Per Akhtar Zaman Malghani, J-
(a) Constitution of Pakistan (1973), Art. 13–
We have carefully considered the contentions put forth by the parties’ learned counsel in the light of above discussed evidence as well as impugned judgment. Before going into the merits of the case, we ; would like to deal with the arguments of the learned counsel regarding double jeopardy being a question of paramount importance. It may be seen that section 403 Cr.P.C. is based on the ancient maxim nemo debts vaxari (a person cannot be tried a second time for an offence which is involved in the offence with which he was previously charged). The same principle is prevailing in autrefois acquit. Before this section can be invoked the following conditions have to be satisfied :-
(i) the accused has already been tried for the offence charged against ;
(ii) the trial was held by a Court of competent jurisdiction and,
(iii) there was a judgment or order of acquittal or conviction.
Rule against the autrefois acquit finds place in section 403(1) Cr.P.C. and the counterpart of the said rule “autrefois convict” has received recognition in the Constitution guarantee embodied in Article -13(a), Constitution of Pakistan, 1973.
In order to get benefit of section 403, Cr.P.C or provisions of Article -13 of the Constitution it is necessary for an accused person to establish that he has been tried by a Court of competent jurisdiction for an offence and was convicted or acquitted of the offence and the said conviction or acquittal remains in force and the second trial is again for the same offence or 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, Cr.P.C. Here distinction I required to be drawn between “same facts” and “similar facts”. The protection clearly does not extend to those offences which are completely distinct or those which arise out of facts not at all alleged at the previous trial. In case of criminal breach of trust where allegations of misappropriation against accused are not in respect of any single amount but relating to different specific amounts received by him on different dates from different persons, each one of thee alleged acts of misappropriation is a distinct and independent offence, that is why the legislature conscious of such fact introduced section 222(2) in Criminal Procedure Code which provides that when accused is charged with criminal breach of trust or dishonest misappropriation of money, it shall be sufficient to specify the gross sum in respect of which the offence is alleged to have been committed and the dates between which the offence is alleged to have been committed without specifying particular items or exact dates and the charge so framed shall be deemed to be a charge of one offence within the meaning of section 234, Cr.P.C. provided that the time included between the first and the last of such dates shall not exceed one year. This section as well as section 234, Cr.P.C are exception to the general provisions of section 234 Cr.P.C. providing that for every distinct offence of which any person is accused, there shall be a separate charge and every such charge shall be tried separately. It may also be further observed that section 234 Cr.P.C. also contains similar provision namely if a person is accused of more offences than one of the same kind committed within a period of one year, he can be charged with an tired at one trial provided the number of such offences is not more than three. Thus, while there is limitation of maximum three offences which can be combined under section 234, Cr.P.C. there is no such limitation with regard to offence of criminal breach of trust in view of subsection (2) of section of 222. Therefore, if a person is charged with having committed several offences of criminal breach of trust within a period of one year those can be combined at one trial.
However, the question arises as to whether non-compliance of section 222 and 234 Cr.P.C. would render the trial illegal. The answer is certainly in “no” provided that no prejudice has been caused to the accused person because these sections are exception to the general rule embodied in section 233, Cr.P.C. which is clear enough and a joint trial in these provisions by no means compulsory. The provisions of section 234 to 239, Cr.P.C. are merely enabling provisions and do not make it incumbent upon the criminal Courts to hold a joint trial of each offence in view of curing provisions contained in section 537, Cr.P.C. The legislature never intended that the errors committed in stating either the offences or particulars required to be stated in the charge or omission in that behalf be treated as material unless the accused was in fact misled by such errors or omissions and further it also occasioned a failure of justice. [p. 16 & 17] A
It may be seen that in the instant case the accused were charged for committing several acts of criminal breach of trust and misappropriation during the period from July, 1992 to July, 1999. The learned trial Court while framing charge has not kept in view the provisions contained in section 222(2) and 234, Cr.PC. as the charges go beyond the period of one year. However, as no arguments were advanced either before the Accountability Court or before us to the extent that appellant was prejudiced or misled by non-compliance of the above provisions, we; are of the view that on this score in absence of any prejudice to the accused neither the trial could be held illegal nor conviction can be set aside in presence of curing provisions contained in sections 227 and 537, Cr.P.C.
As already observed section 403, Cr.P.C. is attracted only in the cases where the second trial is for the same offence or for a separate offence based on the same facts and is not strictly attracted in the instant case as the subject-matter of reference No. 5 i.e. purchase of POL was entirely different based on different facts. [p. 20] B & C
In fact all the questions relating to section 403, Cr.P.C. read with sections 222, 233 to 237 Cr.P.C in respect of offence of criminal breach of trust were answered in PLD 1965 Lahore page 461 after surveying majority of the cases on the point and it was held that section 403, Cr.P.C. has o application to a case where the subsequent offence for which the accused is being tried subsequently did not form part of the offence alleged at the previous trial nor is attracted to a case in which the subsequent offence is not, in any manner, connected with the facts alleged at the earlier trial. It was further held that protection contained in section 403, Cr.P.C. extends to an offence for which a different charge from the one made against the accused at a previous trial might have been made on the same facts under section 236, Cr.P.C and also in respect of an offence for which he might have been convicted at the previous trial under section 237, Cr.P.C. but the protection clearly does not extend to those offences which are completely distinct or those which arise out of facts not at all alleged at the previous trial. It was further held that where section 403, Cr.P.C. does not apply in terms the principle embodied in this secton may be properly invoked in order to meet the ends of justice. Further holding where a person has been tried of certain charges and acquitted, it would be clearly unjust and highlly oppressive and amount to an abuse of process of the Court to permit his repeated prosecution in identical offence in respect of identical charges even though relating to different items. After considering the various judgments of Indian jurisdiction, in the above quoted judgment, it was further held that the subsequent trial on identical evidence and in respect of identical charges should not be allowed against those accused who have been acquitted by a competent Court in an earlier trial. However ; the same principle cannot be invoked in the case of a person who has been convicted at a previous trial for the reason that the punishment awarded at the previous trial has no relation to the charges and offence which form the subject-matter of the subsequent trial and f there is evidence to warrant the conviction of the accused, then the ends of justice require that he should face the subsequent trial and receive the requisite punishment in respect of subsequent charges and offences.[p. 22 & 23] F
Thus, the over all survey and rationale as can be gathered is that in case of criminal breach of trust misappropriation of every amount constitute a separate and distinct offence warranting separate trial, but the acts of misappropriation in any number committed during the space of one year could be tried jointly under section 222(2), Cr.P.C. section 403, Cr.P.C. is not attracted in such cases, however; if the accused is acquitted in the previous trial, the protection contained in section 403, Cr.P.C. is not attracted in such cases, however; if the accused is acquitted in the previous trial, the protection contained in section 403, Cr.P.C.; though not strictly applicable, may be resorted to whereas ; incase of conviction of the accused can be tried subsequently for other acts of misappropriation/breach of trust. [p. 23] G
Yet another difficulty which arises in the instant case is the trial of the accused in violation of section 222(2), Cr.PC. by joining all the offences of misappropriation/breach of trust allegedly committed by the appellant during the period between 1992 to 1998 which obviously is beyond the period of one year. There is no explanation on the part of the prosecution for not including the amount, subject-matter of reference no. 29 in the gross sum of which charge in reference no. 17 was framed. Under such circumstances, though the separate trial for the amounts mentioned in charge in reference no. 29 was not illegal nor on the basis thereof protection available under section 403, Cr.P.C. could be availed by the appellant, yet it would be in the ends of justice to direct the substantive sentences of imprisonment awarded in both the reference i.e. reference no. 17 and reference 29, in case the convictions in both the appeals are maintain, to run concurrently by invoking provisions of section 397, Cr.P.C, particularly in view of addition of subsection (d) in section 17 vide Ordinance CXXXIII promulgated on 23-11-2002 providing that notwithstanding anything in section 234, Cr.P.C. a person accused of more offences than one of the same kind committed during the space of any number of years, may be charged and tried at one trial of any number of such offences. [p. 23 & 24] H
Likewise section 71, P.P.C has no application to the instant case. As already observed, each embezzled item is a separate and distinct offence in itself and several acts of embezzlement cannot be said to be parts of an offence attracting the provisions of section 71, P.P.C.[p. 24] I