SARMAD JALAL OSMANY, J.-Vide this application the applicant/accused has prayed for suspension of the sentence handed down to him by virtue of the impugned judgment.
2. The brief facts of the matter per the Reference No,45 of 2001 filed with the learned Administrative Judge Accountability Courts are that the appellant/accused viz. Mansoor Ahmed and co-accused Muhammad Feroz Ahmed were allegedly involved in removal/theft of silver from the Warehouse No,1 located at Customs House, Karachi during their tenure of service at the said warehouse whereas accused Ayoob Tahir aided and abetted them in this act. The amount of silver viz. 1087 kilograms, which had been misappropriated came to the value of Rs,9.7 million. They were sent up to face their trial. A charge was framed against all the accused under section 409, P.P.C. Read with Serial No,2 of the Schedule of Offences to the. NAB Ordinance to which they pleaded not guilty and claimed to be tried.
3. The prosecution examined 18 witnesses and thereafter closed their side whereafter statements of the accused were recorded under section 342(2), Cr.P.C. The appellant Mansoor Ahmed and Accused Muhammad Feroz Ahmed admitted in such statements that they were custodians of the warehouse during their relevant period of tenure but denied any wrong doing as per allegations levelled against them. Accused Ayoob Tahir also denied the allegations against him in his statement under section 342(2), Cr.P.C. None of the accused examined themselves under oath whereafter the learned NAB Court after hearing the learned counsel convicted only the appellant/accused of the charges levelled against him and sentenced him to suffer R.I. For a period for 7 years and to pay a fine of Rs,2 million in lieu whereof he was to suffer additional R.I. For two and half years. The benefit of section 382-B, Cr.P.C. Was granted to the appellant/accused. The co-accused Muhammad Feroze Ahmed and Ayoob Tahir were acquitted.
4. In support of the application Mr.I.A. Hashmi has firstly submitted that the case was initially challaned in the Customs Court on 23-8-2002 in which five persons were nominated including the appellant. However, despite this fact a Reference was filed in the NAB Court on 8-12-2002 without any application having been made under section 16 of the NAB Ordinance for transfer. This per learned counsel, violates Article 13(1) of the Constitution, which provides protection against double jeopardy viz. That no person can be tried for the same offence twice. Continuing in this vein, learned counsel has further submitted that out of the five persons who were nominated in the Challan before the Customs Court including the appellant only three were named in the Reference whereas the other two became prosecution witnesses, which again violated the provision of Article 13(2) of the Constitution. In support of this submission learned counsel has relied upon Muhammad Ashraf v. The State 1995 SCM R 626 and The State v. Nasim Amin Butt 2001 SCM R 1083.
5. Learned counsel has next submitted that all the documents, which have been produced by the P.Ws. Show that the total amount of silver which was missing from the State warehouse was 1087 kilograms and this was misappropriated during the period 1980-2001. As opposed to this the appellant remained posted in the said warehouse for only a brief period of 2 and a half months during August, September and October, 2001. Hence, per the learned counsel, the impugned judgment is too harsh inasmuch as the appellant at the most could only be held responsible for removing some of the silver.
6. On merits learned counsel has submitted that the evidence, which has come on the record can hardly connect the appellant to the charges against him. In this regard, although P.W.1 Abdul Aziz has squarely involved the appellant in the crime in question viz. That the latter used to enter the area where the silver and other articles were kept and removed the same to his car etc. And also gave him cash to keep quiet; nevertheless the said P.W. Has submitted under cross-examination that he had given his statement to the I.O. Under duress. As far as P.W.2 is concerned per learned counsel, again he has admitted under cross-examination that he took illegal gratification from the accused in order to remain quiet regarding the latter's activities and hence no reliance can be placed upon his deposition in which yet again the said P.W. Has squarely implicated the appellant only. Per learned counsel P.W.3 has admitted that he never saw the accused in the possession of the allegedly stolen silver but only that the accused used to bring shopping bags when he entered the warehouse in the morning and used to take them out at about 10-30 a.m. P.W.4 only produced the inventory of the State warehouse and has stated nothing as far as the commission of the crime is concerned. Again P.W.5 has deposed that he saw accused coming in and out of the warehouse with shopping bags. Under cross-examination he has admitted that he had never seen the contents thereof.
7. Reverting to P.W.6 who per learned counsel is the star witness, he has admitted during cross- examination that he was the co-accused in the Customs case and is still on bail. Consequently, his evidence cannot be considered without him becoming an approver. Per learned counsel as far as the remaining witnesses are concerned no one has implicated the appellant/accused. For all the foregoing reasons, learned counsel has prayed that there is hardly any tangible evidence for the conviction of the accused/applicant and as it would take some time before the appeal comes up for regular hearing, he may be enlarged on bail while suspending his sentence.
8. On the other hand, Mr. Amir Raza Naqvi, learned counsel appearing for NAB, has firstly submitted that there is no nexus at all between the proceedings in the Customs Court and the present proceedings, which commenced in the NAB Court since in the latter Court the appellant/accused was charged under section 156(1) (82) of the Customs Act whereas in the present case the accused was charged under section 409, P.P.C. Read with Serial No,2 of the Schedule to the NAB Ordinance viz. Criminal conspiracy/attempt to commit any scheduled offence. Per learned counsel this is entirely different from the offence under section 156(1) (82), which provides for a fine where any person contravenes any provision of the Customs Act or any rule made thereunder and where any official of Customs attempts to practise any fraud for the purposes of insuring the Customs Revenue etc. Learned counsel has further submitted that the Customs Court could not take cognizance of an offence under section 409 and in any event cognizance under section 156(1) (82) was also incorrect since the crime committed by the accused was not obstruction in collection of Government Revenue or prevention of smuggling etc. But criminal breach of trust. Hence, per learned counsel, there was no violation of Article 13 (a) of the Constitution as this was not a case of double jeopardy. For this proposition, learned counsel has relied upon: The State v. Nasim Amin Butt 2001" SCMR 1083, Muhammad Ashraf v. The State 1995 SCM R 626, Syed Alamdar Hussain Shah v.
Abdul Baseer Qureshi PLD 1978 SC 121, State v. Anwar Khattak PLD 1990 FSC 62, Ismail A. Rehman v.
Muhammad Sadiq PLD 1990 Karachi 286 and Hussain Abdullah Salum v. The State PLD 2001 Karachi 283.
9. On merits learned counsel has submitted that P.W.1, P.W.2, and P.W.6 have squarely implicated the appellant/accused and they were witnesses to the crime in question viz. The theft of the silver by the accused/appellants. Similarly, all the other P.Ws. Say that the appellant's activities were suspicious. Finally, per learned counsel. P.W.6 has said in so many words that the items removed by the appellant from the warehouse consisted of pieces of silver and he had physically seen one of them on the foot-mat of the appellant's car. The said P.W. Has also produced an audio cassette in which his conversation with the appellant has been recorded and which incriminates the latter fully in the crime in question. No question has been asked of the witness regarding the contents of the audio cassette in cross-examination. Consequently learned counsel there is sufficient evidence available on the record to uphold the conviction of the appellant. He has, therefore, prayed that the application for suspension of sentence be dismissed.
10. We have heard both the learned counsel and our conclusions are as follows:
11. Regarding the issue of double jeopardy, it would be seen that Article 13(a) of the Constitution provides that no person shall be prosecuted or punished for the same offence more than once whereas section 403(1), Cr.P.C. Prohibits the second trial for an offence during the course of existence of conviction or acquittal of a person as the case may be in consequence of final adjudication of such offence by the Court of competent jurisdiction. Hence the rule against autrefois acquit finds place in section 403(1), Cr.P.C. And the counterpart of the said rule viz. Autrefois convict has received recognition. Per Article 13(a) of the Constitution of. Pakistan, 1973.
Secondly, it would be seen that the Constitutional guarantee is only available if the accused is convicted and punished. Thus if the prosecution results in acquittal so far as this Article is concerned the second' prosecution is not prohibited. However, section 403(1) prohibits the second trial for an offence during the course of existence of conviction or acquittal of a person as the case may be in consequence of final adjudication of such an offence by a Court of competent .Jurisdiction. Section 403(2), Cr.P.C. Further provides exceptions to the rule regarding double jeopardy enunciated in section 403(1), Cr.P.C. Viz, a person acquitted or convicted of any offence may afterwards be tried for any distinct offence for which a separate charge might have been framed against him on the former trial so also subsection (3) provides a further exception in cases where different offences are in issue. Finally, subsection (4) provides that even though a person has been acquitted or convicted by the previous Court he may subsequently be charged with and tried for any other offence constituted by the same. Act, which he may have committed if the Court in which he was tried first was not competent to try the offence with which he was subsequently charged. On an analysis of the foregoing provisions of law it is clear that Article 13(a) of the Constitution operates as a bar to prosecution and punishment of an accused for the same offence more than once. In the case of Syed Alamdar Hussain Shah v. Abdul Baseer Qureshi (supra) the Hon'ble Supreme Court has interpreted the meaning of the word "prosecution" in Article 13(a) to include the commencing, conducting and carrying a suit to a conclusion in a Court of justice meaning thereby that a fresh prosecution for the same offence is barred only where such prosecution has been finally concluded and ended either in acquittal or conviction. In the instant case, the petitioner was first tried by a Military Court and later upon lifting of Martial Law the case was tried by a Magistrate and lastly the case was ordered to be transferred to a Sessions Court. In none of this forums the prosecution had come to any conclusion. Consequently, the petitioner's trial was held in no way to be derogatory to the principle of double jeopardy as enunciated in the then Article 13(a) of the Constitution. Similarly, in Muhammad Ashraf v. The State (supra) it was held that the word "prosecution" appearing in Article 13(a) of the Constitutions means a trial followed by a judgment of acquittal or punishment. It includes the entire prosecution starting with the cognizance of an offence by a Court of law, followed by examination of evidence, addressing of arguments and ending with the pronouncement of judgment.
12. Applying the foregoing principles of law to the facts of the present case, it is quite clear that the rule of double jeopardy as per Article 13(a) of the Constitution would not be applicable thereto since admittedly the first prosecution of the appellant/accused under the Customs Act has still not reached any conclusion. It would also be seen that section 403(1) of the Cr.P.C. Also contemplates a previous acquittal or conviction of an accused for an offence and prohibits a fresh trial for the same offence on the same facts for any other offence for which a different charge for the one framed against him might have been made under section 236 or for which he might have been convicted under section 237. Consequently, in our opinion, both the foregoing provisions of law contemplate that before the same can be pressed into service the first trial of the accused must have been concluded which may either result in an acquittal or conviction which is npt the case.
For all the foregoing reasons, we are of the view that the second trial of the accused under the NAB Ordinance is neither violative of Article 13(a) of the Constitution nor in contravention of section 403(1), Cr.P.C.
13. As far as the merits of the case are concerned, it would be seen that a number of prosecution witnesses have squarely deposed against the appellant. These include P.W.1 Abdul Aziz who is a constable in the Customs Department and who has maintained that he used to help the appellant in wrapping the silver in question in the grill area, which the latter took outside the Customs House, which process was repeated by the accused once or twice in a day after 2/3 days. The said witness had also deposed that the accused used to give him some time Rs,5,000 and some times Rs,10,000 or more and also that co-accused Ayoob Tahir used to visit the appellant and sometimes the latter also used to provide the witness with food. However, under cross-examination the witness has admitted that the Investigating Officer had threatened him with involvement in the case unless he gave a statement in favour of the prosecution before the Magistrate. The next witness Muhammad Inam Khan, P.W.2, who was the preventive officer in the Customs Department has similarly stated that the appellant used to reach the office at about 8-30 or 8-40 a.m. And enter the grill area where he used to watch films and then at about 10-00 or 10-30 a.m. He used to leave the office to see his ailing mother and used to come back after 40/45 minutes. In the month of September, the car of the appellant was checked at the gate by the Security Guard wherein silver had been found which was disclosed by the appellant to the witness. The appellant had also given the witness a sum of Rs,30,000 to keep quiet about these activities. Thereafter, a further amount of Rs,70,000 was given to the witness. Under cross-examination the witness has admitted that he was given the sum of Rs,1,00,000 as illegal gratification by the appellant. The next witness is P.W.3 Syed Aleemuddin who was Senior Preventive Officer serving in the Customs Department. He has deposed that he was posted at warehouse No,1, Customs House, Karachi, alongwith the appellant who used to reach the office at 9-00 a.m. And after opening the gate used to so inside the hall and then the grill area at about 10-00 or 10-30 a.m. He, used to come out from the grill area alongwith some shopping bags, which he had brought with him earlier. The said witness was not cross-examined by any of the learned counsel for the defence. Again P.W.5, Manzar Ali who was a Senior Preventive Officer has deposed that he had seen the appellant put shopping bags in his car after coming out from the grill area. The said bags contained some heavy material. Thereafter, the accused used to drive the car by himself and come back after about 40/45 minutes at which time he used to be empty- handed. Under cross-examination the witness has admitted that he was not aware of the contents of the shopping bags.
14. The main witness is P.W.6, Muhammad Arif Shah, who has deposed that he is a constable in the Customs Department and in the month of April, 1999 he was posted in the Preventive Collectorate as an informer. In the month of August, 2000 he was posted in the said Warehouse No,1 which was in the charge of the appellant. Thereafter, the witness discovered that the appellant was reaching office before time and used to go in the grill area by telling the staff that he would watch films. He used to go out from the grill area after about 1/2 an hour or so, carrying some shopping bags which the witness saw were kept by the appellant in his car. These activities were reported by the witness to his superiors. The witness has further deposed that once he saw a piece from one of the shopping bags which had fallen on the foot-mat of the appellant's car and it had been recognized by P.O. Imam as a silver piece. Thereafter, investigation was launched against the appellant by the higher Authorities at which the former had threatened the witness and asked him to keep quiet otherwise he would be put into trouble. Then the Commander of the Army Monitoring Team had given him a telephone recording instrument for the purpose of recording the conversation between the appellant and the witness which he had done and produced the audio cassette in Court. The said cassette was played in open Court and the witness had recognized voices therein as his own and that of the appellant.
15. P.W.16, Sibte Ashger Bilgrami, who was the Programme Manager of Pakistan Broadcasting Corporation has produced the transcript of the said audio cassette and a bare perusal of which would suggest that the applicant is involved in the crime in question.
16. A perusal and tentative assessm ent of the foregoing evidence on the record would show that the learned trial Court has not committed any grave error or failed to take into consideration .The evidence itself while coming to the conclusion that the appellant was guilty of the crime with which he was charged and thereupon convicting him per the impugned judgment. It is settled law that at the bail stage only tentative assessment of the evidence on the record is to be made whereas details are to be thrashed out at the regular hearing of the matter. Consequently, for the foregoing reasons we see no force in this application, which is dismissed as such. However, to be fair to the appellant/accused, we would direct that the matter be listed for regular hearing in November, 2002. Needless to say the observation recorded herein shall not be considered at such hearing as they are tentative in nature.