OMAR SIAL, J.---The petitioners are all accused in Reference No. 15 of 2017 which is pending adjud ication before the learned Accountability Court No. IV at Karachi.
2. The petitioners in C.Ps. Nos. D-1503 and D-1229 have impugned an order dated 11-1-2018 whereas the petitioner in C.P. No, D-4019 has impugned an order dated 28-4-2018. Both the impugned orders were passed by the learned Accountability Court No. IV at Karachi dismissing applications filed by the respective petitioners seeking their acquittal in terms of section 265-K, Cr.P.C. We will therefore dispose of all these petitions through this common order .
3. The Reference against the petitioners pertains to an alleged illegal sale of approximately 530 acres of mangrove area between DHA Creek Avenue and Korangi Road in Kara chi. Specific roles of the petitioners in the Reference are not important for the present purpose as the only ground raised before us by all the counsel is that the Reference should be quashed as this is a case of double jeopardy .
4. We have heard the learned counsel for the petitioners as well as the learned Special Prosecutor , NAB.
5. Facts relevant are that on 18-2-2005 an FIR bearing number 10 of 2005 was registered by the State under sections 161, 420, 468, 471 and 34, P.P.C. read with section 5(2) of the Prevention of Corruption Act, 1947 at the Anti-Corruption Establishment The gist of the said FIR was that 530 acres of land between the sea shore and Korangi had been illegally transferred to Amjad Hussain, Mohammad Sultan, Aslam Pervaiz and Nasreen Akhtar (petitioners in C.P. No. D-1503) by virtue of a fraudulent entry dated 15-7-2004 in the record of rights. The petitioner in C.P . No. D-1229 was a government functionary and was accused of aiding the illegal transfer .
6. The case arising out of the aforementioned FIR proceeded before the learned Special Judge, Anti-Corruption (Provincial) Karachi (being Special Case No. 8 of 2005). After the challan had been filed in the said case, the petitioners moved an application seeking their acquittal under section 249-A, Cr.P.C., which application was allowed by the learned judge in terms of her order dated 29-6-2010.
7. Somewhere in the year 2015, NAB received a complaint regarding an illegal allotment of 530 acres of mangrove land. Investigation was authorized on 18-8-2015 which finally culminated in the filing of the Reference No. 15 of 2017 on 4-4-2017. The petitioners alongwith a number of others were shown as accused in the said Reference. It has not been denied by the learned Special Prosecutor , NAB that the land in question in the present Reference is the same as that which was in issue in the anti-corruption case.
8. As mentioned previously , the only ground that has been argued before us is that Reference No. 15 of 2017 should be quashed as it tantamount to double jeopardy and in violation of section 403, Cr.P.C. read with Article 13 of the Constitution and Section 26 of the General Clauses Act, 1897. In support of their respective arguments, the learned counsels have relied upon: Syed Alamdar Hussain Shah v. Abdul Baseer Qureshi and others (PLD 1978 SC 121), Muhammad Noor v. Member , Board of Revenue Balochistan and others (PLD 1985 SC 335), Muhammad Ashraf v. The State (1995 SCMR 626), Abdul Malik v. The State (PLD 2006 SC 365), Ch. Tanveer Khan v. Chairman, NAB (PLD 2002 SC 572), Badar Alam Bachiani v. The State (2010 PCr.LJ 1988) and lmtiaz Ahmed Dev. v. NAB (2018 MLD 1908 (Sindh)) . With much respect we find that the cited cases reiterate the undisputed principle that a person may not be vexed for the same offence twice, however , the facts of most are different and are of not much help to the petitioners in the present scenario. To the contrary , a close read of some of the cited judgments reveals that there are observations in these judgments that are against the arguments advanced by the learned counsel; some such parts we have referred to in our opinion.
9. Under Article 13 of the Constitution, no person shall be prosecuted or punished for the same offence more than once. Article 13 incorporates within its scope the plea of autre fois convict as known by the British jurisprudence or the plea of double jeopardy as known to the American Constitution by providing that no person (a) shall be prosecuted or punished for the dame offence more than once; or (b) shall, when accused of an offence, be compelled to be a witness against himself. The constitutional protection of Article 13 however does not upon a literal interpretation extend to autrefois acquit. The Honorable Supreme Court in a case titled Muhammad Ashraf and others v . The State (1995 SCMR 626 ) while referring to Article 13 observed that: "It seems to us that if as a result of prosecution for an offence the trial ends in acquittal, Article 13(a) is not attracted. Constitutional guarantee is available only if the accused is convicted and punished. Thus if the first prosecution results in acquittal, so far as this Article is concerned, the second prosecution is not prohibited. It is, however , open to the legislature to enlarge the scope of Constitutional guarantee and further extend the protection envisaged by Article 13(a). Such extens ion of rule of double jeopardy is to be found in section 403(1) of the Criminal Procedure Code, which is reproduced below:"
In the same judgment i.e. Muhammad Ashraf (supra) the Court held that: "It is to be noticed that the Constitutional guarantee is confined only to duplicate punishment and is silent in so far as acquittal is concerned. Section 403 (1) however 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 conseque nce of final adjudication of such an offence by a Court of competent jurisdiction. Thus the rule against "autrefois acquit" finds place in section 403(1) and the counterpart of this rule "autrefois convict" has received recognition in the Constitutional guarantee embodied in Article 13(a)."
10. We may hasten to add however that in a subsequent case, Hasan and others v. The State and others (PLD 2013 SC 793) the obiter dicta appears to suggest that the constitutional guarantee of Article 13 may extend to cases of "autrefois acquit ". The Honorable Supreme Court in that case, while referring to Article 13 commented that "We understand that all that the said provision of the Constitution does is to recognize the age old maxims and jurisprudential principles of autrefois acquit and autrefois convict and to grant them the status of a Fundamental Right which right cannot be violated or abridged and against which no legislation can be passed. " Reference may also be made to the case of Nazir Ahmed v . Capital City Police, Lahore and another (2011 SCMR 484 )
11. Statutory protection against autrefois acquit is contained in Section 403 of the Code of Criminal Procedure, 1898. This provides that:
(1) A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under section 236, or for which he might have been convicted under section 237.
(2) A 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).
(3) A person convicted of any offence constituted by any act causing consequences which, together with such act, constituted a different offence from that of which he was convicted, may be afterwards tried for such last mentioned offence, if the consequences had not happened, or were not known to the Court to have happened, at the time when he was convicted.
(4) A person acquitted or convicted of any offence constituted by any acts may, notwithstanding such acquittal or conviction, be subsequently charged with, and tried for, any other offence constituted by the same acts which he may have committed if the Court by which he was first tried was not competent to try the offence with which he is subsequently charged.
12. In essence, section 403 is based on the maxim nemo debet bis puniri pro uno delicto , which means that no one ought to be punished twice for one offence. Apart from a bare reading of section 403, the Honorable Supreme Court in the Nazir Ahmed case (supra) has held that for the applicability of the rule of autrefois acquit essential conditions to be satisfied are (1) there must have been a trial of the accused for the offence charged against him,
(2) the trial must have been by a Court of competent jurisdiction and (3) there must have been a judgment or order of acquittal, (4) the parties in the two trials must be the same, (5) fact-in-issue in the earlier trial must be identical with what is sought to be re-agitated in the subsequent trial.
13. The entire basis of section 403, Cr.P.C. as is clear from its very language, is that in order to avail the benefit of this section it is a condition precedent that the person seeking such protection should have been "tried" for the same offence earlier in which he was convicted or acquitted. In other words a "trial" of the accused is essential. The word "trial" is not defined in the Code, however , Part VI of the Code (Proceedings in Prosecution) suggests that the framing of a charge marks the commencement of the "trial", all proceedings prior to it fall within the ambit of the inquiry or investigation stage. It is possible that in certain situations the word "trial" could be given a .more liberal interpretation but we are of the view that when the plea of autrefois convict or autrefois acquit is raised, it should be given an interpretation which is reflected from the scheme of the legislation. We have been informed by the learned Special Prosecutor , NAB that in the case arising out of FIR 10 of 2005 (being Special Case No. 8 of 2005) all the nominated accused were acquitted prior to the framing of the charge. In other words the accused were not "tried" before their acquittal. The submission of the learned Special Prosecutor , NAB has not been rebutted by any of the learned counsel appearing for the petition ers and indeed the record of the case does not reveal that a charge was framed. In our view section 403, Cr .P.C. will not come into play in the present case.
14. We will revert to Article 13 of the Constitution which has also been relied upon by the learned counsel for the petitioners. Apart from what we have mentioned above that the Honorable Supreme Court is of the view that the plea of autrefois acquit does not fall within its ambit, in the Muhammad Ashraf case (supra) it has also equated the use of the word "prosecution" in Article 13 to mean a trial: "It will be seen that the protection given by this Article is against prosecution and double punishment. By prosecution is meant a trial followed by judgment of acquittal or punishment. It includes the entire proceedings starting with taking cognizance of an offence by the Court, followed by examination of evidence, addressing of arguments and ending with the pronouncement of judgment."
15. The above position was reiterated by the Honorable Supreme Court in Shadi Khan v. The State -through Advocate-General of Balochistan, Quetta (2002 SCMR 273) and Sher Mohammad Unar and others v. The State (PLD 2012 SC 179 ).
16. There is another aspect to this case as well which has a bearing on whether the provisions of section 403, Cr.P.C. and Article 13 are applicable in the circumstances of the case. In this connection two relevant judgments are The State through the Collector of Customs, Dry Port Sambrial, Sialkot v. Ali Raza and others (PLD 2002 SC 610) and Muhammad Nadeem Anwar v. Securities and Exchange Commission of Pakistan (2014 SCMR 1376 ).
17. In Ali Raza's case (supra) the respondents (there were more than one) were found in possessi on of narcotics and were tried for offences under section 9(c) of the Control of Narcotic Substances Ordinance, 1997 and sections 156(1), (8) and (14) of the Customs Act. The trial culminated in the convictio n of all the respondents. After completion of that trial the respondents were sent up for trial again before a Special Judge under the Control of Narcotic Substances Act, 1997 because contraband items recovered from their possession also constituted the offence falling within the mischief of section 9 of the Control of Narcotic Substances Act, 1997. The respondents approached the Lahore High Court claiming double jeopardy and the Court quashed the proceedings on the ground that the offence falling within the mischief of the Customs Act were not distinguishable from the offence falling within the mischief of the Control of Narcotic Substances Act. The State appealed the decision of the High Court. The Honorable Supreme Court observed that "the only question taken up for adjudication was as to whether a person who has been tried by the Special Judge Customs and as a result wher eof either has been acquitted or convicted for the offence of smuggling or being in possession of smuggled items then can be tried for the second time under the provisions of Control of Narcotic Substances Act, 1997." The Honorable Supreme Court set aside the judgment of the High Court after observing that: "Therefore, in this backdrop crucial question crop up whether trial of the respondents under section 9 of Control of Narcotic Substances Act, 1997 is prohibite d in view of the bar contained under section 403(1), Cr.P.C., which speak that if a person who has once been tried by a Court of competent jurisdiction of an offence and convicted or acquitted for the same offence, but further bars his trial on the same facts for any other offence for which a different charge from the one made against him might have been framed under section 236 or for which he might have been convicted under section 237. Admittedly to attract the provisions of section 156 of the Customs Act the Federal Government by means of a Notification declares that bringing in or taking out from Pakistan narcotic or drugs is prohibited. Whereas section 9 of the Control of Narcotic Substances Act, 1997 provides punishment for contravention of sections 6, 7 and 8 of the Act. In view of both these provisions it is to be seen that if an accused has violated both the provisions of law simultaneously , would he enjoy protection of section 403, Cr.P.C. on the principle that he has committed the same offence. In this behalf in number of reported judgments it has been held that violation of both these provisions of law are different and distinct from each other , therefore, separate trial of accused under both the provisions is not prohibited . Reference in this behalf may be made to the Jamshed Ali v The State (1988 PCr.LJ 881), State v. Anwar Khattak and others (PLD 1990 FSC 62), Muhammad Ashraf and others v. The State (1995 SCMR 626) and Sakhi Dost Jan v. State (PLD 2000 Quetta 26) and the judgment relied upon by the learned counsel in the case of the State through Collector of Customs, Custom House, Lahore v . Nasim Ahmad Butt and others (2001 SCMR 1083 )".
18. The facts in the Nadeem Anwar case (supra) were that the Securities and Exchange Commission of Pakistan filed a criminal complaint against Nadeem Anwar and others under various provisions of the Companies Ordinance 1984 and the P.P.C. At trial, the accused moved an application under section 403, Cr.P.C. read with Article 13 of the Constitution as well as section 26 of the General Clauses Act, 1897 on the ground that the accused had already been convicted by an Accountability Court on the same, similar and identical set of facts. The application was dismissed by a learned Division Bench of the Peshawar High Court. The dismissal was appealed before the Honorable Supreme Court. The Court observed that: "Bare reading of afore-quoted provision of law is clearly suggestive of the fact that both are under different enactments of law having different procedure and forum for initiating proceedings thereunder although both the sets of offences have been committed by the accused in one go that is to say that the accused-petitioner acted in such a manner which constituted offences punishable under two separate and distinct laws i.e. one under the NAB Ordinance and the other under the Companies Ordinance. Both are different and distinct pieces of legislation, therefore, acts and omissions of the petitioner committed by him cannot be said to be same offences."
Later in the same judgment the Supreme Court held that: "The facts of the instant case, viewed from any angle are suggestive of the fact that the petitioner committed offences under two different enactments though by commission of act and omission in one go and do not at all fall within the ambit of same offence. In such circumstances, provisions of Article 13(a) of the Constitution of Islamic Republic of Pakistan, 1973, section 403 of the Code of Criminal Procedure, 1898 and section 26 of the General Clauses Act, 1897 are not relevant in the instant case because the petitioner committed offences which are neither similar to each other nor under the same enactments, therefore, the learned High Court has rightly held so while dismissing the constitutional petition and intra court appeal filed by the petitioner before Peshawar High Court, Peshawar ."
19. Applying the ratio of the above judgm ents to the present scenario, we see that there is no dispute to the fact that the petitioners earlier were accused of committing offences under a different enactment i.e. the P.P.C. and the Prevention of Corruption Act, 1947 where as now they are accused of offences under the National Accountability Ordinance 1999 i.e. under a separate enactment. The offences with which they were accused previously were section 161 (a public servant taking gratification other than legal remuneration in respect of an official act); section 420 (cheating and dishonestly inducing delivery of property); section 468 (forge ry for purpose of cheating) and section 471 (using as genuine a forged document). Under the NAB Reference they are accused of offences under section 9(a)(i)(ii)(iii)(iv)(v)(vi)(vii)(ix) (x)(xi) and (xii). The sections of law with which the accused are charged are much wider in scope than those with which they were accused earlier and the ingredients of the offence are also very different. Further , one of the main objects of the NAO is recovery of misapprop riated money , which is an object unique to the said legislation. NAB in its investigation has collected a lot more evidence allegedly against the petitioners than that which was previously available and it is also pertinent to mention that the disputed entry was cancelled in the records before the acquittal of the petitioners before the anti-corruption court but soon after their acquittal it was once again allegedly illegally re-inserted. We are of the view that the judgments of the Honorable Supreme Court in the Ali Raza case (supra) and the Nadeem Anwar case (supra) are applicable in the present circumstances.
20. To summarise the above:
(i) Section 403, Cr.P.C. and Article 13 of the Constitution are not applicable in the case as the petitioners were not "tried" in the earlier case.
(ii) The petitioners committed of fences which are neither similar to each other nor under the same enactments.
21. In view of the above, C.P. No.D-1229 of 2017, C.P. No. D-1503 of 2018 and C.P. No. D-4019 of 2018 are dismissed.
C.P. No. 4492 of 2017 is a petition seeking bail hence the office is directed to de-attach it from the bundle and fix it for hearing in the third week of August, 2020 after notice to all parties.