' SARDAR SAID MUHAMMAD KHAN, J.-This appeal has been directed against the order of the Special Court, dated 19-4-1980, whereby the complaint against the appellant under the provisions of Azad Jammu and Kashmir Holders of Representative Offices (Trial of Offences) Ordinance was dismissed on the ground that the Special Court had no special jurisdiction to try the case.
2. Sh. Manzar Masud, respondent, was charged for, committing various offences in his capacity as Speaker of the Azad Jammu and Kashmir Legislative Assembly. The learned Judge of the Special Court recorded the evidence of the prosecution as well as that of the defence, but instead of disposing of the case on merits, he dismissed the complaint on the ground that the Speaker of Azad Jammu and Kashmir Legislative Assembly was not included in the definition of 'Holders of Representative Offices and as such the Special Court had no jurisdiction to try the charges levelled against him. Consequently, the present appeal was filed to challenge the validity of the order passed by the Special Court. In the memo. Of the appeal the judgment of the trial Court was assailed on the various grounds, but during the course of arguments, the learned counsel for the appellant pressed only one point which was to the effect that as the complaint was not dismissed on merits, the order passed should have been that of 'discharged' and not that of 'acquittal'. He has argued that the impugned judgment may be amended to the extent that the accused could be only discharged and could not be acquitted, as has been done by the Special Court. The learned counsel for the appellant has contended that an order of acquittal would create a bar for a fresh trial of the accused-respondent on the same charges.
3. It may be observed that the principle of 'awe fois acquit' is well-established principle of law and as such no person can be tried for an offence on the same facts on which he has already been acquitted or convicted. The aforesaid principle is recognized under section 403, Cr. P. C., which bars the trial of person for the same offence on the same facts for any other offence for which a different charge from the one made against him might have been made under the relevant provision of the Cr. P. C. Even part from the provisions contained in section 403, Cr. P. C., the aforesaid principle is recognized in the judicial system of all the civilized States.
4. Now the question, which needs determination, is as to whether in the instant case the order which could be passed should have been one that of 'discharge' or that of 'acquittal'. In `tale v.
Karam All (1), the accused was acquitted solely for want of proper sanction for prosecution. It was held by the learned Judges that such order of acquittal does not operate as an 'order of acquittal' but of 'discharge', and the principle that no one can be tried a second time for the same offence was not applicabe in the facts of that case.
5. In case entitled Muhammad Afzal Khan v. The State (2), the trial Court refused to take cognizance of the offence under section 182, P. C. On the ground that the complaint was not made by the Public Servant concerned. The trial Court proceeded to acquit the accused for want of proper complaint.
It was opined by the learned Judge that an 'acquittal' would mean an acquittal on facts and as the Court refused to take cognizance of the offence and at the same time acquitted the accused, the order was bad in law and acquittal would be deemed as an order of 'discharge'. {{FOOT NOTE}}
(1) 1968 P Cr. L J 1707 (2) PLD 1962 SC 397 {{FOOT NOTE}}
6. In Yusofalli Mullet Noorbhoy v. The King (1), the accused was acquitted because the sanction for prosecution as required by law was not obtained. It was held that in absence of proper sanction the Court had no jurisdiction to try the case and having reached conclusion that no valid sanction had been obtained, the Court ought to have discharged the accused on that ground and it had no jurisdiction to acquit him. It was further opined that the order of 'acquittal' was without jurisdiction and would only operate as order of 'discharge'.
7. It is evident from the above cited authorities that where the complaint is dismissed on technical grounds such as lack of jurisdiction or for want of proper sanction, the order to be made is that of 'discharge' and not that of 'acquittal'. It may be observed that even if the present appeal would not have been lodged, in our view, a fresh complaint in the instant case would not have been barred on the principle of autre foil acquit.
8. In the light of what has been stated above, we accept the appeal to the extent that the order of acquittal passed by the Special Court would be deemed to be the order of 'discharge' and not that of acquittal. {{FOOT NOTE}}
(1) AIR 1949 P C 264 {{FOOT NOTE}}