SYED ARSHAD ALI, J.- Through the instant writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, Ghufran Shah the petitioner seeks the constitutional jurisdiction of this Court with the following prayer:- "It is, therefore, most humbly prayed that on acceptance of the instant writ petition, the FIR No. 1479 dated 20.10.2018 under sections 322/427 PPC of Police Station Daggar may kindly be cancelled/quashed and the proceedings hereinafter if made be declared illegal and without lawful authority.
Any other remedy which deems fit by this Hon'ble Court in the interest of justice, may also be granted in favour of the petitioner."
2. It is averred in the petition that a firm namely M/S Sarhad Mining Company is a lease holder of mine at Hisar Tangay, District Buner. On 20.10.2018, during mining operation, an incident of sliding has taken place due to which two persons had lost their lives. The local police thus registered the impugned FIR, wherein the present petitioner was charged under section 322 read with 427 PPC. The petitioner being aggrieved of the registration of the said FIR has approached this Court through the instant writ petition.
3. Arguments heard and record of the case was perused.
4. Learned counsel appearing on behalf of the petitioner has challenged the registration of FIR by arguing that the alleged incident, whereby two persons have lost their lives is punishable under sections 38 & 40 of the Mines Act, 1923 (`The Act'). Therefore, registration of the impugned FIR under sections 322 and 427 PPC is contrary to Article 13 of the Constitution of the Islamic Republic of Pakistan, 1973 (`The Constitution') and section 403 of the Criminal Procedure Code, 1898 (`The Code') as it amounts to double jeopardy.
5. We have carefully considered the arguments of learned counsel for the petitioner in view of the law laid down by the august Supreme Court of Pakistan on the subject.
6. The precise allegations against the present petitioner are that he is the owner of the disputed mine in which during the mining operation, an unpleasant incident took place which has not only caused serious damage to the vehicle but the two Truck drivers have also lost their lives. The perusal of the said allegations would show that prima facie the petitioner is to be charged under two provisions of different statues, one under section 40 of the Act and the other under sections 322 and 427 of the Code.
7. In essence the petitioner takes shelter behind the Article 13 of the Constitution as well as section 403 of the Code for quashment of the impugned FIR by stating that when the incident is punishable under section 40 of the Act, then registration of FIR under sections 322 and 427 PPC is unwarranted.
8. In order to comprehend the issue effectively, it would be appropriate to reproduce the aforesaid two provisions of law as under:- "Article 13 of the Constitution: Protection against double punishment and self-incrimination.
No person.... a) shall be prosecuted or punished for the same offence more than once: or b) shall, when accused of an offence, be compelled to he a witness against himself"
"Section 403 of the Code: 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 farce, not to be liable to be tried again for the some 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, subsection (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. 9."
9. Indeed the aforesaid law is based on centuries old principle of common law i.e. "Nemo bis puniture ant vexature pro eodum delieo" which means that no one should be subjected to peril twice for the same offence. This fundamental principle of law which has been embodied in our Constitution as well the Code and the General Clauses Act is that once a person was prosecuted and acquitted for an offence, he cannot be subsequently tried for the same. In Muhammad Ashrafs case reported as 1995 SCMR 626, the august Supreme Court of Pakistan while interpreting the said provision of law has held that:- "It will he seen that the protection given by this Article is against prosecution and double punishment. By prosecution is meant a trial followed by judgment of acquittal or punishment. It includes the entire proceedings starting with taking cognizance of an offence by the Court, followed by examination of evidence, addressing of arguments and ending with are pronouncement of judgment. It seems to us that if as a result of prosecution for an offence the trial ends in acquittal, Article 13(a) is not attracted.
Constitutional guarantee is available only if the accused is convicted and punished. Thus if the first prosecution results in acquittal, so far as this Article is concerned, the second prosecution is not prohibited. It is, however , open to the legislature to enlarge the scope of Constitutional guarantee and further extend the protection envisaged by Article 13 (a)."
The said view was re-affirmed in 2011 SCMR 484 titled "Nazir Ahmad vs Capital City Police Officer, Lahore and another", 2011 SCMR 1083 titled "The State through Collector of Customs vs Nasim Amin Butt & others" and 2014 SCMR 1376 tiled "Muhammad Nadeem Anwar vs Securities and Exchange, Commission of Pakistan through Director NBFs Deptt: Islamabad".
10. In Nazir Ahmad's case, the august Supreme Court of Pakistan has laid down the following principles for applicability of Article 13 of the Constitution so as to bar re-trial of an accused for the same offence:- "Article 13 of the Constitution sanctifies the well-settled principle of law that no person will be tried for an offence on the same set of facts on which he has already been acquitted or convicted. For applicability of the rule of "autre fois acquit", essential conditions to be satisfied are: (7) 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."
11. In the context of the present case, so far only FIR under sections 322 & 427 PPC has been registered which too is at investigation case and even no challan has been put in Court. The record is also silent regarding initiation of any action under the Mines Act. Hence, the prosecution of the present petitioner is yet to commence under the impugned sections of law, therefore contentions of the petitioner are unfounded.
12. Thus, this petition having no merit is accordingly dismissed.