PLJ 2010
Present: Kh. Muhammad Sharif, C.J. and
Waqar Hassan Mir, J.
MUHAMMAD NAWAZ--Petitioner
versus
CHAIRMAN, NATIONAL ACCOUNTABILITY BUREAU,
W.P. No. 8717 of 2010, decided on
27.5.2010.
Words and Phrases--
----Punishment--Meaning of--Punishment
means, any fine, penalty, or confinement inflicted upon a person by the
authority of the law and the judgment and sentence of a Court, for same crime
or offence committed by him or for his omission of a duty enjoined by law. [P. 476] A
Black Law Dictionary
ref.
National Accountability Ordinance, 1999
(XVIII of 1999)--
----S. 25(a)--Criminal Procedure Code, (V
of 1898), S. 403--Constitution of
General Clauses Act, 1897 (X of 1897)--
----S. 25--National Accountability
Ordinance, 1999, S. 25(a)--Criminal Procedure Code, (V of 1898), S.
403--Constitution of
PLD 1963
Mr. Zulfiqar Ahmad Bhutta, Advocate for
Petitioner.
Rana Abdul Shakoor Khan, Legal Expert for
NAB,
Mr. Muhammad Aamer Marth, A.D/I.O NAB,
Date of hearing: 27.5.2010.
Order
Waqar Hassan Mir, J.--This writ petition
has been filed for quashment of inquiry against the petitioner by the NAB
authorities. Chronology of events in this case is that the petitioner served in
Capital Development Authority ("CDA") as Steno-typist where he served
for about 20 years and ultimately he resigned from service when faced an
inquiry by the NAB Rawalpindi with the title as "INVESTIGATION AGAINST MPO
WING CDA FOR MISAPPROPRIATION OF FUNDS ON ACCOUNT OF REPAIR CHARGES OF HEAVY
EARTH MOVING MACHINERY/ VEHICLES BY PREPARING FAKE DOCUMENTS". In the year
2007, the above titled inquiry was pending before the NAB and during the
inquiry of the said case, Mr. Sana Ullah Baloch, Deputy Director Technical CDA,
Islamabad received a Letter No. 221/T-5/1W/NAB(R)/2006 dated 28th November,
2007 in which name of the present petitioner was introduced as one of the
suspects. The main portion/body of the said letter is reproduced below:
"Reference"
A NAB (R) Letter No.
221/T-5/IW-1/NAB(R)/2006 dated 20.11.2007 B.CDA Letter No.
CDA/SW-Tech-9(24)/2007/1376 dated 21.11.2007.
1. It has been found during investigation
that contractor Mr. Muhammad Nawaz Gondal has got registered eight firms with
different names mentioned below simultaneously with MPO CDA contrary to the
prevailing instructions for registration of firms/contractors:
(i) M/S
Haq Traders.
(ii) M/S A&S International.
(iii) M/S
Fareed Brothers.
(iv) M/S S&B Traders.
(v) M/S
Bhatti Brothers.
(vi) M/S Baba Traders.
(vii) M/S
Gondal Traders.
(viii) M/S
M.M Traders.
2. It is therefore, advised that the firms of the contractor must
be registered as per CDA Rules/Regulations."
As a result of inquiries of above
mentioned case, the petitioner was served with a notice regarding inquiry of
the corruption and corrupt practices under the provision of MAO, 1999 and
schedule thereof, resultantly in pursuance of the notice by NAB, the petitioner
was treated as an accused under the NAO, 1999, however, the concerned NAB
authorities suggested the petitioner to adopt Voluntary Return under Section
25(a) of NAO, 1999; the petitioner preferred to adopt the same and ultimately
deal of Voluntary Return in view of Section 25(a) of NAO, 1999 was allowed and
settled. Section 25(a) of NAO, 1999 which deals with the "Voluntary
Return" reads as under:
"25. Voluntary
return, and plea bargain.--
(a) Notwithstanding
anything contained in Section 15 or in any other law for the time being in
force, where a holder of public office or any other person, prior to the
authorization of investigation against him, voluntarily comes forward and
offers to return the assets or gains acquired or made by him in the course, or
as the consequence, of any offence under this Ordinance, the Chairman NAB may
accept such offer and after determination of the amount due from such person
and its deposit with the NAB discharge such person from all his liability in
respect of the matter or transaction in issue.
Provided that the matter is not sub judice in any Court of
law."
Thereafter, the NAB Rawalpindi under the
signatures of Mr. Shafqat Mehmood, Deputy Director Coordination, Investigation
Wing-I, again summoned the petitioner to face another inquiry under the title
of "INQUIRY AGAINST MUHAMMAD NAWAZ GONDAL, EX-STENOGRAPHER, CDA
ISLAMABAD" and the petitioner was directed to appear before Muhammad Aamer
Marth, Assistant Director/ Investigating Officer, NAB Rawalpindi, Hence this
petition.
2.
Learned counsel for the petitioner submits that the petitioner now has
been summoned regarding the matters which were already inquired into in the
previous inquiry and settled through Voluntary Return under Section 25(a) of
NAO, 1999 and as such an amount of Rs.2,35,00,000/- was paid by the petitioner;
that the petitioner is also being harassed by the Inquiry Officer of the case
namely Muhammad Aamer Marth who was also Inquiry Officer in the previous
inquiry and also knows this fact very well that under the same allegations and
incomes Voluntary Return has already taken place. Further submits that Article
13 of the Constitution of Islamic Republic of Pakistan, 1973 and Section 403 of
Cr.P.C protect any accused from double jeopardy and the second inquiry against
the petitioner is hit by the above Article/Section; that discharge of the
accused under Section 25(a) of the NAO, 1999 is protected as having the same
effect as discharged by the Court because both discharges are final and have
same effect as such the petitioner is also entitled to be treated in view of
Section 403 of Cr.P.C; that under Section 17 of NAO, 1999, Section 403 Cr.P.C
is applicable to the NAB cases. Lastly argued that nature of allegation and the
amount regarding which Voluntary Return took place is the same which is subject
matter of the present inquiry against the petitioner as such the present
inquiry against the petitioner is against the law and. protections guaranteed
to a citizen by the Constitution of Islamic Republic of Pakistan, 1973.
3.
On the other hand, learned counsel for NAB submits that the previous
inquiry was against the officials of MPO Directorate of CDA in which the
petitioner worked as bogus contractor on illegal/non-genuine firms having names
as mentioned in the writ petition and he caused loss of approximately Rs.70
Million to the State Exchequer; that the instant inquiry wherein the petitioner
has been called by the I.O. is relating to accumulation of assets beyond his
legitimate sources of income and a separate inquiry was authorized on
12.03.2010, whereas Voluntary Return was executed in another inquiry against
officials of MPO Directorate CDA and MPO contractors regarding misappropriation
of funds on account of repair charges of heavy earth moving machinery/vehicles
by preparing fake documents; that there was no deal in the NAB and the
petitioner as an accused in MPO case, settled his corruption amount which he
took from CDA in lieu of GST and extra prices with reference to 1%; his case of
bogus bills and false vouchers is still pending in which, investigation has
been completed and draft reference is being prepared by the Prosecution Wing
for filing in the Accountability Court. Lastly submits that the petitioner is
not being jeopardized because in both the cases the nature of offence is
entirely different; moreover, in the Voluntary Return under Section 25(a),
alleged person is not deemed convicted.
4.
Heard. Record perused.
5.
We find that paramount argument of learned counsel for the petitioner is
that once a Voluntary Return has been settled down and an amount of Rs.
2,35,00,000/- has been paid to the NAB, the same has become past and closed
transaction in its entirety. Whereas, learned counsel for the NAB submits that
the earlier inquiry was regarding misappropriation of funds whereas the present
inquiry is as to how the accused/petitioner has accumulated worth beyond his
means. Learned counsel for the petitioner has raised three basic points (i)
conviction/discharge as Voluntary Return was finalized (ii) punishment (iii)
vexing twice and mischief of Article 13 of the Constitution and Section 403 of
Cr.P.C; which have been vehemently controverted by learned counsel for the NAB
saying that the Voluntary Return has never culminated into conviction and that
there is difference in both the inquiries as the first was against
misappropriation of funds and the present one is about assets beyond means,
therefore, there is no question of double jeopardy or vexing twice.
6.
We intend to dilate upon above three points. Firstly, the
"punishment"; as per Black's Law Dictionary, "punishment"
means "any fine, penalty, or confinement inflicted upon a person by the
authority of the law and the judgment and sentence of a Court, for some crime
or offence committed by him, or for his omission of a duty enjoined by law. A deprivation of property or some right. But
does not include a civil penalty redounding to the benefit of an individual,
such as a forfeiture of interest." A careful reading of Section
25(a) of NAO, 1999, which relates to "Voluntary Return", shows that it
takes place out of Court and stricto senso between the Chairman NAB and the
accused and culminates into release and not discharge or acquittal. Article
13(a) of the Constitution and Section 403 (1) of Cr.P.C read as under:
"13. No person--
(a) shall be prosecuted or punished for the same offence more
than once;"------
"403. Persons once convicted or
acquitted not to be tried for the 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
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."
But the rule involved is of
"autrefois acquit" and "autrefois convict" for which, we
are well advised to look into the case law.
In Ashutosh Tokdar vs. The State (PLD
1963 Dacca 719) it has been held that:
"Acquittal of accused in previous
trial is no bar to his subsequent prosecution in respect of greater number of
articles though these might have been received at same time as those in
question in previous trial."
(Underlining is ours)
In Madad Ali vs. The State (PLD 1965
(W.P.) Karachi 541), it has been provided that:
"Bar of trial under S. 403 --
Limited to offence for which different charge might have been made under S. 236
or for which conviction might have been recorded under S. 237--person
discharged at previous trial, not in jeopardy, of being convicted of offence
for which he is subsequently tried"--Evidence identical to that given at
previous trial may be led in support of charge at subsequent trial."
(Underlining is ours)
It has been held in Muhammad Ikram and
others vs. The State (PLD 1965 (W.P.) Lahore 461):
"Offences, for which accused tried
subsequently, neither part of offence alleged at previous trial nor in any
manner connected with facts alleged at earlier trial -- Whether provisions of
section attracted -- "Same" and "similar" facts -- Distinct
-- Autrefois acquit and autrefois convict -- Principles how far and to what
extent applicable in cases not failing within purview of S. 403 Cr.P.C.
Section 403, has
no application to a case where the subsequent offence for which the accused is
being tried subsequently did not form part of the offence alleged at the
previous trial; nor is this section attracted to a case in which the subsequent
offence is not, in any manner, connected with the facts alleged at the earlier
trial. Apart from the offence for which the accused may have already been tried
and convicted or acquitted at the, previous trial, the protection contained in
subsection (1) of Section 403 extends to an offence for which a charge
different from the one made against the accused at the previous trial might
have been made on the same facts under Section 236 Cr.P.C., and also in respect
of an offence for which he might have been convicted at the previous trial
under Section 237 Cr.P.C.; but 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 here between
"same" and "similar" facts." (Underlining is ours)
Muhammad Ashraf and others vs. The State
(1995 SCMR 626) provides that:
"Maxim: "Nemo bis puniture aut
vexatur pro eodum delicto" (no one is to be twice vexed for one and the
same offence) -- Rule that no man shall be vexed twice for the same offence --
Application -- Rule of "autrefois acquit" and rule of "autrefois
convict" -- Protection given by Art. 13(a), Constitution of Pakistan
(1973) is against prosecution and double punishment -- Constitutional guarantee
is available only if the accused is convicted and punished and if the first
prosecution results in acquittal, the second prosecution is not prohibited.
Rule of double jeopardy, however, is found in S. 403(1), Cr.P.C, which
prohibits the second trial for an offence during 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 -- Rule
against autrefois acquit finds place in S. 403(1), Cr.P.C and the counterpart
of the said rule "autrefois convict" has received recognition in the
Constitutional guarantee embodied in Art. 13(a), Constitution of Pakistan
(1973) -- If one trial ends in conviction and punishment and in the second case
accused is acquitted, and the two judgments are placed in juxtaposition and it
becomes evident that the judgment of conviction in point of time is rendered
first, judgment of conviction will hold the field -- Subsequent acquittal of
accused thus cannot reflect upon his conviction and sentence awarded to him on
the basis of the trial. Provisions of S. 26, General Clauses Act 1897, does not
debar the simultaneous prosecution but prohibits duplicate punishment and not
the trial.
The rule that no one shall be vexed twice
for the same offence has its roots in the ancient maxim "Nemo bis puniture
aut vexatur pro eodum delicto" which means that no one should be subjected
to peril twice for the same offence. It is a fundamental rule of Criminal Law
that no one should be exposed to hazards of punishment and convicted twice for
one and the same offence. This doctrine is enshrined deeply in the legal system
of the countries following Anglo-American Jurisprudence. It is incorporated in
one form or another in the statutory law, or as a constitutional guarantee in
the constitutions of some of the countries.
In Constitution of Pakistan (1973), this
rule is enacted in Article 13(a).
The protection given by this Article
13(a) of the Constitution is against prosecution and double punishment. By
prosecution is meant a trial, followed by judgment of acquittal or punishment.
It includes the entire proceedings starting with taking cognizance of an
offence by the Court, followed by examination of evidence, addressing of
arguments and ending with the pronouncement of judgment. If as a result of
prosecution for an offence the trial ends in acquittal, Article 13(a) is not
attracted, Constitutional guarantee is available only if the accused is
convicted and punished. Thus if the first prosecution results in acquittal, so
far as this Article is concerned, the second prosecution is not prohibited. It
is, however, open to the Legislature to enlarge the scope of Constitutional
guarantee and further extend the protection envisaged by Article 13(a). Such
extension of rule of double jeopardy is to be found in Section 403(1) of the
Criminal Procedure Code.
The Constitutional guarantee is confined
only to duplicate punishment and is silent in so far as acquittal is concerned.
Section 403(1) however prohibits the second trial for an offence during the
course of existence of conviction or acquittal of a person, as the same may be,
in consequence of final adjudication of such an offence by a Court of competent
jurisdiction. Thus the rule against "autrefois acquit" finds place in
Section 403(1) and the counterpart of this rule "autrefois convict"
has received recognition in the Constitutional guarantee embodied in Article
13(a). (Underlining is ours)
7.
In the present case, as learned counsel for the petitioner has brought
into his arguments Article 13 of the Constitution as well as Section 403 Cr.P.C
claiming that the petitioner was being vexed twice, therefore, it was found
incumbent by us to have fully addressed the proposition involved of two
principles i.e. "autrefois acquit" and "autrefois convict".
As it is already observed above that the Voluntary Return proceedings confined
only between the
Chairman and the
accused/approved as desired by the accused/petitioner, it does not
amount to discharge or acquittal. It was simply release not even out of case,
but before the case and has also drawn a line of distinction between the
earlier Voluntary Return and the present inquiry. There was no scope of vexing
twice the petitioner. The earlier inquiry was about misappropriation of funds
by the Directors including the petitioner and the inquiry was confined to the
misappropriation of finances, but the present inquiry lodged against the
present petitioner was about his assets beyond means to which he has to
specifically explain as to how he has accumulated all these funds and finances.
By now it is very clear that the present inquiry does not mean the case of the
petitioner as that of vexing twice. Had it been so, even under Section 26 of
General Clauses Act, 1897, there is no bar on the simultaneous prosecution and
prohibited only is the duplicate punishment and not the trial.
8.
For what has been discussed above, we hold that the NAB authorities are
right in conducting the inquiry against the present petitioner and no fundamental
right of the petitioner has ever been militated or infringed. Therefore, this
petition is dismissed and the NAB authorities are directed to proceed with the
matter as expeditiously as possible.
(R.A.) Petition
dismissed.