1. ' MUHAMMAD MUJEEBULLAH SIDDIQUI, J.--- All above appeals and revision applications arise out of the similar set of facts but are directed against four different orders of the learned trial Courts.
2. ' The relevant facts are that accused Ramesh M. Udeshi was Secretary, Land Utilisation Department in the Government of Sindh. At the relevant time Syed Abdullah Shah, was Chief Minister of the Sindh Province. 26 persons whose names shall presently transpire with the reproduction of summary prepared by accused Ramesh M. Udeshi, for the then Chief Minister of Sindh, were leased out lands measuring different areas in various Dehs of Karachi, East, for a period of 30 years for the purpose of Poultry Farming. The lands were originally leased out by the Deputy Commissioner, Karachi, East. The Chief Minister entertained applications from all the 26 lessees, seeking conversion of the lands and the Chief Minister vide orders, dated 15-1-1994 allowed the conversion in relaxation of policy and existing ban. The Chief Minister, not only allowed the land meant for poultry farms to be converted for industrial/residential/commercial purposes, but extended the period of lease from 30 years to 99 years as well at the rate of Rs,25,000 per acre.
3. ' All the applications which were entertained directly by the Chief Minister and were allowed by him were sent to accused Ramesh M. Udeshi and he in the capacity of Secretary, Government of Sindh Land Utilisation Department prepared summary on 20-1-1994, which reads as follows:-- "Government of Sindh Board of Revenue Summary for the Chief Minister, Sindh ' Subject: Conversion of Poultry Farming leases from 30 years leases in Dehs Rehri, Gangiaro, Khanto and in Deh Dih, Karachi East for Industrial/Residential/Commercial purposes at the prescribed rate of Rs,25,000 per acre. As on prescribed rate of Rs,50,000 per acre.
4. ' Chief Minister, Sindh may kindly peruse his following orders/directives on the various following applications for conversion of poultry farming lease period from 30 years into industrial/residential/commercial purposes on 99 years at the prescribed rate of Rs,25,000 per acre. The name of applicants, area leased out. N.A. Class No, Deh and orders of the Chief Minister, Sindh are shown against each:-- Sr. No, Name applicant/lesseeArea held on lease NA class No, Deh as per applicationOrders/directives of Chief Minister 1 Mr. Muhammad Budhal son of Mir Muhammad 16-0 acres in NC 26 Deh Rehri Karachi East leased for poultry farming purposesConversion allowed in relaxation of policy and existing ban.
5. (Sd.) Chief Minister, Sindh. 15-1-1994.
6. Annexure "A"
7. 2 Mr. Hamzo son of Sadiq 16-0 acres in NC 26 Deh Rehri Karachi East leased for poultry farming purposes .Conversion allowed in relaxation of policy and existing ban.
8. (Sd.) Chief Minister, Sindh.
9. Annexure "B"
10. 3 Mr. Saleh Muhammad son of Muhammad Hassan 16-0 acres in NC 26 Deh Rehri Karachi East leased for poultry farming purposesConversion allowed in relaxation of policy and existing ban.
11. (Sd.) Chief Minister, Sindh.
12. 15-1-1994. Annexure "C"
13. 4 Mr. Abdul Aziz son of Dawood 16-0 acres in NC 26 Deh Rehri Karachi East leased for poultry farming purposesConversion allowed in relaxation of policy and existing ban.
14. (Sd.) Chief Minister, Sindh.
15. 15-1-1994. Annexure "D"
16. 5 Mr. Hassan Ali son of Taj Muhammad 16-0 acres iii NC 26 Deh Rehri Karachi East leased for poultryConversion allowed in relaxation of policy and existing ban. farming purposes (Sd.) Chief Minister, Sindh.
17. 15-1-1994. Annexure "E"
18. 6 Mr. Abubakar son of M. Dawood 16-0 acres in NC 26 Deh Rehri Karachi East leased for poultry farming 30 years.Conversion allowed in relaxation of policy and existing ban.
19. (Sd.) Chief Minister, Sindh.
20. 15-1-1994. Annexure "F"
21. 7 Haji Sachal Muhammad son of Muhammad Siddiq 16-0. Acres in NC 26 Deh Rehri Karachi East leased for poultry farming 30 years lease.Conversion allowed in relaxation of policy and existing ban.
22. (Sd.) Chief Minister, Sindh.
23. 15-1-1994. Annexure "G"
24. 8 Mr. Younus son of Haji Saboo 16-0 acres in NC 26 Deh Rehri Karachi East leased for poultry farming 30 years lease.Conversion allowed in relaxation of policy and existing ban.
25. (Sd.) - Chief Minister, Sindh.
26. 15-1-1994. Annexure "H"
27. 9 Mr. Hassa son of Haji Saboo 16-0 acres in NC 26 Deh Rehri Karachi East leased for poultry farming 30 years lease.Conversion allowed in relaxation of policy and existing ban.
28. (Sd.) , Chief Minister, Sindh.
29. 15-1-1994. Annexure "I"
30. 10 Mr. Faryad son of Soomar 16-0 acres in NC 26 Deh Rehri Karachi East leased for poultry farming 30 years lease. ' Conversion allowed in relaxation of policy and existing ban.
31. (Sd.) Chief Minister, Sindh.
32. 15-1-1994. Annexure "J"
33. 11 Mr. Ibrahim son of Ahmed 16-0 acres in NC 26 Deh Rehri Karachi East leased forConversion allowed in relaxation of poultry farming 30 years lease.policy and existing ban.
34. (Sd.) Chief Minister, Sindh.
35. 15-1-1994. Annexure "K"
36. 12 Mr. Abdullah son of Muhammad 16-0 acres in NC 26 Deh Rehri Karachi East leased for poultry farming 30 years. , Conversion allowed in relaxation of policy and existing ban.
37. (Sd.) Chief Minister, Sindh.
38. 15-1-1994. Annexure "L"
39. 13 Mr. M. Hanif son of Haji A. Rahim 16-0 acres in NC 26 Deh Rehri Karachi East leased for Conversion allowed in relaxation of poultry farming 30 years.Policy and existing ban.
40. (Sd.) Chief Minister, Sindh.
41. 15-1-1994. Annexure "M"
42. 14 Mr. Noor Muhammad son of Haji Raza Muhammad . 16-0 acres in NC 26 Deh Rehri Karachi East leased for poultry farming 30 years.Conversion allowed in relaxation of policy and existing ban.
43. (Sd.) Chief Minister, Sindh.
44. 15-1-1994. Annexure "N"
45. 15 Mr. A. Sattar son of Haji Sachal 16-0 acres in NC 26 Deh Rehri Karachi East leased out for poultry farming 30 yearsConversion allowed in relaxation of policy and existing ban.
46. (Sd.) Chief Minister, Sindh.
47. 15-1-1994. Annexure "O"
48. 16 Mr. M. Younis son of Saleh 4-0 acres in NC 46 Deh Gangiaro Karachi East leased out for poultry farming 30 yearsConversion allowed in relaxation of policy and existing ban.
49. (Sd.) Chief ', Minister, Sindh.
50. 15-1-1994. Annexure "P"
51. 17 Mr. Hassan All son of Taj Muhammad4-0 acres in NC 46 Deh GangiaroConversion allowed in relaxation of Karachi East leased out Dairy farming for 30 years.policy and existing ban.
52. (Sd.) Chief Minister, Sindh.
53. 15-1-1994. Annexure.
54. "Q"
55. 18 Mr. Zafar son of Ibrahim 16-0 acres in NC 46 Deh Gangiaro Karachi East leased out . For Dairy farming on 30 years. Conversion allowed in relaxation of policy and existing ban.
56. (Sd.) Chief Minister, Sindh.
57. 15-1-1994. Annexure "R"
58. 19 Mr. Abubakar 4-0 acres in NC 46 Deh Gangiaro Karachi East leased out for Dairy farming on 30 yearsConversion allowed in relaxation of policy and existing ban.
59. (Sd.) Chief Minister, Sindh.
60. 15-1-1994. Annexure "S"
61. 20 Mr. Abdul Aziz son of Dawood 3-0 acres in NC 46 Deh Gangiaro Karachi East leased out for Dairy farming on 30 years. Conversion allowed in relaxation of policy and existing ban.
62. (Sd.) Chief Minister, Sindh.
63. 15-1-1994. Annexure "T"
64. 21 Messrs Iqbal Rasheed and Muhammad Ali 4-0 acres in NC 89 Deh Khanto Karachi East leased out for poultry farming on 30 yearsConversion allowed in relaxation of policy and existing .
65. Ban.
66. (Sd.) Chief Minister, Sindh.
67. 15-1-1994. Annexure "U"
68. 22 Mr. Abdul Majeed Jokhio 13-28 acres in NC 29 Deh Khanto Karachi East leased out on 10 years for Barani cultivation.Conversion allowed in relaxation of policy and existing ban.
69. (Sd.) Chief Minister, Sindh.
70. 15-1-1994. Annexure "V"
71. 23 Mr. Muhammad Ibrahim Malik son of Haji Khair Din 15-0 acres in NC 24 Deh Dih Karachi East leased out on 30 years for poultry 'farming purposes.Conversion allowed in relaxation of policy and existing ban.
72. (Sd.) Chief Minister, Sindh.
73. 15-1-1994. Annexure "W"
74. 24 Mr. Hussain Box 4-0 acres in NC 26 Deh Rehri Karachi East leased out on 30 years for poultry farming purposes.Annexure "X"
75. 25 M. Saleh son of Naukar Khan 8-0 acres in NC 26 Deh Rehri Karachi East leased out on 30 years for poultry farming purposes.Annexure "Y"
76. 26 Mr. Khadim Hussain son of Hussain Bux 8-0 acres in NC 26 Deh Rehri Karachi East leased out on 30 years for poultry farming purposes.Annexure "Z"
2. As per orders of the Deputy Commissioner, Karachi, East mentioned above, the applicants were leased out land as shown against each in Deh Rehri, Gangiaro, Khanto and in Deh Dih for poultry farming purposes as well as Dairy/Barani cultivation purposes. Regarding the question whether these leases are intact, cancelled under suo motu stay or falls in any scheme of K.D.A. Hence it is for the D.C., Karachi, East to report the present position/status of land involved as discussed in preceding paragraphs.
3. Besides above, according to existing provisions of the policy/ rule/law, there is no such provision/condition to convert Poultry/Dairy/Barani cultivation leases into 99 years lease for industrial/residential/commercial purposes. According to condition No,14 of the Statement of Conditions notified on 12-5-1975, the commercial plots are to be disposed of through open auction.
77. Condition No,16 (ibid) provides that the industrial plots are to be disposed of by open auction or through private negotiations subject to N.O.C. Of Industries Department. Besides, the Government has constituted the Price Fixation Committee under the Chairmanship of Minister, Industries for determination of price. Under rule 28 of Rules of Business, the price of land has to be fixed with the consultation of Finance Department.
4. Mention may be made that in the previous Government such conversions were allowed in relaxation of existing policy rule/law as well as in Rules of Business by exercising powers envisaged under section 10(1) of the Colonization of Government Lands (Sindh) Act, 1912. The rate on which such conversion was allowed is Rs,50,000 per acre in Deh Rehri, Gangiaro, Khanto and in Deh Dih, at Rs,25,000 per acre as mentioned in the above applications.
5. In view of the position explained above, if the Chief Minister Sindh is inclined to consider the request of the applicants, the same may be allowed under section 10(1) of the Colonization of Government Lands (Sindh) Act, 1912 duly vetted by Law Department vide its opinion, dated 13-5- 1990 (Annexure "CC") in relaxation of existing policy/Rules of Business as well as ban imposed by the Government at the rate of Rs,50,000 per acre.
78. (Sd.) Ramesh M. Udheshi Secretary, to Government of Sindh Land Utilization Department.
79. Chief Minister, Sindh ' The above summary was approved by the then Chief Minister of Sindh on 25-1-1994 and was received back by Ramesh M. Udeshi on 21-9-1994. He, thereafter, issued conversion orders on 3,0-1- 1994 to all the 26 beneficiaries. The conversion order contained a direction to the concerned Deputy Commissioner, for taking necessary action and who in turn issued similar directions to the Mukhtiarkar. Thereafter, challans were prepared for depositing the prescribed amount by each of the beneficiaries. After deposit of the amount in Government Treasury, the lease agreements were executed in favour of the respective beneficiaries. The inquiry/investigation was conducted into the allegation of causing huge losses to the State Revenue and extending benefit/favour to the beneficiaries by misuse of authority under the Ehtesab Act, 1997. The investigation was completed under the Ehtesab Act, 1997, but the matter was not referred to the Court. In the meanwhile the Government was taken over by the military. National Accountability Bureau Ordinance was promulgated on 16th November, 1999, whereby the Ehtesab Act, 1997, was repealed.
80. ' The Chairman, National Accountability Bureau, on the basis of investigation already completed under Ehtesab Act, 1997, made various references to different Accountability Courts at Karachi against the beneficiaries separately. In each reference, alongwith respective beneficiary, the then Chief Minister, Sindh and Ramesh M. Udeshi, the then Secretary, Government of Sindh, Land Utilization Department, Government of Sindh were arraigned as accused.
81. ' It would be pertinent to observe that Reference No,18 of 2000 against accused Syed Abdullah Shah, Ramesh M. Udeshi and Abu Bakar son of M. Dawood Jat, was decided by Accountability Court No,1, Province of Sindh (presided over by Dr. Qamaruddin Bohra) on 29-5-2000. Accused Ramesh M. Udeshi was convicted. The beneficiary was also convicted. In the concluding para. Of the judgment, the learned Judge, Accountability Court No,1, Province of Sindh, observed as follows:-- "Before parting with this judgment I am helpless to observe that this reference is outcome of joint summary of 26 cases floated by accused Ramesh M. Udeshi, the then Secretary, Land Utilization Department Government of Sindh, to absconding accused Syed Abdullah Shah, the then Chief Minister of Sindh to favour benefit to 26 persons by allowing conversion of land from one category to other but only to take action choice out present accused Abu Bakar for conversion of 4 acres of land otherwise he was allowed 16 acres in NA Class 26 Deh Rehri, Karachi, East at Serial No,6 in the same joint summary. Against two other beneficiaries namely Muhammad Saleh and Haji Sachal Muhammad, references have been filed which are pending in this Court bearing Nos.17 and 19 of 2000. This shows other 23 beneficiaries are so far left, which reflect adverse to transparent of process of Accountability and this point also raised before this. Court on behalf of accused Abu Bakar (beneficiary). The Chairman, National Accountability Bureau, therefore, may examine the matter within reasonable time so that all culprits be brought to Court who have destroyed the economic of the country and caused loss to Public Exchequer. Copy of this judgment be sent to the Chairman, National Accountability Bureau."
82. ' It appears that after the above observations of learned Judge, Accountability Court No,1, the National Accountability Authorities deemed it fit to make references against other beneficiaries.
83. Accused Ramesh M. Udeshi, was arraigned as accused in each reference seeking his trial separately in each case for the acts and omissions flowing from the joint summary prepared by him. While deciding Reference No,18 of 2000, the learned Judge, Accountability Court No,1, framed the following points for determination in respect of Mr. Ramesh M. Udeshi.
2. Whether accused Ramesh M. Udeshi in connivance with absconding accused Syed Abdullah Shah and to favour the co-accused Abu Bakar floated a joint summary, dated 20-1-1994 in violation of law/instructions and also in flagrant disregard of the Sindh Government Rules of Business, 1986 issued Conversion Order No,PS/MBR/(L.U.)/93/94, dated 30-1-1994 in violation of the existing ban and also informed the then Deputy Commissioner, District Malir and under instructions of accused Ramesh M. Udeshi, the then Deputy Commissioner issued letter to Mukhtiarkar, Malir giving the list of 25 persons including the name of co-accused Abu Baker and thus accused Abu Baker illegally benefited by the said conversion?
3. Whether accused Ramesh M. Udeshi and absconding accused Syed Abdullah Shah by allowing conversion as public functionaries at throwaway price at Rs,50,000 per acre causing colossal loss to the public exchequer as at the relevant time the market value of the land in, question was Rs,4,89,000, and thus in surreptitious and dishonest deal in collusion and connivance an illegal loss to the tune of Rs,17,56,000 was caused to the State by corruption and corrupt practices provided illegal benefit to co-accused Abu Bakar by misuse of authority being holder of Public Office and showing favouritism and nepotism in favour of co-accused Abu Bakar?
4. What offence, if any, has been committed by the above-named accused persons?
84. ' Accused Ramesh M. Udeshi, was convicted in Reference No,17 of 2000 also in which beneficiary was Haji Sachal Muhammad son of Muhammad Siddiq Taj, vide judgment, dated 10-7-2000 and the learned trial Court had framed, the inter alias following points for determination:--
2. Whether accused No,2 Ramesh M. Udeshi in connivance with absconding .Accused Syed Abdullah Shah and to favour absconding accused Haji Sachal Muhammad floated a joint summary dated 20-1-1994 mentioning name of absconding accused No,3 at Serial No,3 in violation of law/instructions and also in flagrant disregard of the Sindh Government Rules of Business, 1986 issued S/MBR/(L.U.)/94/94, dated 30-1-1994 in violation of the existing ban and also directed the then Deputy Commissioner, Malir who under instruction of accused Ramesh M. Udeshi issued letter to Mukhtiarkar Malir giving the list of 25 persons including the name of absconding accused Haji Sachal Muhammad for further action and thus, absconding accused Haji Sachal Muhammad illegally benefited by the said conversion?
3. Whether accused Ramesh M. Udeshi and absconding accused Syed Abdullah Shah in collusion with accused No,3 by allowing conversion as public functionaries at throwaway price at Rs,50,000 per acre causing colossal loss to the Public Exchequer as at the relevant time the market value of land in question was Rs,4,00,000 and thus, in surreptitious and dishonesty deal in collusion, connivance and an illegal caused loss to the tune of Rs,56,00,000 to the State by corruption and corrupt practices provided illegal benefit to absconding accused Haji Sachal Muhammad by misuse of authority being holder of Public Office by showing favouritism and nepotism to the absconding accused Haji Sachal Muhammad?
4. What offence, if any, have committed by the above-named accused?
85. ' Accused Ramesh M. Udeshi was convicted in Reference No,19 of 2000 as well vide judgment, dated 12-7-2000 in which the beneficiary is Saleh Muhammad son of Muhammad Hassan. In this case also the points for determination in respect of Remesh M. Udeshi were as follows:--
2. Whether absconding accused Muhammad Saleh by undated application requested for conversion of 16 acres of land having grant of temporary lease for 30 years for poultry farm in N.C.
86. No,26 Deh Rehri, District Malir into a lease for 99 years for industrial/commercial and residential purposes at the rate of Rs,25,000 per acre to absconding accused Syed Abdullah Shah who made an endorsement on 15-1-1994 and marked to accused No,2 Ramesh M. Udeshi the then Secretary, Board of Revenue (Land Utilization) Department, Government of Sindh who received the same on 18-1-1994?
3. Whether accused No,2 Ramesh M. Udeshi in connivance with absconding accused Syed Abdullah Shah and to favour absconding accused Muhammad Saleh floated a joint summary, dated 20-1-1994 mentioning name of absconding accused No,3 at Serial No,3 in violation of law/instructions and also in flagrant disregard of the Sindh Government Rules of Business, 1986 issued Conversion Order No,PS/MBR/(L.U.)/94/94, dated 30-1-1994 in violation of the existing ban and also directed the then Deputy Commissioner, Malir who under instruction of accused Ramesh M. Udeshi issued letter to Mukhtiarkar, Malir giving the list of 25 persons including the name of absconding accused Muhammad Saleh for further action and thus absconding accused Muhammad Saleh illegally benefited by the said conversion?
4. Whether accused Ramesh M. Udeshi and absconding accused Syed Abdullah Shah in collusion with accused No,3 by allowing conversion as Public Functionaries at throwaway price of Rs,50,000 per acre causing colossal loss to the Public Exchequer as at the relevant time the market value of land in question was Rs,4,50,000 and thus in surreptitious and dishonestly causedloss to the tune of Rs,56,00,000 to the State by corruption and corrupt practices provided illegal benefit to absconding accused Muhammad Saleh by misuse of authority being holder of Public Office by showing favouritism and nepotism to the absconding accused Muhammad Saleh?
5. What offences, if any, have been committed by the above-named accused?
87. ' The facts giving rise to the Reference No,18 of 2000 in which Ramesh M. Udeshi, was convicted first of all and in which observation was made by the trial Court that 23 beneficiaries have been left, as contained in the judgment of the trial Court are as follows:-- "Brief facts of the case/reference are that accused Abu Baker addressed an undated application to absconding accused Syed Abdullah Shah, Ex-Chief Minister, Sindh requesting therein that a piece of land admeasuring 4 acres for which temporary lease for 30 years for poultry farm had been granted in his favour in NA Class No,46 Deh Gangiaro, District Malir may be converted inte a lease for 99 years for industrial/residential commercial purposes at the rate of Rs,25,000 per acre in relaxation of policy ban.
88. ' That the application addressed to absconding accused Syed Abdullah Shah on which there was an endorsement, dated 15-1-1994 "conversion allowed in relaxation of policy and existing ban" and the same was marked to accused Ramesh M. Udeshi who has endorsed the same on 18-1-1994.
89. ' That accused Ramesh M. Udeshi thereafter, appears to have floated a joint summary including therein the name of accused Abu Bakar, dated 20-1-1994 in violation of law/instructions and also in flagrant disregard of the Sindh Government Rules of Business, 1986 which provides concurrence of the Finance Department and thus recommended for conversion of land.
90. ' That absconding accused Syed Abdullah Shah and accused Ramesh M. Udeshi were high officials and also holders of Public Office in the Government of Sindh in clandestine manner and in collusion approved the summary on 25-1-1995 including the name of Abu Baker as beneficiary at the rate of Rs,50,000 per acre.
91. ' That accused Ramesh M. Udeshi thereafter issued conversion order No,PS/MBR/(L.U.)/93/94, dated 30-1-1994 in violation of the existing ban and the statement of conditions notified on 12-5-1975 under section 10(1) of the Colonization of Government Lands (Sindh) Act, 1912.
92. ' That accused Ramesh M. Udeshi then initiated to inform the Deputy Commissioner, Karachi, East/Malir and thus the then Deputy Commissioner under the instructions of accused Ramesh M.
93. Udeshi issued letter to Mukhtiarkar, Malir giving the list of 25 persons including the name of accused Abu Baker who had been illegally benefited by such conversion.
94. ' That accordingly a challan for the conversion of land at the rate of Rs,50,000 was deposited and lease agreement was obtained by accused Abu Baker under the directions of absconding accused Syed Abdullah Shah and accused Ramesh M. Udeshi.
95. ' That the land, thus was dishonestly disposed of by the public functionaries at throwaway price causing colossal loss to the public exchequer as at the relevant time the market price of the land in the vicinity was Rs,4,89,000 and thus in surreptitious and dishonest deal in collusion and connivance an illegal loss to the tune of Rs,17,56,000 was caused to the State thus the absconding accused Syed Abdullah Shah and accused Ramesh M. Udeshi have indulged in the acts of corruption and corrupt practices to illegally benefit the accused Abu Baker by showing favouritism and nepotism to accused Abu Baker who has acted as beneficiary by his acts of abetment.
96. ' The above-named accused persons in collusion, connivance and collaboration committed offence/offences under section 9 of the National Accountability Bureau Ordinance, 1999 and thus, accused persons are liable to be punished under section 10 of the National Accountability Bureau Ordinance, 1999."
97. ' In the reference filed subsequent to the observations made by the trial Court while deciding Reference No,18 of 2000, the similar facts were repeated as all of them were based on the contents of the joint summary prepared by Ramesh M. Udeshi.
98. ' For the sake of comparison, contents of Reference No,20 of 2001 are reproduced below:-- Reference No,20 of 2001 State versus ' Noor Muhammad son of Haji Raza Muhammad Jat, Resident of Lath Basti Landhi, Deh Rehri, Tapo Ibrahim Haidri, District Malir, Karachi.
2. Ramesh M. Udeshi, Ex-Secretary, Land Utilization Department, Government of Sindh, presently confined at District Prison Malir (Landhi), Karachi.
3. Syed Abdullah Shah, Ex-Chief Minister Sindh, Karachi.... Accused.
99. Reference under section 18(g) read with section 24(b) of the National Accountability Bureau Ordinance, 1999 (Ordinance (XVIII of 1999).
100. Respectfully shewth:--
1. That accused No,1 resident of Lath Basti Landhi, Deh Rehri, Tapo Ibrahim Haidri, District Malir, Karachi, was granted temporary lease for 30 years in respect of land measuring 16 acres in N.A.
101. Class No,26, Deh Rehri, Tapo Ibrahim Haidri, District Malir, Karachi for Poultry Farming purpose.
2. That an undated application by accused No,1, was addressed to accused No,3, who at the relevant time was Chief Minister, Province of Sindh, for conversion of abovesaid land from Poultry Farming to Industrial/Commercial/Residential purposes for 99 years. The said application was received by accused No,3 in person who was pleased to pass an order as follows:-- ' Conversion allowed in relaxation of policy and existing ban'.
3. That the case of accused No,1 was processed for conversion of land alongwith other applicants through a joint summary floated by accused No,2 who did not resist illegal action of accused No,3 rather mislead him to deal with the matter according to law. The purported order allowing conversion was in violation of law i,e, Colonization of Government Land (Sindh) Act/Statement of conditions notified in 1975 and also Rules of Business, besides the fact, that land in question was within controlled area as notified under Article 12 of K.D.A. Order, 1957. Such order of conversion was based on favouritism/discrimination.
4. That accused Nos.1 and 2 in the circumstances, indulged in the act of abetting the accused No,3 to misuse his authority to dishonestly/wrongfully favour accused No,1. Accused No,3 on such abetment/persuasion while acting in clandestine manner by approving the joint summary on 15-1- 1994 wherein the name of accused No,1 also appears, disposed of the State land on very low price than its actual market value. The purported order allowing conversion was in violation of law i,e, Colonization of Government Land (Sindh) Act/Statement of conditions notified in 1975 and also Rules of Business, besides the fact, that land in question was within controlled area as notified under Article 12 of K.D.A. Order, 1957. Such order of conversion was based on favouritism/discrimination.
5. That all the accused jointly caused colossal illegal loss to the State to the tune of Rs,32,00,000 as the total cost of 16 acres was Rs,40,00,000 (Rs,2,50,000 per acre) whereas accused No,1 paid only Rs,8,00,000 for cost of land (Rs,50,000 per acre) as such all the accused have jointly committed act of corruption and corrupt practices under section 9 and punishable under section 10 of the NAB Ordinance.
6. That the relevant record, list of witnesses and gist of evidence with Annexures are also enclosed.
102. The investigation of this case has been completed under the Ehtesab Act.
103. It is, therefore, prayed that this Honourable Court may be pleased to take cognizance of the offence committed by the accused persons and they be dealt with in accordance with law.
104. (Sd.) Lieutenant-General Chairman (Khalid Maqbool).
105. ' The present cases arise out of References Nos.12, 13, 14, 15, 16, 17, 18, 20, 21, 22 and 23 of 2001.
106. ' The point in issue in all these cases is same to wit whether accused/applicant Ramesh M. Udeshi, could be put to prosecution/trial in other references, once he was tried by Court of competent jurisdiction for an offence and convicted for such offence. The contention on behalf of applicant/accused Ramesh M. Udeshi, is that he is not liable to be tried again for the same offence on the same facts. The case of the prosecution is that accused Ramesh M. Udeshi, can be tried in subsequent references notwithstanding his conviction in References Nos.17, 18 and 19 of 2000, as he committed distinct offence in case of each beneficiary and for which offence separate charge could be framed against him and that in case of each beneficiary, accused Ramesh M. Udeshi, committed an act constituting a different offence from that for which he was convicted, as the consequences were not known to the Court to have happened at the time when accused was convicted in the earlier references.
107. ' Now, we will give brief resume of the orders by the trial Court giving rise to the present revision application/appeals.
108. ' In Reference No,12 of 2001, two beneficiaries contended before the trial Court that the allegation against them is of causing loss to Government Exchequer to the tune of Rs,22,00,000 and they were submitting pay order amounting to Rs,22,00,000, and therefore, they may be released under section 25(a) of the NAB Ordinance. The Special Prosecutor, opposed the plea. The learned trial Court (Accountability Court No,II, presided over by Mr. Riaz Ahmed Phulpoto) after hearing the parties accepted the plea and discharged the accused persons (we will not discuss the finding of the learned trial Court pertaining to discharge of the accused persons by accepting plea of bargain under section 25(a) of the NAB Ordinance, 1999, as it is subject-matter of separate appeal at the instance of State and shall be heard separately). However, while discharging the accused persons, the trial Court directed that the accused holding Public Office including Ramesh M. Udeshi, shall stand disqualified for a period of 10 years for seeking or from being elected, chosen, appointed or nominated as a member or representative of any public body or any statutory or local authority or in the service of Pakistan or of any Province. This finding has been impugned in Criminal Accountability Appeal No,45 of 2001, as violative of the provisions contained in section 403, Cr.P.C. And Article 13 of the Constitution of the Islamic Republic of Pakistan, 1973.
109. ' In the same Court i,e, Accountability Court No,II, Karachi, References Nos.13, 14, and 15 of 2001 were pending against different beneficiaries and the then Chief Minister Sindh, as well as accused Ramesh M. Udeshi. Applications were submitted on behalf of accused Ramesh M. Udeshi, under section 265-D, Cr.P.C. Read with 235, Cr.P.C. Praying that the applicant/accused has been convicted in References Nos.17, 18 and 19 of 2000, and the three subsequent references were based on the same summary floated by the applicant/ accused bearing 26 names of the beneficiaries, thus the applicant/accused already stands tried and convicted by the Accountability Court No,1 and therefore, by virtue of the provisions contained in section 403, Cr.P.C. And Article 13 of the Constitution of the Islamic Republic of Pakistan, 1973, the applicant/accused is protected from double punishment and trial for the same criminal act. The learned Judge, Accountability Court No,II, heard the learned Advocates for the parties and considered the provisions contained in section 4(0), Cr.P.C. Section 5(N), NAB Ordinance, sections 265-D, 235 and 403, Cr.P.C. As well Article 13 of the Constitution of Islamic Republic of Pakistan, 1973, which provides protection against double trial and punishment, and the charge framed by the learned Judge, Accountability Court No,1, Karachi, in Reference No,17 of 2000, which reads as follows:-- In the Accountability Court No,1 Province of Sindh Before Dr. Qamaruddin Bohra Reference No,17 of 2000 State v. Syed Abdullah Shah and 2 others .. Accused 1, Dr. Qamaruddin Bohra, Judge, Accountability Court No,1, Sindh at Karachi do hereby charge you accused.
110. Charge
1. Ramesh M. Udeshi, Ex-Secretary (LU)
111. ' That absconding accused Haji Sachal Muhammad moved undated application for conversion of 16 acres of land having grant of temporary lease for 30 years for poultry farm in NA Class 26 Deh Rehri, Tapo Ibrahim, Hyderi, District East/Malir, into a lease for 99 years for industrial/residential/commercial purpose at the rate of Rs,25,000 per acre in relaxation of policy/ban to absconding accused Syed Abdullah Shah who made an endorsement on 15-1-1994.
112. ' Conversion allowed in relaxation of policy and existing ban'
113. ' That you accused Ramesh M. Udeshi in connivance with absconding accused Syed Abdullah Shah and to favour the absconding accused Haji Sachal Muhammad floated a joint summary of 26 acres, dated 20-1-1994 in violation of law instructions and also in flagrant disregard of the Sindh Government Rules of Business, 1986, issued conversion Order No,PS/MBR/(LU)/94/94, dated 30-1- 1994 in violation of the existing ban and also informed the Deputy Commissioner, District Malir under instructions of you accused Ramesh M. Udeshi issued letter to Mukhtiarkar, Malir giving the list of 25 persons including the name of the absconding accused Haji Sachal Muhammad, thus absconding accused Haji Sachal Muhammad and illegally benefitted by the said conversion.
114. ' That the land under reference was dishonestly disposed of by you accused Ramesh M. Udeshi and absconding accused Syed Abdullah Shah by allowing conversion as public functionaries as at throwaway price Rs,50,000 per acre causing colossal loss to the Public Exchequer as at the relevant time the market value of the land in question was Rs,4,00,000 and thus in surreptitious and dishonest deal in collusion and connivance an illegal loss to the tune of Rs,56,00,000 was caused to the State by corruption and corrupt practices provided illegal benefit to absconding accused Haji Sachal Muhammad and misuse of authority being holder of Public Office committed offence/offences punishable under section 10 of the National Accountability Bureau Ordinance, 1999 within the cognizance of this Court.
115. ' And 1 do hereby directed that you accused Ramesh M. Udeshi be tried by this Court on the aforesaid charges.
116. ' Given under my hand and seal of the Court on this 31st day of May, 2000.
117. (Sd.) (Dr. Qamaruddin Bohra), Accountability Judge, Court No,1, Karachi.
118. ' The learned trial Judge observed that there is an essential distinction between the offence and the. Prosecution for an offence. According to him the former forms part of the substantive law and the latter of procedural law. He further observed that an offence is an aggregate of acts or omissions punishable by law, while prosecution signifies the procedure for obtaining an adjudication of the Court in respect of such acts or omissions. It was further held that it is the act and not the transaction that constitutes an offence. Therefore, a single act of firing at two persons can be regarded as one offence only. With these observations, he held that the accused/applicant Ramesh M. Udeshi, has already been tried and punished in References Nos.17, 18 and 19 of 2000, the summary being only one act which constitute offence, irrespective of the different transactions mentioned in the summary in question. He concluded that accused Ramesh M. Udeshi, cannot be prosecuted or punished for the same offence more than once and therefore, the applications submitted were allowed. With these findings accused Ramesh M. Udeshi was discharged in the three references and was directed to be released forthwith, if not required in any other case.
119. ' Being aggrieved with the above findings and direction, the State has preferred Criminal Revision Applications Nos.162, 163 and 164 of 2001.
120. ' References Nos.16, 17 and 18 of 2001 involving other beneficiaries were pending before Mr. Rehmat Hussain Jaffari, learned Judge, Accountability Court No,III. Similar applications as above were submitted before the learned trial Court under section 265-K, Cr.P.C. Read with section 403, Cr.P.C.
121. Similar pleas were taken before the Accountability Court No,III, as were raised before Accountability Court No,II. The learned trial Judge after considering the provisions contained in sections 403(1), Cr.P.C. 3(37) of General Clauses Act, 4(1)(o), Cr.P.C. And 9(a)(iv), NAB Ordinance dilated on the point as to what 'constitutes "same offence". In this regard he placed reliance on the observations made in the case of Meenapati Daveed and another v. The State AIR 1959 Andh. Pra. 137, as under:- "the words 'the same offence' in section 403(1), Cr.P.C. Mean the same act or omission punishable under the same provision of law.
122. ' The learned trial Judge observed that the earlier trial of the accused/applicant was with regard to the summary of conversion of leasehold rights of Poultry Farm on industrial/commercial/residential purpose and for extertding the leasehold period from 30 years to 99 years. Allegation was that it was misuse of authority and the applicant/accused was tried and convicted for the said offence.
123. ' The learned Judge further observed that the main cause/issue is the conversion of land and extension of lease period. Considering the facts alleged by, the prosecution, he observed that the first step in this regard was the receiving of 26 applications from beneficiaries by the then Chief Minister, Syed Abdullah Shah, who made endorsement on the applications making observation that the applications were allowed in relaxation of policy and existing ban. Orders on all .The applications were made on the same day. He further observed that, by making endorsement on the applications, leasehold rights could not have been converted until and unless a proper summary is moved, as per law. As such the applications were received by accused Ramesh M.
124. Udeshi, who prepared a joint summary on the same day and sent the same to the then Chief Minister. He formed opinion that the preparation of summary by the applicant/accused Ramesh M.
125. Udeshi, was an act towards the misuse of authority and for that act he was tried by the competent Court and convicted. The learned Judge, Accountability Court No,III, also considered the charge framed by Accountability Court No,1, in Reference No,17 of 2000. He thereafter, observed that the same act/.Acts of accused Ramesh M. Udeshi, are to be tried in the three subsequent references, the evidence and documents could also be the same and the offence is also same.
126. ' A plea was raised on behalf of prosecution that accused committed 26 offences as 26 different persons were benefited from the act of accused, therefore, "similar, same kind and distinct offence" were committed and not the same offence. It was further urged that there was difference between the "same offence" and "similar offence and same kind of offence". The same offence would be committed by an act of an accused on the same date, time and place, having same ingredient, whereas for attracting the meaning of "similar offence and same kind of offence" there should be some variation in date, time and place, but all the ingredients of the offence should be the same.
127. Reference was made to the observation of Supreme Court of India, in the case of Banwarilal v.
128. Union of India AIR 1963 SC 1620, that "distinct" means "not identical", two offences would be distinct if they be not in any way inter-related.
129. ' The learned trial Court observed that, in the present case, the accused/applicant Ramesh M.
130. Udeshi, by moving the summary through misuse of authority was one and the same act on the same date, time and place. The aggrieved party is also one i,e, Government of Sindh, only beneficiaries are 26 in number. The ingredient of the same provisions of law are attracted in the earlier and subsequent trial. He further held that the facts, allegations and offence, which the accused is alleged to have committed and the aggrieved party in the earlier trial or subsequent trial are same. It was held that the act of accused was a single act, which has been made punishable under section 9(a)(vi) of the NAB Ordinance, and the same act of the accused has already been tried and the accused stands convicted. The learned Judge referred to the observation of Dacca High Court in the case reported as PLD 1963 Dacca 656 as under:-- "But in order that the said principle may apply, the necessary ingredients must be present, one of which is that the same issue which arises in the trial in question was raised and decided in a former trial."
131. ' In order to determine whether the offence was same or two distinct offences were, in the earlier trial and the subsequent trial, reference was made to the observation of Sindh High Court in the case of Mark Mifsud Mrs. Rosemarie Morley v. Investigating Officer, Customs, Karachi PLD 1999 Kar.
132. 336 as follows:-- "The test of determining that whether it was the same offence or two distinct offences was to closely examine the purpose or design, the method of committing the offence, the consequences, the ingredients of the offence, act or acts committed in the process and the object likely to be achieved."
133. ' The learned trial Judge held that the test laid down in the above judgment fully met the case of accused/applicant.
134. ' He has further placed reliance on the judgment of Sindh High Court in the case of Hussain Abdullah Sulamn v. The State PLD 2001 Kar. 283, wherein it was held as follows:-- ' However, subject to these specified 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."
135. ' Consequent to the above findings, the learned trial Court held that the offence committed in the earlier trial and the subsequent trials is one and the same and as such the provisions contained in section 403, Cr.P.C. Are fully applicable and the second trial of the accused/applicant was barred.
136. The applications were allowed accordingly. The State, feeling aggrieved has preferred Accountability Appeals Nos.48, 49 and 50 of 2001. The learned counsel for the State, conceded during the course of arguments that the proper course is to file revision as done in the case of order by the learned Judge, Accountability Court No,II. With the consent of learned Advocates, these three appeals have been converted into criminal revision applications.
137. ' References Nos.20, 21, 22 and 23 of 2001 arising out of the same summary prepared by accused Ramesh M. Udeshi and sent after the observation of learned Judge Accountability Court No,I, while deciding Reference No,18 of 2000, are pending trial before learned Judge, Accountability Court No,IV (presided over by Mr. Jawaid Alam). In these references also applications were submitted under section 403, Cr.P.C. Praying the deletion of name of accused Ramesh M. Udeshi from the list of accused persons in the references. In these cases the learned trial Judge had framed charges in similar terms. For the sake of convenience, charge framed in Reference No,20 of 2001, is reproduced only, which is as under:-- Charge ' I, Muhammad Jawaid Alam, Judge, Accountability Court No,IV, Sindh, Karachi, do hereby charge you:-- ' Ramesh M. Udeshi son of Mul Chand, Ex-Secretary, Land Utilization Department, Government of Sindh as under--- ' That you, in the month of January, 1994, were holder of Public Office being Secretary, Land Utilization Department, Government of Sindh and you intentionally malafidely, in collusion, connivance, collaboration and in furtherance of common intention with the absconding accused Syed Abdullah Shah, the then Chief Minister of Sindh and Noor Muhammad son of Haji Raza Muhammad Jat, resident of Ibrahim Hyderi, Malir, Karachi you abused your official position and by misusing your official authority and powers, in violation of the rules of business and relevant laws, to gain benefits, illegally and dishonestly favoured absconding accused Noor Muhammad and got .Converted 16 acres land situated in NA Class No,26, Deh Rehri, Tapo Ibrahim Hyderi, District Malir, Karachi which was leased out for poultry farming purposes for 99 years into commercial land, during the period of ban, on very low price than its actual value, just to gain benefits for yourself and absconding accused and caused colossal loss to the Government to the tune of Rs,32,00,000, thus you have committed an offence of corruption and corrupt practices as defined under section 9 of National Accountability Bureau Ordinance, 1999 punishable under section 10 of National Accountability Bureau Ordinance, 1999 within the cognizance of this Court.
138. ' And I hereby direct that you be tried by this Court on the aforesaid charges.
139. (Sd.) Muhammad Jawaid Alam, Judge, Accountability Court No,IV, Sindh, Karachi.
140. ' It was contended that on the same facts and in the same offence the accused was already convicted, and therefore, the second prosecution was barred under the law. Similar contentions were raised as before the Accountability Courts Nos.II and III. The learned Judge, Accountability Court No,IV, after reproducing the provisions contained in Article 13 of the Constitution of Islamic Republic of Pakistan, 1973 and sections 403, 233 and 234, Cr.P.C. Observed that two terms have been used in the above sections first, "same offence" and second "offence of same kind". The learned Judge observed that it is to be seen as to what is the same offence and what is the offence of same kind. According to him the "same offence" is that where the accused is the same; the facts of the case are the same, transaction in the offence is the same and the cause of action is the same. While the terms"of offences of same kind" are those which are committed by the same accused not forming one transaction, the type of offence is the same but the subject-matter is different. However, the law and punishment provided for such offence is the same.
141. ' In the light of above principle, the learned Judge proceeded on to examine the facts of the references in which Accountability Court No,I, convicted accused Ramesh M. Udeshi and the facts of the four references sent to the Accountability Court No,IV. After referring to the facts in References Nos.17, 18 and 19 of 2000 in which accused Ramesh M. Udeshi was already convicted, the learned Judge, Accountability Court No, IV observed as follows:-- "It is true that in the aforesaid three references and in the reference in hand, the accused Ramesh Udeshi had floated a joint summary of 26 cases and the case of the co-accused Noor Muhammad of this reference was also included in that summary, but I do not agree that the case of the prosecution in the reference or in the reference bearing Nos.17 of 2000, 18 of 2000 and 19 of 2000 against the accused Ramesh Udeshi is that he had floated summary for 26 cases for conversion of land On 20-1-1994 and he has been tried and convicted for floating that summary. That summary may be a piece of evidence in all the cases but not the base for the prosecution case. Besides summary, there is other evidence in sort of allegations that after that summary he wrote separate letters and influenced Mukhtiarkar concerned and other public servant for allotment of the said land and mutation in the record of rights. The credibility of the said evidence, however, is to be examined in this reference but here I have referred it only to point out that the evidence in all the reference is different and separate. The subject-matter of each case i,e, land, is different the record of rights different. All the cases processed separately except that the summary dated 20-1-1994 is the same. The sets of accused are different, the price of the land is different, cause of action is different, and the beneficiaries are different. Therefore, in my view all the transactions are different which allegedly the accused Ramesh Udeshi combined in his joint summary. So, the cases of References Nos.17 of 2000, 18 of 2000 and 19 of 2000 fall within the definition of the offences of the same kind but cannot be said the same offence. While the section 402, Cr.P.C. And Article 13(a)(b) of the Constitution of Pakistan provides bar for second trial of the same offence against an accused.
142. ' I have gone through the charge and points for determination framed by the learned Judge, Accountability Court No,I, Karachi in References Nos.17 of 2000, 18 of 2000 and 19 of 2000. Although the learned Judge has referred the summary, dated 20-1-1994 but the accused has not been convicted for floating of that summary. Moreover, the charge read over in the reference in hand is not for floating the summary dated 20-1-1994. He has been charged in this reference for dishonestly, fraudulently, provide favour to the co-accused and to use his official authority in conversion of land and to dispose of the same on low price in collusion, connivance and collaboration with co-accused and by corruption and corrupt practices causing colossal loss to the Government as defined under section 9(iii)(vi) and (ix), NAB Ordinance, 1999."
143. ' The learned Judge, Accountability Court No,IV, concluded as under:- "The upshot of my above discussion is that the reference in hand is not in respect of the same offence for which the accused Ramesh M. Udeshi has been tried and convicted by the Accountability Court No,I, Sindh, Karachi as the transaction is not the same, the sets of accused are not the same, the subject-matter i,e, land is not the same, the amount alleged to have caused to the Government in each transaction is not the same. As such, all the 26 transactions Which the accused allegedly combined in summary, dated 20-1-1994 are distinct offences of same kind and require separate charge not covered under sections 234/235 and 239, Cr.P.C. Accordingly I am of the view that the trial of this reference does not fall within the ambit of double jeopardy and is not in violation of Article 13(a) of the Constitution of Pakistan and section 403, Cr.P.C. Accordingly the application is hereby dismissed."
144. ' Being aggrieved with the above findings, the accused/applicant Ramesh M. Udeshi has filed Criminal Revision Applications Nos.147, 148, 149 and 150 of 2001.
145. ' As already observed, all the cases arise out of the same set of facts and common issues of facts and law are involved, therefore, all the cases have been heard together and are disposed of by this single consolidated order.
146. ' Mrs. Ismat Mehdi, learned counsel for the applicant/accused Ramesh M. Udeshi, has submitted that the judgment, dated 18-9-2001 of learned Accountability Court No,II, in Reference No,12 of 2001, assailed in Accountability Appeal No,45 of 2001 is contradictory to .The findings of the same learned Judge while deciding References Nos.13, 14 and 15 of 2001, vide order, dated 10-10-2001. She has submitted that while deciding Reference No,12 of 2001 on 18-9-2001, the learned Judge did not advert to the proposition of law that accused/applicant Ramesh M. Vedshi already stands convicted in earlier References Nos.17, 18 and 19 of 2000, on the basis of same set of facts and for same offence and therefore, he convicted the applicant/accused by disqualifying him from holding a public office for a period of 10 years. She has submitted that subsequently, the learned Judge in his order, dated 10-10-2001 'while deciding References Nos.13, 14 and 15 of 2001 rightly held that accused/applicant Ramesh M. Udeshi could not be prosecuted or punished for the same offence after he stands convicted in the earlier references. She has submitted that the impugned conviction and sentence in Reference No,12 of 2001 is liable to be set aside in the light of the finding of the same learned Judge while disposing of References Nos.13, 14 and 15 of 2001. She has fully supported the view taken by the learned Judges, Accountability Courts Nos.II and III, whereby it has been held that the accused/applicant Ramesh M. Udeshi, already stands convicted for the same offence and therefore, the subsequent prosecution/trial is barred by law. She has vehemently criticized the view taken by the learned Judge, Accountability Court No,III, which has been assailed in Criminal Revision Applications Nos.147, 148, 149 and 150 of 2001. She has submitted that the learned Judge has not assigned any cogent reason for his view and has merely relied on two rulings which are not relevant. She has argued that the learned Judge, Accountability Court No,III, Mr. Rehmat Hussain Jaffari, has discussed entire law exhaustively. She has further submitted, that without prejudice to the plea of applicant/accused Ramesh M. Udeshi, that he has not committed any offence, the prosecution case is that he committed the offence by misusing his authority and wilfully failed to exercise his authority to prevent the grant of any undue benefit or favour to the beneficiaries. If it is any offence, then the accused/applicant Ramesh M. Udeshi already stands tried and convicted for the said offence and cannot be tried for the same offence again.
147. ' On the other hand, Mr. Anwar Tariq, learned Deputy Prosecutor-General, NAB, has supported the view taken by the learned Judge, Accountability Court No,IV, and has assailed the view expressed by the learned Judges, Accountability Courts Nos.II and. III. He submitted that floating of joint summary is although an act but it is not an offence per se. He submitted that there are continuing acts/constituting the distinct offences. According to him, initially offence was committed by each beneficiary when each one of them separately submitted application to the Chief Minister, seeking benefits/gains not warranted in law. Secondly the Chief Minister, committed an offence when he entertained each application and made endorsement on each application separately allowing conversion of the plots in relaxation of policy and existing ban. Thirdly, an act and not offence was committed by the applicant/accused Ramesh M. Udeshi, when he received all the applications and floated the joint summary for the execution of the orders made by the Chief Minister. Fourthly, the Chief Minister, committed an offence when he approved the summary. Fifthly, the applicant/accused committed offence when he issued directions to the Revenue Authorities for compliance of the illegal order of the Chief Minister. Sixthly, the applicant/accused Ramesh M.
148. Udeshi committed distinct offences when he issued letters to each beneficiary whereby the illegal benefit was extended to the beneficiaries.
149. ' When the learned counsel was called upon to address the arguments on the points, whether the accused/applicant committed same offence of floating joint summary in respect of all the 26 applications of different beneficiaries or in doing so he committed same kind of offences or he committed different offences, the learned D.P.G., NAB, reiterated that the floating of summary is not an offence in itself but the issuance of letters to the Revenue Authorities and the beneficiaries amounts to the commission of offence. According to him the applicant/accused committed different and distinct offences with the issuance of letters to the each beneficiary. He submitted that the applicant/accused could not be tried jointly for more than three offences and consequently he had to be tried separately for each offence. He contended that the principles contained in section 403, Cr.P.C. Are not attracted as the accused/applicant was sent up for trial through subsequent references for separate and distinct offences other than the one for which he was convicted in References Nos.17, 18 and 19 of 2000 by the learned Accountability Court No,I.
150. ' In reply to the contention of Mr. M. Anwar Tariq, it has been submitted by Mrs. Ismat Mehdi, learned counsel for the applicant/accused Ramesh M. Udeshi that if floating of summary is not offence as argued by the learned D.P.G.A., then the applicant/accused has not committed any offence whatsoever, as the sole allegation against him is that he floated a joint summary and thereby failed to prevent the commission of offence by the then Chief Minister.
151. ' We have very carefully considered the contentions raised by the learned Advocates for the parties and have perused the material available on record. We have already reproduced the summary prepared by the applicant/accused Ramesh M. Udeshi, the points for determination framed by the learned Judge, Accountability Court No,I, in References Nos.17, 18 and 19 of 2000, the charge framed in the said references and the charge framed by the learned Judge, Accountability Court No,IV in subsequent References Nos.20 to 23 of 2001. We would not like to repeat the said facts.
152. ' Before giving any finding of facts, we would like to reproduce sections 233, 234, 235 and 403, which read as follows:-- "233. Separate charges for distinct offences--- 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 sections 234, 235, 236 and 239.
153. 234.Three offences of same kind within a 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 person or not, he may be charged with, and tried at one trial for, any 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: Provided that, for the purpose of this section, an offence punishable under section 379 of the Pakistan Penal Code shall be deemed to be an offence of the same kind as an offence punishable under section 380 of the said Code, and that an offence punishable under any section of the Pakistan Penal Code, or of any special or local law, shall be deemed to be an offence of the same kind as an attempt to commit such offence, when such an attempt is an offence.
154. 235.Trial for more than one offence.--- (1) 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 by 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 anyone, or more, of such acts.
(4) Nothing contained in this section shall affect the Pakistan Penal Code, section 71.
403. Person once convicted or acquitted not to be tried for same offence.--- (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 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.
(5) Nothing in this section shall affect the provisions of section 26 of the General Clauses Act, 1897, or section 188 of this Code.
155. ' We would further like to deal with the general principles of law governing the trial of an accused for same offence, same kind of offence and distinct offences as well as the principles embodied in section 403, Cr. P. C .
156. ' A perusal of section 233, Cr.P.C. Shows that the expression distinct offence' has been used in it. The learned Judge, Accountability Court No,IV, has laid great emphasis on this expression and, therefore, we will dilate upon the purpose of using expression "distinct offences" in section 233, Cr.P.C. And the scope of the said section. A careful perusal of the section shows that the purpose of the enactment is to prevent embarrassment/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 circumstances no embarrassment 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 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. The purpose and purport of the provisions contained in section 233 came for consideration before a Full Bench of the erstwhile West Pakistan High Court, (Lahore Bench) in the case of Khizar Hayat v.
157. Commissioner, Sargodha Division PLD 1965 Lah 349. Justice Muhammad Akram, held in his minority decision that the general rule as contained in section 233 of the Code of Criminal Procedure, is that for every distinct offence of which any person is accused, there should be a separate charge and every such charge shall be tried separately. He held that the provisions contained in sections 234, 235, 236 and 239 containing exception to the general rule are purely optional and all these are enabling provisions and there is no law compelling a single trial of the accused if he is charged of more than one distinct offence. In support of his view he referred to a decision from Indian jurisdiction in the case of Chuttani v. State of Uttar Pradesh PLD 1957 SC (Ind.) 23., in which it was observed that "there is no illegality or irregularity in holding separate trials of the same accused persons even in the cases where a single trial could have been permissible under the Criminal Procedure Code".
158. ' The learned Judge further observed that, "The main anxiety behind the question referred to the Full Bench appears to me to be that the accused person should not be disturbed twice for the same cause. Nemo debt bis vexari pro cadem causa is a well-recognized maxim. In our country statutory recognition has been given to the principles embodied in this maxim in the form of section 403 of the Criminal Procedure Code, 1898, and in it safeguards have been provided for the accused against his repeated prosecutions". He further observed that, in section 403, Cr.P.C. No person can be tried again for the same offence or on the same facts for cases where it is doubtful which of the several offences the facts which can be proved will constitute or for offence for which he could have been charged under the provisions of section 236.
159. ' He further held that it does not prevent an accused from being tried again for any distinct offence based on the same transaction for which separate charge could have been framed against him on the former trial under section 235(1), Cr.P.C. The learned Judge further observed that, "however, the offences in the two cases should be 'distinct'. Autre fois convict forbids a man to be punished twice for the same offence, i,e, the same act and omission which may have two distinct results".
160. Thus, in spite of disagreeing with the majority view, the learned Single Judge agreed with the majority view in principle, which we will presently show. Speaking for the majority, Ortcheson, J. Held as follows:-- "It is true that under the scheme of the Code of Criminal Procedure the basic principle is that laid down in section 233, namely, that except in the cases mentioned in sections 234, 235, 236 and 239, there shall be a separate charge for every distinct offence of which any person is accused and that every such charge shall be tried separately, but two points arc to be borne in mind in this connection. The first is that, as down in Bhagwati Dial v. The King-Emperor. The general rue laid down in section 233 was enacted for the benefit of accused persons and not for that of the prosecution. In Gam Malu Dora alias Malayy' and others, it was further observed:--- ' The general rule is laid down in section 233 of the Code: for every distinct offence there shall be a separate charge separately tried. The principle obviously is that the accused person shall have a simple allegation to meet the Court a clear issue to try. But to the general rule certain exceptions are made. One person may be tried at one trial for three offences of the same kind committed within a year (section 234), one person may be tried at one trial for several offences forming parts of the same transaction (section 235), one person may be tried at one trial for several offences or for alternative offences if it is doubtful which of those offences the facts which can be proved will constitute (section 236), and lastly more persons than one may be tried together at the same trial for the same offence committed in the course of the same transaction, for three offences of the same kind committed by them jointly within a year, for different offences committed in the course of the same transaction, etc. (section 239). The object of introducing these exceptions to the general rule is to prevent unnecessary duplication of proceedings. On examination it will be seen that all these exceptions can be interpreted so as not to conflict with the general principle that the accused person should not be perplexed and the Court should not be confused by complicated or numerous or disconnected allegation.'
161. ' The second point is that it is of the utmost importance that the accused should not be exposed to the risk of conflicting decisions. In Bamanppa Kallappa Ajawan and others v. Emperor, while dealing with a case involving rival factions which had taken part in a riot, the learned Judges observed:- 'The two factions must obviously be prosecuted separately, since the common intention of each of the two parties to the riot would be different and they could not be tried in a single case. There is of course no objection in law to both the cases being tried by separate Judges with the help of separate juries or assessors, but such a procedure is always open to the risk of the two Courts coming to conflicting findings, and occasionally as in the present case, it may result in very serious injustice, one side or the other being wrongly convicted."
162. After a very careful consideration of sections 233 to 240, Cr.P.C. We are of the opinion that they 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.
163. ' At this juncture, it would be appropriate to consider as to what is the connotation of the expression "distinct offences" used in section 233, Cr.P.C. A perusal of the illustration of section 233, Cr.P.C.
164. Shows that the expression connotes to the offences which have no connexion with each other. The illustrations of "distinct offences" may be categorized as follows:--
(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.
165. ' Here another question arises, if the offences of same kind committed on one occasion though consisting of parts should be treated as distinct offences or as constituting one offence only. The point has been considered by superior Courts in the sub-continent and from a resume of the case- law, we find that in the following cases, the offences of the same kind committed on one occasion were held to be one offence and not distinct offences:--
(1) Theft of several articles from one person or more at the same time. AIR 1936 Rang. 94, AIR 1926 Nag. 89 and AIR 1920 Cal. 571
(2) The receiving of stolen property belonging to different owners or the gangs of different theft but received at the same time. AIR 1923 All. 547 and AIR 1923 Cal.
166. 557.
(3) The making of any number of false allegations in one statement. 36 Cal. 806 and 13 Cal.
167. 270.
(4) The misappropriation of several amounts of money not proved to be committed on different occasions. 14 Cal. 128 and AIR 1921 Cal.
168. 114.
(5) A single use of several forged documents as genuine in a Court of law. 20 Cal.
169. 413.
(6) Receiving of bribe partly on one day and partly on another. 5 Cal. W.N.
170. 332.
(7) Attempt to murder two persons by firing a single shot at them. AIR 1952 SC 45.
171. ' Now coming to section 235, Cr.P.C. We find that, 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. It has been held in the case of Mohan Lal v. The State 1975 PCr.LJ 684, by placing reliance on the case of Krishna Murthy v. Abdul Subhan AIR 1965 Mad. 128 that 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. It has been held in the case Hussainbibi v. Emperor AIR 1926 Sind 151, as follows:-- "It is well-settled that the real and substantial test in determining whether several offences are so connected together as to form one transaction dependants 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."
172. ' Earlier judgment of this Court in the case of Woodward v. Emperor AIR 1925 Sind 233, was referred.
173. In the case of Aftab Ahmed Khan v. The State AIR 1954 SC 436, it was held by the Full Bench that 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. In the cited case the prosecution story was that the accused a Reserve Inspector of Police, visited a village and took into custody two persons without any reason and then proceeded to another village. Seeing some persons outside the latter village, he shot at them. One of them fell down and the other fled away. The accused chased these others, caught two of them and brought them back. On seeing the person who had fallen down still alive he shot him dead. He stayed the night at the latter village and released two of the persons on the intercession of some people but kept the other two in wrongful confinement until the morning and released them only on one of them paying some certain sum of money. He was charged with offences of murder and extortion and wrongful confinement. The Supreme Court of India, held that from the moment, the accused started from the police station, he committed a series of acts involving the killing, injuring people unlawfully confining others and extorting money from one of them. The series of acts attributed to the accused constituted one transaction in which the two offences which are alleged to be distinct were committed. The case fell squarely within the purview of section 235, Cr.P.C.
174. ' In the case of Noor Khan v. The State PLD 1958 Lah. 1052, the question arose as to what is the connotation of expression "same transaction". A learned Single Judge held as follows:-- "The expression 'same transaction' is not defined in the Code, it having been pointed out by various High Courts that the word `transaction' is by its very nature incapable of exact definition. It is, however, now well-settled that as held in Emperor v. Sherufalli 27 Born. 135 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 of whether distinct offences form part of the same transaction is one, the answer to which must depend on the facts of each particular case."
175. ' In the case of The State v. Darajuddin Mondal PLD 1962 Dacca 424, a Division Bench, while examining the provisions contained in sections 233 and 239, Cr.P.C. Placed reliance on a judgment of Honourable Supreme Court in the case of Mossaddar Hogue v. State PLR 8 Dacca 607. In the latter case it was held by the Honourable Supreme Court as follows:-- "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."
176. ' The learned Judges of the Dacca High Court by placing reliance on the above dictum laid down by the Honourable Supreme Court, held that in the cited case several acts alleged were not isolated acts independent of one another, but a series of interlinked incidents connected together not only by proximity of time, unity of place but also by community of purpose and continuity of action so as to form one and the same transaction. They ultimately held as follows:-- "Where, as in this case, 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 and 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."
177. ' In the cited case there were more than one accused and different acts were attributed, therefore, it was further held that the different offences ascribed to the accused concerned were committed in the course of same transaction so as to warrant their joint trial within the meaning of section 239 clause (c) of the Code of Criminal Procedure.
178. At this juncture, we would like to observe that in the present cases, we are considering the point whether the accused Ramesh M. Udeshi, could be tried jointly in one trial for all the acts resulting in extending benefit of 26 persons, therefore, we will not consider the relevant provisions contained in section 239, Cr.P.C.
179. ' Now we will examine as to what is the effect, if an accused who could be tried jointly for commission of several offence in same transaction but he was not put to joint trial. In the case re: Pundalic Shankar Gujar AIR 1924 Born. 448, the accused was put up with several other persons who were charged with offences under sections 382 and 457, I.P.C. The applicant was charged under sections 382/109, I.P.C. The Sessions Judge acquitted him of the charge of theft but observed that he committed offence under section 411, I.P.C. He however, did not record conviction for the said offence in the said trial. The applicant/accused was then sent up to face trial- for the offence punishable under section 411, I.P.C. A Division Bench of Bombay High Court, held that the accused could have been charged with receiving the stolen property at the earlier trial. It was not done so, and therefore, under the provisions of section 403(1), Cr.P.C. The second proceedings were not competent as the accused could not be put up again on a charge of receiving the stolen property.
180. The proceedings against the accused were consequently quashed.
181. ' In the case re: Meenapoati Daveed AIR 1959 Andh. Pra. 137, the relevant facts were that the accused persons were convicted by a Sessions Judge under section 411, I.P.C. For retaining dishonestly the stolen property. On the same charge the accused persons were earlier tried and acquitted. The sole difference in the earlier trial and subsequent trial was that the stolen property found from the possession of accused persons were subject-matter of different incidents of theft.
182. The accused persons assailed their conviction before the High Court for the reason that the second trial was barred by section 403, Cr.P.C. A learned Single Judge of the Andhra Pradesh High Court, observed that the contention was well-founded. He held that it was established by a long catena of decisions of other High Courts that, where the accused is found in possession of stolen articles forming the subject-matter of distinct thefts, he could not be tried and convicted under section 411, I.P.C. More than once, unless there is evidence to show that he had received them on different occasions. The proceedings in the subsequent trial were held to be barred under section 403, Cr.P.C. Owing to the previous acquittal of the accused persons and the subsequent conviction and sentences were quashed.
183. ' In the case of Amir Khan v.' The State PLD 1963 Dacca 92, a Full Bench was called upon to consider if the petitioners who were convicted of the same offence on a previous occasion could be prosecuted and convicted again or it was barred under section 403(1), Cr.P.C. Speaking for the Full Bench, it was observed by Murshed, J. That the provisions of section 403, Cr.P.C. Which embodied the well-known principle of criminal jurisprudence commonly known as doctrine of autre fois acquit or autre fois convict. This doctrine, in substance, enunciates the principle that nobody can be put in jeopardy of being tried for the same offence more than once. After considering the expression "continuous offence" and "repetitive offence", it was observed that, in a matter like this the most important question which a Court must ask itself is the query: Is the person being tried, for the same offence for which he has been tried and convicted or acquitted before or, alternatively, is the person guilty of having committed a fresh offence daily. The petitioner was a foreigner and had overstayed. He was earlier convicted and it was held that his overstay was the continuance of the "same offence" within the meaning of section 403, Code of Criminal Procedure and nobody can be tried and convicted more than once in respect of the same offence, unless the statute or the particular provision of the law clearly provides that if so continued, it would amount to a fresh offence which is committed daily if continued from day to day. Regarding the applicability of provisions contained in section 403, Cr.P.C. a reference was made to the case of Jitendra Nath v.
184. Emperor AIR 1937 Cal. 99, where it was held that, for the purpose of attracting section 403, Cr.P.C.
185. The question as to whether a particular trial is barred by reason of previous prosecution ending in conviction or acquittal is a question to be determined on the facts and circumstances of a particular case; one of tests the Commissioners of the Tribunal in the case before us have observed in their judgment, is whether facts are the same or not, but the true test as has been said in cases decided by this Court is not so much whether the facts are the same in both trials as whether the acquittal or conviction from the first charge necessarily involves an acquittal or conviction in the second charge: The Full Bench of the Dacca High Court, comprising eminent Judges like Murshed, Sattar and Salahuddin held that the subsequent trial was barred under section 403, Cr.P.C.
186. ' In the case of Mst. Ramzan Bibi v. Hakim Muzaffar Hussain PLD 1967 Lah. 186, the relevant facts were that the petitioners were tried and acquitted for the offences punishable under sections, 3, 4 and 6 of the West Pakistan Suppression of Prostitution Ordinance (II of 1961). During the pendency of earlier proceedings another complaint was lodged under the same provisions of law. The subsequent proceedings pending before the Magistrate were objected on the principle of autre fois acquit contained in section 403, Cr.P.C. It was contended that the petitioners were already tried and acquitted, therefore, the subsequent trial on the same and identical facts were barred under section 403, Cr.P.C. A plea was taken on behalf of the complainant party that the petitioners were covered by section 403(4) of the Code of Criminal Procedure, as they were being tried for distinct offence. A learned Single Judge of the erstwhile West Pakistan High Court, Lahore Bench, observed that from the perusal of record it appeared that allegations in the previous and subsequent proceedings were same in substance and that it is a well-settled principle of law that no person would be tried for the offence on the same set of facts on which he had already been acquitted or convicted. It was further observed that no doubt, the petitioners were tried for, and acquitted of, the offence under section 3 of the Ordinance, at the conclusion of the previous trial, but the facts upon which the complainant has founded his present complaint against the petitioners under sections 4 and 6 of the Ordinance are absolutely inseparable from the facts upon which the previous case proceeded and the evidence which the complainant now wants to lead was available to him at the time of first trial and the petitioners could be tried by the learned Additional Disirict Magistrate, for the offence under sections 4 and 6 of the Ordinance. It was further observed that, "he seem to me to have omitted to consider the provisions of section 236 of the Code of Criminal Procedure, which permit the joinder and trial of charges of the connected offences of similar nature. In this view of the matter I am of the opinion, that the provisions of section 403(1), Cr.P.C. Are aptly applicable to the facts of the present case and it is not legal to try the petitioners even under sections 4 and 6 of the Ordinance, on the same facts which were the subject-matter of the previous trial". In arriving at this conclusion, reference was made to the observations of Anwarul Haq, J. In the case of Muhammad Ikram v. State PLD 1965 Lah. 461 as follows:-- "After a careful consideration of the authorities I find myself in respectful agreement with the view that in cases of acquittal where section 403, Cr.P.C. Does not apply in terms, the principle embodied in the section may be properly invoked in order to meet the ends of justice. When a person has been tried on certain charges and acquitted, it will be clearly unjust and highly oppressive and amount to an abuse of the process of the Court to permit his repeated prosecution on identical evidence in respect of identical charges, even though relating to different items. While the interest of the community at large is no doubt paramount, it is also the duty of the High Court to ensure that the process of the Court is not used in a manner oppressive to the individual citizen.
187. It is clear that the subsequent prosecution cannot but result in acquittal. I consider, therefore, that the subsequent trial on identical evidence and in regard to identical charges should not be allowed against those accused who have been acquitted by a competent Court in an earlier trial."
188. 'Ultimately it was found that the proceedings against the petitioners were abuse of the process of Court and were quashed accordingly. The learned Single Judge made an important observation in the concluding para., which reads as follows:-- "8. Before parting with this order, I wish to remind the Courts below that it is their duty to save the persons from unnecessary harassme nt. In the instant case it was not desirable or proper to allow the prosecution of the petitioners for the second time as the complainant had, at the time of the earlier trial, knowledge of the facts upon which he founded the latter complaint."
189. ' In the latter case it was further held by Anwarul Haq, J. That section 403, Cr.P.C. Has no application to a case where the subsequent offence for which the accused has been tried subsequently did not form part of the offence allegedly with the previous trial nor is this section attracted to a case in which the subsequent offence is not connected with the facts alleged at the earlier trial, He further observed that the protection clearly does not extend to those offences which are completely distinct or those which arise out of facts not at all alleged at the previous trial. A distinction has to be made between same and similar facts. The bar against the similar trial does not extend to similar facts.
190. The principles contained in section 403, Cr.P.C. And Article 13 of the Constitution, are based on the well-known 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."
191. ' It would be instructive to produce a passage from the Broom's Legal Maxims, Tenth Edition, pages 223 and 224 (published by Pakistan Law House), which reads as follows:-- "The maxim nemo debet bis vexari pro una et eadem causa', expresses a great fundamental rule of our 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 pleas of autre fois acquit and autre fois 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."
192. ' 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 were 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 autre fois acquit is a good bar to the indictment. The true test by which to decide whether a plea of autre fois 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 charge 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.
193. ' Similarly, the plea of autre fois 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 autre fois convict and autre fois 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.
194. ' After very careful consideration of the provisions contained in sections 233, 235 and 403, Cr.P.C.
195. And resume of the case-law as above, we have reached to the following conclusion:
1. 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 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).
2. 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.
3. This general rule is subject to the exceptions mentioned in sections 234, 235, 236 and 239, Cr.P.C.
4. 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.
5. It is bounden duty of the Courts to see that an accused person is saved from the agony of multiplicity of proceedings and scour age of repeated prosecution and facing the same witnesses and the same prosecution material time and again.
6. 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.
196. The expression offences of same kind have 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.
7. 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.' The criteria for determining where certain acts in a series have been committed in same transaction has been discussed in detail in earlier part of this judgment and we, need not to repeat the same for the sake of brevity. 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 scope and purport of section 235 have been considered in large number of cases in the sub- continent and there is catena of rulings on this point, some of which we have referred in the earlier part of this order. We, fully subscribe to the views expressed in the judgments referred to above by us.
8. 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. We, feel it pertinent to emphasise that the bar contained in section 403 for subsequent trial is not confined merely to the same offence but for any 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 .
9. We further subscribe to the law laid down by Anwarul Haq, J. In the case of Muhammad Ikram v.
197. The State PLD 1965 Lah. 461 and followed by Shaukat Ali, J. In the case of Mst. Ramzan Bibi v. Hakim Muzaffar Hussain PLD 1967 Lah. 186, to the effect that 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. The view expressed in the above judgment was in respect of subsequent trial on identical evidence and in regard to identical charges. We do not find any 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.
10. The proposition of law propounded by a Full Bench of this Court in the case of Hussain Abdullah Salum v. The State PLD 2001 Kar. 283, is binding on us which reads as follows:-- However, subject to these specified 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.
11. 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.
198. ' Applying the above principle to the facts of the present case, we find as follows:--
1. Applicant/accused Ramesh M. Udeshi, prepared one single summary for the then Chief Minister.
2. Although the learned Deputy Prosecutor-General, NAB, has argued that preparation of summary, is not an offence per se, a perusal of the judgment of Accountability Court No,I, convicting the accused/applicant in earlier references, shows that, accused was found responsible for floating the summary whereby he failed to discharge his duty honestly entrusted to him as a holder of Public Office. In this judgment, we will refrain from expression any opinion on this point as this issue is the subject-matter of appeals preferred by the accused against the judgments in References Nos.17, 18 and 19 of 2000, in which the accused was convicted. A perusal of the points for determination framed by the learned Judge, Accountability Court No,I, while deciding References Nos.17, 18 and 19 of 2000, shows that it pertains _to the floating of joint summary by the accused/applicant Ramesh M. Udeshi.
3. The learned Deputy Prosecutor-General, NAB, has contended that in fact the issuance of direction by the accused/applicant to the Deputy Commissioner, Malir and Mukhtiarkar, Malir, for compliance of the directive of the Chief Minister, whereby undue benefit was extended to 26 persons amounts to the commission of offence of corruption and corrupt practices. We find, that in all the three References i,e, 17, 18 and 19 of 2000, in which the accused/applicant has been convicted, the same point was determined for consideration. In all subsequent references, the similar allegations are contained against accused/applicant. Ramesh M. Udeshi and during the course of trial there can be no other point but the same which has been considered in the earlier trial by Accountability Court No,1, and on the determination whereof the accused/applicant has been convicted.
4. The entire material/evidence in all the references earlier and subsequent are not only identical but same.
5. All the witnesses in the earlier and subsequent references are the same. The charge framed by the learned Accountability Court No,1, in Reference No,17 of 2000 and the charge framed in subsequent Reference No,20 of 2001 by the learned Judge, Accountability Court No,IV, have been reproduced by us, in the narrative part of the judgment. A comparison of the two charges shows that, with the variation of language, the substance and the allegations against the applicant/accused Ramesh M. Udeshi are the same. It appears that, being conscious of the provisions of law pertaining to the protection against double jeopardy, the learned Judge, Accountability Court No,IV, Mr. Muhammad Jawaid Alam, has tried to couch the charge in a language which may give an ostensible impression of being different from the earlier charge, but it was not possible for him to avoid the inclusion of same particulars of the offence with which the applicant/accused was earlier charged and the manner of committing the offence as required under sections 221, 222 and 223, Cr.P.C. It is trite law of the administration of justice that the substance and not the language is to be taken into consideration. In the earlier charges framed by learned Judge, Accountability Court No,1, a specific reference has been made to the floating of joint summary of 26 beneficiaries by the applicant/accused Ramesh M. Udeshi and rightly so, as it is in consonance with the principle of administration of justice contained in the Criminal Procedure Code. But, the learned Accountability Court No,IV, while framing charges in References Nos.20, 21, 22 and 23 of 2001, has avoided to specifically include reference to the preparation of joint summary in the charges. We are, of the considered opinion that it has not made any difference.
199. Notwithstanding, the omission of reference to the summary prepared by accused/applicant Ramesh M. Udeshi, the contents of the charges in the earlier references, in which applicant/accused was tried and convicted and the subsequent references which are subject- matter of these revisions/appeals are the same.
6. It is interesting to note that in the charges framed by the learned Judge, Accountability Court No,I, in the earlier references it has been stated that he committed the offence by floating the joint summary of 26 beneficiaries in violation of law and issued conversion order informing the Deputy Commissioner, Malir, who issued letter to Mukhtiarkar, Malir and thereby the accused/applicant Ramesh M. Udeshi, committed an offence. However, the learned Judge, Accountability Court No,IV, has not given any such particulars in the charges framed by him and has confined the charge to the misuse of authority by accused/applicant thereby favouring the beneficiaries and causing loss to the Government. Although it is the requirement of law that while framing charge, the Court should include such particulars in the charge which an accused is required to defend and the time and place of the alleged offence is also required to be included in the charge but the learned Judge, Accountability Court No,IV, has not stated in the charge framed by him that the accused/applicant committed offence by issuing the letters to the Deputy Commissioner, Malir and Mukhtiarkar. We are, of the opinion that the learned D.P.G. While arguing that the learned Accountability Court No,IV, has rightly rejected the application under section 403, because accused/applicant committed distinct offences by issuing the letters to the Deputy Commissioner, Malir, failed to notice the charge framed by the learned Judge, Accountability Court No,IV.
200. For the foregoing reasons, we are persuaded to agree with the submissions made by the learned counsel for the appellant/accused Ramesh M. Udeshi, and we are not able to subscribe to the contentions raised by the learned D.P.G. Whereby he has assailed the orders of learned Judges, Accountability Courts Nos.II and III and has supported the impugned order of learned Accountability Court No,IV, who has rejected the application under section 403, Cr.P.C. We are, of the considered opinion that the accused/applicant was already tried and convicted for the commission of offence and subsequently on the basis of observations made by learned Judge, Accountability Court No,I. Accused/applicant Ramesh M. Udeshi, could not be tried again for the same offence or for the offence on the same facts.
201. ' A careful reading of all the impugned orders shows that learned Judge, Accountability Court No,III (Mr. Rehmat Hussain Jaffri), has very rightly and elaborately considered the facts and the proposition of law with the clarity of thought, which is amendable. The learned Judge has correctly appreciated the facts as well as the law as an upright Judicial Officer. We are, also constrained to observe that the Judicial Officers should avoid making such observations as has been done by the learned Judge, Accountability Court No,I, while deciding Reference No,18 of 2000. 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. We, would further like to observe that the learned Judge Accountability Court No,IV, should also try to give more impression of an impartial arbiter having no inclination, pro-prosecution or 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.
202. ' Consequent to the above discussion and findings, it is held that once the accused/applicant 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 to Deputy Commissioner, Malir, the subsequent prosecution and trial on the same set of facts is barred under the law. We will hasten to clarify that this bar is confined to the applicant/accused Ramesh M. Udeshi, 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.
203. ' As a result of above findings, the conviction and sentence of the applicant/accused Ramesh M.
204. Udeshi, in Criminal Accountability Appeal No,45 of 2001, is hereby quashed. The impugned orders of the learned Judges, Accountability Courts Nos.II and III, in References Nos.13, 14, 15, 16, 17 and 18 of 2001 are upheld. The revision applications assailing the orders in these reference applications are hereby dismissed. The impugned orders of the learned Judge, Accountability Court No,IV, in References Nos.20, 21, 22 and 23 of 2001 are set aside. The proceedings in these references are hereby quashed as against applicant/accused Ramesh M. Udeshi only. Criminal Revision Applications Nos.147, 148, 149 and 150 of 2000 are allowed.