' JAVED IQBAL, J.--- This petition for leave to appeal is directed against the order, dated 18-12-2003 passed by learned Division Bench of Lahore High Court, Lahore, whereby the writ petition preferred on behalf of petitioner has been dismissed and the order, dated 8-12-2003 passed by learned trial Judge rejecting the application of petitioner preferred under section 227, Cr.P.C. For amending the, charge has been dismissed.
2. "Facts in brief are that the petitioner is facing trial in the afore-referred Reference wherein among with other charges, there is charge No,5 in which it was alleged that the petitioner misused his authority as a Federal Minister and thereby provided undue favour to Contractor Messrs Amin Brothers to the tune of Rupees eight million. It was alleged that he re-opened the issue of escalation of rates of contracts and water charges notwithstanding the fact that the contractor had received full and final payment in November, 1988. Petitioner's earlier petition (Cr!. Revision No,234/2003) was dismissed on 12-5-2003 with certain observations made therein. Petitioner again moved the learnedAccountability Court for deletion of Item No,5 in the charge-sheet which application was again dismissed. The said order was also challenged in Writ Petition No,15772 of 2003 which was -disposed of on a conceding statement given by the learned Deputy Prosecutor- General, NAB that the Accountability Court shall pass a fresh order."
3. Pursuant to the direction of High Court, learned trial Court had decided the application moved under section 227. Cr.P.C. Which was assailed before the learned High Court by means of writ petition which has been dismissed, hence this petition.
4. It is vehemently contended by Sheikh Zia Ullah, learned Sr. ASC on behalf of petitioner that the order passed by learned Judge of the Lahore High Court in the capacity of Special Court on 12-9- 1990 has been ignored by the learned trial Court as well as High Court which resulted in serious miscarriage of justice. In order to substantiate the said contention it is pointed out that Reference filed by the Government of Pakistan against the petitioner under the President's (Post- Proclamation) Order No,17, Parliament and Provincial Assemblies (Disqualification for Membership)
Order, 1977 (hereinafter referred to as the Presidential Order No,17 of 1977) based on the same allegations was dismissed which amounts to discharge and therefore, no fresh charge could have been framed on the same allegation which has been done by the learned Accountability Court. It is pointed out that the learned trial Court has failed to abide by the observations of learned High Court made during previous round of litigation and not followed the dictum as laid down in Abdul Hossain Sana v. Sawala Agarwala PLD 1962 SC 242 which was binding upon him. It is contended vehemently that the learned trial Court has misconstrued and misinterpreted the orders passed by learned Lahore High Court, Lahore in Criminal Revision hearing No,234 of 2003 and in Writ Petition No,I5772. It is next contended that the subject-matter disposed of by learned Special Court consisting of Judge of the High Court and decided in favour of the petitioner being past and closed transaction cannot be re-opened and no charge could have been framed on the basis of same subject-matter as the said decision was binding upon the Accountability Court. It is argued that the order impugned is in violation of the provisions as contained in Article 13 of the Constitution of Islamic Republic of Pakistan whereby a protection is provided to a citizen against double jeopardy.
It is contended emphatically that the charge contained in Clause 5 of the charge formulated by learned 'Accountability Court is without any material as the controversy had been set at naught by the Special Court consisting of Honourable Judge of Lahore High Court while rejecting the Reference made against the petitioner.
5. We have carefully examined all the contentions of Mr. SheikhZia Ullah, learned Sr. ASC on behalf of petitioner in the light of relevant provisions of law and record of the case and perused the order of learned Accountability Court as well as order impugned. The pivotal question which needs determination would be as to whether the order passed by learned Single Judge of Lahore High Court, Lahore in the capacity of Special Court on 12-9-1990 on the President Reference filed against the petitioner amounts to discharge in terms of section 403, Cr.P.C. And no charge could have been framed against the petitioner by the Accountability Court? In order to substantiate the said prime contention much stress has been laid upon the order dated 12-9-1990 passed by learned Single Judge of Lahore High Court, Lahore in the capacity of "Judge of the Special Court" is reproduced hereinbelow for ready reference:-- "This reference under Article 4(2) of the President's (Post-Proclamation) Order No,17, Parliament and Provincial Assemblies (Disqualification for Membership) Order, 1977 has been made against Mr. Jehangir Badar, Ex-Federal Minister for Petroleum and Natural Resources.
(2) 1 have heard preliminary arguments of Mr. M.B. Zaman learned counsel for the referring authority and examined in detail the material placed on record with his assistance.
(3) The allegation against the respondent is that he allowed payment of Rs,7.635 millions to ABEL i.e, a Civil Engineering Firm of Lahore in connection with two contracts regarding Quetta Gas Pipeline Project and Indus Right Bank Pipeline Project by reopening a past and closed transaction as the said firm had already received certain amounts in full and final settlement of its claim, and while the matter was pending adjudication before the Wafaqi Mohtasib.
(4) From the material placed on the record, it is clear that the decision to make payment of the disputed amount to the said firm was taken in the meeting of the Board of Directors presided over by the respondent and not by him in his individual capacity. As such no blame can be legitimately be placed upon the respondent for taking that decision as if taken by him individually. It may be pertinently added that the above conclusion finds further support from the absence of any specific allegation in the reference and the material on the record to the effect that the respondent pressurized the members of the Board of Directors for taking the said decision and in particular from the absence of any plea to the effect that the said decision was motivated by a desire on the part of the respondent to acquire personal gain.
(5) In the extent of the foregoing discussion, I. Am of the considered opinion that the charge cannot be established. I accordingly return the reference as contemplated by Article 4(3)(a) of the President's (Post-Proclamation) Order No,I7, to the referring authority."
6. A careful scrutiny of the above order would reveal, that theReference was made under Article 4(2) of the President's Order No,17 of 1977 which was returned under Article 4(3)(a) of the President's Order No,17 of 1977. There is no denying the fact that material placed before the Special Court was considered insufficient to establish the allegation. It must not. Be lost sight of that the said Reference was made for a limited purpose under Article 4(2) of the President's Order No,17 of 1977 and the question as to whether any pressure or inference was exerted could have been determined on 'the basis of evidence which was never recorded and moreso, no trial whatsoever was conducted and thus, the proceedings qua the Reference under Article 4(2) of the President's Order No,17 of 1977 cannot be equated to that of "criminal trial". In such view of the matter the order passed on 12-9-1990 under Article 4(3)(a) of the President's Order No,17 of 1977 was neither "acquittal" nor "discharge" and therefore, the provisions as contained in Article 13 Of the Constitution of Islamic Republic of Pakistan and section 403, Cr.P.C. Would not be attracted. In the same wake.Of events the dictum as laid down in Abdul Hossain Sana's case (supra) has been examined which cannot be made applicable to the case of petitioner who was never discharged or acquitted in any proceedings. It is worth mentioning here that the provisions as contained in section 403, Cr.P.C. Are substantially different from the provisions contained in Article 13(a).
Subsection (I) of section 403, Cr.P.C., not only bars a subsequent trial of a person, who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted for the same offence, but further bars his trial on the same facts for any other offence for which a different charge from the one made against him might have been framed under section 236 or for which he might have been convicted under section 237. It will thus, he seen that an extended meaning has been given to "same offence" by including within its folds other offences for which, on the same facts, a charge under section 236 Might have been framed or a conviction may have been recorded under section 237. The bar in the Constitution, however, is against prosecution or punishment for the same offence for which a person has been previously tried or convicted. No extended meaning of "same offence" as in section 403. Cr.P.C. Can be given to the expression as used in the Constitution. The test for the "same offence" is, whether the former offence and the offence subsequently charged have the same ingredients in the sense that the facts constituting the one are sufficient to justify theconviction of the other, not that the facts relied on by the prosecution are the same at the two trials. Furthermore, the previous prosecution must be before a . Court, which had jurisdiction to .Try both the first offence alleged as well as the offence for which the accused is being subsequently prosecuted. There cannot be a valid prosecution before a Court. If the Court had no jurisdiction to try the offence for which the accused is being subsequently tried. Hoot. Khan v. National Industrial Relations Commission PLD 1977 Kar.
145.
7. As mentioned hereinabove the petitioner was never tried by any Court in any offence and for the first time trial has been commenced by C the Accountability Court hence the question of double jeopardy does not arise. It is worth mentioning that the word "prosecution" occurs in Article 13 of the Constitution means initiation or starting of proceedings of criminal nature before a Court of law or a judicial forum in accordance with procedure prescribed in the statute which create the D offence and regulate the procedure. The petitioner was never prosecuted before any Court or a Judicial Tribunal on the charges as framed by the learned Accountability Court. It is to be noted that charge was framed on 22-11-2001 and the petitioner woke up from deep slumber after two years for the reasons best known to him. This conduct, however, demonstrates propensity to prolong the matter. Be as it may, no prejudice whatsoever has been caused and the petitioner would have ample opportunity to approach the higher forums available in the hierarchy in case of any grievance against the judgment of the Accountability Court. A futile attempt has been made to get the proceedings prolonged which is not desirable. No question of law of public importance is involved in the matter. The petition being meritless is dismissed and .