IKRAMULLAH KHAN, J.---Through the instant petition, filed under section 561-A, Cr.P.C. the petitioner namely, Masood Anwar, seeks quashment of FIR No. 660 dated 24.07.2015 under sections 419/420, P.P.C. registered against him at Police Station City Haripur.
2. Brief facts leading to the instant petition are that respondent No.2 namely, Abdul Ghafoor submitted an application to NAB Authorities alleging therein embezzlement of money amounting to Rs.5,46,000/- by the petitioner whereby the NAB authority registered Reference bearing No. 05/2014 against the petitioner, however, the respondent No.2 also approached the IGP Khyber Pakhtunkhwa for registration of a criminal case too, whereupon the FIR in question bearing No. 660 dated 24.07.2015 was registered against him under sections 419/420, P.P.C. at Police Station City Haripur, hence, the instant quashment petition.
3. The only ground agitated by learned counsel for the petitioner was that the petitioner is already facing prosecution under Reference No.05/2014 before the Accountability Court at Peshawar; therefore, he cannot be prosecuted for the same offence in the FIR in question on the basis of report made by the same complainant.
4. On the other hand, the learned Additional Advocate General argued that the offences committed by the petitioner fall within two different heads of law and no embargo in such like matter has legally been placed on the jurisdiction of law enforcing agency or courts for prosecution of such offences or trial of cases in courts of different jurisdiction.
5. I have heard learned counsel for the petitioner as well as the Additional Advocate General and gone through the record.
6. The record reveals that petitioner is not only involved in the case in hand but he has been charged and under prosecution in number of other cases as well, registered against him by various persons, who were allegedly defrauded and cheated by the petitioner at different occasions including Reference No. 05/2014 by the NAB Authorities before the Accountability Court under sections 18(g) and 24 of the National Accountability Bureau Ordinance, 1999 while the instant case has been registered against the petitioner by respondent No.2 wherein the latter has been deprived of an amount of Rs.5,46,000/- by the former on the pretext of giving him a handsome income / interest, directly charged for commission of the offence under sections 419/420, P.P.C.
6(sic.) The contention of the learned counsel for petitioner that he A could not be prosecuted and punished for the same offence more than once, is misconceived.
7. Article 13(a) of the Constitution provides that no person shall be prosecuted or punished for the same offence more than once, is applicable only if the accused is convicted and punished. In case of acquittal, the second prosecution is not prohibited, however, in such state of affairs; section 403, Cr.P.C. would be applicable as section 403, Cr.P.C. prohibits the second trial for an offence during the course of existence of conviction or acquittal of a person, as the case may be, in consequence of final adjudication.
8. As the offence for which NAB Authorities have booked the petitioner is an independent offence, allegedly committed at different times where the complainant was another person, however, respondent No.2 has been made a witness while the case in hand has no nexus with the offence as stated above.
9. Petitioner along with other co-accused have defrauded various persons in order to give wrongful loss and as such various criminal cases have been registered against them in various police stations and every offence, complained of, is distinguished therefrom the other. So far as the NAB Reference is concerned, the petitioner is not a principal accused therein, however, being the facilitator/accomplice, he is impleaded as an abettor, while in the case in hand, he has been directly nominated accused of the offence.
10. In the case in hand, the petitioner is not prosecuted i.e. neither acquitted nor convicted by any court in the offence for which he has been charged by a competent court of law, therefore, neither the provision of Article 13(a) of the Constitution nor the provisions of section 403, Cr.P.C. can be applied in order to set, aside the impugned FIR. Reliance can be placed on the case law reported as PLD 1995 SC 626 titled "Muhammad Ashraf and others v. The State" where it has been held that constitutional guarantee is available only if the accused is convicted and punished and if the first prosecution results in acquittal, the second prosecution is not prohibited. Rule of double jeopardy, however, is found in section 403(1), Cr.P.C. which prohibits the second trial for an offence during the course of existence of conviction or acquittal of a person, as the case may be, in final consequences of final adjudication of such an offence by a court of competent jurisdiction.
11. The principle enshrined in Article 13(a) of the Constitution as well as the doctrine of law, contained in section 403, Cr.P.C. is century old principle of law based and derived therefrom the ancient maxim that "Absoluta sententia expositore non indiget" meaning thereby that no accused shall be subject to peril twice for the same offence.
12.But as discussed hereinabove, neither the offence, petitioner charged with, is one and the same nor petitioner has previously put to trial, the result whereof he was either convicted or acquitted.
13. Therefore, for the reasons mentioned hereinabove, this petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 read with the inherent powers of this court saved thereunder section 561-A, Cr.P.C., could not be entertained, being devoid of the legal merit, and is dismissed accordingly.