' The petitioner impugns orders dated 03.04.2013 and 27.7.2013 passed by the learned Magistrate and the learned Addl. Sessions Judge, Rawalpindi respectively, summoning the petitioner in a complaint case and dismissing the petitioner's criminal revision.
2. Respondent Nos. 1 and 7 others filed a private complaint before the learned Judge, Anti- Terrorism Court-II, Rawalpindi against the petitioner and 27 others alleging that the said accused equipped with fire-arms, sticks, iron rods and hatchets launched a criminal assault, damaged the crops and resorted to indiscriminate firing and beat the complainant party who sustained severe injuries. The preliminary statements of Respondent No, 1 and another complainant were recorded.
The learned Special Judge, Anti-Terrorism Court-II, Rawalpindi, vide order dated 11.12.2012 dismissed the complaint for the reason that in the circumstances, Section 6 of ATA, 1997 was not attracted, therefore, the Court lacked the jurisdiction; that the complaint was a counterblast to FIR No, 203 dated 07.10.2012 registered at the instance of the petitioner and that the complaint appeared to be false on the face of it. Another private complaint was filed by Respondent No, 1 on 12.12.2012 against the petitioner and 27 others. The learned Magistrate, Rawalpindi vide order dated 3.4.2013 summoned the petitioner and others to face the trial. This order was challenged by the petitioner through a criminal revision. It was dismissed by the learned Addl. Sessions Judge, Rawalpindi through the impugned order dated 27.7.2013.
3. It is contended by the learned counsel for the petitioner that after dismissal of the first complaint vide order dated 11.12.2012 on the ground of jurisdiction and on merits, a second complaint is not maintainable; that Respondent No, 1, in his second complaint, has concealed the dismissal of the earlier complaint. As order dated 11.12.2012 dismissing the first complaint was yet in field and had not been set aside by the next higher forum, the summoning of the petitioner and others through the second order amounts to double jeopardy which Article 13 of the Constitution of the Islamic Republic of Pakistan, 1973 and Section 403, Cr.P.C. Do not approve. Further argues that if a second complaint about the same episode is maintainable, there have to be exceptional circumstances and the earlier order has to be absurd, unjust and exceptional.
4. On the other hand, it is contended by the learned counsel appearing on behalf of the complainant that an order passed under Section 203, Cr.P.C. Is not a judgment in the terms of Section 366, Cr.P.C., therefore, the impugned order passed by the learned Magistrate does not amount to alteration of the earlier judgment which Section 369, Cr.P.C. Prohibits; that Article 13(a) of the Constitution of the Islamic Republic of Pakistan, 1973 and Section 403 of, Cr.P.C. Prohibit the prosecution and the punishment for the same offence more than once and retrial after he conviction or acquittal has once been ordered. The earlier order passed by the learned Magistrate refusing to summon the accused does not amount to an order of acquittal, therefore, second complaint is maintainable. Relies on I.L.R 1905 (Vol. XXIX) Appellate Criminal 126 titled "Emperor vs. Chinna Kaliappa Gounden and another", A.I.R. 1930 Rangoon 156, titled Dhana Reddy vs. Emperor".
A.I.R. (31) 1944 Nagpur 327 titled "Namdeo Ganpat Phulmali vs. Emperor" [A.I.R 1962 Patna 316 (V. 49 C 82)] titled Prithvi Bhagat and another vs. Birju Sada", PLD 1978 Supreme Court 121 titled "Syed Alamdar Hussain Shah vs. Abdul Baseer Qureshi and 2 others", A.I.R 1983 Supreme Court 595 titled "'Dr. S.S. Khanna, vs. Chief Secretary, Patna and another", [1991 P "r I '74 (Karachi)] titled "Atta Muhammad and others vs. Iqrar Ahmad and another", PLD 2003 Karachi 97 titled "Manzoor Ahmed vs. The State", 2005 P.Cr. U 1631 titled "Saeed Ahmed vs. Abdul Shakoor and another", [2011 YLR 428 (Lahore)] titled "Ahmed Din vs. A.S.J and others" and 2011 SCMR 484 titled "Nazir Ahmed vs. Capital City Police Officer, Lahore and another".
5. Heard Record perused.
6. The earlier complaint filed by the respondent was dismissed on account of lack of jurisdiction of the Anti-Terrorism Court as in the opinion of the learned Judge; there was no element of terrorism; moreover it was a counterblast to FIR No, 203/12 registered at the behest of the petitioner; the occurrence was improbable and the complaint was false on the face of it. In all the judgments cited above, it has been held that the enquiry under Section 202, Cr.P.C. Is not in its nature a trial as it ends up neither in conviction nor acquittal, therefore, in case of second complaint, no question of prosecution or punishment more than once for the same offence arises and thus the principle laid down in Article 13(a) of the Constitution of Islamic Republic of Pakistan, 1973 and Section 403, Cr.P.C.
And the maxim "nemo debet bis vexari pro una et eadem causa" (no person should be twice disturbed for the same cause) is not attracted. The legal position is undoubtedly so and no second opinion is possible. Since an order passed under Section 203, Cr.P.C. Is not a judgment in the terms of Section 366, Cr.P.C., the impugned order passed in second complaint is not offended by the provisions of Section 369, Cr.P.C. Which prohibit the alteration in the judgment. The pre-requisites for attracting the rule of "autre fois acquit" that, (1) there must have been a trial of the accused for the offence charged against him, (2) the trial must have been by a Court of competent jurisdiction, and (3) there must have been a judgment or order of acquittal, (4) the parties in the two trials must be the same, (5) fact-in-issue in the earlier trial must be identical with what is sought to be re-agitated in the subsequent trial, are nonexistent in this case because whatever had taken place earlier, was not a trial.
7. Now comes another question of law. Had Section 369, Cr.P.C. That prohibits the alteration of a judgment not been there, could the scheme of law and the general prudence allow unbridled alterations in the judgment by the same Court? If Section 403, Cr.P.C. Was not there, could a person who had been tried for an offence by a Court of competent jurisdiction and convicted or acquitted, while such conviction or acquittal remains in force, be tried again and again for the same offence and be convicted and reconvicted infinitely for the same charge? Had Article 13(a) of the Constitution of the Islamic Republic of Pakistan, 1973 not been there, could, a person be prosecuted or punished for the same offence again and again so that he ends up in a prison for having committed a petty offence? Had there not been Section 11, C.P.C. could a Court be bound to try and retry a suit or an issue in which the matter in issue has been in issue in a former suit between the same parties. Such a perpetual succession of trials and prosecution would have resulted in a constant jeopardy if not to a person proceeded against, at least to the Court, made to undertake the ritual. A Court cannot be made to hear and rehear the successive I complaints of the same complainant about the same episode till the complainant lives or the accused dies. Although a an accused is not before the Court at the time of recording the preliminary statements of the complainant and of the witnesses under Sections 200 and 202, Cr.P.C. And he is not being tried, yet this process if allowed to be repeated infinitely, will result in consumption of the Court's time by the same person, a time that is to be equitably distributed amongst all, craving for the resolution of their disputes. Although second complaint or the successive complaints about the same episode at the instance of the same person or at the instance of another person competent to file a complaint unless the earlier one had ended in acquittal or conviction, are not barred by law yet this endless succession has to be bridled with reasonableness and there have to be exceptional circumstances for filing and entertaining the successive complaints. For instance where the previous order was passed on an incomplete record or on a misunderstanding about the nature of the complaint or the order passed in the previous complaint refusing to summon the accused was manifestly absurd, unjust or foolish or where some facts which could not, even with reasonable diligence be brought before the Court are now being put forth in the second complaint. I place reliance on the judgments I.L.R 1930 (Vol. XII) Revisional Criminal (Lahore Series) 9 titled "Allah Ditta vs. Karam Bakhsh" and [1991 P.Cr.L.J 274 (Karachi)] titled "Atta Muhammad and others vs. Iqrar Ahmad and another".
8. In the instant case, it was only a second complaint and does not exceed the reasonable limit of repetition so was not incompetent on this ground. There is however an exceptional circumstance.
The order dated 11.12.2012 has in it the elements of manifest absurdity, unjustification and patent illegality. The moment the learned Anti-Terrorism Court, had come to the conclusion that the complaint lacked the ting of terrorism and any clause of Section 6 of Anti-Terrorism Act, 1997 was not attracted in the circumstances and it had no jurisdiction to try the complaint, it should have refrained, from touching the merits of the complaint. On the one hand, the Court had opined that it lacks jurisdiction and on the other hand, it has exercised the jurisdiction, it lacked and dismissed the complaint after coming to the conclusion that the preliminary statements did not inspire confidence, that the complaint was a counterblast to an FIR, the complaint appeared to be false on the face of it and there was no sufficient material to proceed against the accused. The concealment of the filing and dismissal of the earlier complaint by the respondent, in the circumstances of the instant case, will not affect the merits of the case. The order in the first complaint was passed by a Court who in its own opinion lacked the jurisdiction. In this view of the matter, the impugned orders dated 3.4.2013 and 27.7.2013 passed by the learned Magistrate and the learned Addl. Sessions Judge, Rawalpindi respectively summoning the petitioner and others/accused and dismissing the petitioner's criminal revision are held to be in conformity with law. This petition has no merits. It is hereby dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.