Under subsection (1) the accused may be charged with and tried at one trial for every offence which has been committed in one series of acts so connected together as to form the same transaction. The expression "same transaction" has not been defined in the Code. A series of act can be regarded as same transaction when they are connected together in some way in proximity of time, unity of place, unity of community of purpose or design and continuity of action. To these factors two other considerations may be added, i,e, whether several acts in series are related as cause and effect to each other and whether they are related to each other as principal and subsidiary acts. The real and substantial test in determining whether several offences are so connected together as to form one transaction depends upon whether they are related together in point of purpose or as cause and effect or as principal and subsidiary acts so as to constitute one continuous act.
' Section 235 provides that 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.
' The expression "same transaction" is not defined in the Code. The word "transaction" is by its very nature is incapable of exact definition. The real and substantial test for determining whether several offences are so connected together as to form one transaction is whether the offences are so related as principal and subsidiary acts, as to constitute one continuous action. It is, therefore, clear that the question whether distinct offences form part of the same transaction is one the answer to which must depend on the facts of each particular case.
' The test employed by the Courts for determining whether separate offences committed in course of the same transaction is whether they are connected together by (i) proximity of time and place;
(ii) community of purpose and design and (iii) continuity of action. The two last are essential elements while the first is alone insufficient for a joint trial.
' Where two or more persons, being animated by common purpose, do certain acts constituting different, in the sense of not being the same offences, and there is continuity in their action, the various acts done by them in pursuance of that particular end in view, even though some of them may be merely accessory thereto, i,e, to the end in view, shall be regarded as forming one single transaction.
' In the present cases, the point to be considered is whether the accused could be tried jointly in one trial for all the acts resulting in extending benefit to 26 persons, therefore, relevant provisions contained in section 239, Cr.P.C. Need not be considered.
' The principles contained in section 403, Cr. P.C. And Article 13 of the Constitution, are based on maxim "Nemo debet bis vexari pro una et eadem causa". It is a rule of law that a man shall not be twice vexed for one and the same cause. The maxim "nemo debt bis vexari pro una et eadem causa"; expresses a great fundamental rule of 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 leas 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 in 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 consequences of the offence.
Provided that the adjudication be by a Court of competent jurisdiction. It is immaterial whether it be upon a summary proceeding before justices or upon a trial before a jury.
' Accordingly, a man, who has been indicted for an offence and acquitted, may not be indicted again for the same offence, provided that the first indictment was such that he could have 'been lawfully convicted upon it by proof of the facts alleged in the second indictment; and if he be thus, indicted again, his plea of autrefois acquit is a good bar to the indictment. The true test by which to decide whether a plea of autrefois acquit is a sufficient bar in any particular case is, whether the evidence necessary to support the second indictment would have been sufficient to procure a legal conviction upon the first. Thus an acquittal upon an indictment for the murder may be pleaded to an indictment for the manslaughter of the same person, and an acquittal upon an indictment for burglary and larceny to an indictment for the larceny of the same goods; for in either of these cases the prisoner might have been convicted, on the first indictment, of the offence charged in the second. But an acquittal on indictment for sodomy is no bar to a subsequent indictment for gross indecency with a male person, of which latter offence the prisoner could not have been convicted on - the first indictment.
' Similarly, the plea of autrefois convict operates to bar a second indictment after the prisoner has been prosecuted to conviction of what is substantially the same offence. Nemo debet bis punire pro uno delicto; and it is an established principle that out of the same state of facts a series of prosecutions against a prisoner is not to be allowed; for instance, upon this ground a conviction for obtaining credit for goods by false pretences bars a further indictment for larceny of the same goods. The pleas of autrefois convict and autrefois acquit, however, apply "only where there has been a former judicial decision on the same accusation in substance"; and therefore, where, after a summary conviction for an assault, the victim of the assault died, it was held that an indictment for manslaughter still lay against his assailant.
' The expression "distinct offence" used in section 233 has no co-relation with the expression "same offence" used in section 403, and further is not required to be read with the expression, "on the same facts or any other offence" used in subsection (1) of section 403, Cr.P.C. The expression "distinct offence" has been clarified by the Legislature in the illustration to section 233 to the effect that, "A" is accused of a theft on one occasion, and of causing grievous hurt on another occasion. A must be separately charged, and separately tried for the theft and causing grievous hurt". The expression "distinct offence" used in section 233 is to be read with the provisions contained in subsection (2) of section 403, which provides that person acquitted or convicted of any offence may be afterwards tried for any distinct offence for which a separate charge might have been made against him on the former trial under section 235, subsection (1).
' The provisions, contained in section 233, that separate charges for "distinct offences" shall be framed and every charge shall be tried separately is for the protection of the accused persons so that he is not confused in defending himself and no harassment or prejudice is caused to him.
' This general rule is subject to the exceptions mentioned in sections 234, 235, 236 and 239, Cr. P . C .
' The provisions contained in section 233 are not to be interpreted or applied in a manner which gives leverage to the prosecution and has the effect of depriving an accused person whereby he is protected from jeopardy of double prosecution, and from facing the trial again and again, for which he could be prosecuted at one trial only.
' It is bounden duty of the Courts to see that an accused person is saved from the agony of multiplicity of proceedings and scourage of repeated prosecutions and facing the same witnesses and the same prosecution material time and again.
' The expression "offences of same kind" used in section 234, Cr.P.C. Is again entirely, different from the expression same offence or for any other offence, on same facts used in section 403, Cr.P.C. The expression offences of same kind has been defined in section 234 itself and, therefore, no interpretation is required by us. The purpose of section 234, Cr.P.C. Is also to minimize the cause of harassm ent or confusion to the accused. Again it is not for the benefit to the prosecution but for the benefit of accused so that the prosecution does not combine large number of offences allegedly committed by an accused person covered by unduly long period and further facilitate the Court to decide the case without confusion by confounding of the facts. The bar contained in section 234 and in the general rule for separate trial contained in section 233 has been relaxed in wider terms under section 235, Cr.P.C. In this section a provision has been made for joint trial if an accused has committed more offences than one and the offences have been committed in one series of act so connected together as to form the same transaction. Under the provisions contained in section 235, Cr.P.C., there is no limitation as to number of the cases and if the conditions enumerated in section 235 are fulfilled then any number of charges can be tried jointly at one trial if they are committed by the same person.
' The expression "same offence" used in section 403, Cr.P.C. Means same act or omission made punishable under the same provision of law and denotes the commission of offence in the same transaction. In terms of section 403(1), Cr.P.C. a person once tried by Court of competent jurisdiction for the offence and convicted or acquitted of such offence shall not be liable to be tried again for the same offence. The bar contained in section 403 for subsequent trial is not confined merely to the same offence but for act, other offence as well on the same facts for which a different charge from the one made against an accused could be framed under section 236 or an accused could be convicted under section 237, Cr.P.C.
' In cases of acquittal, where section 403, does not apply in terms the principle embodied in the section may be properly invoked in order to meet ends of justice. There is no reason for' not extending the principle to an accused who has been convicted in earlier trial and has been put again to subsequent trial on identical evidence and in regard to identical charges. The reason being that, the harassm ent caused to an accused by repeated convictions for same series of acts in same transaction and on identical evidence and identical charges is much more enormous than harassm ent caused to an accused who after facing the subsequent trial is bound to be acquitted.
' However, subject to exceptions a person once tried and convicted or acquitted cannot be subsequently tried not merely for the same offence but also for any other offence based on the same facts.
' An act committed by an accused, which is in consequence or pursuance of or is secondary to a principal act shall be deemed to be a part and parcel of the main offence and the principal as well as subsidiary act or omission shall jointly be treated as same offence and that out of the same set of facts in same transaction, a series of prosecution against 'an accused convicted or acquitted in earlier proceedings, is not to be allowed.
' The accused/applicant was already tried and convicted for the commission of offence and subsequently on the basis of observations made by Accountability Court accused/applicant could not be tried again for the same offence or for the offence on the same facts.
' The judicial officers are required to maintain the very high quality of impartiality and have to avoid everything meticulously, which may lead to the inference or impression that the Judge has transgressed his limits and has entered into the field which is reserved for the prosecutors and the defence. Court should also try to give more impression of an impartial arbiter having no inclination to be pro-prosecution or pro-defence. The credibility of judiciary lies in complete impartiality, total transparency, adhering to the established principles of dispensation of justice without fear and favour, without giving any impression of inclination towards either of the parties.
' Once the, accused was tried and convicted on the basis of joint summary floated by him from which benefits flowed to 26 persons and on account of single direction. The subsequent prosecution and trial on the same set of facts is barred under the law. Such bar is confined to the accused only who already stands tried and convicted in the earlier references, which have nothing to do with the prosecution and trial of the beneficiaries who have not been earlier convicted and tried for the commission of corruption and corrupt practices.
' In the case of Badar Alam Bacjiani v. The State through Chairman NAB, reported in 2010 PCr.LJ, it has been held that:-- "---Ss. 9(a)(iv)(v)(vi) & 17 (d)---Criminal Procedure code (V of 1898), S. 403---Constitution of Pakistan (1973), Arts. 13 & 199---Constitutional petition---Quashing of reference---Double jeopardy-- Joint trial---Once reference was filed against accused for acquiring assets beyond known source of his income and in that reference he was convicted and sentenced by Trial Court-- -Later on two more references were filed against accused which included the allegations already contained in earlier reference--- Accused contended that it was a case of double jeopardy as he had already, been tried by the Court on the charges---Validity---Where number of offences had arisen out of one and the same transaction and same set of facts, the same should be tried jointly as there was commonality of purpose and, therefore, could become a cause for separate charge in a separate reference which would be violative of section 403, Cr.P.C. And Art. 13 of the Constitution---NAB had contended that fraud was result of misuse of authority in former reference against accused and charge in subsequent references also included commission of fraud by him- --Accused having been tried on such charge and convicted too; therefore, no separate reference in respect of such charge could justifiably be filed and accused could not be charged under the same---High Court quashed subsequent references filed by NAB against accused---Petition was allowed in circumstances.
15. The Hon'ble apex Court of the country has defined same offence for the purpose of criminal procedure code as well as NAB Ordinance, 1999, in its reported judgment titled Ch. Tanveer Khan v.
Chairman NAB and others, PLD 2002, Supreme Court 572 (a) wherein it has been held as follow:-- " ---Ss. 403, 236 & 237---Words "same offence" as used in S.403(1), Cr.P.C., ---Significance--- Persons once convicted or acquitted not to be tried for the same offence---Law gives, in order to attract the provision of S. 403, Cr.P.C. Have laid stress on the words "same offence" for the purpose of debarring second trial of an accused person, who has been once convicted or acquitted from an offence charged against him---Apart from the offence for which the accused may have already been tried and convicted or acquitted at the previous trial the protection contained in subsection (1) of S. 403, Cr.P.C. Extends to an offence for which a charge different from the one made against the accused at the previous trial might have been made on the same facts under S. 236, Cr.P.C. And also in respect of an offence for which he might have been convicted at the previous trial under S. 237, Cr.P.C. But the protection clearly does not extend to those facts not at all alleged at the previous trial.
' Likewise the apex court of the country in the case of State through Deputy Prosecutor General v.
Ramesh M. Udeshi, Ex-Secretary Board of Revenue, Sindh, reported in PLD 2003, Supreme Court 891 in reference to Article 13 of the Constitution has held which reads as under:- ----Ss. 9 & 10---Criminal Procedure Code (V of 1898), Ss.233 & 235--Corruption and corrupt practices---Trial of charges in more than one offences---Different pieces of land were given to different persons on lease for a period of 30 years for Poultry Farming in various Dehs by the Government---Lessees of such land moved separate applications to the Chief Minister of the Province for conversion of their poultry farming leases into industrial/commercial and residential leases for 99 years in relaxation of the existing policy---Chief Minister sent the said applications to the Secretary, Provincial Board of Revenue for favourable action who prepared a summary containing recommendations for conversion of the leases in question under S.10(1) of the Colonization of Government Lands (Sindh) Act, 1912, relaxation of existing Policy/Rules and also recommended for reduction in the prescribed lease money of Rs,50,000 to Rs,25,000 per acre--- Said summary was approved by the Chief Minister and in consequence thereto, the conversion of 26 leases mentioned in the summary was allowed to be made---Reference under Ss.18(g) & 24(b) of the National Accountability Ordinance, 1999 were filed against both the Chief Minister and the Secretary Board of Revenue for causing huge monetary loss to the State by corruption and corrupt practices and provided illegal benefit to the beneficiaries/lessees and committed offence/offences punishable under S.10, National Accountability Ordinance, 1999 as holder of the public office---High Court, found that since a proposal for grant of 26 leases of Government land to different persons was approved through the joint summary, therefore, it would constitute a single transaction for the purpose of a joint trial of all the accused and separate trial in each reference would not be legal---Validity---If same kind of offences were 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 were committed in the same transaction a joint charge would be framed---Principles.
' 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.
' 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 they 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 accused 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.
' If a person is charged for committing several offences of similar nature in the same transaction, the joint charge shall be framed and if several persons committed same offence in the same transaction they should be tried jointly, but this rule is subject to the provisions of section 233, Cr.P.C. Wherein it is provided that for every distinct offence there shall be separate charge and the same shall be tried separately except in the cases in which the Code provides otherwise. The concept of joint trial is based on solitary principle that no prejudice should be caused to the accused in framing of separate charge and holding separate trial unless it is essentially required under the law. The provision of section 233, Cr.P.C. Being an enabling provision would not make it incumbent on the Court to frame separate charge and hold separate trial on the basis of same facts by splitting up one transaction into number of transactions in terms of the rule laid down in the said provision that for each distinct offence separate charge should be framed. The present case would be governed by the provision of section 235, Cr.P.C. Wherein it, is provided that in the cases in which more than one offence is committed in the same transaction by more than one person all should be tried jointly. Thus the mere fact that 26 different leases in the name of different persons were approved, would not be sufficient to hold that there was no commonality of purpose or that it was more than one transaction forming part of the joint summary; therefore, there can be no exception to the view that the framing of the separate charge against the respondent in each reference on the basis of same fact would be violative of the principle of law embodied in section 403, Cr.P.C. And Article 13 of the Constitution of Islamic Republic of Pakistan, 1973.
16. While going through the above referred judgments regarding the "same transaction" and "distinct charge", we are left with section 17(d), which exclude section 234 of the Code of Criminal Procedure and leaves only "from the first to the last of such offence" may be charged with and tried at one trial for any number of such offences. The accused as defined in section 5(a) of the Ordinance, clause (a) is reproduced as under:-- "Accused" shall include a person in respect of whom there are reasonable grounds to believe that he is or has been involved in the commission of any offence trial under this Ordinance or is subject of an investigation or inquiry by the National Accountability Bureau or any other agency authorized by the National Accountability Bureau in this regard under this Ordinance."
17. The offences are defined in section 9 with the heading corruption and corrupt practices, clause
(i) of section-9-a to clause-(xii) defines the nature of offences. These sections are applicable to 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. When these definitions of offences are read in juxtaposition with section-17(d) the intention of the legislature stands clear by using the words" from the first to the last of such offence", as the same pertains to the period of posting/tenure, in the office.
18. The bare reading of section 17(d) of the NAB Ordinance, for all intents and purposes has the overriding effect inspite of the fact that Criminal Procedure Code is mutatis mutandis applicable.
The wordings of the said section and specially "from the first to the last of such offences", clearly denotes that all the offences of similar nature during the entire tenure of the holders of the public office and his jurisdiction, in a single reference and the same cannot be bifurcated to the convenience of the prosecution and inconvenience of the accused. It is a well settled principle of law that if in one series of act so connected together as to form the same transaction, more offence than one are committed by the same person, he may be charged with and tried at one trial for each such offence.
19. The maxim of equity says that Nemo debet bis puniri pro uno delicto establishes that the out of the same state of facts a series of prosecutions against a prisoner is not to be allowed; hence, the prosecution/investigating agency could not be allowed to re-arrest time and again the accused person, repeatedly on the similar nature of charges, during the same tenure and of same jurisdiction/nature. The respondents in such a situation are bound to join all the references already pending against the said holder of public office or otherwise. Person once tried and convicted or acquitted cannot be subsequently tried not merely for the same offence but also for any other offence based on the same facts. Yes, if a person is tried in one offence i.e and of same jurisdiction/nature. The respondents in such a situation are bound to join all the references already pending against the said holder of public office or otherwise. Person once tried and convicted or acquitted cannot be subsequently tried not merely for the same offence but also for any other offence based on the same facts. Yes, if a person is tried in one offence i,e, corruption and corrupt practices he can be tried in another reference of different offence i,e, accumulation of wealth. The section-9 of Ordinance itself bifurcates the offences in clauses-i to xii. The perusal of the entire NAB Ordinance would reflects that sufficient time has been granted by the legislature to investigate the entire tenure of the holder of the public office or any other person involved in the matter and as such after investigating, one reference is permitted on the one and same cause of action and second or more references with mere difference of dates, amount involved and witnesses involved would not constitute a separate offence, neither a separate reference, through a subsequent investigation could be permitted in view of words used in the section 17(d), specially the underline portion. A person accused of more offences than one of same kind committed during his entire tenure while holding the public office, from first to last of such offences, be liable to be tried at one trial, otherwise, trial would be in violation of mandatory provision of section 17(d) of the NAB Ordinance.
20. Trial to be conducted with utmost fair-anything causing embarrassment to accused should be avoided. Reliance is placed on PLD 1964 SC-120. National Accountability Ordinance, 1999 was promulgated in order to provide effective measures for detention, investigation, prosecution and speedy disposal of cases involving corruption, corrupt practices, misuse and abuse of power or authority, misappropriation of property, taking kick backs, commission and for matters connected and ancillary incidental thereto. Object of NAB Ordinance, 1999, in its preamble is to provide expeditious trial of schedule offences within the shortest possible time; this has been observed by the Hon'ble apex Court in the report judgment PLD-2008 SC-645 (a).
21. In addition to above, NAB Ordinance, 1999 is a special law and used of same in oppressive manner must be tested on the touchstone of fundamental right of a person as guaranteed under the Constitution. Misuse of law cannot be overlooked or ignored by Courts being custodian of the Constitution. Courts are under legal duty to defend, preserve and enforce rights of people and their constitutional guarantees. Notwithstanding protection provided to NAB authorities under the law in respect of their functions, use of power by them in an unbridled manner for prosecution of innocent persons in disregard to their constitutional guarantees, rights, liabilities and duties must not be allowed and courts must prevent such oppressive use of penal law through judicial determination.
Reliance is placed on PLD 2001 SC 607.
22. In view of above, it is worthwhile to refer to Articles 4, 8 and 13 of the Islamic Republic of Pakistan, 1973, which produced as under:-- ' Article-4. Right of individuals to be dealt with in accordance with law, etc. (1). To enjoy the protection of law and to be treated in accordance with law is the inalienable right to every citizen, wherever he may be, and of every other person for the time being within Pakistan.
(2) In particular--
(a) no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law;
(b) no person shall be prevented from or be hindered in doing that which is not prohibited by law; and
(c) no person shall be compelled to do that which the law does not required to do.
' Article.8. Laws inconsistent with or in derogation of fundamental rights to be void.-(1) Any law, or any custom or usage having the force of law, in so far as it is inconsistent with the rights conferred by this Chapter, shall, to the extent of such inconsistency, be void.
(2) The state shall not make any law which takes away or abridges the rights so conferred and any law made in contravention of this clause shall, to the extent of such contravention, be void.
(3) .
' Article-13. Protection against double punishment and self-incrimination," No person--
(a) Shall be prosecuted or punished for the same offence more than once; or
(b) Shall, when accused of an offence, be compelled to be a witness against himself.
23. Record reveals that second warrant and more than one reference impugned in all the connected writ petitions has been initiated by the Provincial Government under the NAB Ordinance, 1999, which being a complete code, not only provides a method and mechanism for proceedings against the delinquent officers, but also provides the forum for redressal. It is not disputed that in view of Article-13 of the Constitution, the petitioner shall not be prosecuted or punished for the same offence more than once. Section-17(d), of the National Accountability Bureau Ordinance, 1999, as discussed above also provides that notwithstanding anything contained in section-234 of the Criminal Procedure Code, a person accused of more offences than one of the same kind committed during the space of any number of years, from the first to the last of such offences, may be charged with and tried at one trial for any number of such offences, especially in view of Article 10(A) of the Constitution, even the petitioner shall be entitled to a fair trial and due process. It is also essential to endorse that Article 8 of the Constitution provides that any law, or any custom or usage having the force of law, in so far as it is inconsistent with the rights given under this article shall, to the extent of such inconsistency, would be treated as void. Even the State shall not make any law which takes away or abridges the rights so conferred and any law made in contravention of this cause shall, to the extent of such contravention, would be considered as void. Article 4 of the Constitution also guards the rights of a citizen of this country to enjoy the protection of law and to be treated in accordance with law or the inalienable rights of every citizen, wherever he may be, and of every other person for the time being within Pakistan, then how a second warrant, investigation or for that matter more than one reference having the same nature of charge can be issued against the petitioner in contrary, when it is not admissible under the law. If the contention of the learned NAB counsel that there is no legal bar to issue a second warrant or to file another reference against the petitioners is allowed, then there would be no end to the filing of references.
24. We while allowing these writ petitions, it is held that re-arrest of any holder of public office or for that matter any other person on the same charges for the same period, which he was holding the office is illegal, unlawful and against the mandate of section 17(d). The filing of more than one reference on the same allegations, relating to same period/tenure is also against the mandate of section-17(d) of the National Accountability Bureau Ordinance, 1999, however the pending references against one person/accused in different Accountability Courts are to be clubbed together for the purpose of consolidation and alter of charge for which the trial Court is competent to proceed with, by treating more than one reference as supplementary references.