P L D 2002 Supreme Court 572 (PLP)

3. The prosecution evidence was completed on 19th March, 2001. On 2nd April, 2001 prosecution submitted an application before the Accountability Court praying therein that first and fourth charges from the, charge‑sheet (reproduced hereinabove) may be allowed to be deleted for the following reasons:‑‑ "

5. That no documents/evidence or statement under section 161, Cr.P.C. of the witnesses were enclosed regarding the lst and 4th charge framed upon the accused.

6. That due to the abovementioned reason, the prosecution has not produced any evidence regarding the 1st and 4th charge.

7. That in fact the 1st and 4th charge was framed inadvertently as it was framed without evidence of materials/incriminating substance." Said application was rejected on 11th April, 2001. Against this order a review application was filed on behalf of prosecution which too has been dismissed on 21st May, 2001. On this very day i.e. 21st May; 2001 petitioner was acquitted of the charges including 1st and 4th Concluding para. from the judgment passed by Accountability Court is, reproduced hereinbelow:

"

39. As a result ' of the above findings, the following order is hereby passed:

(a) As charges Nos, l, 3 and 4 (as detailed above) are not established, Ch. Tanvir Khan, accused is acquitted of the said charges Nos. 1, 3 and 4. (b) As 2nd charge i.e. the charge under section 9(a) read with section 10(a) of the National Accountability Beareu Ordinance, 1999, relating to die construction of Commercial Plaza in Babu Mohalla, Saddar Bazar, Rawalpindi wihtout payment of commercial fees and without even obtaining commercial lease of the property from the Cantonment Board, Rawalpindi and thereby gaining pecuniary advantage illegally by the accused for himself and for his brother, is established, therefore, the accused is convicted for the offence under section 9(a) (vi) of the National Accountability Bureau Ordinance, read with section 10(a) of tire aforesaid Ordinance. Keeping. in view the role of the accused and the nature of the offence, I am of the view that sentence of imprisonment for one year and also the fine would serve the ends of justice. I, therefore, sentence him to rigorous imprisonment for one year and a fine of Rs.2.5 million. In case of default in payment of fine he will have to underage rigorous imprisonment for another year. (c) On realization, the amount of fine shall be paid to the Cantonment Board, Rawalpindi as compensation. (d) The accused shall be given the benefit of section 382‑B, Cr.P.C. and as such the period for which he has been under detention in connection with this case shall be counted‑towards total period of imprisonment spent by him in jail. (e) Under section IS(a) of the National Accountability Bureau Ordinance, 1999, it is directed that the accused shall stand disqualified for a period of 10 years (to be reckoned from the date he is released after serving this sentence) from seeking or from being elected, chosen, appointed, nominated , as member or Representative of any public office or any statutory or local authority of the Government of Pakistan. (f) Under section 15(b) is directed that the accused shall not be allowed to apply for or be granted or allowed any financial facilities in the form of any loan or advances or other financial accommodation by any bank or financial institution owned or controlled by the Government, for a period of 10 years."

4. It is important to note that before passing order dated 21st May, 2001 another Reference, dated 21st October, 2000 under the signatures of the same Investigating Officer i.e. Ch. Muhammad Gulshan Khan was filed on 16th April, 2001. On filing of second reference petitioner instituted writ petition before Lahore High Court, Lahore seeking his release on bail on medical ground as well as for the reason that second reference in respect of the same offence for which the accused/petitioner was earlier charged and acquitted therefrom vide judgment dated 21st May, 2001 is incompetent under Article 13 of the Constitution of Islamic Republic of Pakistan (hereinafter referred to as the "Constitution") read with section 403, Cr.P.C.

5. Learned High Court vide impugned judgment dated 26‑11‑2001 dismissed writ petition of petitioner on both the scores. However, in respect of competency of second reference it was observed as follows: "4 ....Needless to mention here that offences are relatable to facts and if an offence emanates from different set of facts then the case is not the one of double jeopardy." Against above judgment instant petition for leave to appeal has been filed.

6. Mr. Wasim Sajjad, learned Senior Advocate Supreme Court on behalf of the petitioner argued as follows:‑‑

1. The petitioner was charged under section 9(a)(iv)(v) of the National Accountability Bureau Ordinance (hereinafter referred to as the "Ordinance") for acquiring property by means of corruption and corrupt practices in the earlier reference and details of the properties were mentioned therein; whereas in the second Reference he has been charged for the same offence arising out of same facts, as such the second reference is barred under Article 13 of the Constitution read with section 403, Cr.P.C.

2. Prosecution has failed to produce evidence against the petitioner in Reference No. 18 of 2000, as it reflects from the application dated 2‑4‑2001 for deletion of first and fourth charge from the charge‑sheet. Surprisingly basing accusation of same facts or basing its case on surmises and conjectures to involve him in the commission of offence in which he has already been acquitted i.e. under section 9(a)(iv)(v) of the Ordinance. To substantiate his arguments he referred to different entries from the challan and attempted to demonstrate therefrom that prima facie no case has been made out against the petitioner to prove the accusation. 8 On the other hand learned Prosecutor‑General submitted:‑‑ (i) That the property mentioned in the first charge of the earlier reference is distinct and different from the property mentioned in the second reference as in respect thereof the petitioner has committed offence of corruption and corrupt practices falling within the mischief of section 9(a)(v) of the Ordinance, therefore, the second reference is not barred under Article 13 of the Constitution read with section 403, Cr.P.C. (ii). That the petitioner has committed a distinct and different offence, therefore, prosecution under section 222(2), Cr.P.C. can legitimately submit a separate Reference against him notwithstanding the fact that in the earlier Reference he has been acquitted of the charge.

9. We have heard the learned counsel for parties and have gone through the available record carefully. On perusal of charge‑sheets in both the reference it emerges that in substance both the charges are identical and attract the provision of section 9(a)(iv)(v) of the Ordinance, of course, with one dissimilarity in both of theta, namely that in the latter charge arising out of Reference No.38 of 2QOI some additional properties have been added besides the properties which were shown in the earlier charge‑sheet arising out of Reference No.18 of 2000. The petitioner was challaned and tried in Reference No.18 of 2000 for the commission of offence under section 9(a)(iv) of the. Ordinance according to which if a holder of a public office, or any other person, is said to commit or to have committed the offence of corruption and corrupt practices if he by corrupt, dishonest, or illegal means, obtains or seeks to obtain for himself or for his spouse and/or dependents or any other person, any property, valuable thing, or pecuniary advantage or if he or any of his dependents or benamidars owns, possesses, or has acquired right or title in any movable or immovable property or pecuniary resources disproportionate to his known source of income, which 'he cannot, reasonably account for and ultimately he was acquitted of this charge because the prosecution failed to produce evidence to substantiate accusation against him. Although it is the case of the prosecution that in earlier Reference statements under section 161, Cr.P.C. were not enclosed and due to this reason prosecution has not produced any evidence regarding charges Nos. I and 4 mentioned therein but perusal of record reveals that to substantiate both the allegations i.e. 1st and 4th alongwith report under section 173, Cr.P.C. copies of statements of the witnesses under section 161, Cr.P.C. of M/s. Nasir Ali Qureshi, Riaz Abbasi and Muhammad Siddique, notice‑server of Income/Wealth Tax etc. were appended, therefore, on basis of such material available on record it can safely be. concluded that prosecution was fully aware about the accusation against the petitioner contained in first and fourth charges. Learned trial Court vide judgment dated 21st May, 2001 had acquitted him from both these charges, therefore, notwithstanding the fact that in Reference No.38 of 2001 in support . of charge of acquiring property by corruption or corrupt practices detail of some more properties is added but it would not be deemed that the petitioner is charged for the distinct offence and in the terms of section 403, Cr.P.C. he will not get protection of being tried for the same offence. It may be noted that to attract the provisions of section 403, Cr.P.C. the law givers have laid stress on the word "same offence" for the purpose of debarring second trial of an accused person who has been once convicted or acquitted from an offence charged against him. 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 ac 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 facts not at all alleged at the previous trial. In the case Muhammad Ikram and another v. The State (PLD 1965 (W.P.) Lahore 461) the petitioner faced trial for committing different forgeries out of which on two counts he was sentenced but was required to face trial in respect of remaining 69 forgeries. As far as the trials in which he was found guilty, he was also convicted under section 5(2) of the Prevention of `Corruption Act (II of 1947), therefore with reference to this offence it was held that as he has already been convicted for being found in possession of pecuniary resources beyond his legitimate means of income and, therefore, he cannot again be convicted on the same count. To substantiate this aspect of the case reference may also be made to ILR 1923 Allahabad 485, AIR 1934 Madras 311, PLD 1963 Dacca 92 and PLD 1999 Karachi 336.

10. As in the instant case we are primarily dealing ‑with the question of release of the accused on bail as it has been prayed for because the trial arising out of Reference No.38 of 2001 is pending decision before the Accountability Court, therefore, on account of legal restraints namely that at the stage of considering an application for bail under section 497, Cr.P.C. discussion in‑depth on law as well as factual point is not advisable because it B will cause prejudice to the case of either of the party. Therefore, forming a tentative view, having no binding effect at the time of final determination of the case by the Accountability Court, prima facie, we are of the opinion that petitioner has succeeded in making out an arguable case to attract the provisions of section 403(1), Cr.P.C. in view of the fact that in respect of same charges i.e. 1st and 4th embodied in Reference No.18 of 2000 he has already been acquitted, therefore, for the same offence basing on same evidence as well as facts trial will be subject to final consideration by the trial Court on the point whether for the second time he can be tried and sentenced or not. We may observe in respect of the argument of Prosecutor‑General that a separate trial in respect of the same offence is warranted under section 222(2), Cr.P.C. is concerned, a perusal of this provision of law prima facie persuades us to draw inference that it attracts only when the charge against an accused pertains to an offence covered by the provisions o criminal breach of trust or dishonest misappropriation of money etc. and if such offences have been committed one after the other in respect of different transactions. there is no bar but where the offence of breach of trust and misappropriation of money has not been committed and the facts and circumstances of the cases constitute some other offence like corruption or corrupt practices then this section would not be applicable. However the trial court would not be precluded from dilating upon this aspect while disposing of the case finally.

11. Now turning towards merits of the case it is to be noted that allegations against the petitioner for possessing the properties more than his actual share have been made or taking over possession of the properties either forcibly from its actual owners or purchasing it at a low price and thereby making huge profit from it by disposing them of subsequently is required to be proved by means of cogent and convincing evidence at the trial. Similarly allegation against the petitioner for spending considerable money on his election has not been based on strong evidence because the charge merely depends on the estimation of the Investigating Officer who had fled challan against him. Reference in this behalf can be made to a document attached with the police report under the caption "estimated expenditure on election and political campaigns" wherein it has been said that the subject has contested six different elections so far and his election expenditure has been estimated extremely on lower basis namely for the election of Vice- Chairman, Cantonment Board, Rawalpindi 1987 estimated expenses Rs.5,00,000, Similarly expenses of Rs.5,00,000 have been estimated election of Provincial Assembly Punjab for the year 1990 and again it is alleged that he spent estimated cost of Rs.5,00,000 for the election of Vice -President Cantonment Board, Rawalpindi for the year 1991. Likewise he has been accused for spending Rs.5,00,000 estimated cost for the elections of M.P.A. in 1993.

12. It is well‑settled that to make out a case to decline bail to accused person primarily the prosecution is supposed to place on record material on basis of which one can believe his involvement in a non‑bailable offence but in absence of such material the Court for the purpose of releasing a person on bail instead of dilating upon the facts of the case in detail can dispose of the: matter by holding that detention of an accused involved in a non‑bailable offence is unjustified or unreasonable until such time when on further probe either by the Investigating Agency or the Court seized with the matter some additional incriminating material is collected against him to justify rejection of his bail. We are mindful of the fact that this Court even has discouraged grant of bail to an accused if he was made out a case of further inquiry as it has been held in PLD 1988 SC 621 and PLD 1991 SC

412. Similarly in number of cases the accused persons have been released on bail on the ground of further inquiry but essentially depending upon the facts of each case. Therefore, to apply either of the principles the facts of each case have to be taken it no consideration. It is also one of the most important principle of administration of justice that the accused cannot be kept in custody as a punishment particularly when the Court is convinced that the material produced before it is not sufficient to involve him in the commission of the offence unless by conducting further probe incriminating evidence is collected and placed on record. Reference in this behalf may be made to 2001 SCMR 1040. The petitioner was released on bail vide short order dated 1st April, 2002 reproduced hereinbelow and hereinabove are its reasons: For the reasons to be recorded later on, this petition is converted into appeal and allowed. Petitioner is released on bail subject to his furnishing bail bonds in the sum of Rs.50,00,000 (Rupees fifty lacs) with two sureties and P.R. in the like amount to the satisfaction of the Registrar of this Court. Petitioner will deposit his passport, if he has obtained with the Registrar of this Court and will furnish an undertaking that pending decision of the reference against him in Accountability Court, he will not undertake journey outside Pakistan. Accountability Court, however, is directed to dispose of the case expeditiously as far as possible within the period of six months. N.H.Q./T‑24/S Bail allowed.