JUDGEMNT ISHTIAQ IBRAHIM, J. By invoking the Constitutional jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 ("Constitution"), Shahid Ali and two others, the petitioners, seek quashment of FIR No.56 dated 02.11.2023, registered under sections 500, 504, 505, 506, 124-A, 120-B PPC and section 16 of the West Pakistan Maintenance of Public Order Ordinance 1960 ("MPO") registered at Police Station Miran Shah, North Waziristan ("Impugned FIR").
2. Grievance of the petitioners is that for the same allegations and about the same incident, alleged in the impugned FIR, FIR No.260 dated 09.05.2023, under sections 500/505/120-B/124-A PPC read with section 7 Anti-Terrorism Act, 1997, Police Station Saidu Sharif Swat and FIR No.14 dated 28.10.2023 under sections 120-B/153-A PPC, Police Station Spin Daim South Waziristan Lower, have already been registered against the petitioners, therefore, impugned FIR being ditto copy of FIRs
(ibid) and based on political victimization, amounts to double jeopardy of the petitioners, hence, violative of Article 13 of the Constitution, is liable to be quashed.
3. Mr. Danial Khan Chamkani, the worthy AAG, present in the court in a different matter was put on notice and heard along with counsel for the petitioners.
4. As per contents of the impugned FIR, on 2.11.2023 one Malik Abdullah Zeb submitted an application to SHO Police Station Miran Shah North Waziristan for registration of FIR against the petitioners. It is alleged in the impugned FIR by the complainant that he being a loyal citizen of Pakistan respects its Constitution and acknowledges the services and sacrifices rendered by its Law Enforcing Agencies for the protection of Pakistan; that on 01.11.2023 on Social Media he watched that due to arrest of Imran Ahmad Khan Niazi, the then Chairman Pakistan Tehrk-e-Insaf (PTI) by the Law Enforcing Agency in a criminal case, the petitioners, Saleem ur Rehnian, Shahid Ali Khan and Fazal Hakeem (Ex-MPA/MNAs), while addressing a mob of some 200/250 persons were using abusive, derogatory and unparliamentary language against the sitting Government and Pakistan Army. They were also instigating the mob to revolt against the National Institutions; that speeches of the petitioners seriously hurt his feelings towards Pakistan and its brave Army; that he saved speeches of the petitioners in a USB and approached SHO Police Station Miran Shah for registration of case against them. Consequently, the impugned FIR was registered against the petitioners in the aforesaid Police Station.
5. Main thrust of the arguments of learned counsel for the petitioners was that when for the same occurrence and same offence, FIRs had already been registered against the petitioners then registration of the impugned FIR, is violation of the law settled by the Hon'ble Supreme Court in case titled "Sughran Bibi Vs The State, (PLD 2018 Supreme Court 595), and Article 13 of the Constitution of Islamic Republic of Pakistan, 1973, which says that no person shall be prosecuted or punished for the same offence more than once; or shall, when accused of an offence, be compelled to be a witness against himself, hence, requested for quashment of the impugned FIR.
6. After going through the contents of the impugned FIR as well as the FIRs No.216 and 14 (ibid) registered at Police Station Saidu Sharif Swat and Police Station Spin Daim South Waziristan Lower, we are firm in our view to hold that all the three FIRs have been registered against the petitioners about one and the same incident, though on the reports of different complainants in different districts. In a famous case of "Mst. Sughran Bibi Vs the State" (PLD 2018 Supreme Court 595), Hon'ble Supreme Court while answering to a legal question as to whether a separate FIR could be registered for every new version of the same incident when commission of the relevant cognizable offence already stood reported to the Police and an FIR already stood registered in such regard? has held that:- "After entering the First Information relating to commission of a cognizable offence in the prescribed book i.e. after registration of an FIR, the matter becomes a "case", and thereafter every step taken in the ensuring investigation was a step taken in that case. Perusal of R.24.5 of the Police Rules, 1934 showed that commission of a cognizable offence, when reported to police through the first information and registered in the FIR register, was treated as a "case" bearing an annual serial number and such "case" carried the same number forever respective of any number of different versions received by the police regarding commission of the said offence or any number of different circumstances or sets of culprits brought to the notice of the investigating officer during the investigation of the "case". During the investigation conducted after registration of an FIR, the investigating Officer may record any number of versions of the same incident brought to his notice by different persons which versions was to be recorded by him under section 161 Cr.P.C. in the same case. No separate FIR was to be recorded for any new version of the same incident brought to the notice of the investigating officer during the investigation of the case. All subsequent or divergent versions of the same occurrence or the persons involved therein were to be received recorded and investigated by the investigating Officer in the same "case" which was based upon the one and only FIR registered in respect of the relevant "offence" in the prescribed book kept at the local police Station."
The controversy of registration of multiple FIRs against one Muhammad Azam Khan Swati, in various Police Stations throughout the country, came up before the Hon'ble Supreme Court of Pakistan in case titled, "Muhammad Azam Khan Swati Vs Inspector General of Police Balochistan and 02 others" (PLD 2023 Balochistan 85). Allegation in the said FIR against the petitioner was that he having twitter handle @ Azam Khan Swati PK and twitter accounts having twitter handles @WolflAK, @ Haqeeqat TV-2, and @Azzadi99 with malafide intentions and ulterior motives, started highly obnoxious campaign of intimating tweets through Twitter's aforesaid accounts against the State Institutions of Islamic Republic of Pakistan and its senior Government functionaries including the Chief of the Army Staff of Pakistan Army." The Supreme Court in the case (supra) while deprecating the practice of registration of multiple FIRs about the same incident, in paragraphs No.6, 8 and No.13 observed as under: "6. At the very outset and without burdening the judgment in hand with scholarly discussion, I have observed that multiple FIRs across the country have been registered against the petitioner. The moot question for consideration arises as to whether investigation and further proceedings on the basis of all the FIRs are permissible? Though a strait jacket formula cannot be laid down, yet the only test whether multiple FIRs can be permitted to exist. In such case, the court has to examine the facts and circumstances giving rise to all the FIRs and the test of sameness is to be applied to find out whether all the FIRs relate to the same incident in respect of the same occurrence or are in regard to the incidents, which are two or more parts of the same transaction. If the answer is in affirmative, the second or the remaining FIRs are liable to be quashed. However, in case, the contrary is proved, whether the version in the second FIR is different and they are in respect of the two different incident/crimes, the second FIR is permissible.
8. I have also noticed that the petitioner has been charge sheeted in a number of cases and he shall either be convicted or acquitted on the basis of facts and evidence. In such view of the matter the simultaneous and continuous trials in presence of same facts and on the same set of evidence and allegations, would patently resulted in duplicate punishment or at least a duplicate trial in violation of the doctrine of double jeopardy.
13. It is true that disputed tweets contain highly obnoxious and intimating language but it is equally true that multiple registrations of FIRs cannot be allowed that too in respect of one and the same offence in view of the dictum laid down by the Hon'ble Supreme Court in the case of "Mst. Sughran Bibi Vs the State" (PLD 2018 Supreme Court 595).
In view of the above observations, petitions filed by Muhammad Azam Swati son of Muhammad Yousaf Khan were allowed. The FIRs questioned in the petitions were quashed and the petitioner was directed to be released forthwith in the questioned FIRs, if not required in any other case.
7. Similarly, in case titled, "Independent Media Corporation (Pvt) Ltd through Muhammad Azhar and 04 others vs Government of Balochistan through Chief Secretary and Secretary Law Quetta and 09 others" (PLD 2019 Balochistan 27), controversy of registration of multiple FIRs against accused person(s) about one and the same incident was set at naught in the following way: "If assessed on the principle as determined by the honourable supreme Court the FIRs, eight (08) in numbers, arise from same incident, though registered on different dates on complaints of different persons, but the persons nominated were the same for the act common in nature. Though the police duly empowered to seek for cancellation of cases on strength of Rule 25.7 of the police Rules, 1934, but this power was not exercised at the relevant time. It resulted in registration of eight FIRs with the numbers 03 of 2017, Police Station Thall Khuzdar, 05 of 2017 Police Station Taftan, 06 of 2017 Police Station City Kalat, 07 of 2017 Police Station Dera Bugti, 23 of 2017 Police Station Gwadar, 25 of 2017 Police Station City Chaman, 34 of 2017 Police Station City Sibi and 58 of 2017, Police Station Hub City with identical facts and acts on part of the persons named.
As discussed above in view of the determined principle out of eight FIRs, the FIR lodged prior in time, i.e. FIR No.3 of 2017 Police Station Thaal Khuzdar shall remain intact and shall proceed, while the remaining are to be quashed. It is for the reasons that co-existence of the remaining FIRs not only amount to abuse of process of law but also contrary to the spirit of Article 13 of the Constitution. It further affect the rights as guaranteed by the Articles 4, 9 and 10A of the Constitution, thus not sustainable. Resultantly, the petitioners have to face the trial in FIR No.3 of 2017 Police Station Thaal Khuzdar in accordance with law. The petition is disposed of in the above terms."
Similar is the view of the worthy Balochistan High Court in case titled, "Independent Media Corporation PVT Ltd through Attorney and another vs Prosecutor General Quetta and 07 others"
(PLD 2015 Balochistan 54), which is reproduced below: "We have also noticed that petitioner have been charge sheeted in a number of courts and they shall either be convicted or acquitted on the basis of facts and evidence. In such view of the matter the simultaneous and continuous trials in presence of the same facts and on the same set of evidence and allegations, would patently result in a duplicate punishment or at least a duplicate trial in violation of the doctrine of double jeopardy, thus, the petitioners can seek the relief of acquittal without first having been convicted or acquitted for the same offence by a court of competent jurisdiction."
We would also like to refer to the view of worthy Sindh High Court on the same controversy, in case titled, "Badar Alam Bacjiani Vs the State through Chairman NAB and another" (2010 PCr LJ 1988 Karachi): "Above referred case law amply lays down the rule that where number of offences arises out of one and the same transaction and the same set of facts should be tried jointly as there is commonality of purpose and therefore cannot became a cause for separate charge in a separate reference which will be violative of section 403 Cr.P.C. and article 13 of the Constitution of Islamic Republic of Pakistan, 1973."
8. We would also refer to the judgment of the Indian Supreme Court on the issue of registration of multiple FIRs about the same occurrence rendered in case titled, "Arnab Rajan Goswami Vs Union of India & Ors" (AIR 2020 SC 2386). Relevant parts of the judgment are reproduced below for the sake of ready reference:- "The fundamental basis on which the jurisdiction of this court has been invoked under Article 32 is the filing of multiple FIRs and complaints in various States arising from the same cause of action.
The cause of action was founded on a programme which was telecast on R Bharat on 21 April 2020.
The FIRs and criminal complaints were lodged against the petitioner in the States of Maharashtra, Rajasthan, Madhya Pradesh, Telangana and Jharkhand besides the Union territories of Jammu and Kashmir. The law concerning multiple criminal proceedings on the same cause of action has been analyzed in a judgment of this Court in TT Antony V. State of Kerala: (2001) 6 SCC 181 (TT Antony). Speaking for a two judge Bench, Justice Syed Shah Mohammad Quadri interpreted the provisions of section 154 and cognate provisions of the Code of Criminal Procedure including Section 173 and observed: Under the scheme of the provisions of sections 154, 155, 156, 157, 162, 169, 170 and 173 Code of Criminal Procedure, only the earliest or the first information in regard to the commission of a cognizable offence satisfies the requirements of section 154 Code of Criminal Procedure. Thus, there can be no second FIR and consequently there can be no fresh investigation on receipt of every subsequent information in respect of the same cognizable offence or the same occurrence or incident giving rise to one or more cognizable offences. On receipt of information about a cognizable offence or an incident giving rise to a cognizable offence or offences and on entering the FIR in the station house diary, the officer in charge of a police station has to investigate not merely the cognizable offence reported in the FIR but also other connected offences found to have been committed in the course of the same transaction or the same occurrence and file one or more reports as provided in section 173 Code of Criminal procedure."
It was held in the judgment (supra) that barring situations in which a counter case is filed, a fresh investigation or a second FIR on the basis of the same or connected cognizable offence would constitute an "abuse of the statutory power of investigation" and may be fit case for the exercise of power either under section 482 of the Code of Criminal Procedure or article 226/227 of the Constitution.
9. The controversy of multiple FIRs has also been set at naught by the Indian Supreme Court in case titled, "Babubhai Vs State of Gujarat" (2010 12 SCC 254), in the following words: "In such a case the court has to examine the facts and circumstances giving rise to both the FIRs and the test of sameness is to be applied to find out whether both the FIRs relate to the same incident in respect of the same occurrence or are in regard to the incidents which are two or more parts of the same transaction. If the answer is in the affirmative, the second FIR is liable to be quashed. However, in case the contrary is proved, where the version in the second FIR is different and they are in respect of the two different incidents/crimes, the second FIR is permissible.
As stated earlier the impugned FIR is about the same incident already reported in FIR No.260 dated 09.05.2023, Police Station Saidu Sharif Swat, therefore, deriving guidance from the judgments (supra) and placing reliance thereon, we are firm in our view to hold that impugned FIR is liable to be quashed. For the sake of discussion if the impugned FIR is allowed to remain in the field, it will open a Pandora box as an unlimited and countless number of persons may on watching the said video on social media will resort to the exercising of registration of separate FIR against the petitioners. Another situation which is also possible if the impugned FIR is not quashed is that, if on conclusion of trials in the multiple FIRS about the same incident, the petitioners are found guilty and are convicted and sentenced, it would amount to double jeopardy which is against the mandate of Article 13 of the Constitution of the Islamic Republic of Pakistan, 1973. The word 'double jeopardy' originates from the rule 'Nemo bis punitur pro eodem delicto,' which means "no one should be punished twice for the same offence" and another common-law rule 'Nemo debet bis vexari,' which means "a man must not be put in peril twice for the same offence." It is also based on rule of conclusiveness and finality based upon the maxim of Roman jurisprudence 'Interest reipublicae ut sit finis litium' (it concerns the state that there be an end to law litigation). For ready reference and to properly appreciate its legal import, we deem it beneficial to have a glance on Article 13 of the Constitution of Islamic Republic of Pakistan, 1973 which read as under:- "13. 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 be a witness against himself."
The Article (ibid) expresses in unequivocal terms that there must not be double prosecution of an accused person for the same offence. Likewise a similar provision is available in the Indian Constitution in the form of Article 20(2). Same principle is recognized by the English Law and the American Constitution in the form of double jeopardy. It being a universally recognized notion is based on the principle of nemo debet bis vaxari: Nobody can be vexed twice for the same cause.
10. Apart from above, section 26 of the General Clauses Act 1897 is also based on the same principle which though was constituted in the pre-partition era of sub-continent but has been adopted by both countries i.e. Pakistan and India on acquiring independence like most of the other laws now prevalent. Undeniably constitution is a document carrying an authority of superlative degree in legal parlance and may not be construed as a mere law but as machinery by which laws are made. The Constitutional command & substantive provisions of General Clauses Act have their reflection in Procedural laws in the form of Section 403 of Code of Criminal Procedure, 1898 ("Cr.P.C."). Sub-section (1) of Section 403 Cr.P.C. bars second trial of an accused for the same offence. While Sub Clauses-(2),(3) & (4) of section 403 elaborately speak about the circumstances in which an accused can be re-tried for the same set of commission or omission constituting a different offence in different circumstances which for ready reference are reproduced below:- "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, 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.
(2). A person acquitted or convicted of any offence may be afterwards tried for any distinct offence for which separate charge might have been made against him on the former trial under section 235, sub section (1).
(3). A person convicted of any offence constituted by any act causing consequence which, together with such act, constituted a different offence from that of which he was convicted, may be after wards tried for such last-mentioned offence if the consequences had 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 act 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 provisions of section 26 of the General Clauses Act, 1897 or section 188 of this Code.
Explanation.- The dismissal of a complaint, the stopping of proceedings under section 249, or the discharge of accused is not an acquittal for the purposes of this Section.
11. The language of Article 13 of the Constitution is very much plain and clear which loudly speaks against double prosecution and punishment of an accused person. In light of clear commands of Article 13, the courts while applying the principle of double jeopardy and extending protection under Article 13 of the Constitution have to see whether the accused is being prosecuted twice for the same offence or otherwise. There is no cavil with the proposition in view of the salutary command of the Constitution that nobody can be prosecuted and punished for an offence when he has already been prosecuted and acquitted or punished for the same offence by the competent court of law. However, if case of the accused does not come within the ambit of barring clause and fall within the exception embodied in Clauses (2), (3) and (4) of Section 403 Cr.P.C., he may legitimately be tried for the same offence.
12. Courts are sanctuaries to protect the fundamental rights of citizens of the country and are under statutory obligation to respond in such like situations so as to protect them from vexatious prosecution. At the same time, it is also duty of the Courts to protect innocent person from victimization by misuse of process of law, as observed in case titled "Nadeem Ahmad v. Saif-ur- Rehman and 8 Others" (2021 MLD 354) in the following words:- "People make false accusation for having the feeling of enmity towards someone, being jealous, getting rid of someone, taking revenge or attaining cheap fame. Such people after making false accusation become busy with their matters, but the person against whom the false accusation has been made falls into disgrace and infamy for the rest of his life. Thus, in order to curb this social evil it would be expedient to read and interpret the word "prosecution" in the sense of criminal proceedings instead of its technical sense which it bears in criminal law".
13. For what has been discussed above and placing reliance on the judgments referred (supra) this petition is admitted and allowed, resultantly, the impugned FIR and consequential proceedings, if any conducted in pursuance thereof, are hereby quashed. However, the complainant of the impugned FIR would be at liberty to record his statement/version before the Investigation Officer in the case already registered against the petitioners, which shall be looked into in the light of the principles set forth in the judgment of Hon'ble Supreme Court in "Mst. Sughran Bibi vs the State"
(PLD 2018 SC 95).