WAQAR AHMAD SETH, J.---Through the instant Writ Petition, the petitioner seeks issuance of an appropriate writ with the following prayer: i. "It is, therefore, most humbly prayed that on acceptance of this writ petition this honourable Court may graciously be pleased to: Declare that the Reference No, 01/2015, arising out of the same acts and pertaining to the period during which the petitioner remained Pension Payment Clerk PMP section for which petitioner has already been tried and convicted in References No, 04/2006 and No,15/2006, along with the Impugned Order dated 04.03.2016, being unwarranted, illegal, unlawful, without jurisdiction and a nullity in law as such are liable to be set aside and quashed; ii. Quash Impugned Reference No,01/2015 filed by the Respondents against the petitioner as being illegal, unlawful and void ab initio; iii. Grant interim-relief by suspending the proceedings underway before Respondent No,5 in Reference No,01/2015 and suspend the Impugned Order dated 04.03.2016 of Respondent No,5, till the final disposal of the instant petition; iv. Grant any other relief that this honourable Court deems fit and appropriate in the facts and circumstances of the case".
2. Brief facts of the case are that the petitioner was serving as Pension Payment Clerk, Pakistan Military Pensions, Male Pension Section G.P.O, Peshawar and two references No, 04/2006 and 15/2006 were filed against him by the respondents/NAB in the Court of learned Judge Accountability Court-II, Peshawar on the ground of being involved in the embezzlement in pension payments during the period from 1.7.2003 to 31.12.2003 and 1.1.2004 to 30.6.2004. Subsequently, third reference No, 01/2015 pertaining to the period from 1.7.2004 to 15.1.2005 was also filed against the petitioner. In the above said two references, on conclusion of trial, the petitioner was convicted and sentenced to six (06) years' RI each along with fine vide order dated 31.3.2015. Feeling aggrieved, the petitioner filed two appeals before this Court along with applications under section 426, Cr.P.C. and vide order dated 17.6.2015, the applications were allowed, the sentence of the petitioner was suspended and he was granted bail. However, in the third reference No, 01/2015 where charge was framed against the petitioner on 27.2.2015 and is still pending before the learned Judge Accountability Court-II, Peshawar, the petitioner filed an application under section 265-K, Cr.P.C. for his acquittal before the learned trial Court but the same was dismissed vide order dated 4.3.2016, which has now been impugned through the instant Writ Petition.
3. Respondents have filed their comments and stated therein that the accused-petitioner remained as Pension Payment Clerk during the relevant period and he was responsible to withdraw cash in advance from the treasurer of GPO Peshawar as per daily requirement by affixing his signatures in Treasury Cash Book. After making payment to the pensioners, he used to return the remaining balance, if any, back to treasurer in hand to hand cash book duly signed by him, which this proves his active role in the embezzlement. He used to get thumb impression of the pensioners on the schedule PSB-2 paid due amount to the pensioners, returned their passbooks and retained all pension payment vouchers. During the said period, he fraudulently tampered with the record and made bogus entries in PSB-2, 7 and 8 to enhance the payment amount, whereas, he made actual amount to the pensioners entitled to as per their passbook and retained the enhanced amount, which was embezzled, thus, the accused-petitioner in connivance with other accused caused a colossal loss of Rs, 11,726 millions to the public exchequer. They further stated that the petitioner was convicted for the period from 1.7.2003 to 31.12.2003 and 1.1.2004 to 30.6.2004 while the instant reference is in fact pertaining to a different period, during which, he remained as Pension Payment Clerk (Male) GPO, Peshawar and his application under section 265-K, Cr.P.C. was rightly dismissed by the learned trial Court; hence, the respondents prayed for dismissal of instant Writ Petition being devoid of any legal force and based on mala fide.
4. Arguments heard and record perused.
5. Admittedly, petitioner remained posted as Pension Payment Clerk, Pakistan Military Pension/Male pension section, GPO, Peshawar during three different tenures i,e, 1.11.2002 to 30.7.2004, 10.8.2004 to 22.8.2004 and lastly from 16.12.2004 to 15.1.2005 and previously two references were filed against him wherein he was convicted for 6 years' RI with fine in both the references, separately.
6. Reference No, 4/2006 was in respect of period 1.7.2003 to 31.12.2003 and in reference No, 15/2006 the period was 1.1.2004 to 30.6.2004. Reference No, 1/2015, the present ,one filed against the petitioner after 8/9 years of conviction in earlier in references and the period pertains 1.7.2004 to 15.1.2005 i,e, exactly six months pertaining to reference No,15/2006. The question before this Court is that what was the reason that prosecution/NAB had not filed any reference or included the said period which is exactly in continuation of period of reference No,15/2006.
7. There is nothing on record showing any reasons for the bifurcation or separation of period of 1.7.2004 to 15.1.2005 of the instant reference from the earlier two references which were upto 30.6.2004. Even at the time of arguments before this Court respondents were asked to put forward any story to this effect, but they failed to come up with any plea much less plausible to show that why and how the "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".
8. Section-17(d) of the National Accountability Ordinance, 1999, reads as under:-
9. Admittedly, there is no accusation on behalf of respondents that the offence charged in the instant reference is different in nature or of different kind. In fact it's the continuation of same offence, modus operandi and the same transaction except the period. This court while dilating upon the sentence used in section 17(d) of the NAB Ordinance "a person accused of more offences than one of the same kind committed during the space of any number of years, from first to the last of such offences", has issued a writ that there could not be more than one reference in this respect. W.P. No, 3075-P of 2015 titled Mr. Arshad Khan v. Chairman NAB etc., decided on 14.12.2016, is referred.
10. There is maxim "Nemo debet his punier prune delicto" (No one shall be placed in peril (Jeopardy) of legal penalties more than once upon the accusation). If the prosecution is permitted to conduct in the way they are acting then there would be no end to the prosecution once a person gets to their hands. Reliance is placed on 2008 YLR 2688, wherein it was held that:- "Ss. 9(a), 18(g) & 24--- Constitution of Pakistan (1973), Art. 199--- Constitutional petition--- Second reference, competency of---Mere difference of dates of deposits and amounts and persons depositing the said amounts the company of the petitioners, would not constitute separate offences, neither separate reference through a subsequent investigation could be filed--- Subsequent reference could, at the most, be termed to be supplementary reference to the one already filed---Contention of Special Prosecutor NAB, that impugned second reference was a reference wherein other 20 Pakistani National had been cheated, defrauded and deprived by the petitioners through their Money Exchange business, was repelled---If said contention was allowed, then there would be no end to the filing of references--- Impugned second reference would be treated by the accountability court already trying the petitioners, as a supplementary reference in circumstances."
In the case reported in PLD 2003 SC 891, it has further been held that:- "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 Minster 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 section 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."M
11. In response to the judgment of this Court delivered in connected W.P. No, 3075-P/2015 dated 14.12.2016 and the above cited other precedents, learned DPG, while relying on PLD 2016 SC 763, requested for dismissal of writ petition as earlier the apex Court of the country has justified the filing of reference after the conviction and sentenced in the earlier references. We have given our anxious consideration to the said reported judgment of the apex court but with due respect to the said judgment, are of the view that in that case, there was a different proposition i,e, that accused in that case was convicted and sentenced in first reference regarding the purchase of vehicles whereas the second reference was in respect of purchases of mines rescue equipment's at exorbitant rates, reflecting that both the references were of different nature, whereas in the instant case accused-petitioner being posted against post of pension payment clerk in a serial of conduct with same modus operandi under the same head while sitting on the same chair in exactly similar nature committed offences, in continuous manner and as such the case law of PLD 2016 SC 763 is quite different to the present proposition. Had the prosecution vigilant and bona fide they would have dug-out the commission of offence of the period 1.7.2004 to 15.1.2005 while filling the reference No,2 for the period 1.1.2004 to 30.6.2004 and the negligence and inefficiency so committed by the prosecution seems to be a mala fide act in order to get a person in their hand, convict repeatedly.
12. In view of above the application under section 265-K, Cr.P.C. filed by the petitioner before the trial Court is held to be legal and justified, hence allowed and as such petitioner is acquitted of the charge levelled against him.