MUHAMMAD SALEEM JESSAR, J.---Through captioned criminal revision application, applicant Asif Ali Pechuho has impugned order dated 20.06.2017 , passed by the learned Additional Sessions Judge-I, Jacobabad, whereby he has allowed an application filed by the Prosecutor in terms of Section 227, Cr.P.C., and has directed for framing of amended charge against all accused including applicant in Sessions case No.140/201 1 Re; State v. Nazir Ahmed Magsi and others arisen out of FIR No.25/201 1, registered with Police Station Thull (District Jacobabad).
2. The background of the case is that, respondent No.1/ complainant Allah Rakhio lodged FIR No.25/201 1, with Police Station Thu1 1 for offences punisha ble under Sections 302, 342, 220, 148 and 149, P.P. C., for the alleged murder of his brother Manzoor Ahmed. And, on completion of usual investigation the case was challaned showing accused Nazir Ahmed Magsi under custody , while rest of accused, namely , SIP Asif Ali Pechuho (applicant), H.C.
Manzoor Magsi, H.C. Nasrullah Lashari, H.C. Muhammad Sallah Odho, H.C. Shahzado Lashari, P.C. Allah Dino and P .C. Israr Ahmed Pechuho as absconders.
3. It appears that, initially the trial Court framed formal charge against accused Nazir Ahmed Magsi for offences under Sections 302, 220, 148 and 149, P.P.C.; however meantime co-accused Shahzado Lashari, Allah Dino and Israr surrendered before the trial Court and joined trial, as such charge was amended against them for same sections and thereafter the present applicant (Asif Ali Pechuho) also joined the trial and again charge was amended by the trial Court for same offences. Then, the prosecution examined some witnesses and ultimately another co-accused, namely , Manzoor Ahmed Magsi also surrendered and joine d trial, as such the charge was again amended against all the accused for same offences and thereafter prosecution examined complainant Allah Rakhio, PW Dost Muhammad and mashir Ghulam Rasool.
4. After examination of above named witnesses, the applicant invoked provisions of Section 265-K, Cr.P.C. by filing an application for his acquittal from the charge, which was allowed by the learned trial Court vide its Order dated 29.05.2015, and he was acquitted. However , after lapse of two years the learned Prosecutor tiled application in trial Court under Section 227, Cr.P.C. for framing amended charge by adding sectio ns 449 and 364, P.P.C., on the ground that due to bona fide mistake charge was only framed under Sections 220, 302, 148, 149, P.P.C. against all accused while sections of criminal trespass in a dwelling house and abduction for murder were omitted and during trial principal accused SHO Asif Ali Pechuho had been acquitted from the charge, therefore, notice may be issued against him to face charge under new applicable proper provisions of Penal Code. The applicant Asif Ali Pechuho filed objections to such application and after hearing the parties' counsel the trial Court allowed such application vide impugned order dated 20.06.2017, hence applicant has filed instant revision application for setting aside of the impugned order .
5. Learned counsel for applicant mainly contended that, impugned order is illegal, perverse and arbitrary in nature and same has been passed totally in disregard of the facts and material available on record; that impugned order has been passed by learned trial Court in hasty manner . According to learned counsel the challan of the case was filed before the Magistrate having jurisdiction through District Prosecutor but at that time Sections 449 and 364, P.P.C. were not recommended to be added in the challan and since 2011 case was pending trial and after examination of six witnesses including complainant and eye-witnesses of the case the applicant was acquitted in terms of Section 265-K, Cr.P.C., and at the time of hearing of application under Section 265-K, Cr.P.C., the Prosecutor conceded for grant of application; however after lapse of about two years the Prosecutor moved application under Section 227, Cr.P.C. for framing of amended charge by adding sections 449 and 364, P.P.C., which has been allowed by learned trial Court vide impugned order , which is null and void. Per learned counsel it would be double jeopardy for the applicant, if he is left to be prosecuted again, after his acquittal, which already attained finality , as no appeal against his acquittal was filed by the complainant, or by Prosecutor . In support of his contention Mr. Ali Nawaz Ghanghro has referred the case of Syed Alamdhar Hussain Shah v. Abdul Baseer Qureshi and 2 others PLD 1978 Supreme Court 121 and submitted that Honourable Supreme Court of Pakistan has, defined the principle of autrefois convict and autrsfois acquit, embodied in section 403 of the Criminal Procedure Code of 1898 and protection against double punishment in terms of Article 13 of the Constitution, Islamic Republic of Pakistan, 1973. Mr. Ghanghro further -submits that case of applicant is derogatory to the principles of autrefois convict and autrsfois acquit and is violative of Article 13 of the Constitution, hence, the impugned order is patently illegal liable to be set-aside. Mr. Ghanghro has also placed reliance upon the case of Mahmood and another v . Mumtaz Ali and another 2007 PCr .LJ 1623.
6. Mr. Sharafuddin Kanhar , learned A.P.G., appearing for the State, also does not support the impugned Order and concedes for allowing revision application. He also placed reliance upon the case of Manzoor Hussain v. The State PLD 1998 Lahore 239 .
7. It is worth to point out that, despite repeated notices the complainant/respondent No.1 did not appear; however , on occasion i.e. 06.08.2018, he appeared before this Court and stated that he has forgiven the applicant.
8. To properly appreciate the proposition, involved, it would be conducive to refer the provision of Section 265-K, Cr.P.C. first. Same reads as:-- 265-K. Power of Court to acquit accused at any stage: Nothing in this Chapter shall be deemed to prevent a Court from acquitting an accused at any stage of the case , if, after nearing the prosecutor and the accused and for reasons to be recorded , it considers that there is no probability of the accused being convicted of any offence .
From above, it is evident that by use of. phrase 'at any stage of the case' the legislatures have permitted the Court
(s) to exercise such powers at any time which is not subject to 'framing of charge' even. Reference is made to the case of The State through Advocate-General v . Raja Abdul Rehman 2005 SCMR 1544 wherein it is observed as:-
13. ... there can be no dispute that an application under section 249-A, Cr.P.C. can be filed, taken up for hearing and decided at any time or stage of the proceedings and the words "at any stage" denote that the application under section 249-A, Cr.P.C. can be filed even before prosecution evidence had been recorded or while the exercise of recording of evidence is going or when the exercise is over .
I would further add that the provision of Section(s) 249-A/265-K are exceptions to normal procedure where the prosecution is required to prove the 'charge ' by leading evidence only after framing of the 'charge' . Needless to add that by framing the 'charge' the accused is put on notice about whole case (allegations) of prosecution which the prosecution claims to be able to prove against the accused.
I would further add that since the provis ions of Sections 237 and 238 of the Code do empower the Court(s) to convict the charged accused for an offence which, even, was never included in the framed charge therefore, the prosecution could have challenged the acquittal under sections 249-A1265-K, Cr.P.C. solely on ground that it (prosecution) has material to prove guilt of accused for offence not mentioned in FIR and charge sheet. To avoid such plea, the exercise of such jurisdiction shall always be subject to co-existence of following i.e.:-- i) hearing of the prosecutor and the accused. Such hearing shall, for all purposes and intents, include careful examination of all material; and ii) in consequence thereto, the Court must find that there is no probability of accused being convicted of 'any offence' ; Thus, unless the Court (s), having complied with first condition, comes to view that there is no probability of the accused being convicted of 'any offence' the acquittal cannot be ordered under sections 249-Al 265-K, Cr.P.C.
Meaning thereby , the mentioning of the sections of offences in FIR or charge shee t would be of no significance but examination of whole material of prosecution which, too, must result in conclusion that trial, even if allowed to continue, shall not render the accused for conviction of 'any offence' . Thus, it can safely he concluded that an acquittal under sections 249-A/265-K. Cr.P.C. shall be an 'acquittal', not only from mentioned offences but from those too, which are likely to be constituted on 'same facts and material' collected by prosecution during investigation, if trial is allowed to continue.
Now, while reverting to merits, it appears that, applicant was acquitted on 29.05.2015 in terms of Section 265-K, Cr.P.C., by the learned trial Court which, as already discussed, shall carry presumption that such acquittal was consequence of co-existence of both the conditions. The facts, however , speak that after lapse of two years of acquittal of applicant, the Prosecutor moved an application under Section 227, Cr.P.C. for framing amended charge against applicant for offences punishable under Sections 449 and 364, P.P.C. on basis of the material which, otherwise, was available with the prosecu tion at time of acquittal of applicant. Such request prima facie , was illegal because it was not made with reference to any new 'facts' but on 'same facts and material' which, the learned trial Court has found to be not sufficient to result in convicting the applicant for 'any offence' . If such exercise is allowed it shall negate the guarantee, provided by Article 13 of Constitution as well Section 403, Cr.P.C. The section 403, Cr.P.C., being relevant, is reproduced hereunder:
403. 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 whiles such conviction or acquittal remains in force, not 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.
The above guarantee does restrict trial of an acquitted or convicted even where 'on the same facts' a charge for any other offence might have framed. Such legal position appears to have entirely been ignored by the learned trial Court Judge while passing the impugned order . In case of Manzoor Hussain (Supra) the Honourable bench of Lahore High Court while dealing with identical issue has held in para 10 of the judgment as under: " Similar protection is provided for in section 403, Cr.P.C. read with section 26 of the General Clauses Act, but the same offers a purely procedural shield. Article 13 of the Constitution on the other hand, has translated this procedural check into a Constitutional guarantee which cann ot be taken away or whittled down even through a legislative measures. It is difficult to countenance that an Obiter Dicta of this court, in a different case can frustrate a substantive right provided for by the Constitution itself........
Again in para 1 1, it has been observed as under: ".........The Supreme Court of Pakistan held that the verdict of acquittal having not been challenged before any higher forum, neither the Constitution, nor the Code of Criminal Procedure read with General Clauses Act permitted retrial of an offence. It was held that a person having once been tried as an accused and finally acquitted, he acquired a vested right and Constitutional protection against a second trial for the same offence. I, thus find myself in agreement with the learned counsel for the petitioner , that as the petitioner stood acquitted under section 249-A, Cr. P.C. unless his acquitt al was set-aside by a higher forum, the issuance of process for re-trial by the same Court offended against petitioners fundamental right of immunity from double prosecution or punishment.
I shall further add that impugned order , so passed by the learned trial Court, is not sustainable from different legal position. The learned trial Court Judge, perhaps , ignored the legal position that a 'charge' , be it amended even, cannot be framed against an accused unless he is facing trial before it (court). Undeniably , the learned trial Court judge, having acquitted the applicant, never ordered for re-joining of the applicant to face the trial. After acquittal the applicant even no more, was an 'accused' hence I am unable to understand that how a charge, even named as amended one, can be framed against an acquitted accused or one who is not facin g trial?. In short, the learned trial Court judge seems to be ignorant of this very basic principle of law that 'no one can be tried unless he is first dresses up as an 'accused' either by way of charge sheet (police report) or by an order of the Court. On this count, too, the impugned order is not sustainable in law .
Moreover , the trial Court cannot sit over upon its own order or review it, but in the case in hand, the trial Court while passing impugned Order has violated provisions of Section 369, Cr.P. C., which says that no Court shall alter or review its own judgment, except to correct a clerical error. Not only this but, the Order of trial Court by allowing framing of amended charge at this stage amounts to setting aside earlier unchallenged acquittal of the applicant from all offences which may arise out of same facts. Legally , such domain only lied with appellate Court which, too, on filing of an appeal by prosecution or the complainant. In the instant case, admittedly neither prosecution nor the complainant ever challenged acquittal of the applicant. Thus, on this count the impugned order is not sustainable in law and same can safely be said to have been passed without any jurisdiction.
14. It is settled law of criminal administration of justice system that once a court passes an order of acquittal or conviction, it becomes functus officio qua the accused. If such an order is not challenged, by way of an appeal or revision, it attains finality . In the case in hand, the order dated 29.05.2015 acqui tting the applicant, had attained finality . Hence, the issuance for process for retrial of applicant vide impugned order dated 20.06.2017 was obviously hit by section 369, Cr.P.C. and unwarranted in law. Hence, the same is accordingly declared as without lawful authority and set aside. The criminal revision is consequently , accepted and allowed.
15. Let copy of judgment be sent to trial Court through learned Sessions Judge, Jacobabad for compliance.