MUHAMMAD EJAZ SWATI, J.---The appellant Zia-urRehman son of Fazal Muhammad was tried by the Court of Special Judge Anti-Terrorism Court, Khuzdar (hereinafter the "trial Court") in respect of FIR No, 21 of 2002 registered with Police Station, Kharan under sections 302, 324, 147, 148, 149, 109/34, P.P.C. And was convicted and sentenced vide judgment dated 26th May 2009 (hereinafter the "impugned judgment") as under: "Under section 324, P.P. C. For seven (7) years R. I and fine of Rs,5,000 in default he is to suffer six
(6) months S.I more.
' Under section 337(D) Q & D Ordinance for five (5) years R.I and imposed fine of Rs,50,000 as "Daman" to be paid to the victim namely Amir Bakhsh with benefit of section 382-B, Cr. P. C. "
2. Facts of the prosecution case arising out of the above appeal are that on the written report Exh.P/9-A of complainant Shaikh Ahmed, FIR No,21 of 2002 dated 8th August, 2002 was registered with the Police Station, Kharan under sections 302, 324, 147, 148, 149, 109/34, P.P.C. The complainant alleged that on the fateful day, a case State v. Muhammad Aqil and others was fixed in the Court of Sessions Judge, Kharan, he along with Muhammad Aqil went to the Court room. After pronouncement of the judgment when Muhammad Aqil and others came out from the Court room, the absconding accused Master Eid Muhammad shouted towards Muhammad Aqil and others that "the judgment will, not decide the case but the same will be decided by his Kalashnikov". The absconding accused Eid Muhammad walked towards there and signaled to the person sitting in the vehicle and riding on a motorcycle, who started firing, as a result of firing, Muhammad Ayub (deceased), Muhammad Aqil, Amir Bakhsh. Nabi Bakhsh, Mulla Hassan and Muhammad Aslam sustained injuries. Muhammad Ayub succumbed to the injuries at the spot. The complainant further alleged that the appellant Abdul Razzaq, Iqbal (since died) Nouroz Khan and Raheem Bakhsh (absconding) were making indiscriminate firing by means of Kalashnikov. The absconding accused Eid Muhammad took Kalashnikov from the accused Shehzad and made firing while the accused Rehmatullah (acquitted), Karim Bakhsh (acquitted), Moula Bakhsh (acquitted), Naseer Ahmed, Sher Muhammad (acquitted), Gul Muhammad (acquitted), Abdul Qadeer (acquitted), Mazar (acquitted) and Zia-ur-Rehman (appellant) were making firing from the vehicle and motorcycle for the purpose of terror and making harassment. The accused Fazal Muhammad (acquitted) and Noor Muhammad (acquitted) were involved as conspirators.
3. At the trial, the prosecution examined as many as 21 witnesses. When examined under section 342 Cr.P.C., the appellant denied the allegations of the prosecution. He did not record his statement under section 340(2), Cr.P.C. However, produced 18 defence witnesses.
4.. The trial Court initially vide judgment dated 7th August, 2003 awarded death sentence to co- accused Abdul Razzaq and imposed fine of Rs,100,000 while the appellant Zia-ur-Rehman was acquitted of the charge. On appeal against conviction i,e, Criminal Appeals Nos.51 & 53 of 2003 filed by the convicts and Constitutional Petition No,458 of 2003 filed by mother of deceased Muhammad Ayub against the acquittal of the accused persons including the appellant. This Court vide order dated 28th July 2008 set aside the judgment 7th August 2003 passed by the trial Court (except to the extent of appellant Zia-ur-Rehman) and remanded the case to the trial Court for rewriting of the judgment.
5. After remand, the trial Court vide impugned judgment convicted and sentenced the appellant as mentioned hereinabove, hence this appeal.
6. The learned counsel for the appellant mainly argued that in the first round, the trial Court vide judgment dated 7th August 2003 acquitted the appellant and the said acquittal was maintained by this Court in C.P. No, 458 of 2003, but the trial Court in the second round again tried him and convicted for the same offence i,e, under section 324, P.P.C., which is double jeopardy as contemplated under section 403 Cr.P.C. And Article 13 of the Constitution.
The learned Special Prosecutor, ATA in rebuttal contended that the prosecution through reliable and natural including injured witnesses corroborated, by the medical evidence has proved the case against the appellant; that there is no material contradiction or improvement in the case of prosecution nor the findings of the trial Court reflect any misreading or non-reading of evidence; that the appellant in furtherance of common object along with absconding accused formed an unlawful assembly are liable for commission of offence.
7. We have heard the learned counsel for the parties and have gone through the record of the case. Before proceeding on merits of the case, it is necessary to decide the legal aspect of the matter as raised by the learned counsel for the 'appellant Zia-ur-Rehman arising that the conviction and sentence awarded to the appellant, embodied in section 403 Cr.P.C. And under Article 13(a) of the Constitution of Pakistan. The record of the case reveals that initially the trial Court vide judgment dated 7th August 2003 acquitted the appellant Zia-ur-Rehman. The relevant portion of the judgment is reproduced herein below: "Other accused Karim Bakhsh, Haji Fazal Muhammad, Noor Muhammad alias Malang, Shehzad, Zia-ur-Rehman, Abdul Qadir, Jamadar Muhammad Amin, Mushtaq Ahmad, Qadir Bakhsh, Mazar and ,Sher Muhammad are not found involved in the offence, therefore, they are acquitted of the charge."
8. Some of the convicts have filed Criminal Appeal bearing Nos.51 and 53 of 2003 before this Court including Murder Reference No,7 of 2003, pursuant to above judgment of the trial Court and while the mother of deceased Muhammad Ayub namely Ganj Bibi assailed the above judgment by way of filing Constitutional Petition No,458 of 2003 against the acquittal of same accused including the appellant before this Court. The order dated 11th September 2003 passed in C.P. No, 458 of 2003 reveals that the counsel in C.P. No, 458 of 2003 did not press the petition against the appellant Zia- ur-Rehman, which reads as under: "The learned counsel for the petitioners after having read over material particular of prosecution evidence does not press the Constitutional Petition as regards accused Zia-ur-Rehman, Shehzad, Haji Fazal Muhammad, Noor Muhammad, Mazar, Sher Muhammad and Karim Bakhsh acquitted on the charge."
9.. The order dated 6th November 2006 of this Court in the proceeding further reveals as under: "The learned counsel vide order sheet dated 11th September, 2003 did not press the petition to the extent of accused/respondent Zia-ur-Rehman, ,Haji Fazal Muhammad, Noor Muhammad, Mazar, Sher Muhammad and Karim Bakhsh as such their acquittal order is maintained."
10. It appears that after the above order, the Criminal Appeals Nos.51, 53 and Constitutional Petition No,458 of 2003 were decided vide consolidated order dated 28th July 2008 and the judgment dated 7th August 2003 was set aside and the case was remanded to the trial Court for rewriting of 'the judgment. The operative portion of the judgment of this Court is reproduced herein below: "We have independently perused the record of the trial court as well as impugned judgment and have come to the conclusion that the judgment is defective and it is full of errors, the matter has not been decided in accordance with law considering the evidence available on record, thus, we set-aside the impugned judgment dated 7-8-2003, passed by learned Special Judge Anti Terrorism Court, Khuzdar and remand the case to the trial court for re-writing of judgment after hearing the parties concerned strictly in accordance with law."
11. After remand, the appellant Zia-ur-Rehman was again summoned by the trial Court. It is relevant to mention here that after remand neither the appellant nor his counsel pointed out the aforesaid facts of acquittal of the appellant before the trial Court and due to this omission, the trial Court vide impugned judgment inadvertently convicted the appellant under section 324, P.P.C. And sentenced for seven years' R.I, while under section 337(D) he was sentenced for five years R.I and to pay Daman of Rs,50.000 to victim Amir Bakhsh.
12. From the above, it is quite obvious that in respect of FIR No,21 of 2002, the appellant Zia-ur- Rehman was acquitted by the trial Court vide judgment dated 7th August 2003 and in Constitutional Petition No,458 of 2003 vide order dated 6th June 2006, his acquittal order was maintained by this Court, which had attained finality, therefore, the, impugned judgment to the extent of the appellant in respect of same FIR i,e, 21 of 2002 is not sustainable under the doctrine of double jeopardy. These are guaranteed by Article 13(a) of the Constitution, which reads as under: "Protection against double punishment and self-incrimination. No person--
(a) Shall be prosecuted or punished for the same offence more than once or."
Likewise section 403 Cr. P.C., states as under: "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."
13. Paragraph (a) of Article 13 of the Constitution embodies the doctrine of double jeopardy that a person must not be put twice in peril for the same offence. The principles of autrefois acquit and autrefois convict are also embodied in section 403, Cr.P.C. Under section 403 Cr.P.C. a person, who has once been tried by a competent Court for an offence and convicted or acquitted remain in force, not to be liable to be tried again for the same offence. The contention of the learned Special Prosecutor that Article 13(a) of the Constitution is applicable in case of prosecution and is inapplicable in the previous acquittal for the same offence, is untenable. In this context reference can be made to the case of Syed Alamdar Hussain Shah v. Abdul Baseer Qureshi PLD 1978 SC 121, wherein the Hon'ble Supreme Court of Pakistan held as under: "It is in this limited sense that the word "prosecution" appears to have been used in Article 13 of the Constitution. Significantly, the marginal heading indicates that this Article is a protection against double punishment, which tends to show that it is only where the prosecution has finally concluded and ended either in acquittal or conviction that a fresh prosecution for the same offence would be barred."
14. The conviction or sentence awarded to the appellant is contrary to Article 13(a) of the Constitution of the Islamic Republic of Pakistan and section 403, Cr.P.C. Under the doctrine of double jeopardy as well as hit the principle of autrefois acquit and autrefois convict, therefore, the same cannot be sustained.
In view of the above, the Criminal ATA Appeal No,158 of 2009 C is allowed. The conviction and sentence awarded to the appellant Zia-urRehman son of Fazal Muhammad vide impugned judgment dated 26th May 2009 passed by the learned Special Judge Anti-Terrorism Court, Khuzdar is set aside. The appellant had already been acquitted by the trial Court vide judgment dated 7th August 2003 and that acquittal order was maintained by this Court vide order dated 6th November 2006 in C.P. No,458 of 2003. He is on bail, his bail bonds stand discharged.