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Judgment.

BEFORE PESHAWAR HIGH COURT,

PESHAWAR.

Judicial Department.

Writ Petition 3075-P of 2015

Mr. Arshad Khan………….….………………………………..Petitioner

Vs

Chairman National Accountability Bureau, Islamabad…Respondents

Date of hearing……………….15th December, 2016…….…………

Petitioner(s) by………………………………………………………

Respondent(s) by……………………………………………………

WAQAR AHMAD SETH, J:- Through this

single judgment we propose to decide the instant writ petition

as well as connected writ petitions bearing No. 144, 164, 690,

1897, 2280, 2281, 2369, 2651, 2736, 2833, 2889 & 2979-P of

2016, as common question of law and fact are involved therein.

2. Facts, relevant for the disposal of this writ petition are

that, respondents / NAB authorities initiated an inquiry

regarding corruption and corrupt practices related to award of

compensation / payment to affectees / IDPs of Mohmad Agency

by the officers / officials of FDMA and accordingly petitioner

was arrested on 2.4.2015, on the allegation that being Director

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General FATA, Disaster Management Authority, you facilitate

the withdrawal of funds on fake and bogus record/documents

and found involved with other accused persons in corruption

and corrupt practices by embezzling public money which was

meant for compensation to affectees, affected during military

operation in Mohmand Agency and thereby failed to exercise

your authority to prevent the loss to National Exchequer

through fake/bogus record. After arrest, petitioner was

produced before Judge Accountability for physical remand,

which was obtained and on 23.4.2015, was remanded to judicial

lockup. Thereafter he invoked the jurisdiction of this Court

under Article 199; however, his plea for bail was regretted; then

approached the apex Court where too met the same fate

however, NAB authorities were directed to conclude the trial

within three months. On 13.8.2015 another ground of arrest

against him was issued on the allegations that being Director

General FATA, Disaster Management Authority, knowingly

misused your authority with malafide intention and connivance

of others prepared fake survey forms for fake / ineligible

affectees under “Housing Uniform Assistance Subsidy

Project”, in Bajour Agency and approved payment list

containing fake forms in order to embezzle public money,

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thereby caused huge loss to the public exchequer; hence was

arrested and after codal formalities obtained physical remand.

3. Felt aggrieved petitioner had filed the instant writ

petition, which was heard and allowed as prayed for on

10.12.2015, but the said judgment was impugned before the

apex Court by NAB authorities, which came up for hearing on

19.5.2016 and the case was remanded to this Court for decision

afresh in accordance with law including maintainability of the

writ petition, hence the petition in hand.

Writ petition No. 144-P/2015.

Petitioner, who was posted as Divisional Accounts

Officer in Pak PWD Batkhela with effect from 16.11.2009 to

21.9.2011 was arrested by NAB authorities in inquiry

conducted in respect of NA-30 and after codal formalities sent

to judicial lockup; whereafter he moved for bail before this

Court in WP No. 3411-P of 2015 which was accepted and

allowed on 19.11.2015 and was accordingly released on bail,

but again preferred the petition in hand with the plea that

respondents / NAB authorities are bent upon to arrest him in

other so called inquiries of the same period of different

constituencies, which is illegal and unlawful.

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Writ Petition No. 164-P/2016.

The petitioner of instant case is the Assistant Executive

Engineer (Acting Charge) in Pakistan Public Works

Department (Pak PWD) Batkhela Division and was arrested on

19.8.2014 on the allegation that you being SDO Pak PWD

Batkhela, approved and execute ghost schemes worth of

millions rupees by preparing and signing bogus bills/entries in

measurement book (MB) which caused colossal loss to the

public exchequer. After arrested, petitioner interrogated and

after investigation sent to judicial lockup. Petitioner submitted

petitions for bail before this Court as well as apex Court, which

were dismissed, however reference No.3 of 2015 before trial

Court is pending trial. On 7.1.2016, another warrant of arrest

against the petitioner was issued on the allegations that more

than 100 schemes were shown to be executed as per record,

wherein grave illegalities and ghost schemes were identified

during the course of investigation and you being Assistant

Engineer, passed bills amounting to millions of rupees on the

basis of fictitious measurement causing huge loss to the

government exchequer, which as per assertion of petitioner is

illegal and unlawful, hence the instant writ petition.

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Writ Petition No. 2369 & 2280-P/2016.

The petitioners of these writ petitions aggrieved from the

letter No. 556-63/F&P/DC(M) dated 30.5.2016, whereby they

were directed to accompany the NAB authorities during field

visit of developmental schemes in NA-21 District

Mansehra/Torghar, which as per their assertion is illegal and

unlawful on the ground that NAB authorities have already after

inquiry have investigated the schemes i.e 181 schemes out of

567, wherein petitioners were arrested, however, after due

course of law they succeeded in obtaining bail and to this effect

reference No. 5 of 2016 has been filed against them, hence the

writ petition.

Writ Petition No.2281-P/2016.

Petitioner being District Coordination Officer /

Administrative Head, Mansehra, has supervised / executed

construction work under Prime Minister Directives, upon which

NAB started inquiry which was converted into investigation

and accordingly petitioner being Head / authority was arrested

and later on was released on bail by apex Court on 11.4.2016,

however is aggrieved from other inquiries initiated by the NAB

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in the said constituencies / District, has filed the instant writ

petition.

Writ Petition No. 1897, 2651, 2736 & 2979-P of 2016.

Petitioners Muhammad Asif, Muhammad Iftikharullah

Qureshi, Abdul Wahab & Faridon, Executive Engineers,

Assistant Executive Engineer & Sub Engineer, Pak PWD,

respectively, have filed the instant writ petition with the prayer

that to declare the subsequent inquiries conducted by the NAB

authorities against them in one and same period, as illegal,

unlawful and against the settled principle of law.

Writ Petition No. 2833-P/2016.

Petitioners of the instant writ petition aggrieved from the

actions / acts of respondents / NAB authorities have filed the

instant writ petition with the prayer that the so called inquiries /

investigations which the NAB authorities are conducting, are

based on mala fide, malice as they have revived the inquiries

after six years that too; at the behest of respondent No.5 and are

repeatedly calling / harassing the petitioners, which is illegal

and unlawful.

Writ Petition No.690-P of 2016.

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Petitioner of the instant writ petition is aggrieved from

the interim reference No.04/2015 and subsequent references if

any which the respondents / NAB intends to file, have filed the

instant writ petition with the averments that reference No.

01/2015 and interim reference No.04/2015 arising out of the

same facts and pertaining to the period during which petitioner

remained Secretary Worker Welfare Board (WWB) therefore,

reference No.4 / interim reference be considered part and parcel

of reference No.1 and both the references be joined together as

one reference and a single charge be framed.

Writ Petition No. 2889-P/2016.

Petitioner of the instant writ petition aggrieved from four

separate references filed against him by respondents / NAB

authorities and further authorization of fresh inquiry have filed

the instant writ petition with the averments that reference

No.03/2015, 11/2015, 03/2016 and 07/2016, arising out of the

same facts and pertaining to the period during which the

petitioner remained Divisional Accounts Officer, Malakand and

if any subsequent references which the respondents intends to

file be joined together as one reference and single charge be

framed.

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4. We have heard learned counsel for the parties and

available record gone through.

5. Since, the matter has been remanded by the apex Court

for attending to the legal objections raised by the petitioner i.e

National Accountability Bureau including the maintainability of

the writ petition, learned DPG was invited to argue the case on

the point of maintainability and other legal aspects, but he was

not aware regarding legal aspects of the matter on the basis of

which the matter has been remanded, and same is the position

of learned counsel for the petitioners as they are of the view that

at the time of hearing these petitions before the apex Court none

of them was present.

6. Learned DPG, while referring to section 173 of the

Criminal Procedure Code, 1898 and then reading Chapter-XIX

dealing with the form of charges from section 221 to 240 of the

Code, stated that it’s the job of the trial Court and a writ cannot

be entertained. He also referred to 1973 PCr.LJ 457, PLD-

1965 Peshawar-65 and 2000 MLD-1504. As against this,

counsel for the petitioners contended that the trial Court is

bound by the reference so submitted by the NAB authorities

and is not empowered to change or modify the reference. They

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are of the view that supplementary challan can only authorize

the trial court to go for joinder of charges.

Section-17 of the National Accountability Ordinance,

1999, sub clause (a) reads as under:-

“Notwithstanding anything contained in

any other law for the time being in force,

unless there is anything inconsistent with

the provision of this Ordinance, the

provisions of the Code of Criminal

Procedure, 1898 (Act of 1898), shall

mutatis mutandis, apply to the

proceedings under this Ordinance.”

7. Admittedly, National Accountability Bureau, Ordinance,

1999 is a special law, promulgated to eradicate corruption and

corrupt practices and hold accountable all those persons

accused of such practice. One of the main considerations for

promulgation of National Accountability Ordinance, 1999, was

to recover the amount which accused persons did not pay and

misappropriated the amount and assets. Section-3 of the

Ordinance, ibid reads, Ordinance to override the other law, ”the

provisions of this Ordinance shall have effect notwithstanding

anything contained in any other law for the time being enforce”,

which clarifies that provision of National Accountability

Ordinance, 1999 shall have effect notwithstanding anything

contained in any other law for the time being enforce and to

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have overriding effect to the extent of any inconsistency and

provisions of the Ordinance, and shall prevail over the

procedure provided in Criminal Procedure Code, 1898. In this

respect reliance is placed on the case of Sardar Ahmad Sial

and others vs National Accountability Bureau reported in

2004 SCMR-265 (b) which reads as under:-

“---Ss. 3 & 17---Criminal Procedure Code

(V of 1898), Preamble---Provisions of

National Accountability Ordinance, 1999

shall have effect notwithstanding

anything contained in any other law for

the time being in force---Provisions of

National Accountability Ordinance, 1999

have overriding effect to the extent of any

inconsistency and provisions of the

Ordinance shall prevail over the

procedure provided in Criminal

Procedure Code, 1898.”

8. The Accountability Court which is define in section 5(g),

NAB Ordinance, 1999, is empowered to take cognizance of

offences under section 18 (a) which reads as under:-

“The Court shall not take cognizance of

any offence under this Ordinance except

on a reference made by the Chairman

NAB or an officer of the NAB duly

authorized by him.”

9. According to section 18-(b) a reference under the

Ordinance, 1999 shall be instituted by the National

Accountability Bureau, meaning thereby that any reference

filed by the Bureau is to be adjudicated / cognizance be taken

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by the Accountability Court and not otherwise. The reference so

filed neither can be modified nor can be altered by the

Accountability Court except to frame the charge and then to

proceed in accordance with the procedure so provided,

therefore, for the purpose of joinder of charges etc the

Accountability court is tied up. Charge under the law had to be

framed by the Court on the basis of the material placed before it

and in doing so, the Court was not bound by the report

submitted under section 173 Cr.PC and the Court can alter or

change under section 227, Cr.PC if it was so warranted by the

circumstances, but all this is possible when there is a

supplementary challan under the general law. Here the question

is that when a reference is filed the Court is only competent

under the National Accountability Ordinance, 1999 to frame the

charge on the said reference and these petitions have been filed

by calling in question and interpreting the provision of section

17(d) of the NAB Ordinance, practically requiring the

prosecuting agency to submit one reference in respect of all the

charges of similar nature, without bifurcating one and the same

offence, of a particular period, tenure and cause of action and as

such the accountability court cannot do so and it’s the

constitutional jurisdiction of this Court, to do so. The larger

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bench of Lahore High Court has held regarding the

maintainability and jurisdiction under Article 199 of the

Constitution as under:-

“---Ss. 5(o) (r), 9, 10 & 11---Constitution

of Pakistan (1973), Art. 199---

Constitutional petition---Maintainability--

-Willful default ---Reference---Person

who was neither sponsor nor owner of the

defaulting corporate entity; nor exercised

any dominative influence in the working

of defaulting company and his wife’s

share in the company was nominal and

Creditor Bank had not impleaded him as

defaulting party when suit for recovery of

loan in the Court of Special Judge

Banking filed, was not a person within the

terms of S. 5(o) of the National

Accountability Bureau Ordinance, 1999

nor a “willful defaulter” within the ambit

of S.5(r) of the said Ordinance---

Proceedings against such person,

therefore, were clearly without

jurisdiction and of no lawful

consequences---Reference to the extent of

such person was ordered to be quashed

by the High Court under its jurisdiction

under Art. 199 of the Constitution in

circumstances.”

10. Even otherwise interpretation of law comes within the

domain of Article 199 and in the instant case the prosecuting

agency is not doing what he is required under the law to do.

11. On merits petitioners have called in question the

applicability of section 17(d) of National Accountability

Ordinance, 1999, alleging that the repeated arrest, detention,

investigation and the references so filed are against the spirit of

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said section, thus are illegal, unlawful, void and baseless. In

order to interpret said section of law i.e 17(d) it would be

imperative to read the same carefully which says:-

“Notwithstanding anything in section 234

of the Code, a person accused of more

offences than one of the same kind

committed during the space of any

number of years, from the first to the last

of such offences, may be charged with and

tried at one trial for any number of such

offences.”

Under line by us to have emphasis.

Section-234 of the Code of Criminal Procedure 1898

reads as under:-

“Three offences of same kind within one

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 persons or not he

may be charged with and tied at one trial

for and 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;

12. The object and intention of the legislature is very much

clear by introducing section 17(d) in the NAB Ordinance, in

reference to section 234 of the Code, and section 3 of the NAB

Ordinance, 1999 gives the overriding effect over all other laws

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including the Code and specially section 234. The bare reading

of section 17(d) would provide an emphasis that a person

accused of more offences than one of the same kind committed

during the space of any number of years, from the first to the

last of such offences may be charged with and tried at one trial

for any number of such offences. The underline portion of the

said section is relevant for the present controversy and as such

learned DPG was directed to address the Court on the same.

13. We have before us section 234 of the Code of Criminal

Procedure which requires 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 cases 234, 235, 236 and 239 of the Code; whereas

section 235 of the said Code requires:-

(i). 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

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offence. If several acts, of which one or

more than one would be itself or

themselves constitute an offence,

constitute when combined a different to

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 any one, or more, of such acts.

(4) Nothing contained in this section shall

affect the Pakistan Penal Code, section 71.

14. We have before us judgments reported in PLD 2014

Balochistan-33 titled Gen. ® Syed Pervez Musharraf Vs the

Statez, in reference to repeated arrests etc and the distinct

offences defined and explained, the perusal of the same would

gives the idea in this respect which reads as follow:-

“---Ss. 167, 173 & 497---Bail, grant of---

More one case---Investigation---

Procedure---Different criminal cases were

registered against accused in different

provinces and after his arrest in one case,

he applied for bail in other case registered

in other province---Validity---Accused,

under S. 167, Cr.PC, required in more

than one criminal cases, when arrested

was deemed to have been arrested in all

cases, registered against him---No legal

bar existed for interrogating accused with

regard to allegation against him in

another case; it was rather desirable that

when a person required or accused in

more than one case or when more than

one FIR were registered against him was

arrested and remanded to physical

custody then he should be interrogated

about allegations against him in all cases--

-Different cases against accused could be

investigated under S. 167 Cr.PC by

keeping him at one place---Once

investigation was completed and

challan/police report submitted under

section 173, Cr.PC, physical custody of

accused had to be forwarded to the

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jurisdiction of concerned court---Once

such custody was acquired by Court

concerned it could proceed with the trial

and pass all ancillary orders including

grant of bail---Concept of considering

grant of bail to accused after his arrest by

a Court which did not have his physical

custody was alien to law---Accused,

though arrested in case in question, was

not produced in custody /brought before

Trial Court or within the territorial

jurisdiction of trial Court, therefore,

Trial Court had rightly rejected

application as being premature---Accused

being not in custody within the

jurisdiction of High Court, therefore,

application was not maintainable---Bail

was refused in circumstances.

Likewise in the case of Mst. Razia Pervez and another

Vs Senior Superintendent of Police, reported in 1992,

PCr.L.J-131, it has been held as under:-

(a) Constitution of Pakistan (1973) ---

----Art. 199---Criminal Procedure Code

(V of 1898), Ss.54 & 167---Accused was

kept in continuous detention for more

than fifteen days in police lock-up as a

result of his repeated arrest by Station

House Officer in more than one cases

registered at the same police station and

his successive physical remands given by

the Magistrate to police--- Such conduct

of S.H.O. and Magistrate was

unwarranted and not in accordance with

law--- Magistrate and S.H.O. both,

however, tendered unqualified apology to

the High Court with the promise to be

careful in future--- State Counsel also

gave assurance that police would not

apply for further physical remand of the

accused in cases already registered

against him at the same police station and

that he would immediately be sent to

judicial lock-up--- Proceedings’ against

the Magistrate and the S.H.O. were

consequently dropped and writ petition

was disposed of accordingly.

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(b) Criminal Procedure Code (V of 1898)---

----Ss. 54 & 167---Law does not authorize

police to arrest an accused required in

more than one cases in one case and to

wait for his arrest in the other case till the

expiry of the period of remand under

S.167, Cr.P.C. or till he is released on bail

in the first case---Such commonly

committed mischief not only defeats the

object of S.167, Cr.P.C. of limiting the

period of physical detention of an accused

person to fifteen days, but is obviously a

joke with the powers of the Magistrate in

the matters of remand and custody of an

accused person.

(c) Criminal Procedure Code (V of 1898)---

----Ss. 54 & 167---Scope and object of

Ss.54 & 167, Cr.P.C.---Person required in

more than one

cases---Arrest---Procedure---Guidelines.

No doubt, the Police Officer can arrest a

person where a reasonable suspicion

exists of his having been concerned in any

cognizable offence but power given to the

Police Officer under section 54, Cr.P.C.

being an encroachment on the liberty of a

citizen is not unlimited. It is subject to the

condition stated therein. An arrest

purporting to be under this section would

be illegal unless the circumstances

specified in the various clauses of the

section exist. This section does not give

free license to a Police Officer to arrest

anybody he may like. In order to act

under this section, there must be a

reasonable suspicion of the person to be

arrested having been concerned in a

cognizable offence. An arrest of a citizen

in a reckless disregard of the conditions

imposed in this section would make the

arrest and detention of the subject illegal

and the Police Officer arresting or

detaining the subject would be exposed to

prosecution under the Pakistan Penal

Code and also for departmental action

under the relevant rules. Similarly,

section 167, Cr.P.C. does not visualize

successive and repeated arrests of a

person required in more than one cases.

An accused required in more than one

criminal cases when arrested will be

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deemed to have been arrested in all the

cases registered against him. There is no

legal bar for interrogating an accused

person with regard to the allegations

against him in another case. It is rather

desirable that when a person required or

accused in more than one cases or where

more than one F.I.Rs. are registered

against him is arrested and remanded to

physical custody, then he should be

interrogated about the allegations against

him in all the cases. Instead of acting

strictly in accordance with law, the police

is following the illegal practice of showing

the arrest of the person in one case and on

the expiry of remand it again arrests him

in another case. It is commonly known

that in selected case, police would arrest

the accused on his release on bail in the

first case. It is nowhere stated in the

Criminal Procedure Code and Police

Rules that a person required in more than

one case when arrested will be deemed to

have been arrested in one case and he

cannot be arrested simultaneously in

more than one case. Section 167, Cr.P.C.

simply says that whenever a person is

arrested or detained in custody, the

Magistrate may authorize his detention in

such custody for a term not exceeding

fifteen days in the whole. The section does

not talk of ‘case’ it talks of custody only.

The longest period for which an accused

can be ordered to be detained

continuously in police custody by one or

more such orders, is only fifteen days. So,

the detention of the accused person

required in more than one cases already

registered against him, for more than

fifteen days would be illegal. It would be

quite in accordance with law that when a

person required in more than one

criminal cases of the same police station is

arrested in one case, he shall be deemed

to have been arrested in all the cases.

After continuous physical custody of the

accused with the police, the Magistrate

will not be justified in granting his

physical remand in another case and

similarly after the accused is released on

bail in one case, he will not be arrested by

the police in the other case. It is desirable

that the Police Officer, while applying for

the physical remand of an accused person

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should certify that he is not required in

any other case and if there are more than

one cases against him, then the

S.H.O./Investigating officer will state this

fact in the remand application. Similarly

while granting physical remand, the

Magistrate shall inquire from the

S.H.O./Investigating Officer as to whether

the accused is required in other cases or

whether any other case is registered

against him at the police station. If the

accused has remained with police

pursuance to the remand granted under

section 167, Cr.P.C. then the Magistrate

will be justified in refusing further

physical remand of the accused in another

case. It goes without saying that whenever

the police indulges in these tactics of

arresting the accused successively in

different case, it is not taken in good taste

by the public and the Courts.

In the case of Ramesh M. Udeshi Vs The State,

reported in 2002 PCr.L.J-1712, the learned Bench of

Karachi High Court, in reference to NAB Ordinance, 1999

has held as under:-

----Ss. 9 & 10---Criminal Procedure Code

(V of 1898), Ss.233. 234, 235, 403 & 407---

Constitution of Pakistan (1973), Art.

406---Corruption and corrupt practices---

Accused, as Secretary Provincial Land

Utilization Department had allegedly

submitted a joint summary to the

Provincial Chief Minister benefiting 26

persons who were leased out lands in

various Dehs--- Distinct offence---

Concept--- Multiplicity of trials on same

set of facts--- Validity--- Once the accused

was tried and convicted on the basis of

joint summary from which benefits

flowed m 26 persons and on account of

single direction to the Competent

Authority, subsequent prosecution and

trial on the same set of facts was barred

under the law-- Such bar, however, was

confined to the accused only who already

stood tried and convicted in the earlier

reference, which had nothing to do with

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the present trial of the beneficiaries who

had not been earlier convicted and tried

for the commission of corruption and

corrupt practices-- Principles--- Maxim

"Nemo debet bis vexari pro una et eadem

causa"--Scope and applicability.

Perusal of section 233, Cr.P.C. 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 circumstance 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 a 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.

Sections 233 to 240, Cr.P.C. 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.

A perusal of the illustration of section

233, Cr.P.C. shows that the expression

"distinct offences" connotes 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.

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(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.

In the following cases, the offences of the same

kind committed on one occasion were to be taken

as one offence and not distinct offences:--

(1) Theft of several articles from one person or more

at the same time.

(2) The receiving of stolen property belonging to

different owners or the gangs of different theft

but received at the same time.

(3) The making of any number of false allegations in

one statement.

(4) The misappropriation of several amounts of

money not proved to be committed on different

occasions.

(5) A single use of several forged documents as

genuine in a Court of law.

(6) Receiving of bribe partly on one day and partly

on another.

(7) Attempt to murder two persons by firing a single

shot at them.

Now coming to section 235, Cr.P.C.

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. 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.

The real and substantial test in

determining whether several offences are

P a g e | 22

so connected together as to form one

transaction depends 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.

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.

The expression "same transaction" is not

defined in the Code. The word

"transaction" is by its very nature is

incapable of exact definition. 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 whether distinct

offences form part of the same

transaction is one the answer to which

must depend on the facts of each

particular case.

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.

Where 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 end 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.

In the present cases, the point to be

considered is whether the accused could

be tried jointly in one trial for all the acts

resulting in extending benefit to 26

persons, therefore, relevant provisions

contained in section 239, Cr.P.C. need not

be considered.

The principles contained in section 403,

Cr. P.C. and Article 13 of the

Constitution, are based on maxim "Nemo

P a g e | 23

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.

The maxim "nemo debt bis vexari pro

una et eadem causa"; expresses a great

fundamental rule of 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 autrefois acquit and autrefois

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.

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 autrefois acquit is a good bar to the

indictment. The true test by which to

decide whether a plea of autrefois 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 charged 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.

Similarly, the plea of autrefois convict

operates to bar a second indictment after

the prisoner has been prosecuted to

P a g e | 24

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

autrefois convict and autrefois 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.

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 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).

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.

This general rule is subject to the

exceptions mentioned in sections 234, 235,

236 and 239, Cr.P.C.

The provisions contained in section 233

are not to be interpreted or applied in a

manner which gives leverage to the

P a g e | 25

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.

It is bounden duty of the Courts to see

that an accused person is saved from the

agony of multiplicity of proceedings and

scourage of repeated prosecutions and

facing the same witnesses and the same

prosecution material time and again.

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.

The expression offences of same kind has

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 harassment

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.

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. 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 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. The bar contained in

section 403 for subsequent trial is not

P a g e | 26

confined merely to the same offence but

for act, 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.

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.

There is no 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

harassment 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 harassment caused

to an accused who after facing the

subsequent trial is bound to be acquitted.

However, subject to 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.

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.

The accused/applicant was already tried

and convicted for the commission of

offence and subsequently on the basis of

observations made by Accountability

Court accused/applicant could not be

tried again for the same offence or for the

offence on the same facts.

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.

Court should also try to give more

impression of an impartial arbiter having

P a g e | 27

no inclination to be proprosecution or

pro-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.

Once the accused 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

the subsequent prosecution and trial on

the same set of facts is barred under the

law. Such bar is confined to the accused

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.

In the case of Badar Alam Bacjiani vs the State

through Chairman NAB, reported in 2010 PCr.L.J, it has

been held that:-

“---Ss. 9(a)(iv)(v)(vi) & 17 (d)---Criminal

Procedure code (V of 1898), S. 403---

Constitution of Pakistan (1973), Arts. 13

& 199---Constitutional petition---

Quashing of reference---Double jeopardy-

--Joint trial---Once reference was filed

against accused for acquiring assets

beyond known source of his income and

in that reference he was convicted and

sentenced by Trial Court---Later on two

more reference were filed against accused

which included the allegations already

contained in earlier reference---Accused

contended that it was a case of double

jeopardy as he had already been tried by

the Court on the charges---Validity---

Where number of offences had arise out

of one and the same transaction and same

set of facts, the same should be tried

jointly as there was commonality of

purpose and, therefore, could become a

cause for separate charge in a separate

P a g e | 28

reference which would be violative of

section 403 Cr.PC and Art. 13 of the

Constitution---NAB had contended that

fraud was result of misuse of authority in

former reference against accused and

charge in subsequent references also

included commission of fraud by hint---

Accused having been tried on such charge

and convicted too; therefore, no separate

reference in respect of such charge could

justifiably be filed and accused could not

be charged under the same---High Court

quashed subsequent references filed by

NAB against accused---petition was

allowed in circumstances.

15. The Hon’ble apex Court of the country has defined same

offence for the purpose of criminal procedure court as well as

NAB Ordinance, 1999, in its reported judgment titled Ch.

Tanveer Khan vs Chairman NAB and others, PLD 2002,

Supreme Court-587 (a) wherein it has been held as follow:-

“---S. 403. 236 & 237---Words “same

offence” as used in S. 403(i), Cr.PC, ---

Significance---Persons once convicted or

acquitted not to be tried for the same

offence---Law gives, in order to attract

the provision of S. 403 Cr.PC have laid

stress on the words “same offence” for the

purpose of debarring second trial of an

accused person, who has been once

convicted acquitted from an offence

charged against him---Apart from the

offence I which the accused may have

already been tried and convicted or

acquitted at the previous trial the

protection contained in subsection (1) of

S. 403 Cr.PC extends to an offence for

which a charge different from the one

made against tint accused at the previous

trial might have been made on the same

facts under S. 236 Cr.PC and also in

respect of an offence for which he rightly

have been convicted at the previous trial

under S. 237, Cr.PC but the protection

P a g e | 29

clearly does not extend to those facts not

at all alleged at the previous trial.

Likewise the apex court of the country in the case of

State through Deputy Prosecutor General vs Ramesh M.

Udeshi, Ex-Secretary Board of Revenue, Sindh, reported in

PLD 2003, Supreme Court-891 in reference to Article 13 of

the Constitution has held which reads as under:-

----Ss. 9 & 10---Criminal Procedure Code

(V of 1898), Ss.233 & 235--Corruption

and corrupt practices---Trial of charges

in more than one offences---Different

pieces of land were given to different

persons on lease for a period of 30 years

for Poultry Farming in various Dehs by

the Government---Lessees of such land

moved separate applications to the Chief

Minister of the Province for conversion of

their poultry farming leases into

industrial/commercial and residential

leases for 99 years in relaxation of the

existing policy---Chief Minister sent the

said applications to the Secretary,

Provincial Board of Revenue for

favourable action who prepared a

summary containing recommendations

for conversion of the leases in question

under S.10(1) of the Colonization of

Government Lands (Sindh) Act, 1912,

relaxation of existing Policy/Rules and

also recommended for reduction in the

prescribed lease money of Rs.50,000 to

Rs.25,000 per acre---Said summary was

approved by the Chief Minister and in

consequence thereto, the conversion of 26

leases mentioned in the summary was

allowed to be made---Reference under

Ss.18(g) & 24(b) of the National

Accountability Ordinance, 1999 were

filed against both the Chief Minister and

the Secretary Board of Revenue for

causing huge monetary loss to the State

by corruption and corrupt practices and

provided illegal benefit to the

beneficiaries/lessees and committed

offence/offences punishable under S.10,

National Accountability Ordinance, 1999

as holder of the public office---High

Court, found that since a proposal for

grant of 26 leases of Government land to

P a g e | 30

different persons was approved through

the joint summary, therefore, it would

constitute a single transaction for the

purpose of a joint trial of all the accused

and separate trial in each reference would

not be legal---Validity---If same kind of

offences were committed in separate

transactions, the joinder of the charges in

such cases would be in contravention of

law but if the similar nature of offences

were committed in the same transaction a

joint charge would be framed---

Principles.

If same kind of offences are committed in

separate transactions, the joinder of the

charges in such cases would be in

contravention of law but if the similar

nature of offences are committed in the

same transaction a joint charge would be

framed. It is provided in section 233,

Cr.P.C. that in case of distinct offences,

separate charge should be framed and

each charge should be tried separately

except in the cases mentioned therein

whereas under section 235, Cr.P.C. all the

offences which are committed in the same

transaction should be charged together.

Series of acts connected together and

forming, part of same transaction would

constitute a single transaction while the

separate transactions would consist upon

independent facts and constitute separate

offences and if more than one offender

committed the same offence in the same

transaction all would be charged together

at the joint trial. The general law is that if

several persons committed the same

nature of offence relating to the same

transaction, they should be tried jointly

but to ascertain the question as to

whether a case should be tried jointly or

not, the Court must look into the nature

of accusation set forth in the charge and if

the accusation is that several persons

committed the same offence in the course

of same transaction, it would be the case

of joint trial. The continuity of purpose or

design or continuity of action with

different acts, can be regarded as part of

the same transaction and obviously the

various acts may form one series and if

several acts are responsible for producing

particular result, the same may also

constitute one series but if there is no

identity or commonality of purpose, and

separate offences of the same kind were

committed, it would not form part of the

same transaction for the purpose of joint

trial, The acts of two sets of accused with

commonality of purpose if are so

P a g e | 31

intimately connected with each other that

two acts necessarily are the part and

parcel of same transaction, all the

offenders in such a case should be tried

jointly. The commonality of the purpose

and design and continuity of an action are

sine qua non to treat the series of acts as

one and same transaction and thus if

more than one person committed same

offence in the course, of same transaction

they would be charged together and tried

jointly. In the present case 26 leases were

approved through a joint summary and

all the beneficiaries would be responsible

of committing the same offence arising

out of the same transaction and

notwithstanding the individual

responsibility of all the beneficiaries, the

separate trial of the accused in each

reference by splitting up one transaction

into number of transactions would not be

legal in the light of rule that no one

should be vexed twice for one and the

same cause.

If a person is charged for committing

several offences of similar nature in the

same transaction, the joint charge shall be

framed and if several persons committed

same offence in the same transaction they

should be tried jointly, but this rule is

subject to the provisions of section 233,

Cr.P.C. wherein it is provided that for

every distinct offence there shall be

separate charge and the same shall be

tried separately except in the cases in

which the Code provides otherwise. The

concept of joint trial is based on solitary

principle that no prejudice should be

caused to the accused in framing of

separate charge and holding separate

trial unless it is essentially required under

the law. The provision of section 233,

Cr.P.C. being an enabling provision

would not make it incumbent on the

Court to frame separate charge and hold

separate trial on the basis of same facts by

splitting up one transaction into number

of transactions in terms of the rule laid

down in the said provision that for each

distinct offence separate charge should be

framed. The present case would be

governed by the provision of section 235,

Cr.P.C. wherein it, is provided that in the

cases in which more than one offence is

committed in the same transaction by

more than one person all should be tried

jointly. Thus the mere fact that 26

different leases in the name of different

persons were approved, would not be

sufficient to hold that there was no

commonality of purpose or that it was

P a g e | 32

more than one transaction forming part

of the joint summary; therefore, there can

be no exception to the view that the

framing of the separate charge against the

respondent in each reference on the basis

of same fact would be violative of the

principle of law embodied in section 403,

Cr.P.C. and Article 13 of the Constitution

of Islamic Republic of Pakistan, 1973.

16. While going through the above referred judgments

regarding the “same transaction” and “distinct charge”, we are

left with section 17(d), which exclude section 234 of the Code

of Criminal Procedure and leaves only “from the first to the last

of such offence” may be charged with and tried at one trial for

any number of such offences. The accused as defined in

section-5 (a) of the Ordinance, clause-a is reproduced as under:-

“Accused” shall include a person in

respect of whom there are reasonable

grounds to believe that he is or has been

involved in the commission of any offence

trial under this Ordinance or is subject of

an investigation or inquiry by the

National Accountability Bureau or any

other agency authorized by the National

Accountability Bureau in this regard

under this Ordinance.”

17. The offences are defined in section-9 with the heading

corruption and corrupt practices, clause (i) of section-9-a to

clause-(xii) defines the nature of offences. These sections are

applicable to a holder of a public office, or any other person is

said to commit or to have committed the offence of corruption

P a g e | 33

and corrupt practices. When these definitions of offences are

read in juxtaposition with section-17(d) the intention of the

legislature stand clear by using the words” from the first to the

last of such offence”, as the same pertains to the period of

posting / tenure, in the office.

18. The bare reading of section 17(d) of the NAB Ordinance,

for all intents and purposes has the overriding effect inspite of

the fact that criminal procedure code is mutatis mutandis

applicable. The wordings of the said section and specially

“from the first to the last of such offences”, clearly denotes that

all the offences of similar nature during the entire tenure of the

holders of the public office and his jurisdiction, in a single

reference and the same cannot be bifurcated to the convenience

of the prosecution and inconvenience of the accused. It is a well

settled principle of law that if in one series of act so connected

together as to form the same transaction , more offence than one

are committed by the same person, he may be charged with and

tried at one trial for each such offence.

19. The maxim of equity says that Nemo debet bis puniri

pro uno delicto establishes that the out of the same state of

facts a serious of prosecutions against a prisoner is not to be

P a g e | 34

allowed; hence, the prosecution / investigating agency could not

be allowed to re-arrest time and again the accused person,

repeatedly on the similar nature of charges, during the same

tenure and of same jurisdiction/nature. The respondents in such

a situation are bound to join all the references already pending

against the said holder of public office or otherwise. 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. Yes, if a person is tried in one

offence i.e corruption and corrupt practices he can be tried in

another reference of different offence i.e accumulation of

wealth. The section-9 of Ordinance itself bifurcates the offences

in clause-i to xii. The perusal of the entire NAB Ordinance

would reflects that sufficient time has been granted by the

legislature to investigate the entire tenure of the holder of the

public office or any other person involved in the matter and as

such after investigating, one reference is permitted on the one

and same cause of action and second or more references with

mere difference of dates, amount involved and witnesses

involved would not constitute a separate offence, neither a

separate reference, through a subsequent investigation could be

permitted in view of words used in the section 17 (d), specially

P a g e | 35

the underline portion. A person accused of more offences than

one of same kind committed during his entire tenure while

holding the public office, from first to last of such offences, be

liable to be tried at one trial, otherwise, trial would be in

violation of mandatory provision of section 17(d) of the NAB

Ordinance.

20. Trial to be conducted with utmost fair-anything causing

embarrassment to accused should be avoided. Reliance is

placed on PLD 1964 SC-120. National Accountability

Ordinance, 1999 was promulgated in order to provide effective

measures for detention, investigation, prosecution and speedy

disposal of cases involving corruption, corrupt practices, misuse

and abuse of power or authority, misappropriation of property,

taking kick backs, commission and for matters connected and

ancillary incidental thereto. Object of NAB Ordinance, 1999, in

its preamble is to provide expeditious trial of schedule offences

within the shortest possible time; this has been observed by the

Hon’ble apex Court in the report judgment PLD-2008 SC-645

(a).

21. In addition to above, NAB Ordinance, 1999 is a special

law and used of same in oppressive manner must be tested on

P a g e | 36

the touchstone of fundamental right of a person as guaranteed

under the Constitution. Misuse of law cannot be overlooked or

ignored by Courts being custodian of the Constitution. Courts

are under legal duty to defend, preserve and enforce rights of

people and their constitutional guarantees. Notwithstanding

protection provided to NAB authorities under the law in respect

of their functions, use of power by them in an unbridled manner

for prosecution of innocent persons in disregard to their

constitutional guarantees, rights, liabilities and duties must not

be allowed and courts must prevent such oppressive use of

penal law through judicial determination. Reliance is placed on

PLD-2001 SC-607.

22. In view of above, it is worthwhile to refer to Articles-4, 8

& 13 of the Islamic Republic of Pakistan, 1973, which

produced as under:-

Article-4. Right of individuals to be dealt with in

accordance with law, etc. (1). To enjoy the

protection of law and to be treated in

accordance with law is the inalienable

right to every citizen, wherever he may

be, and of every other person for the time

being within Pakistan.

(2). In particular---

(a) no action detrimental to the life, liberty,

body, reputation or property of any

person shall be taken except in

accordance with law;

P a g e | 37

(b) no person shall be prevented from or

be hindered in doing that which is not

prohibited by law; and

(c) no person shall be compelled to do that

which the law does not required to do.

Article.8. Laws inconsistent with or in

derogation of fundamental rights to be

void.—(1) Any law, or any custom or

usage having the force of law, in so far as

it is inconsistent with the rights conferred

by this Chapter, shall, to the extent of

such inconsistency, be void.

(2) The state shall not make any law which

takes away or abridges the rights so

conferred and any law made in

contravention of this clause shall, to the

extent of such contravention, be void.

(3)……

Article-13. Protection against double

punishment and self-incrimination,” No

person--

(a) Shall be prosecuted or punished for

the same offence more than once; or

(b) Shall, when accused of an offence, be

compelled to be a witness against

himself.

23. Record reveals that second warrant and more than one

reference impugned in all the connected writ petitions has been

initiated by the Provincial Government under the NAB

Ordinance, 1999, which being a complete code, not only

provides a method and mechanism for proceedings against the

delinquent officers, but also provides the forum for redressal. It

is not disputed that in view of Article-13 of the Constitution,

the petitioner shall not be prosecuted or punished for the same

offence more than once. Section-17(d), of the National

Accountability Bureau Ordinance, 1999, as discussed above

P a g e | 38

also provides that notwithstanding anything contained in

section-234 of the Criminal Procedure Code, a person accused

of more offences then one of the same kind committed during

the space of any number of years, from the first to the last of

such offences, may be charged with and tried at one trial for

any number of such offences, especially in view of Article-

10(A) of the constitution, even the petitioner shall be entitled to

a fair trial and due process. It is also essential to endorse that

article-8 of the constitution provides that any law, or any

custom or usage having the force of law, in so far as it is

inconsistent with the rights given under this article shall, to the

extent of such inconsistency, would be treated as void. Even the

state shall not make any law which takes away or abridges the

rights so conferred and any law made in contravention of this

cause shall, to the extent of such contravention, would be

considered as void. Article-4 of the constitution also guard the

rights of a citizen of this country to enjoy the protection of law

and to be treated in accordance with law or the inalienable

rights of every citizen, wherever he may be, and of every other

person for the time being within Pakistan, then how a second

warrant, investigation or for that matter more than one reference

having the same nature of charge can be issued against the

P a g e | 39

petitioner in contrary, when it is not admissible under the law.

If the contention of the learned NAB counsel that there is no

legal bar to issue a second warrant or to file another reference

against the petitioners is allowed, then there would be no end to

the filing of references.

24. We while allowing these writ petitions, it is held that re-

arrest of any holder of public office or for that matter any other

person on the same charges for the same period, which he was

holding the office is illegal, unlawful and against the mandate

of section 17(d). The filing of more than one reference on the

same allegations, relating to same period / tenure is also against

the mandate of section-17(d) of the National AB Ordinance,

1999, however the pending references against one

person/accused in different Accountability Courts are to be

clubbed together for the purpose of consolidation and alter of

charge for which the trial Court is competent to proceed with,

by treating more than one reference as supplementary

references.

Announced.

15th December, 2016

Tariq Jan J U D G E

J U D G E

P a g e | 40

Judgment.

BEFORE PESHAWAR HIGH COURT,

PESHAWAR.

Judicial Department.

Writ Petition 2833-P of 2016.

Muhammad Jan & others………………………….………..Petitioners

Vs

Chairman National Accountability Bureau & others….. Respondents

Date of hearing……………….15th December, 2016…….…………

Petitioner(s) by………………………………………………………

Respondent(s) by……………………………………………………

WAQAR AHMAD SETH, J:- Vide our detailed

reasons recorded in connected writ petition bearing No. 3075-P

of 2015, titled Arshad Khan vs Chairman National

Accountability Bureau & others, this writ petition is allowed.

Announced.

15th December, 2016

Tariq Jan J U D G E

J U D G E