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JUDGMENT SHEET
IN THE PESHAWAR HIGH COURT, PESHAWAR JUDICIAL DEPARTMENT
W.P No. 1292-P .of 2013
JUDGMENT
Date of hearing: 06.02.2014
Petitioner: Abdul Jabbar
Respondent : Chairman NAB
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NISAR HUSSAIN KHAN, J:- By this single
judgment, we propose to decide these three petitions
bearing No. 1292-P/2013, 1567-P/2013 and 1823-P/2013
as common question of law is involved in all these
petitions.
2. Brief facts of W.P.No. 1292-P/2013 are that
Abdul Jabbar petitioner was tried by the learned Judge
Accountability Court in a NAB Reference for
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embezzlement of money amounting to Rs.51,54,646/- and
after finding him guilty, was convicted and sentenced to 5
years R.I. with a fine of Rs.51,54,646/- or in default of
payment of fine, he had to suffer two years R.I. and that
fine amount was ordered to be recoverable from the
movable and immovable properties of the accused as
arrears of land revenue under section 33-E of the
National Accountability Ordinance, 1999. However, he
was extended the benefit of section 382-B Cr.P.C.
3. Petitioner filed appeal against his conviction
before this court as Eh. Cr. Appeal No. 4/2006 which too
was dismissed on 25.7.2007 and conviction and sentence
awarded by the trial court was confirmed. He did not
challenge his conviction before the august Supreme
Court and as such it attained finality. Petitioner,
according to his contention, underwent the substantive
sentence awarded by the learned trial court as well as the
sentence for default of payment of fine. The State through
Senior Prosecutor NAB KPK filed an application under
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section 33-E read with Section 17 of the National
Accountability Ordinance, 1999, for the recovery of fine
imposed upon the convict which was objected by the
petitioner before the Accountability Court and his that
objection was turned down on 19.4.2013. As such the
petitioner has filed the instant petition.
4. In W.P.No.1567-P/2013, Ghulam Dastagir
petitioner was tried by the Accountability Court in
Reference No.3 of 2006 for charges of embezzlement of
huge public money. On finding him guilty, he was
convicted under Section 9/10 of the NAO, 1999 and was
sentenced to undergo 5 years R.I. and also to pay fine of
Rs.94,00,000/- and in default to further two years R.I..
The amount of fine was ordered to be recovered from the
movable and immovable properties of accused as arrears
of land revenue in terms of Section 33-E of the NAO,
1999. Benefit of section 382-B Cr.P.C. was also extended
to him. The conviction was challenged by the petitioner in
Eh.Cr.A.No. 1/2008 before this court which was
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dismissed on 1.6.2010 whereby findings of the trial court
were confirmed. Petitioner did not challenge the verdict
of guilt before the august Supreme Court, as such the
conviction attained finality and he served out the
substantive sentence of imprisonment as well as
imprisonment for default of fine. He did not pay the fine
for which the State through NAB filed an application
under section 33-E read with section 17 of the NAO, 1999
for recovery of the fine imposed by the trial court. This
application was resisted by the petitioner by filing
objection which was turned down by the learned trial
court on 27.5.2013 which resulted into filing of the
instant petition.
5. In W.P.No. 1823-P/2013, Tameez Gul
petitioner was tried by the learned Accountability Court-
III, Peshawar, in Reference No.9 of 2005 for charges of
embezzlement and corruption. The learned trial court on
finding him guilty, convicted him under section 10 of the
NAO, 1999 and sentenced him to two years R.I. with a
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fine of Rs.860000/- and in default, to undergo SI for six
months. The amount of fine was recoverable as arrear of
land revenue from the movable and immovable properties
of accused in terms of section 33-E of the NAO, 1999.
Benefit of section 382-B Cr.P.C. was extended to the
accused. Petitioner challenged his conviction and
sentence before this court in Jail Eh.Cr.A.No.8/2008
which was dismissed on 14.11.2006. He did not file any
appeal before the august Supreme Court, as such his
conviction attained finality. Petitioner served out the
substantive sentence as well as sentence in default. The
NAB authorities filed application under section 33-E read
with Section 17 of the NAO, 1999 before the
Accountability Court-I, KPK, Peshawar, which was
objected by the petitioner. However, his objection was
turned down on 10.6.2013 which constrained the
petitioner to file instant petition. As all these petitions
mentioned above, involve common question of law and
facts, as such are taken together.
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6. Learned counsels for the petitioners argued
that applications for the recovery of fine have been made
after the prescribed period of six years and as such are
time barred in terms of Section 70 of the PPC. They
strenuously argued that proviso to Section 386 Cr.P.C. in
unequivocal terms bars recovery of fine after serving out
sentence for default. They maintained that after serving
out sentence in default, the recovery of fine would
amount to double jeopardy. They contended that no such
proceedings have been initiated against alike convicts
awarded punishment in the same period, as such they are
being discriminated by the respondents and that recovery
proceedings are without lawful authority which are liable
to be quashed.
7. Learned DPG while controverting the
arguments of the learned counsel for the petitioners
argued that limitation shall be reckoned from the final
judgment passed in appeals by the High Court, as such
proceedings for recovery of fine are well within time. He
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maintained that the recovery proceedings are in
accordance with law in vogue.
8. We have given our anxious considerations
to the respective arguments of the learned counsel for the
pettioners and learned DPG for the respondents and
analyzed the same at the touch stone of different
provisions of law.
9. Pivotal legal questions involved in all the
three petitions are as to :
• Whether the amount of fine imposed by the learned
trial court and upheld by this Court can be
recovered from the petitioners when they have
served out not only substantive sentence of
imprisonment but also imprisonment in default of
payment of fine?;
• If so, whether such fine can be recovered after six
years of passing of sentence by the trial court in
terms of section 70 of the PPC? And
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• Whether recovery of such fine would amount to
double jeopardy?
10. Mr. A.K. Brohi, a Pakistani jurist, said in
his book “Fundamental Law of Pakistan”, “ all over the
modern world it is increasingly being realized that law is
a social science; and further that it cannot be studied
properly, if it is viewed in isolation from the many
dimensional activities that are going on within the
modern states”. It is basic and fundamental principle of
construction of legal instrument that when language of
statute is plain and simple and carries a clear message, it
should be given effect in the way it is couched. No other
interpretation or meaning can be extracted there-from on
any hypothetical consideration, extraneous to the intent
of the Legislature. In this context, Aristotle may aptly be
quoted: “ To seek to be wiser, than the law is the very
thing which is by good laws forbidden”. While American
Chief Justice Marshall expressed his views in these
words: “ Judicial power, as contradistinguished from the
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power of the law, has no existence. Courts are the mere
instruments of the law, and can will nothing”.
11. Importance of preamble in understanding
and construction of statute has been described by many a
jurists’. All are unanimous on the view that it is
introductory part of the Statute which states reasons and
intent of the law . It serves to portray the intent of the
framer and the mischief to be remedied. It affords in
general a key to the construction of the statute and a clue
to discover the plain object and general intention of the
legislature in passing the Act and often helps to solution
of doubtful points. It is regarded as a key to open the
minds of the framers of the Act. House of Lords have
authoritatively stated in Att-Gen. Vs H.R.H. Prince
Ernest Augustus of Hanover: “ When there is a preamble,
it is generally in its recitals that the mischief to be
remedied and the scope of the Act are described. It is
therefore, clearly permissible to have recourse to it as an
aid to construe the enacting provision …………………
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The Courts are concerned with the practical business of
deciding a lis, and when the plaintiff puts forward one
construction of an enactment and the defendant another,
it is the court’s business…………………. If they admit of
only one construction, that construction will have effect
even if it is inconsistent with the preamble but if the
enacting words are capable of either of the construction
offered by the parties, the construction which fits the
preamble may be preferred”.
12. In Warburton Vs Loveland ( 1831) 2 D.
& /CL (H.L) 480, 489 it was said: “ Where the language
of an Act is clear and explicit, we must give effect to it,
whatever may be consequences for in that case the words
of statute speak the intention of the Legislature.” It is
expounded with persistence that even if a court is satisfied
that the Legislature did not contemplate the consequences
of an enactment, the court is bound to give effect to its
clear language. The rule and principle of construction of
a statute is that a statute may not be extended to meet a
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case for which provision has clearly and undoubtedly not
been made. The Judges may not wrest the language of
parliament even to avoid an obvious mischief.
13. In Gwynne Vs Burnell ( 1840) TCL &
F 572, 696 Lord Brougham said: “ If we depart from the
plain and obvious meaning on account of such views as
those pressed in arguments, we do not in truth construe
the Act but alter it. We add words to it, or vary the words
in which its provisions are couched. We supply a defect
which the legislature could easily have supplied and
making the law, not interpreting it”. In Stowel. Vs
Lord Zouch ( 1562) Plowd. 369, Chief Justice Dyer said:
“ If any doubt arises from the terms employed by the
Legislature, it has always been held a safe means of
collecting the intention to call in aid the ground and
cause of making the statute and to have recourse to the
preamble which is a key to open the minds of the makers
of the Act, and the mischiefs which they intended to
redress”.
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14. Having discussed the principle of
construction of statute, we would revert to the issue
involved herein. Undisputedly, all the petitioners were
charged for corruption and corrupt practices under
section 10 of the NAO 1999 and having been found guilty
of the offence charged with, they were convicted and
sentenced as described in the earlier part of the judgment.
National Accountability Ordinance, 1999 is a special law
which was promulgated, when other penal laws of
Prevention of Corruption Act, 1947 as well as Pakistan
Penal Code 1860 were already in operation. What
necessitated to promulgate NAO 1999 in presence of these
penal laws, is reflected in its preamble which would also
be helpful to resolve the question formulated herein
above. The objective of the promulgation of the
Ordinance has been discretely transcribed in eight
paragraphs of the preamble encompassing all the
dimensions of corruption, corrupt practices,
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embezzlement and other forms of misappropriation of the
public money.
15. Paragraph 2 of the Preamble to NAO
provides for recovery or re-payment of amount to Banks,
Financial institutions from the person who has committed
default and Paragraph No.3 of the Preamble is to the
effect that there is grave and urgent need for the recovery
of State money and other assets from those persons who
have misappropriated or removed such money or assets
through corruption or corrupt practice or misused their
power or authority. The whole edifice of the Statute has
been raised on the objectives, summary of which has been
provided in the Preamble. Section 3 of the Ordinance
commands in unequivocal terms that the provisions of it
shall have over riding effect notwithstanding anything
contained in any other law for the time being in force.
Simple interpretation of this Section which does not
require any further elaboration is that all other laws will
have to make way for provision of the ordinance as it is a
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special law enacted for specific purpose embodied therein.
Section 9 of the Ordinance defines different forms of
corruption and corrupt practices in its different clauses
whereas Section 10 is a penal clause according to which
the person found guilty of the offence charged under
section 10 shall be punishable with imprisonment for a
term which may extend to 14 years and with fine and
forfeiture of assets, found to be disproportionate to his
known sources of income or which have been acquired
through corruption or corrupt practices whether in his
own name or in the names of any of his dependents or
benamidars. Bare reading of Section 10 reflects that it
provides three punishments simultaneously:
imprisonment, fine and forfeiture of the assets acquired
through corruption or corrupt practices. While section 11
clearly postulates that the amount of fine so imposed as a
punishment shall in no case be less than the gain derived
by the accused or any relative or associate by the
commission of offence. By inserting Section 11, the
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Legislature has shown its concern that the benefits
acquired by an accused shall be retrieved from him in
favour of the State. And for recovery of fine Sec.33-E has
been inserted in the NAO, according to which, amount of
fine shall be recovered as arrear of land revenue.
16. The cursory survey of the relevant
provisions of the NAO, 1999 portray a clear picture of
scheme of law and intent of the legislature that it
encompasses all dimensions of procedural requirements
with regard to penalties and procedure for their
implementation, particularly with reference to the fine.
Section 17 of the Ordinance supplies the requirement, if
occasion arises, of application of Code of Criminal
Procedure 1898 provided there is nothing inconsistent
with the provision of NAO .Whereas Clause (c) of Sec. 17
empowers the court to dispense with any provision of the
Code and follow such procedure as it may deem fit in the
circumstances of the case. This saving clause is a clear
manifestation of intent of the Legislature that the court
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may proceed with the case according to its own discretion,
if it finds necessary to dispense with any provision of
Criminal Procedure Code, in order to give effect to the
provision of NAO.
17. Learned trial court while convicting the
petitioners also awarded sentence of imprisonment for
default of payment of fine which, allegedly, all the
petitioners have undergone alongwith their substantive
sentence. It is the main argument of petitioners that as
they have undergone sentence of imprisonment for
default of payment of fine, as such they are absolved
from the liability of fine and proceedings of recovery
initiated by the NAB authorities tantamount to double
jeopardy. In general law, Sec. 64 PPC 1860 provides
punishment of imprisonment in default of payment of
fine. While there is no such provision in the NAO, 1999,
whereas provisions of Pakistan Penal Code are not
applicable to the cases falling within the purview of
the Ordinance. As such Section 70 PPC has got no
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relevance in the instant case. It has already been
concluded that by virtue of section 3 of the Ordinance, the
provisions of the ibid Ordinance have over riding and
super imposing effect being a special law over the general
law. Likewise, Section 386 Cr.P.C. 1898 too, on the same
principle has also got no relevance in presence of section
33-E of the Ordinance which itself enunciates the
procedure of recovery of fine.
18. In case of “Ahmad Ali Siddiqui Vs
Sargodha Central Cooperative Bank Limited and
another” ( 1989 - S C M R – 824 ), in similar
circumstances when the convict had undergone the
substantive sentence as well as sentence in default of
payment of fine, the august Supreme Court dismissed the
appeal of the convict by holding that:
“Where an offender having the means of paying
a fine chooses to undergo imprisonment rather
than pay the fine, it is a sufficient special
reason to enable the court on its discretion to
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order that the fine may be levied
notwithstanding that the offender has served
the full term of imprisonment order for default
of payment of fine.”
19. Like wise in case titled “Siddappa Vs State
of Mysore ( AIR 1957 Mys- 52) , it was held that serving
the full term of imprisonment fixed for default in payment
of fine shall not extinguish the liability to pay fine. The
imprisonment imposed in default of payment of fine
should not be taken as a discharge of the liability but
only as a reasonable punishment for non-payment of fine.
20. In view of the principle enunciated herein
above, the sentence awarded for default of payment of
fine is actually the sentence for non-payment of fine. It
cannot be termed as a consideration of the fine. Having
undergone the sentence in default of payment of fine, the
petitioners have not discharged their liability of payment
of fine which was imposed under the special law for
corruption and corrupt practices, particularly, when it is
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visualized in terms of section 11 of the Ordinance which
manifests that the Legislature requires the recovery of the
whole misappropriated amount in lieu of fine. If the
interpretation and the view propounded on behalf of the
petitioners is followed, it would certainly frustrate the
very object of the Ordinance itself. It would be an easy
task for the convict to undergo imprisonment in default of
payment of fine and absolve from the liability of the
benefit derived through corruption and corrupt practices
and thereby grab the whole misappropriated amount.
Such an interpretation would be in sheer derogation of
the very object of the Ordinance itself. Thus this objection
on behalf of the petitioners is repelled.
21. The contention of the learned counsels for
the petitioners that recovery proceedings by virtue of
section 70 PPC are time barred having been filed after six
years of the conviction, is also misconceived. The
petitioners were tried and convicted under the provisions
of the Special Law of NAO, 1999. The provision of PPC
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have got no nexus with it nor the principles of the PPC
have been given any room in the Ordinance. As such the
limitation provided in section 70 is inapplicable to the
instant proceedings. More so, this principle is further
supplemented by the provision of section 17(d) of the
Ordinance which stipulates that regardless of Section 234
of Cr.P.C., a person accused of more offences than one of
the same kind, committed during the span 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. Whereas in general law Section 234
Cr.P.C. provides for joint trial of only three cases of same
nature committed during the period of one year only.
Even Cr.P.C. is applicable in those matters which are not
provided in the Ordinance. Whereas provision of Pakistan
Penal Code or application thereof has altogether been left
out of the scope of the Ordinance. There is no such
limitation provided in NAO for recovery of fine. As such
this objection of the petitioners is also not tenable.
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22. So far as reliance of the petitioners on the
provision of Section 386 Cr.P.C. for non-issuance of
warrant is concerned, that is also misplaced as it has
already been held that provision of Section 386 Cr.P.C.
are not applicable when the Ordinance provides its own
mechanism for recovery of fine in Section 33-E. Recovery
Procedure provided, in the Land Revenue Act is more
effective and exhaustive, as such there is no room for
having a recourse to Section 386 Cr.P.C. When procedure
for recovery of fine is self contained in special law,
provision of Section 386 Cr.P.C. cannot be invoked.
23. The objection of the petitioners with regard
to double jeopardy is primarily based on Article 13 of the
Constitution of the Islamic Republic of Pakistan, 1973.
For ready reference and to properly appreciate its legal
import, it would be appropriate to have a glance of Article
13 of the Constitution of Islamic Republic of Pakistan,
1973 which is reproduced herein below:-
“13. No person –
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(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.”
24. Bare reading of the Article enunciates in
unequivocal terms that the person must have been
prosecuted earlier for the offence charged and convicted
or acquitted for the same offence for which he is
specifically charged and prosecuted subsequently. What
Article conveys in unambiguous terms is that there must
be double prosecution of accused for the same offence. If
any such proceeding is subsequently initiated for
prosecution of accused, he may raise the plea of autre fois
acquit or autre fois convict. Likewise an analogous
provision is available in the Indian Constitution in the
form of Article 20(2). Same principle is recognized by the
English Law and the American Constitution in the form
of double jeopardy. It being a universally recognized
notion is based on the principle of nemo debet bis vaxari:
No body can be vexed twice for the same cause.
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25. Section 26 of the General Clauses Act 1897
is also based on the same principle which though was
constituted in the pre-partition era of sub-continent but
has been adopted by both countries of India and Pakistan
on acquiring independence like most of the other laws
now prevalent. The constitution is a document carrying
an authority of superlative degree in legal parlance and
may not be construed as a mere law but as machinery by
which laws are made.
26. The Constitutional command & substantive
provisions of General Clauses Act have their reflection in
procedural laws in the form of Sec.403 of Code of
Criminal Procedure, 1898. Sub sec.(1) of Sec. 403 Cr.P.C.
bars the second trial of an accused for the same offence.
While Sub Clauses-(2),(3)& (4) of it elaborately enunciate
the circumstances in which an accused can be re-tried for
the same set of commission or omission constituting a
different offence in different circumstances which for
ready reference are reproduced in extenso as below:-
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“403. Person once convicted or acquitted not to
be tried for 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 be 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.
(2)_. A person acquitted or convicted of any offence
may be afterwards tried for any distinct offence for
which separate charge might have been made against
him on the former trial under section 235, sub section
(1).
(3). A person convicted of any offence constituted by
any act causing consequence which, together with
such act, constituted a different offence from that of
which he was convicted, may be after wards tried for
such last-mentioned offence if the consequences had
not happened, or were not known to the court to have
happened, at the time when he was convicted.
(4) A person acquitted or convicted of any offence
constituted by any act may, notwithstanding such
acquittal or conviction, be subsequently charged
with, and tried for, any other offence constituted by
the same acts which he may have committed if the
Court by which he was first tried was not competent
to try the offence with which he is subsequently
charged.
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(5). Nothing in this section shall affect the provisions
of section 26 of the General Clauses Act, 1897 or
section 188 of this Code.
Explanation.- The dismissal of a complaint, the
stopping of proceedings under section 249, or the
discharge of accused is not an acquittal for the
purposes of this Section.”
Like-wise, Section 26 of the General Clauses Act, 1897
runs as follows :-
“26. Provision as to offences punishable under two or
more enactments.- Where an act or omission
constitutes an offence under two or more
enactments, then the offender shall be liable to be
prosecuted and punished under either or any of those
enactments, but shall not be liable to be punished for
same offence.”
27. These provisions of Code of Criminal
Procedure and General Clauses Act alongwith
Constitutional guarantee against double jeopardy had
come under consideration before the Supreme Court of
Pakistan and India on different occasions with reference
to different situations and facts. In Pakistan mostly the
principle of double jeopardy as enshrined in Article 13 of
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the Constitution of the Islamic Republic of Pakistan, 1973
was pressed in the matters of service by the civil servants
or employees of statutory bodies when they were
departmentally proceeded against after their acquittal in a
criminal charge by the court of law. In that situation, the
August Supreme Court consistently held that objective of
prosecution on criminal charge and departmental
disciplinary proceedings are entirely different; one relates
to the enforcement of the criminal liability and other is
concerned with the service discipline and by holding as
such, their plea of double jeopardy was repelled. In this
regard, case of “The DIG Police Lahore & others Vs Anis
ur Rehman Khan ( P L D 1985 - Supreme Court – 134 ),
Amir Abdullah Vs Superintendent of Police and others (
1989 S C M R – 333), Muhammad Ayub Vs The
Chairman, Electricity Board, WAPDA, Peshawar ( P L D
– 1987 – Supreme Court – 195 ), Muhammad Tufail Vs
Assistant Commissioner/Collector ( 1989 S C M R – 316 )
may be referred.
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28. In case of Syed Alamdar Hussain Shah Vs
Abdul Baseer Qureshi & 2 others ( P L D 1978 –
Supreme Court – 121 ), a criminal charge was levelled
against a police official for torturing a person who later
on died. A judicial enquiry was ordered into the incident
and the enquiry Magistrate recommended the accused for
trial of offences under Sections 304/330/342 PPC. On
request of the prosecution, accused was sent to Special
Military Court for trial. In the meanwhile, the Martial
Law was lifted and the trial was transferred to the
ordinary court of Magistrate where, after framing of
charge, due to negligence of the prosecution in producing
evidence, case was closed. Later on, on application of the
complainant, case was transferred to the Court of
Sessions Judge for lack of jurisdiction of the Magistrate.
Accused raised plea that he was tried by the Magistrate
and prosecution was closed, as such he cannot be retried
by the Sessions Judge and second trial amounts to double
jeopardy. The High Court dismissed the plea by holding
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that there was no fresh prosecution as case was
transferred before the conclusion of the trial. The august
Supreme Court concurred with the findings of the High
Court by holding that the petitioner’s trial in no way can
be termed as derogatory to the principles of autre fois
acquit or autre fois convict, or violative of the Article 13
of the Constitution.
29. From the Indian jurisdiction, in the case of
S.A. Venkataraman Vs Union of India and another ( AIR
1954 Supreme Court – 375) , it was ruled by the Supreme
Court of India that the ambit and contents of guarantee
of the Fundamental Right given in Article 20(2) are much
narrower than those of the Common Law Rule in
England or the doctrine of “Double Jeopardy” in the
American Constitution. They observed that Article 20(2)
of the Constitution of India does not contain the principle
of autre fois acquit. In order to enable a citizen to invoke
the protection of Clause-(2) of Article 20 of the
Constitution, there must have been both prosecution and
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punishment in respect of same offence. In order to press
for the provision of said Article, phrase “prosecuted and
punished” are not to be taken distinctively, rather both
factors must co-exist. When Article 20 of the Indian
Constitution and Article 13 of the Constitution of Islamic
Republic of Pakistan, 1973 are put in juxtaposition, it
appears that the language of both is the same except word
“and” has been inserted between prosecuted and
punished in the Indian Constitution while in the
Constitution of Pakistan, there is word “or”. However,
both convey the identical message. Same view was
expressed by the Supreme Court of India in the case of
Maqbool Hussain Vs The State of Bombay ( AIR 1953
– Supreme Court – 325), Manipur Administration,
Manipur Vs Thokchom Bira Singh ( AIR 1965 Supreme
Court – 87) and in case of State of Rajasthan Vs Hat
Singh and others ( AIR 2003 Supreme Court – 791).
30. The above brief survey of the case law in the
light of the relevant articles of the Constitution clearly
30
demonstrates that there must be a subsequent prosecution
and punishment in presence of former prosecution and
consequential acquittal or conviction to avail the
protection of Article 13 of the Constitution. The language
of Article 13 is very much plain and clear which loudly
speaks against double prosecution and punishment. In
the light of this clear command of the article, the courts,
while applying the principle of double jeopardy and
extending protection under Article 13 of the Constitution,
have to see whether the accused is being prosecuted twice
for the same offence or otherwise. There is no cavil with
the proposition in view of the salutary command of the
Constitution that nobody can be prosecuted and punished
for an offence when he has already been prosecuted and
acquitted or punished for the same offence by the
competent court of law.
31. It follows that there is a Constitutional
guarantee and legal protection against double jeopardy.
An accused proposed to be tried second time for the same
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offence for which he had already been tried and acquitted
or convicted may legitimately plead autre fois acquit or
autre fois convict. However, if case of the accused does
not come within the ambit of barring clause and fall
within the exception embodied in Clauses (2), (3) and (4)
of Section 403 Cr.P.C., he may legitimately be tried for
the same offence.
32. In the instant case, there is no denial of the
fact that the petitioners have been prosecuted and
punished for offence of corruption and corrupt practices
under Section 10 of the NAO, 1999. But there is no
second prosecution for the same offence. Rather what has
been challenged in this petition is the proceeding of
implementation of earlier punishment awarded by the
National Accountability Court towards recovery of fine.
As such these proceedings in no way can be termed as
second prosecution for the same offence falling within the
ambit of “Double Jeopardy”. The trial court had awarded
punishment of imprisonment in default of payment of fine
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which was for non-compliance of its judgment/order with
regard to payment of fine. Petitioners did not question
this finding of the trial court before the august Supreme
Court after dismissal of appeal before the High Court and
opted to undergo his imprisonment for default, despite
having means of payment of fine.
33. The sentence undergone by a convict in
default of payment of fine cannot be a substitute for
sentence of fine because one sentence undergone by a
convict cannot be treated as a substitute of another
sentence imposed by a court of law. This analogy is
neither recognized by the general law nor by the NAO,
1999. Hence the plea of double jeopardy raised by the
petitioners is misplaced and as a corollary to the
forgoing reasons is not tenable.
34. For what has been discussed above, the
propositions formulated in earlier part of the judgment
are answered accordingly and consequently these
petitions being devoid of merits are dismissed.
J U D G E
Announced on J U D G E
6th Feb.,2014.