' The State lias preferred 2 Revision Petitions:-
(1) Revision against the order of the learned Sessions Judge Poonch at Rawalakote passed on 13-3- 1984 in the complaint No, 2 of 1983 titled Raj Muhammad Khan son of Nawab Khan v. Muhammad Saleem Khan son of Dost Muhammad K.,an and Muhammad Arif Khan son of Feroze Khan under section 305/330, A.P.C. And (2) Revision against the order of the learned Sessions Judge, Poonch at Rawalakote passed on 29-3-1984 in the criminal challan No, 14 of 1983, date of institution 17-2-1984 date of decision 29-3-1984 titled State v. Muhammad Saleem Khan A.S.I and Muhammad Arif Khan Constable of Police Department.
2. These two Revision petitions arise out of the following facts:-
(i) Muhammad Saleem Khan A oS.I. And Muhammad Arif Khan Constable of the Azad Jammu and.
Kashmir Government Police Department were challaned under section 305/330, A.P.C. Before the learned Sessions Judge Poonch-Rawalakote on 17-2-1983. The charge against them was that they were guilty for the abetment of the commission of suicide of Basharat deceased son of Raj Khan who was a boy of about 12/13 years old. This boy committed suicide while he was being interrogated in a theft case by the police. During the course of the trial, a complaint was also brought against both the accused persons Muhammad Saleem Khan, A.S.I. And Muhammad Arif Khan constable before the learned Sessions Judge Poonch-Rawalakote by the complainant Raj Khan who alleged in his complaint that the police challan was suffering for many defects and that the challan was filed purposely to save the accused persons from punishment.
(ii) The private complaint was brought under section 305/330, A.P.C. On 9-3-1983 before the learned Sessions Judge Poonch at Rawalakote by Raj Khan. The learned Sessions Judge decided to proceed with the complaint case first vide his interim order passed on 22-5-1983. The statement of the accused persons was recorded under section 242, Cr.P.C. On 28-7-1984.
(iii) On 13-3-1984, Raj Khan Complainant moved an application before the learned Sessions Judge Poonch Rawalakote that he did not want to continue the complaint case and did not want to produce any more evidence. The complainant Raj Khan prayed for the dismissal of his complaint.
This application was moved when the complainant Raj Khan had produced Muhammad Akram son of Said Muhammad, Caste Sudhan, Resident of Tain, Tehsil Rawalakote as his witness whose statement was recorded by the learned Sessions Judge Poonch on 15-1-1984. The learned Sessions Judge Poonch recorded the statement of the complainant Raj Khan on 13-3-1984 wherein the complainant made a very clear statement before the Court that he wanted to withdraw his complaint. It was after this statement that the learned Sessions Judge passed the impugned order on 13-3-1984 whereby the learned Sessions Judge Poonch Rawalakote dismissed the complaint case and acquitted the two accused persons.
(iv) As regards to the challan case, the learned Sessions Judge issued notice to the P.P. On 13-3- 1984 as to why the challan case should also not be dismissed. It was on 17-3-1984 that the arguments were heard in challan case and the case was fixed for judgment on 29-3-1984. The learned Sessions Judge Rawalakote dismissed the challan case on 29-3-1984 and the operative part of the judgment is reproduced as under:- "The upshot of the above discussion is that, since the accused persons have been tried and acquitted in complaint case, they cannot be tried for the same offence in challan case. I find my support in PLD 1979 Lah. 349 wherein similar matter was discussed and the above referred case law laid down by the Supreme Court was also kept in view. Hence the challan is dismissed."
3. The learned counsel for the non-petitioners (accused persons) Mr. Sardar Khan raised a preliminary objection that no revision lies in this case. His argument is that the State could file an appeal and not a revision petition. He has referred' to section 439, subsection (5) of the Criminal Procedure Code which reads as follows:- "Where under this Code an appeal lies and no appeal is brought, no proceedings by way of revision shall be entertained at the instance of party who could have appealed."
' He has also cited the following authorities:-
(i) 1976 P Cr. L J 412.
(ii) PLD 1979 Lah.
349.
4. I have considered this preliminary objection raised by the learned counsel for the non- patitioners Mr. Sardar Khan Advocate. Section 439, subsection (5) of the Criminal Procedure Code bars a revision petition in a case where an appeal lies but no appeal is brought.
' In the case of Khuda Bakhsh v. State 1976 P Cr. L J 412,the bar under section 439, subsection (5) operates only against a person himself, who had a right of appeal but did not avail of this right.
' I reproduce the relevant portion from 568:- "It is well-settled law that the High Court can interfere to correct illgalities, irregularities and impropriates of proceedings or orders by exercising its revisional jurisdiction suo motu and in that event the concerned party not having filed an appeal cannot operate as a bar to the exercise of such jurisdiction. Similarly, while considering the revision filed by a convict whose appeal against his conviction is dismissed, the High Courts have set aside the convictions of the other co-convicts who did not even care to file any appeal against their convictions. The bar under section 439(5) operates only against that person himself, who had a right of appeal but did not avail of it."
6. It was observed in the case of Shakeei-ur-Rehman and 4 others v. The State, 1981 P Cr. L J 165 the High Court was vested with the discretion to revise an order of the subordinate Court passed in any proceedings the record of which was called for or on the initiative of a party or on receiving information or on the basis of knowledge of the Court. The only exception to this section was that a party who had a right of appeal against the impugned order could not avail remedy of revision unless the remedy provided through appeal was exhausted. The revision was allowed in that case.
7. I am sorry that I cannot subscribed to the view of Mr. Sardar Khan Advocate, because the powers of the High Court in revision are very vast. The record is before me and if I come to the conclusion that some material illagality or irregularity has been committed which has resulted in gross injustice, I am empowered to redress the wrong even suo motu. It is true of course, that the bar is there section 439, subsection (5) of the Criminal Procedure Code and operates against the party which did not came into appeal against the impugned order. This bar does not operate against the High Court.
8. Having disposed of the preliminary objection, I now proceed to decide the revision petitions.
9. The learned Additional Advocate-General, Mr. Muhammad Nisar Mirza, has cited the case of Raimon Ho and another v. The State AIR 1965 Orissa 6. In that case, sections 248 and 403 of the Cr.P.C. Were considered by R. L. Narasimham C.J. (as he then was) who abserved that when there is a complaint and a challan, the proper procedure for the Court is to keep the complaint pending and amalgamate it with the police case on submission of charge-sheet by the police. The learned Chief Justice of Orissa High Court observed at pages 6 and 7:- "The police case, after due investigation, ended in this submission of charge-sheet against the two petitioners, under section 324, I.P.C. That charge-sheet was placed before the same Sub-Divisional Magistrate on 16-8-1961. Cognizance was taken in due course on the charge-sheet and the police case continued in its usual course (numbered as G.R. Case No, 118/61). On 14-5-1962 the complainant himself filed a petition before the learned Magistrate saying that the police case had already ended in submission of charge-sheet and that as that case was pending before the Magistrate he wished to withdraw the complaint case. The use of the expression 'withdraw' was somewhat unhappy. The learned Magistrate however without carefully considering the effect of withdrawal of the complaint case passed an order on 14-5-1962 to the following effect.
"Hence this case is withdrawn and the accused Raiman Ho and Bijoy Ho are acquitted under section 247, Cr.P.C. Here section 247 is obviously a mistake for section 248, Cr.P.C. Having thus disposed of the complaint case the learned Magistrate proceeded with the police case and convicted the two petitioners under section 323, I.C.P. And sentenced them to undergo rigorous imprisonment for one month each.
(3) Mr. Mohapatra however contended that in view of the acquittal of the accused persons in the complaint case, the Magistrate had no jurisdiction to convict them in the G.R. Case on the same facts and that section 403, Cr.P.C. Would operate as a bar
(4) I have no doubt that when the learned Magistrate passed orders on 14-5-1962 in the complaint case all that he meant was that the police case alone should be continued and that the complaint case should not be dealt with separately. For that purpose he should merely have written in the order-sheet that in view of the G.R. Case this complaint was merged with the former and will not be dealt with separately. Instead of saying like that he wrote an order allowing the complaint case to be withdrawn and acquitting the accused and thereby creating difficulties for himself. In my opinion, therefore, the order, dated 14-6-1962 in complaint Case No, 84 of 1961 is neither proper nor legal, in view of the reasons given by the Magistrate himself while passing that order. I would, therefore, in exercise of my revisional jurisdiction under section 439, Cr.P.C. Set aside the order of the Magistrate which reads as follows:- "Hence this case is withdrawn and the accused are acquitted under section 247, Cr.P.C. And substitute the following words:- "Hence this case is merged with G.R. Case No, 113 of 1961 which alone will be proceeded with hereafter."
(5) In view of this order, the principle of antra fois acquit under section 403, Cr.P.C. Has no application. But as the trial has already taken place and ended in conviction when the bar under section 403, Cr.P.C. Was actually subsisting I think the correct procedure now would be to direct retrial ,of the G.R. Case No, 118 of 1961.
(6) For these reasons the conviction and sentence passed by the Magistrate in G.R. Case No, 118 of 1961 are set aside, and the learned Magistrate or his successor in office is directed to re-try the case according to law, and then dispose of the same. This order necessarily involves the setting aside of the order of the learned Judge in appeal (namely in Criminal No,94-M of 1962)."
10 The submission of the learned Additional Advocate-General is that the case of Orissa High Court applies on all fours to the instant case.
11. As against this, Mr. Sardar Khan, Advocate has argued:-
(a) That a person cannot be vexed twice. This principle is laid down in section 403 of the Cr.P.C.
Which reads as follows:
(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 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 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 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 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 committed if 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, the discharge of the accused or any entry made upon a charge under section 273, is not an acquittal for the purposes of this section."
(b) This maxim is discussed at pages 217 to 226 of Broom's Legal Maxims", 1969 Karachi Edition;
(c) Section 13 of the Constitution of Pakistan 1973 also protects a citizen from double jeopardy. It reads:- "No person
(a) Shall be prosecuted or punished for the same offence more than one; or
(b) shall when accused of an offence, be compelled to be a witness against himself;"
(d) PLD 1979 Lah. 349 paras. 6, 7, 8 & 9 at pages 351, 352 & 353.
12. I have considered the arguments addressed at the Bar and perused the authorities cited before me. I agree with the learned counsel for the non-petitioners, Mr. Sardar Khan, Advocate, that a person cannot be vexed twice.
' The difficulty certainly arises where there is a challan and a complainant and the question that always arises is as to what should be done The difficulty can be resolved in two ways. Either both the cases should processed and the decision of both the cases should be made by the Court at the same time, or the complaint should proceed first and the material on the challan case should be brought on the record of the complaint case by calling the challan witnesses under section 540 of the Cr.P.C. The learned Judges of the Superior Courts are divided in their opinion. According to Kaikaus, J. PLD 1966 SC 708(714)(F) both the cases should be tried by the same Court or Judge and the judgment should be delivered at the same time. According to the learned Kaikaus, J. (as he than was) the two proceedings should be consolidated and there should be a single hearing and the whole of the evidence be produced before the Sessions Judge and the decision recorded. I think the Orissa High Courts' view tallies with that of Kaikaus, J. The view appears to be good but I as a Single Judge of Azad Jammu and Kashmir High Court, as bound by the majority view of PLD 1966 SC 708. I think that our own Supreme Court has not given its view. I have not been enlightened as to what view has been taken by the Supreme Court of India in this respect.
' The main arguments of the learned Additional Advocate-General is that according to the majority view expressed by S.A. Rehman, J. (as he then was) in the case of Nur Elahi v. The State and others PLD 1966 SC 708(711)(713).
"The question how the two cases should be proceeded with as to cause no prejudice to either party, is one of difficulty in the circumstances mentioned and has caused us some concern. The learned Advocate-General suggested that we might issue directions similar to those embodied by the Lahore High Court in the unreported case cited above. The learned Judges observed therein that it would be desirable, should the trial Judge decide to hear first the case based on the police version, to summon the witnesses supporting the counter version as Court witnesses under section 540-A, of the Code of Criminal Procedure, so that the record contains all the relevant evidence.
Similar procedure was directed to be adopted during the trial of the complaint case. After considering all aspects of the matter, we hold that a fair procedure would be for the learned trial Judge to take up the complaint case first for trial. During that case the learned trial Judge may call the witnesses mentioned in the police challan, if they were not already examined on behalf of the complainant as Court witnesses under section 540-A of the Criminal Procedure Code, so that they can be cross-examined by both the parties. This will enable the Court to have the whole relevant evidence included in one trial and a decision could be arrived at after a proper consideration of the entire material relied on by the parties. The accused persons would in addition obviously have the right to adduce defence evidence if they so choose. If that trial results in a conviction, it will be for the Public Prosecutor to consider whether or not he should withdraw from the prosecution, with the permission of the Court, under section 494 of the Code of Criminal Procedure, in the Police challan case. It would be easy for him to take such a decision after the whole evidence has been thrashed out in the first trial. If the first case ends in an acquittal, he might still have to consider whether the police version has not been so seriously damaged by what has been brought out in the first trial, as to justify withdrawal of the prosecution. Otherwise the second trial would be allowed to proceed to its normal conclusion and the parties would have the advantage of utilizing the material placed on the record of the earlier trial, by way of cross-examination of the relevant witnesses as permitted by law.
' This procedure is being suggested to avoid a difficulty that might otherwise confront the complainant. If the police challan is taken up first for trial, the complainant would be under a handicap in so far as he would not be in a position to cross-examine the witnesses for the prosecution.
' Another difficulty may arise in respect of conducting the case on behalf of the complainant in the first trial. Normally, of course, under the law, the Public Prosecutor is to be in charge of the case, even if the trial is based on a private complaint. The Public Prosecutor, however, in the special circumstances of the case could permit the complainant's counsel to conduct the proceedings on his behalf under his directions. Alternatively and that may meet the situation more adequately.
Government in the interest of justice, could notify the complainant's counsel, as a Special Public Prosecutor, for the conduct of that case alone. This would ensure full justice to the complainant and he would not be left with any sense of grievance. He is at present challenging the bona fides of the police investigation. We, therefore, allow the appeal and direct that the trials will now be taken up by the trial Judge in accordance with the observation made above."
13. The contention of the learned Additional Advocate-General is that the complaint ended in the acquittal of the accused persons but that would not mean that the accused persons are entitled to acquittal in the challan case as well. His argument is that both the challan case and the complaint case should be heard and disposed of together. The statements of the accused under section 242, Cr.P.C. Were not recorded by the learned Sessions Judge, Poonch in the challan case and, therefore, it was not a case of a person who was "tried and acquitted" by the learned Sessions Judge, because the trial of the challan case never started. The trial starts from the stage when the accused are "arraigned" before the Court and their statements are recorded under section 242, Cr.P.C. He submitted that both the cases should be remanded in the light of AIR 1965 Orissa 6 so that the learned Sessions Judge should dispose of both the cases according to law.
14. I am sorry, I cannot subscribe to the views of the learned Additional Advocate-General for the simple reason that the father of the deceased boy, Mr. Raj Khan, appeared before me and I recorded his statement on 5-11-1984. He has very clearly mentioned in his statement before the High Court that he had withdrawn the complaint according to his own sweet will and that there was no pressure or influence of any kind by the police when he moved an application for withdrawal of the complaint. If I remand the case back to the learned Sessions Judge, Poonch- Rawalakote, it will be an exercise in futility because the complainant Raj Khan is a material witness in the challan case as well. The substantial justice requires that the case should not be remanded because it will serve no purpose at all.
15. In the case of Ch. Baqa Muhammad and others v. Barkat and another PLD 1969 A J K 56, Justice Yar Muhammad Khan, .J. (as he then was) also followed the case of Nur Elahi etc. PLD 1966 SC 708 and directed the trial Judge to take up the complaint case first and hold the trial of the eight accused person in that case according to the directions contained in the ease of the Supreme Court, referred to above.
16. PLD 1979 Lah. 349 is very much relevant to this case. I would like to reproduce paras. 6 to 9 from pages 351, 352 and 353:- "(6) Learned counsel for the petitioners on the other hand referred to section 403, Cr.P.C. And Article 13 of the Constitution to contend that second trial of the petitioner, for the same offence is wholly barred. According to him. Article 13 of the Constitution has raised to a constitutional status the principle of autre fois convict and autre fois acquit which has already been embodied in section 403, Cr.P.C. And a part of section 132 of the Evidence Act. The Supreme Court, according to him, never intended to lay down that the persons acquitted in the complaint case after a proper trial can again be tried in the challan case.
(7) I have considered the arguments raised before me and have gone through the judgment of the Supreme Court and the relevant provisions of law. The facts in the Supreme Court case were that murder of one M was reported to the police by N. He had accused three persons in the police report. The police, however, decided to prosecute totally a different set of persons. Two of the persons mentioned in the F.I.R. Were shown in column No,2 of the challan. N filed a complaint giving his own version of the incident as set forth in the First Information Report. At the stage of commitment proceedings, the question arose as to how the complaint case and the challan case were tc be dealt with. The matter was brought up before this Court in Criminal Revision No,1049/1963. A learned Single Judge of this Court disposed of this Revision Petition directing that the complaint and challan be consolidated for the purpose of recording the evidence. The witnesses common to both the cases were to be produced only once. They would be first examined by the State Prosecutor and then by the counsel for the complainant and cross-examined by the counsel for the accused. Any additional evidence beyond the testimony of the witnesses mentioned in the challan was also allowed to be produced by the complainant subject to the same procedure. Two commitment orders were passed by the Inquiry Magistrate. Complainant before the learned trial Judge filed application praying for separate trial of the two cases. His application was rejected by the trial Court who, evidently intended to have a joint trial of the two sets of accused, though they contained no common name. The complainant then approached this Court. A learned Judge of this Court held that a joint trial of two sets of accused was not legal. The order of the learned trial Judge was, therefore, set aside. He gave certain directions to the trial Judge to be followed in the trial of the cases. The order of this Court was brought before the Supreme Court. The Supreme Court disposed of the matter with a direction that the complaint case could be tried first and then the challan case. It was in this background that the above observation was made. Question of acquittal and retrial was not, in any manner, involved in this case.
(8) Article 13 of the Constitution provides that no person shall be prosecuted or punished for the same offence more than once. This falls within Chapter I, Part II of the Constitution. These Rights and all proceedings pending in any Court in so far as they are for the enforcement of any of those Rights have been suspended under Laws (Continuance in Force) Order, 1977; therefore, nothing further can be said in so far as the prayer for the enforcement of these Rights is concerned.
However, provisions of section 403, Cr.P.C. Are quite clear and I have no doubt in my mind that an accused once acquitted of an offence cannot be tried again for the same offence. Subsection (1) of section 403, Cr.P.C. Can be quoted with advantage. In the Anglo-American system this principle is stated in the form of the rule against double jeopardy, and based on well-recognised rule of natural justice. The principle, though in somewhat modified form finds mention in section 26 of the General Clauses Act as well. This provides that where an act of omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or anyone of those enactments but shall not be liable to be punished twice for the same offence.
(9) For all that has been stated above, I accept this petition and quash the proceedings so far as the present petitioners are concerned. It is, however, made clear that this will not debar the trial of the challan in regard to the persons not tried and acquitted earlier in the complaint case."
17. A reference is made to "Brooms' Legal Maxims" at page 217":- ' I reproduce the relevant portion from pages 223 and 224 of "Brooms' Legal Maxims:- "The maxim nemo debet bis vexari pro une et eadem causa expresses a great fundamental rule of our criminal law, which forbid that a man should be put in jeopardy twice for one and the same offence. It is the foundation of the special pleas of autre fois acquit and autre fois convict (2 Exh.
D.137, and 4 Id. 107). When a criminal charge has been once adjudicated upon by a Court of competent jurisdiction, that adjudication is final, whether it takes the form of an acquittal or a conviction, and it may be pleaded in her of a subsequent prosecution for the same offence, whether charged with or without matters of mere aggravation, and whether such matters relate to the intent with which the offence was committed or to the consequences of the offence R.V. Miles, 24 Q.B. 423, at p.
43. Provided that the adjudication be by a Court of competent jurisdiction, it is immaterial whether it be upon a summary proceeding before justice or upon a trial before a jury Ibid; Wemyas v.
Hapkins, L.R. 10 Q.B. 378, at p.
381.
' Accordingly, a man, who has been indicted for an offence and acquitted, may not be indicted again for the same offence, provided that the first indictment were such that he could have been lawfully convicted upon it by proof of the facts alleged in the second indictment; and if he be thus indicted again, his plea of autre fois acquit is a good bar to the indictment. The true test by which to decide whether a plea of autre fois acquit is a sufficient bar in any particular case is, whether the evidence necessary to support the second indictment would have been sufficient to procure a legal conviction upon the first Arch. Cr., PI., 30th ed. p.146. Thus, an acquittal upon an indictment for the murder may be pleaded to an indictment for the manslaughter of the same person, and an acquittal upon an indictment for burglary and larceny to and indictment for the larceny of the same goods; for in either of these cases the prisoner might have been convicted, on the first indictment, of the offence charged in the second 2 Hale, P C 245, 246. But an acquittal on indictment for sodomy is no bar to a subsequent indictment for gross indeceny with a male person R.V. Sarron 1914 Z.M.B. 570, of which latter offence the prisoner could not have been convicted on the first indictment."
18. Raj Khan withdraw his case under section 248, Cr.P.C. Which reads:- "If a complainant, at any time before a final order is passed in any case under this Chapter, satisfies the Magistrate that there are sufficient grounds for permitting him to withdraw his complaint the Magistrate may permit him to withdraw the same, and shall thereupon acquit the accused."
' Under these circumstances, it will be an exercise in futility if the acquittal of the accused persons (non-petitioners) is set aside and the case is remanded back to the trial Court. Here I would also like to point out that the technicalities of law are not to be considered especially when no gross injustice has occasioned by the trial. Reference is made in this connection to:-
(i) PLD 1954 FC 104.
(ii) AIR 1956 SC 116.
(iii) AIR 1957 SC 623.
(iv) PLD 1978 SC (AJK) 135.
(v) PLD 1979 SC 53.
(vi) PLD 1983 SC (AJ&K) 75. (vi) 1983 CLC 3319.
(vii) So the technicalities are not allowed to hinder the cause of justice. The Courts are in favour of substantial justice.
' Under these circumstances, I see no force in both these revision petitions which are hereby dismissed.