' In order to appreciate and properly comprehend the controversy arising for decision raised through this constitutional petition, narration of facts is necessary. Zar Badshah, a Sub-Inspector in Sutlej Rangers, was tried under section 409, P.P.C. Read with section 5(2) of Prevention of Corruption Act, 1947 and was acquitted on 14th July, 1982 by learned Special Judge Central, Lahore on account of benefit of doubt. Government has preferred an appeal against his acquittal in the High Court which is still sub judice.
2. Zar Badshah, petitioner, was ordered to be tried by Commandant vested with powers of Magistrate First Class, Sutlej Rangers, Lahore, under section 14(m) of Pakistan Rangers Ordinance, 1959 (W.P. Ordinance XIV of 1959). Charge-sheet setting out the allegations to be made basis of his trial, was issued to the petitioner on 18-1-1979. The petitioner objected to his trial on several grounds through a miscellaneous application presented before the Commandant. This petition was rejected. This order was assailed in constitutional jurisdiction through Writ Petition No,333 of 1980 in the Lahore High Court. Mr.Justice Zaki-ud-Din Pal (as His Lordship then was) vide order, dated 23-1- 1980 dismissed writ petition in limine. An Intra-Court Appeal (No,91/80) against the dismissal order was preferred before a Division Bench of this Court which was admitted to regular hearing and further proceedings before respondent No,1 were stayed. Intra-Court Appeal came up for final hearing before the learned Division Bench of this Court and was disposed of vide judgment, dated 26 5-1984 being incompetent on account of the availability of revisional jurisdiction under section 20(5) of Pakistan Rangers Ordinance, 1959. The petitioner thereafter on 6-8-1984 has preferred a revision petition under section 20(5) of the Ordinance before the Federal Government. It is stated on behalf of the petitioner that no decision has so far been made on his revision petition or at least none has been communicated to him. With the decision of the Intra-Court Appeal, the interim stay order stood vacated. Respondent No,1, therefore, restarted the trial of the petitioner under section 14(m) of Ordinance XIV of 1959 and has again issued a charge-sheet, dated 29-7-1984 to the petitioner. Copy of the charge-sheet issued to him has been appended with the writ petition as Annexure 'D'. Petitioner feeling aggrieved with re-commencement of his trial under section 14(m) of Pakistan Rangers Ordinance has presented this petition under Article 9 of the Provisional Constitution Order, 1981 with prayer that pending proceed-, ings before respondent No,1 be quashed and be declared to be without lawful authority.
3. On 29-8-1984, when the petition was fixed in motion hearing, I heard Mr. M.A.Aziz, learned counsel for the petitioner and ordered proceedings to continue but restrained the trial Magistrate from announcing its judgment. Deputy Attorney-General was directed to enter appearance to assist the Court in motion hearing. Malik Muhammad Qayyum, learned Deputy Attorney-General in persuance to this direction from the Court has entered appearance.
4. I have heard learned counsel for the petitioner and learned Deputy Attorney-General at length. It has been contended by learned counsel appearing for the petitioner that re-commencement of trial in respect of an alleged offence under section 14(m) of the Ordinance by the Commandant, Sutlej Rangers, after the petitioner was tried and acquitted by competent Court of jurisdiction against which Government has preferred an appeal, offends well-established and time-honoured rule ofDouble' Jeopardy.The petitioner on the same and identical set of facts which constituted offence under section 409, P.P.C. And 5(2) of Prevention of Anti-Corruption Act, 1947 had been tried and acquitted by learned Special Judge Central on 14th July, 1982. Foundational facts which are basis for his trial under section 14(m) of the Rangers Ordinance were a defence of the petitioner in his prosecution before the learned Special Judge Central. The whole matter was before the High Court in an appeal filed to challenge the petitioner's acquittal by Government. It was contended that the petitioner's trial under section 14(m) of the Rangers Ordinance is not permissible becuase of a clear bar contained in section 26 of the General Clauzes Act, 1897, section 403 of the Code of Criminal Procedure and Article 13 of the Constitution of Islamic Republic of Pakistan, 1973. Learned counsel, on a reference to these provisions of law, submitted that the petitioner on the same set of facts cannot be vexed twice. Trial under section 409 and section 5(2) of the Prevention of Anti- Corruption Act, 1947, covered the whole issue and thereafter nothing was left to be retried.
Respondents' act in ordering retrial and starting proceedings afresh under section 14(m) of the Rangers Ordinance is clearly a mala fide exercise of jurisdiction causing unnecessary harassment to the petitioner, who according to learned counsel for the petitioner, had already undergone immense sufferings. After all the petitioner's miseries should end somewhere. Parallel trial of the petitioner in respect of identical set of facts was neither permissible under law nor was proper.
4. Learned Deputy Attorney-General, contended that the offences under section 409, P.P.C. And 5(2) of Prevention of Anti-Corruption Act contituted absolutely a different and distinct offence from the one falling under section 14(m) of the Rangers Ordinance. Conviction or acquittal in respect of above-stated offences did not operate as a legal bar to the petitioner's trial under a separate provision of Rangers Ordinance. Petitioner's trial under section 14(m) did not in any manner attract the rule of Double Jeopardy enacted in section 403. Cr.P.C., section 26 of the West Pakistan General Clauses Act, 1956 and Article 13 of Constitution. Rule of Double Jeopardy heavily relied upon by the petitioner's counsel was not attracted to the facts of this case. Learned Deputy Attorney-General to support his contention relied upon cases of Ghulam Nabi v. The State PLD 1966 (W.P.) Lah. 131, State of Bombay v. Apte and another AIR 1961 SC 578 and Kharkan and others v. State of Uttar Pradesh AIR 1965 SC 83. The petitioner was earlier proceeded against under section 409, P.P.C. Read with section 5(2), P.C.A., 1947 (Special Case No,96 of 1980) for misappropriation of funds He was tried and acquitted by Special Judge Central. Government's appeal is awaiting adjudication before the High Court. The petitioner now has been charge-sheeted to be tried under section 14(m) of Rangers Ordinance, 1959 by Commandant respondent No,l. Charge-sheet (Annexure 'D') now issued to him reads:- "In the Court of Lt.-Col. Anwar-ul-Haq, Commandant, Sutlej Rangers, Lahore with powers of Magistrate First Class.
' To ' RJ-2299 Sub-Inspector Zar Badshah.
' Sub: of the Trial of case by Commandant Sutlej Rangers Lahore and Magistrate 1st Class under section 14(m) of the pakistan Rangers Ordinance, 1959.
1. It has been decided to try you on 11 August, 1984 in the "Trial of a case by Magistrate" under section 14(m) of the Pakistan Rangers Ordinance, 1959. In that you on 27th July 1978 when asked by Quarter Master Sutlej Rangers to hand over the charge of Messes account to your Reliever No,RJ- 2221 S.I.Gohar Rahman, you instead of handing over the charge levelled false allegation against PA-7545 Major Shahid Rashid Malik that on 27th June 1978 a sum of Rs,29,473.25 was taken by him (Major Shahid Rashid Malik) into his personal custody from the Regimental Treasury Chest under your charge and has not yet returned to you.
2. In this connection copies of statements of the following 10 witnesses including your own statement recorded by the Court of Inquiry have already been given to you on 18th November, 1979 for your information/study:-
(a) 26144 NK Sher Muhammad
(b) 27049 NK Muhammad Hussain
(c) 6788 SI/Clk .Muhammad Siddique
(d) 2379 SI Muhammad Zaman.
(e) 29973 Sep Muhammad Safdar
(f) 2221 SI Gohar Rehman
(g) 27499 Sep Allah Ditta
(h) PSS-9949 Major Muhammad Afzal
(i) PA-7545 Major Shahid Rashid Malik.
3. You are hereby informed to appear in my Court on the above-mentioned date. You can engage defence counsel or utilize services of the pleader for this purpose if you so desire. This is also to inform you that the Court will assemble consecutively on all working days till the finalization of the case as such you should inform your defence counsel if any in advance to attend the Court daily.
4. Given under my hand and the seal of the Court this 29 day of July, 1984.
(Sd.) Lt.-Col. Anwar Ul Hag ' Commandant Sutlej Rangers and Magistrate 1st ' Class.
' Whether or not the petitioner a JCO in Sutlej Rangers can be tried under section 14(m) of Rangers Ordinance, 1959 in presence of a pending appeal against his acquittal poses a legal question whether an offence under section 14(m) and offence 409, P.P.C. And section 5(2) are distinct and separate offences. If so, whether provisions of Article 13 of the Constitution, section 26 of the General Clauses Act and section 403, Cr.P.C. Provide any legal bar. Relevant provisions of law, for facility of reference are reproduced below: ' Article 13 of the Constitution of Islamic Republic of Pakistan, 1973 reads:- "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) shall, when accused of an offence, be compelled to be a witness against himself."
' Section 26 of the General Clauses Act reads:- "26. Provision 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 same offence."
' Section 403 of the Code of Criminal Procedure reads:- "403-(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 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 trie for any distinct offence for which 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 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 the accused is not an acquittal for the purposes of this section."
' In order to precisely know and appreciate the nature and contents of offences falling under section 409, P.P.C. And section 14(m) of the Rangers Ordinance, it may be useful to reproduce relevant sections. Section 409, P.P.C. Reads:- "409. Whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."
' Section 14 of The Pakistan Rangers Ordinance, 1959 reads:-14. Any member of the Force who:-
(a) is in a state of intoxication when on or after having been warned for any duty or on parade or on the line of march; or
(b) being in command of a guard, picquet or patrol, refuses to secure any prisoner or person duly committed to his charge, or without proper authority, releases any prisoner or person placed under his charge, or negligently suffers any such prisoner or person to escape; or
(c) being under arrest or in confinement, leaves before he is set at liberty by proper authority; or
(d) strikes or attempts to force any sentry; or
(e) is grossly insubordinate or insolent to his superior officer in the execution of this office; or
(f) strikes or otherwise ill-uses any member of the Force; or
(g) designedly or through neglect injures or loses or fraudulently disposes of his arms, clothes, tools, equipment, ammunition, accoutrements of animals or Force necessaries or any such articles entrusted to him or belonging to any other person; or
(h) malingers or feigns or produces disease or infirmity in himself or intentionally delays his cure, or aggravates his disease or infirmity; or
(i) with intent to render himself or any other person unfit for service, voluntarily causes hurt to himself or any other person; or
(j) does not, when called upon by his superior officer so to do or upon ceasing to be a member of the Force, forthwith deliver up or duly account for, all or any arms, ammunition, stores, accoutrements, appointments or other property issued or supplied to him or in his custody or possession, as such member of the Force; or
(k) knowingly furnishes a false return or report of the number or state of any man under his command or charge, or of any money, arms, ammunition, clothing, equipment, stores or other property in his charge, whether belonging to such men or to Government or to any member of or any person attached to the Force, or who through design or culpable neglect, omits or refuses to make or send return or report of the matters aforesaid; or
(1) absents himself without leave, or without sufficient cause overstays leave granted to him; or
(m) is guilty of any act or omission, which though not specified in the Ordinance, is prejudicial to good order and discipline; or
(n) who, while not on active duty,-
(i) disobeys the lawful command of his superior officers; or
(ii) deserts the service; or
(iii) being a sentry, sleeps upon his post or quits it without being regularly relieved; or
(iv) plunders, destroys, or damages any property of any kind; or
(v) displays cowardice in the excution of his duty; or
(vii) quits his guard, picquet, party, or patrol without being regularly relieved or without leave, shall be punished with imprisonment for a term which may extend to one year or with fine which may extend to three months' pay or with both."
' In the case of State of Bombay v. S.L. Apte and another AIR 1961 SC 578, S.L. Apte and Miss Dwarkabi Bhat, the Managing Director and the Managing Director of the Women Department of an Insurance Company by name, The Long Life Insurance Company were charged under section 409 of Indian Penal Code and also for an offence under section 105 of the Indian Insurance Act in criminal case 82 of 1953. Trial Magistrate convicted and sentenced both the respondents for both the offences with which they were charged. Respondents thereupon filed appeals to the Court of Sessions Judge. Learned Sessions Judge by his order dated May 3, 1954 while confirming the conviction and sentence on the respondents under section 409 of the Indian Penal Code set aside their conviction under section 105 of the Indian Insurance Act. The reason for the latter order was the finding of the learned Sessions Judge that the sanction required by section 107 of the Indian Insurance Act which was a prerequisite for the finalization of the prosecution under section 105 had not been obtained before the complaint in respect thereof had been filed. The conviction and sentence under section 409 of the Indian Penal Code became final. Subsequently, the Insurance Company obtained sanction of the learned Advocate-General of Bombay under section 107 of the Indian Insurance Act and filed a complaint in the Court of Judicial Magistrate Poona, on January 18, 1955 against the two respondents charging each of them with an offence under section 105 of the Indian Insurance Act. Respondents objected to their trial as being barred by section 403(1) of the Criminal Procedure Code by reason of their previous conviction by the trial Magistrate. This objection was overruled by the learned Magistrate on the ground that the acquittal of the respondents under section 105 of the Insurance Act was not on merits of the case but for lack of sanction under section 107 of the Indian Insurance Act. Respondents, however, were finally acquitted on the ground that Article 20(2) of the Indian Constitution and section 26 of the General Clauses Act were a bar to their conviction and punishment. In these circumstances, the State of Bombay filed an appeal to the High Court under section 417 of the Criminal Procedure Code.
Learned Judges of the High Court dismissed the appeal but granted a certificate for appeal in the Supreme Court of India. In this background, the learned Judges of the Supreme Court of India after a reference to Article 20(2) of the Indian Constitution and the provisions of General Clauses Act and section 403 of the Criminal Procedure Code observed:- "13. To operate as a bar the second prosecution and the consequential punishment thereunder, must be for "the same offence". The crucial requirement therefore for attracting the Article is that the offences are the same, i,e, they should be identical. If, however, the two offences are distinct then notwithstanding that the allegations of facts in the two complaints might be substantially similar, the benefit of the ban cannot be invoked. It is, therefore, necessary to analyse and compare not the allegations in the two complaints but the ingredients of the two offences and see whether their identity is made out. It would be seen from a comparison of section 105 of the Insurance Act and section 405 of Indian Penal Code (section 409) of the Indian Penal Code being only an aggravated form of the same offence) that though some of the necessary ingredients are common they differ in the following:
(1) Whereas under section 405 of the Indian Penal Code the accused must be "entrusted" with property or with "dominion over that property, under section 105 of the Insurance Act the entrustment or dominion over property is unnecessary; it is sufficient if the manager, director, etc. Obtains possession" of the property.
(2) The offence of criminal breach of trust (section 405 of the Indian Penal Code) is not committed unless the act of misappropriation or conversion or "the disposition in violation of the law or contract", is done with a dishonest intention, but section 105 of the Insuracne Act postulates no intention and punishes as an offence the mere withholding of the property--Whatever be the intent with which the same is done, and the act of application of the property of an insurer to purposes other than those authorised by the Act is similarly without reference to any intent with which such application or misapplication is made. In these circumstancnes it does not seem possible to say that the offence of criminal breach of trust under the Indian Penal Code is the "same offence" for which the respondents were prosecuted on the complaint of the company charging them with an offence under section 105 of the Insurance Act.
(14) This aspect of the matter based on the two offences being distinct in their ingredients, content and scope was not presented to the learned Judges of the High Court, possibly because the decisions of this Court construing and explaining the scope of Art. 20(2) were rendered later. In Om Prakash Gupta v. State of U.P., 1957 SCR 423 (S): AIR 1957 SC 458 the accused, a clerk of a municipality had been convicted of an offence under section 409 of the Indian Penal Code for having misappropriated sums of money received by him in his capacity as a servant of the local authority and the conviction had been affirmed on appeal, by the Sessions Judge and in revision by the High Court. The plea raised by the accused before this Court, in which the matter was brought by an appeal with special leave, was that section 409 of the Indian Penal Code had been repealed by implication by the enactment of subsections 1(c) and (2) of section 5 of the Prevention of Corruption Act because the latter dealt with an offence of substantially the same type. This Court repelled that contention. It analysed the ingredients of the two offences and after pointing out the difference in the crucial elements which constituted the offences under the two provisions, held that there was no repeal of section 409 of the Indian Penal Code implied by the constitution of a new offence under the terms of the Prevention of Corruptioin Act. It was the application of this decision and the ratio underlying it in the context of Article 20(2) of the Constitution that is of relevance to the present appeal. The occasion for this arose in State of Madhya Pradesh v.
Veereshwar Rao 1957 SCR 868 (S): AIR 1957 SC 592. The respondent was a tax-collector under a municipality and was prosecuted for offences among others under section 409 of the Indian Penal Code and section 5(2) of the Prevention of Corruption Act for misappropriation of sums entrusted to him as such tax-collector. By virtue of the provision contained in section 7 of the Criminal Law Amendment Act, XLVI of 1952, the case was transferred to a Special Judge who was appointed by the State Government after the prosecution was commenced before a Magistrate. The Special Judge found the accused guilty of the offence under section 409 of the Indian Penal Code and convicted him to three years' rigorous imprisonment but as regards the charge under section 5(2) of the Prevention of Corruption Act, he acquitted the accused on the ground of certain procedural non-compliance with the rules as to investigation prescribed by the latter enactment. The respondent appealed to the High Court against this conviction and sentence under section 409 of the Indian Penal Code and there urged that by reason of his acquittal in respect of the offence under section 5(2) of the Prevention of Corruption Act, his conviction under section 409 of the Indian Penal Code could not also be maintained, the same being barred by Article 20(2) of the Constitution. The High Court of Madhya Bharat accepted this argument and allowed the appeal and the State challenged the correctness of this decision by an appeal to this Court. Allowing the appeal of the State, Govinda Menon, J., delivering the judgment of the Court observed:- ' This Court has recently held in 1957 SCR 423 (S): AIR 1957 SC 458 that the offence of criminal misconduct punishable under section 5(2) of the Prevention of Corruption Act, II of 1947, is not identical in essence, import and content with an offence under section 409 of the Indian Penal Code.... In view of the above pronouncement, the view taken by the learned Judge of the High Court that the two offences are one and the same, is wrong, and if that is so, there can be no objection to a trial and conviction under section 409 of the Indian Penal Code, even if the respondent has been acquitted of an offence under section 5(2) of the Prevention of Corruption Act, II of 1947.... The High Court also relied on Article 20 of the Constitution for the order of acquittal but that Article cannot apply because the respondent was not prosecuted after he had already been tried and acquitted for the same offence in an earlier trial and, therefore, the well-known maxim "Nemo debet his vexari, si constat curiae quod sit pro una et eadem causa" (No man shall be twice punished, if it appears to the Court that it is for one and the same cause) embodied in Article 20 cannot apply.'
' Before leaving this part of the case we might also point out that a similar view of the scope of the rule as to double-jeopardy has always been taken by the Courts in America. The words of the Fifth Amendment where this rule is to be found in the American Constitution are:- ' Nor shall any person be subject, for the same offence, to be twice put in jeopardy of life or limb.' ' and it will be noticed that there as well, the ban is confined to a second prosecution and punishment for the same offence. Willoughby after referring to the words quoted in Fifth Amendment says: "Cases may occur in which the same act may render the actor guilty of two distinct offences; ... In such cases the accused cannot plead the trial and acquittal, or the conviction and punishment for one offence in bar to a conviction for the other." In Albreacht v.
United States (1928) 273 U S. 1: 71 Law Ed 505. Brandeis, J., speaking for unanimous Court said:- ' There is a claim of violation of the Vth Amendment by the imposition of double punishment. This contention rests upon the following facts. Of the nine counts in the information four charged illegal possession of liquor, four illegal sale and one maintaining a common nuisance. The contention is that there was double punishment because the liquor which the defendants were convicted for having sold is the same that they were convicted for having possessed. But possessing and selling are distinct offences. One may obviously possess without selling; and one may sell and cause to be delivered a thing of which he has never had possession; or one may have poossession and later sell, as appears to have been done in this case. The fact that the person sells the liquor which he possessed does not render the possession and the sale necessarily a single offence. There is nothing in the Constitution which prevents Congress from punishing separately each step leading to the consummation of a transaction which it has power to prohibit and punishing also the completed transaction.'
(15) If, therefore, the offences were distinct there is no question of the rule as to double jeopardy as embodied in Article 20(2) of the Constitution being applicable.
(16) The next point to be considered is as regards the scope of section 26 of the General Clauses Act. Though section 26 in its opening words refers to "the act or omission constituting an offence under two or more enactments", the emphasis is not on the facts alleged in the two complaints but rather on the ingredients which constitute the two offences with which a person is charged. This is made clear by the concluding portion of the section which refers to "shall not be liable to be punished twice for the same offence". If the offences are not the same but are distinct, the ban imposed by this provision also cannot be invoked. It therefore follows that in the present case as the respondents are not being sought to be punished for "the same offence" twice but for two distinct offences constituted or made up of different ingredients the bar of the provision is inapplicable.
(17) In passing, it may be pointed out that the construction we have placed on article 20(2) of the Constitution and section 26 of the General Clauses Act is precisely in line with the terms of section 403(2) of the Criminal Procedure Code which runs:- '403 (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).'
(18) It would be noticed that it is because of this provision that the respondents before us were originally charged before the Magistrate in Criminal Case 82 of 1953 with offences under section 409 of the Indian Penal Code as well as section 105 of the Indian Insurance Act."
' In case of Ghulam Nabi v. State PLD 1966 (W.P.) Lah. 131 Ghulam Nabi was tried under section 308, P.P.C. And was acquitted under section 258 of the Code of Criminal Procedure by Mr. Qadir Bakhsh, Magistrate Ist Class, Gujranwala on 27th of February, 1954. Civil suit filed by Agricultural Department against him for the sum involved i,e, Rs,4,264.47 was also decreed by the civil Court. Thereafter Martial Law Order No,104-A was promulgated by Martial Law Administrator Zone 'B' on 17th of December, 1961 with a view to making recovery of certain Government dues outstanding against the defaulters. Ghulam Nabi was proceeded against under Matrial Law Regulation No,16 and the aforesaid Martial Law order of the Zonal Administrator. In these circumstances he approached High Court under section 561-A, Cr.P.C. For quashment of proceedings. Matter was referred to Full Bench of this Court. Mr. Justice A.R.Sheikh (as his Lordship then was) wrote leading judgment. Referring to the provisions of section 403 of the Code of Criminal Procedure and section 26 of the General Clauses Act he observed:- "A reading of both these provisions shows that as the petitioner is not being tried again for the same offence, he cannot be heard to say that because he had been acquitted previously and that acquittal is still in force, he is not liable to be tried again for the same offence, or 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. Here the second offence contemplated is clearly a distinct offence arising out of a separate bundle of facts and circumstances and his trial cannot be struck down on this ground alone.Our answer to question No,1, therefore, is that the provisions of section 403 of the Code of Criminal Procedure or of section 26 of the General Clauses Act are not applicable to the facts of this case and the trial of the petitioner under C.M.L.A.Regulation No,16 read with para. 1(a) of Martial Law Order No,104 Zone 'B' cannot be questioned on this score."
Content, import and constituents of offence falling under section 14(m) to be tried by Commandant of the Rangers Force are different in many respects from the offence falling under section 409, P.P.C. Read with section 5(2) of the Anti-Corruption Act, 1947. Viewed in this light it becomes clear that conviction or acquittal recorded earlier in the special case would not operate as an insuperable bar to the petitioner's trial under section 14(m) of the Rangers Ordinance, 1959.
' Their Lordships of the Privy Council in case Sambasivam v. Public Prosecutor 1950 A C 458 at 479 observed:- "The effect of a verdict of acquittal pronounced by a competent Court on a lawful charge is not completely stated by saying that the person acquitted cannot be tried again for the same offence.
To that it must be added that the verdict is binding and conclusive in all the subsequent proceedings between the parties to the adjudication. The maxim, "Res judicata pro veritate accipitur" is not less applicable to criminal than to civil proceedings."
Plea of autre fois acquit, statutorily recognised in section 403, Code of Criminal Procedure can be successfully raised only when a person is tried again, for the same offence or on the same facts for any other offfence, for which a different charge from the one made against himB might have been made under section 236 or for which he might have been convicted under section 237. Neither of these two provisions are applicable to the facts present in this case. Any finding recorded on an issue of fact, amounting to issue-estoppel, will not present a bar t C the petitioner's trial under section 14(m) of the Rangers' Ordinance. I need not dilate on the import and meaning of the term issue-estoppel in this case as an appeal against acquittal is awaiting adjudication in the High Court. Nevertheless, issue-estoppel does not prevent the trial of any offence as does autre fois acquit but only precludes evidence being led to prove a fact in issue as regards which evidence has already been led and a specific finding recorded at an earlier criminal trial before a Court of competent jurisdiction. Therefore, both under Article 13, section 256 of the General Clauses Act, read with section 403 of the Code of Criminal Procedure to operate as a bar, the trial or subsequent prosecution must be for the "same offence" an offence whose ingredients are the same. Article 13 of the Constitution proceeds upon the same principle.
There is yet another hurdle which the petitioner has to cros before he succeeds in invoking the constitutional jurisdiction of this Court. An order passed as result of the trial under section 20 of the Rangers Ordinance, 1959 is subject to special appeal under section 20(4) of the Ordinance. Before a writ of porohibition is issued, suspending and quashing proceedings before the trial Magistrate against the petitioner it should be manifestly clear that want of jurisdiction in the Court trying was apparent on the surface of the record. This important consideration, I am afraid, is conspicuously absent in the case under consideration. Therefore, no legal justification has been shown for stopping proceedings against the petitioner. Admittedly, prosecution evidence has already been recorded. After the statement of the petitioner accused is recorded, defence evidence is to follow.
In the circumstances of the case, availability of a right of appeal under section 20(4) of the West Pakistan Rangers Ordinance, 1959, and that' the two offences are materially different, the petitioner has not made out a ease for issue of a writ of certiorari and prohibition, quashing the proceedings already taken and their further continuance. The petition, therefore, suffers from lack of merit and is dismissed in limine.
Petition dismissed.