This is an application for quashment of proceedings pending inter elk against the petitioners under section 302/148/149, P. P. C. In the Court o1 Additional Sessions Judge, Mianwali.
Facts providing necessary background to this case, briefly stated, are that Ghulam Hassan Khan complainant on 24-2-1974 reported a matter to police on the allegation that on the same day at about 3-30 p.m. The three petitioners and co-accused Muzaffar Khan and Zafarullah Khan had formed themselves into an unlawful assembly and in furtherance of the object of which they committed the murder of his son Saifullah deceased. On police investigation, Muzaffar Khan and Zafarullah Khan were found innocent. The, present petitioners and some others were, however, found involved in the case. They were accordingly challaned. Ghulam Hassan Khan complainant dissatisfied with the police investigation instituted a complaint against five persons originally named by him in the F. I. R., I.e. the present petitioners and co-accused Muzaffar Khan and Zafarullah Khan. The complaint case was tried by the learned Sessions Judge, Mianwali, on charges under section 302/148/149, P. P. C. He vide his judgment dated 30-6-1977 acquitted all the five accused including the present petitioners Complainant Ghulam Hassan Khan filed Petition for Leave to Appeal (No. 21/1977) under section 4.17, Cr. P. C. Which was dismissed by me, on 12-6-1978, with the result that the judgment of acquittal of the learned Sessions Judge dated 30-6-1977 was upheld.
After the conclusion of the complaint case, challan case had been taken by the Additional Sessions Judge, Mianwali. The present petitioners, notwithstanding their acquittal, have been summoned along with the other co-accused to face trial. It may be stated that the police had submitted challan against the three petitioners, Muzaffar Khan, Zafrullah Khan, Muhammad Nawaz Khan, Muhammad Atlas Khan, Muhammad Yasin alias Ghulam Yasin and Fateh Muhammad. A9 noticed earlier, Muzaffar Khan and Zafarullah Khan were placed in column No. 2 of the challan. Petitioners submitted an application before the learned trial Judge claiming their discharge on the ground that in view of the provisions of section 403, Cr. P. C., they cannot be tried twice for the same offence. This application was disposed of by the learned trial Judge by his order dated 3-10-1978.
Learned A. P. P. Conceded before him that the accused who were acquitted in the complaint case cannot be tried in the challan case. He took up the position that there was otherwise no bar to the trial of the challan case. Reliance was placed on Noor Ellahi v. The State and others (PLD 1966 SC 708). Learned trial Judge, however, did not pass a formal order of discharge of the petitioners observing - "In such a situation, after the acquittal of the accused in the complaint case it is up to the Public Prosecutor to see if the evidence in the challan case has been seriously damaged so as to justify withdrawal of the prosecution. Since the A. P. P. While arguing had conceded, therefore, he might consider the withdrawal from the prosecution as a whole or partly to the extent of the acquitted accused as envisaged by section 494, Cr. P. C. Failing which, as held in the reported case, the second trial would be allowed to proceed to its normal conclusion. The application is disposed of accordingly."
Petitioners then moved the present application. It came up in motion on 21-10-1978. I passed the following order :- "Contends that the petitioners having already been acquitted, cannot be tried again. This point was raised before the Additional Sessions Judge who is seized of the matter. He has not finally disposed of the point raised before him in the hope that the A. P. P., as laid down by their Lordships of the Supreme Court in Nur Elahi v. The State PLD 1966 SC 708, would ask for formal withdrawal of the case against the petitioners. I am told that the next date of hearing is 22nd instant. This petition be kept pending so as to await the decision of the learned Additional Sessions Judge, on the point. The petitioners can also move the learned District Magistrate under section 494, Cr. P. C."
Petitioners then moved the District Magistrate for the withdrawal of the prosecution against them.
He sent for a report from the Assistant District Attorney, Mianwali, who on his own interpretation of the judgment of the Supreme Court (supra) submitted a report that there was no bar, notwith-- standing the earlier acquittal, in the trial of the case. The District Magistrate dittoed this report thus declining finally to withdraw the prosecution against the petitioners. In these circumstances, this petition was admitted to a full hearing by me on 5-11-1978.
I have heard the learned counsel for the petitioners and the learned State counsel. It is not disputed that the petitioners are being tried for the same offence in which they have been acquitted earlier by the Sessions Judge vide his judgment dated 30-6-1977. This judgment as noticed above, has been upheld by this Court in P. S. L. A. No. 21/1977. Learned State counsel, however, took up the position that there was no bar to the retrial of the petitioners in the challan case as is held by the Supreme Court in Nur Elahi's case. Pointed reference was made to the following observation of the Supreme Court in that judgment :- . . . . . If the first case ends in an acquittal, he might still have to consider whether the police version has not been so seriously damaged by what has been brought out in the first trial, as to justify withdrawal of the prosecution. Otherwise the second trial would be allowed to proceed to its normal conclusion and the parties would have the advantage of utilizing the material placed on the record of the earlier trial, by way of cross-examination of the relevant witnesses, as permitted by law . . . . . . ."
Learned counsel for the petitioners on the other hand referred to section 403, Cr. P. C. And Article 13 of the Constitution to contend that second trial of the petitioners for the same offence is wholly barred. According to him, Article 13 of the Constitution has raised to a consti--tutional status the principle of autrefois convict and autrefois acquit which has already been embodied in section 403, Cr. P. C. And a part of section 132, of the Evidence Act. The Supreme Court, according to him, never intended to lay down that the persons acquitted in the complaint case after a proper trial can again be tried in the challan case.
7. I have considered the arguments raised before me and have gone through the judgment of the Supreme Court and the relevant provisions of law. The facts in the Supreme Court case were that murder of one M was reported to the police by N. He had accused three persons in the police report. The police, however, decided to prosecute totally a different set of persons. Two of the persons mentioned in the F. I. R. Were shown in column No. 2 of the challan, N filed a complaint giving his own version of the incident as set forth in the First Information Report. At the stage of commitment proceedings, the question arose as to how the complaint case and the challan case were to be dealt with. The matter was brought up before this Court in Criminal Revision No. 1049/1963. A learned Single Judge of this Court disposed of this Revision Petition directing that the complaint and challan be consolidated for the purpose of recording the evidence. The witnesses common to both the cases were to be produced only once. They would be first examined by the State Prosecutor and then by the counsel for the complainant and cross-examined by the counsel for the accused. Any additional evidence beyond the testimony of the witnesses mentioned in the challan was also allowed to be produced by the complainant subject to the same procedure. The commitment orders were passed by the Inquiry Magistrate. Complainant before the learned trial Judge filed application praying for separate trial of the two cases. His application was rejected by the trial Court who, evidently intended to have a joint trial of the two sets of accused, though they contained no common name. The complainant then approached this Court. A learned Judge of this Court held that a joint trial of two sets of accused was not legal. The order of the learned trial Judge was, therefore, set aside. He gave certain directions to the trial Judge to be followed in the trial of the cases. The order of this Court was brought before the Supreme Court. The Supreme Court disposed of the matter with a direction that the complaint case could be tried first and then the challan case. It was in this background that the above observation was made. Question of acquittal and retrial was not, in any manner, involved in this case.
8. Article 13 of the Constitution provides that no person shall be prosecuted or punished for the same offence more than once This falls within Chapter I, Part-II of the Constitution. These Rights and all proceedings pending in any Court in so far as they are for the enforcement of any of those Rights have been suspended under Laws (Continuance in Force) Order, 1977 ; therefore, nothing further can be said in so far as the prayer for the enforcement of these Rights is concerned.
However, provisions of section 403, Cr. P. C. Are quite clear and I have no doubt in my mind that an accused once acquitted of an offence cannot be tried again for the same offence. Subsection (1) of section 403, Cr. P. C. Can be quoted with advantage. In the Anglo-American system this principle is stated in the form of the rule against double jeopardy, and based on well recognised' rule of natural justice. The principle, though in somewhat modified form finds mention in section 26 of the General Clauses Act as well. This provides that 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 anyone of those enactments but shall not be liable to be punished twice for the same offence.
9. For all that has been stated above, I accept this petition and quash the proceedings so far as the present petitioners are concerned. It is, however, made clear that this will not debar the trial of the challan in regard to the persons not tried and acquitted earlier in the complaint case.