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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

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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.