ALI ZIA BAJWA, J.---Qurban Hussain son of Mureed Hussain, caste Hotwani, resident of Mouza Hota Hotwani, Tehsil and District, Dera Ghazi Khan appellant, was involved in case FIR No.81/2012 dated 08.04.2012, offences under section 13 of Pakistan Arms Ordinance (XX of 1965) read with sections 3/4 of Explosive Substances Act, 1908, registered with Police Station Kala, District Dera Ghazi Khan.
He was tried by learned Judge Anti-Terrorism Court-IV, Lahore (Camp at Dera Ghazi Khan), under the afore-mentioned offences and learned trial court, vide judgment dated 07.06.2013, convicted and sentenced the appellant in the following terms:- Under section 4 of Explosive Substances Act, 1908 read with section 7 of Anti-Terrorism Act, 1997, sentenced to undergo imprisonment for life.
Under section 13 of Arms Ordinance (XX) 1965 read with section 21-M of Anti-Terrorism Act, 1997, sentenced to undergo R.I. for seven years with the direction to pay fine of Rs.50,000/- and in case of default in payment thereof, to further undergo R.I. for three months.
Being aggrieved by the judgment of the learned trial court, appellant has impugned his conviction and sentence through the instant appeal.
2. Prosecution story as embodied in the FIR (Exh.PB/1) is that complainant Abdul Raheem Khan, Inspector/SHO, along with Mohammad Nawaz, SI, Abdul Haq, S.I., Danish Ali, ASI, Sajid Hussain 644/C, Khizar Abbas 1345/C and Imran Afzal 1471/C was present at Mouza Hota Hotwani in connection with investigation of case FIR No.80/2012, dated 08.04.2012, offences under sections 302, 324, 353, 186, 148, 149, P.P.C., read with section 7 of the Anti-Terrorism Act, 1997 and sections 3/4 of Explosive Substances Act, 1908, registered with Police Station Kala when Qurban Hussain was apprehended from the house of one Ashiq Hussain son of Hussain Khan and from his possession one hand grenade, one magazine, ten live bunets and a Kalashnikov were recovered. Accused failed to show license of firearms, therefore complainant drafted a complaint (Exh.PB) and sent the same to police station through Sajid Hussain 644/C for registration of formal FIR.
3. After registration of the case, Investigating Officer secured a hand grenade (P-1), magazine of Kalashnikov (P-2) containing ten live bullets (P-3/1-10) through recovery memo Exh.PA. He inspected the place of occurrence and prepared rough site plan (Exh.PC). During the investigation, accused was found involved in the occurrence, therefore report under section 173, Cr.P.C. was prepared while placing his name in column No. 3.
4. Accused Qurban Hussain was indicted by the learned trial court on 07.01.2013, to which he pleaded not guilty and claimed trial. Prosecution in order to prove its case produced as many as four (4) prosecution witnesses.
5. Abdul Raheem Khan, Inspector (PW-3) is complainant as well as investigating officer of case while Danish Ali, ASI (PW-1) is other witness of ocular account/recovery. On presentation of complaint, Muhammad Ibrahim, ASI (PW-2) chalked out formal FIR.
6. After completion of the prosecution evidence, statement of the appellant as provided under section 342, Cr.P.C., was recorded by the learned trial court, wherein he refuted the allegations levelled against him in the prosecution evidence. Accused did not opt to get recorded his statement on oath under section 340(2), Cr.P.C. however he produced Sultan Mehmood son of Ghulam Hassan (DW-1) in his defence.
7. Learned trial court after evaluating the evidence available on record, found version of the prosecution proved beyond shadow of reasonable doubt against the appellant, which resulted in his conviction and sentence in the aforestated terms.
8. Arguments heard, record perused.
9. We have carefully examined the respective contentions as agitated on behalf of the parties, meticulously scrutinized the entire record with the eminent assistance of learned counsel for both sides and perused the impugned judgment. In light of the above, the pivotal question of law that needs determination by this Court is whether the cardinal maxim of Nemo debet bis vexari (pro una et eadem causa), which translates as "No one should be tried twice in respect to the same matter" is attracted in present case.
10. It has been straightaway noticed by this Court that primarily appellant was arrested in case FIR No.80/12 dated 08.04.2012 for offences under sections 302, 324, 353, 186, 148 and 149 of the Pakistan Renal Code (the "P.P.C."), read with section 7 of the Anti-Terrorism Act, 1997 ("A.T.A., 1997") and sections 3/4 of the Explosive Substances Act, 1908 registered with Police Station Kala, District Dera Ghazi Khan in which he was sent to stand trial by investigating agency before learned Anti- Terrorism Court, Lahore (Camp at Dera Ghazi Khan). Charge against the appellant was framed by the learned trial court in the aforementioned FIR under sections 302, 324, 148, 149, 186, 353, P.P.C., read with sections 7(a), (b), (h), A.T.A., 1997 and sections 3/4 of Explosive Substances Act, 1908. At the conclusion of trial, appellant was convicted vide judgment dated 07.06.2013 as under:--
(i) Imprisonment for life under section 302(b), P.P.C. read with section 21-M, A.T.A., 1997 as Ta'zir.
(ii) Imprisonment for life under section 7(a) read with section 21-I, A.T.A., 1997 and to pay Rs.100,000/- as fine. In default of payment of fine, to further undergo R.I. for six months.
(iii) Imprisonment for life under section 3 of Explosive Substances Act, 1908 read with section 21-I, A.T.A., 1997.
(iv) Imprisonment for life under section 4 of Explosive Substances Act, 1908 read with section 21-I, A.T.A., 1997.
(v) Imprisonment for life under section 7(b) read with section 21-I, A.T.A., 1997 and to pay Rs.
100,000/- as fine. In default of payment of fine, to further undergo R.I for six months.
(vi) Imprisonment for life under section 7(h) read with section 21-I, A.T.A., 1997 and to pay Rs.100,000/- as fine. In default of payment of fine, to further undergo R.I for six months.
(vii) Rigorous Imprisonment for three years under section 148 with section 149, P.P.C. and to pay Rs.30,000/- as fine. In default of payment of fine, to further undergo R.I for two months.
(viii) Rigorous Imprisonment for three months under section 186 read with section 149, P.P.C. and to pay Rs.1500/- as fine. In default of payment of fine to further undergo R.I for one week.
(ix) Rigorous Imprisonment for ten years under sections 324/149, P.P.C. read with section 21-M, A.T.A., 1997 and to pay Rs.50,000/- as fine. In default of payment of fine, to further undergo R.I for three months.
(x) Rigorous Imprisonment for two years under sections 353/149, P.P.C. read with section 21-M, A.T.A., 1997 and to pay Rs.20,000/- as fine. In default of payment of fine, to further undergo R.I for two months.
The appellant along with other co-convicts assailed their convictions and sentences through respective appeals while learned trial court forwarded Capital Sentence Reference No.8/2013. Vide consolidated judgment dated 15.01.2015, Capital Sentence Reference was answered in negative, appeals filed by the appellant and co-convicts were allowed and they were acquitted of the charges.
11. It is an admitted fact that the case in hand is an offshoot of case FIR No.80/12 dated 08.04.2012, offences under sections 302, 324, 353, 186, 148 and 149, P.P.C., read with section 7 of the A.T.A., 1997 and sections 3/4 of the Explosive Substances Act, 1908 registered with Police Station Kala, District Dera Ghazi Khan against present appellant Qurban Hussain and other co-accused, namely, Mohsin Ali, Faiz Muhammad, Sajjad Hussain, Nazar Hussain and Imran.
12. The thrust of the arguments of the appellant as advanced by his counsel at the time of arguments was that punishment awarded to him in cast FIR No. 81/12 by the Anti-Terrorism Court- IV, Lahore (Camp at Dera Ghazi Khan) vide impugned judgment dated 07.06.2013 is hit by the doctrine of Double Jeopardy as on the same set of facts the appellant had already been tried by the same court in case FIR No. 80/12, convicted and thereafter acquitted by this Court.
13. Bare reading of the crime report in hand makes it abundantly clear that it was registered for the possession of same hand grenade, magazine and ten live bullets for which appellant was arrested, investigated, tried and convicted in connection with the FIR No. 80/2012 registered with Police Station Kala, District Dera Ghazi Khan by the same trial court. It is also, pertinent to mention that the appellant was subsequently acquitted by this court vide judgment dated 15-01-2015. That judgment of acquittal has also been placed on the record by the appellant counsel which supports the contention that appellant was tried for the same offences again. Recovery memo of one hand grenade, one magazine with ten live bullets (Exh.PA) and site plan of place of recovery (Exh.PC) transpire that those documents were prepared during the course of investigation of aforementioned FIR No.80/2012 in which appellant was convicted and subsequently acquitted by this Court. Only photo copies of memo of recovery and site plan are available on the record as these documents pertain to FIR No.86/2012 registered with Police Station Kala, District Dera Ghazi Khan. Original memo of recovery and site plan of place of recovery were exhibited during the trial of that case and available on its file. It is crystal clear that appellant had already been tried, convicted and then acquitted by the appellate court, hence, a second trial qua the same charges is hit by the doctrine of 'double jeopardy'.
14. Doctrine of double jeopardy provides a procedural defense to an accused. For an accused involved in criminal case, this is a crucial constitutional and statutory protection and it applies regardless of the severity of the alleged crime. Prosecution of the appellant, involving same facts for which he had been tried and subsequently acquitted by the appellate court, is violative of Article 13 of the Constitution of Islamic Republic of Pakistan, 1973 (`Constitution') read with section 403, Cr.P.C. and section 26, General Clauses Act, 1897. Subsequent trial of the appellant, his convictions and imposition of sentences by the trial court amount to infringement of the protection against double jeopardy.
15. It would be appropriate here to define what is meant by the term Double Jeopardy.
Black's law dictionary defines Double Jeopardy as "A second prosecution after a first trial for the same offence."[1] Double Jeopardy has been defined in the Collins Dictionary as "the act of prosecuting a defendant a second time for an offence for which he or she has already been tried"[2] In Britannica, double jeopardy has been defined, as "double jeopardy, in law, protection against the use by the state of certain multiple forms of prosecution."[3]
16. It would also be advantageous to reproduce the relevant provisions of law which govern the parameters of Double Jeopardy i.e. Article 13 of the Constitution, section 403, Cr.P.C. and section 26 of General Clauses Act, 1897.
"Article 13. Protection against double punishment and self-incrimination.
No person:-
(a) shall be prosecuted or punished for the same offence more than once; or (b)
"Section 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 section 235, subsection (1).
(3) A person convicted of any offence constituted by an 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, he subsequently charged with, and tried for any other difference 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."
"Section 26. Provisions as to offences punishable under two or more enactments.
Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence."
17. The provisions of Double Jeopardy as enshrined under the aforementioned provisions of law are based on the ancient maxim of 'nemo debet bis vexari pro una et eadem causa' which connotes that "no person should be twice disturbed for the same cause" and common law principle, which the accused can use as a shield in the form of pleas of 'autre fois acquit' which means "formerly acquitted" and 'autre fois convict' which means "formerly convicted". In other words, double jeopardy means that no person should be perilled twice in respect of the same matter. It is fairly obvious from the plain reading of the above stated provisions of law that the principles of autrefois acquit and autrefois convict contained in section 403(1), Cr.P.C. forbid a new trial after a conviction or acquittal on the basis of the same facts. According to section 403, Cr.P.C., no court shall try any person who was already tried by a court of competent jurisdiction on the same facts, irrespective of whether he was acquitted or convicted. Similarly, section 26 of the General Clauses Act provides that where an act or omission which constitutes an offence under two or more different enactments, then the accused shall be liable to be prosecuted under either or any of said enactments, however, the accused shall not be liable to be vexed twice for the same offence. Article 13(a) of the Constitution places an embargo on subsequent prosecution and punishment for the same offence.
18. This principle by now has assumed a universal application and is found in constitutions of most of the countries. Reference to few would be in order. In United States of America this principle is couched in the 5th amendment of the Constitution which mandates, "no person shall be sub Sect or the same off ence to be twice ut in eo and 0 life or limb." In India the provision is found in sub- Article (2) of Article 20 which reads, "no persons shall be prosecuted and punished for the same offence more than once." Article 39 of the Constitution of Japan provides, that, "No person shall be held criminally liable for an act which was lawful at the time it was committed, or of which he has been acquitted, nor shall he be placed in double jeopardy." Article 14.7 of the U.N Covenant on Civil and Political Rights, 1960 embodies the same principle and mandates that "no one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country ".[4] Pakistan became a signatory to this convention on 17th April, 2008 and ratified the same on 23rd June, 2010.[5]
19. The Honourable Supreme Court in Nazir Ahmed[6] laid down the prerequisites which must be satisfied for the application of doctrine of double jeopardy to attract, as follows:
(1) that there must have been a trial of an accused for the offence charged against him;
(2) that the trial must have been by a Court of competent jurisdiction;
(3) there must have been a judgment or order of conviction or acquittal;
(4) the parties in two trials must be the same;
(5) facts in issue in the earlier trial must be the same, with what is sought to be re-agitated in the subsequent trial.
Similarly, the Full Bench of the august Supreme Court in Abdul Malik[7] held that: "14. This almost universally accepted principle and as enshrined in Article 13(a) of our Constitution in its import and as evolved through the precedent case-law, has following implications:
(1) A person may not be tried for a crime in respect of which he has previously been acquitted or convicted.
(ii) In respect of the crime of which he could on some previous charge/indictment has been lawfully convicted.
(iii) Where the offence charged is in effect the same or substantially the same as one in respect of which the person charged has previously been acquitted or convicted or in respect of which he could on some previous indictment, have been convicted.
(iv) The evidence necessary to support the second indictment or the facts which constituted the second offence would have been sufficient to procure a legal conviction upon the first indictment, either as to the offence charged or as to an offence of which on the indictment the accused could have been found guilty.
(v) The offence charged in the second indictment must have been committed at the time of the first charge i.e. a conviction or acquittal for an assault will not bar a charge of murder if the assaulted person later died.
(vi) The earlier adjudication loading to guilt or innocence of a person charged must have been through a valid process and by a Court of competent jurisdiction.
(vii) The conviction or acquittal in the previous proceedings must be enforced at the time of the second trial.
The proceedings in which the plea of double jeopardy is being raised must be fresh proceedings where the person is sought to be prosecuted for the same offence for the second time."
20. The impugned judgment passed by the learned trial court was labouring under the misconception that separate trials of both cases could be adjudicated by it. It has not been appreciated by the trial court that both the FIRs stemmed out of the same set of facts, the complainant was same and even the recoveries of incriminating articles in both the cases were same. Very trial of appellant on the same facts is violative of Article 13(a) of the Constitution read with sections 403, Cr.P.C. and 26 of General Clauses Act, 1897. We have, therefore, faced no difficulty in reaching the conclusion that the provisions of section 403, Cr.P.C., Section 26, General Clauses Act and Article 13 of the Constitution were blatantly violated in the present case as the concept of double jeopardy is inseparably linked the principles of `autrefois acquit' and 'autrefois convict'.
Since the appellant was already convicted by learned trial court and acquitted by the, appellate Court on the same set of fact hence couldn't be tried again.
21. In sequel to what has been discussed above the convictions and sentences passed by the learned trial court are squarely hit by the principle of double jeopardy, as well as, in contravention of the guidelines given and principles enunciated by the Superior Courts of the country on the subject. Thus, the impugned judgment dated 07.06.2013 is accordingly set aside and appellant is acquitted of the charges. Sentence of the appellant was suspended vide order dated 18.06.2015 passed in Writ Petition No. 14670 of 2014. His sureties stand discharged from their liabilities.
22. Appeal allowed.
1. Bryan A Gamer and Henry Campbell Black, Blacks law dictionary (1 ed. 1999).
2. htps://www.collinsdictionary.com/dictionary/english/double-jeopardy
3. https://www.britannica.com/topic/double-jeopardy-law
4. Abdul Malik v. The State (PLD 2006 SC 365)
5. https://treaties.un.org/Pages/ViewDetails.asp x chapter=4&clang =_en&mtdsg_no =1V- 4&src=IND
6. Nazir Ahmed v. Capital City Police Officer (2011 SCMR 484)
7. Abdul Malik v. The State (PLD 2006 SC 365)