' Through this revision petition under Sections 435 & 439 of Cr.P.C. read with Section 185-F of the Customs Act, 1969, the petitioner has prayed for setting aside order dated 03.06.2013 passed by learned Special Judge, Customs, Lahore whereby the petitioner was summoned for re-trial in case FIR No, 42/2005 dated 30.05.2005 under Section 21, 26, 32, 32-A, 39 of the, Customs Act, 1969 registered at Police Station Collectorate of Customs, Sambrial, District Sialkot.
2. After hearing the learned counsel for the parties and going through the documents appended with this petition as well as order passed by learned trial Court dated 03.06.2013, it has been noticed that the petitioner was convicted and sentenced to imprisonment till the rising of Court with fine of Rs, 20,000/- vide order, dated 7.1.2010 by the learned trial Court on his confessional statement. No appeal or revision was filed for enhancement of sentence of the petitioner. The co- accused of the petitioner were acquitted by the learned trial Court vide same order and separate appeal against their acquittal was filed by the State vide Criminal Appeal No, 1903 of 2009 and the matter was ultimately decided by this Court vide judgment dated 8.7.2010. The judgment of acquittal was set aside and the case was remanded back to the learned trial Court. It is further noticed that neither the petitioner was respondent in said appeal nor a party to the said proceedings. Even he was not summoned and heard during the proceedings of that appeal. The petitioner was convicted and he was released after payment of fine imposed upon him by the learned trial Court. It is settled law that once a person is convicted, he cannot be put to retrial.
Section 403, Cr.P.C. is relevant in this regard which is re-produced as under:
403. Persons once convicted or acquitted not to be tried for the 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 to 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 36, or for which he might have been convicted under Section 237.
(2)A person acquitted or convicted for any offence may be afterwards tried for any distinct offence for which a separate charge might have been made against him on the former trial under Sections 235, sub-section (1).
(3)A person convicted of any offence constituted by any act causing consequences which together with such act, constituted a different offence from that of which he was convicted,. may be afterwards tried for such last-mentioned offence, if the consequence had not happened, or were 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 acts 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.
(5)Nothing in this section shall affect the provision of Section 26 of the General Clauses Act, 1897, or Section 188 of this Code.
Under Section 403, Cr.P.C. in existence of order of conviction, his conviction has not been specifically set aside and the petitioner cannot be put to retrial again.
3. For what has been discussed above, this revision petition is accepted and the impugned order dated 03.06.2013 passed by learned trial Court whereby the petitioner was summoned to face the trial is set aside and the learned trial Court is directed to proceed with the trial only to the extent of acquitted co-accused of petitioner.