This is a revision petition filed by Tasawwar Hussain, petitioner seeking quashment of commitment proceedings pending against him under section 302 , P.P.C. Before the Ilaqa Magistrate.
2. The prosecution case in brief is that Tasawwar Hussain, petitioner, and one Muhammad Sadiq were tried by a Jirga Tribunal under the West Pakistan Criminal Law Amendment Act. The Tribunal, by its report; dated 7-6-1964, found both the petitioner and the co-accused guilty under section 302, P.P.C. Accordingly, the District Magistrate, Sheikhupura, by his judgment, dated 6-7-1964.
Convicted the petitioner and Muhammad Sadiq, co-accused, under section 302, P.P.C. And sentenced them to fourteen years' rigorous imprisonment each, subject to confirmation by the Commissioner. The petitioner and the co-accused filed a revision petition before the Commissioner, Lahore Division, Lahore, who accepted the revision of Muhammad Sadiq, co- accused, but confirmed the sentence imposed on the petitioner vide his order, dated 20-8-1964.
The petitioner then filed a revision before the Home Secretary, Government of the Punjab, which was dismissed on 13-2-1965. Thereafter, the petitioner filed a Writ Petition (W.P. No. 1084 of 1965) before the High Court praying that the trial be declared as standing vitiated on the ground that the Commissioner, before referring the question of the guilt of the petitioner to the Tribunal, had not given him a hearing. A Division Bench of this High Court accepted the said Writ Petition on 9-9-1969 and held that since the reference by the Commissioner itself was bad, the trial stood vitiated and the conviction of the petitioner was, therefore, illegal, without lawful authority and of no legal effect and the same was set aside. No order was made by the Division Bench as regards the retrial of the petitioner. Pursuant to the said decision, the Ilaqa Magistrate again summoned the petitioner to face commitment proceedings for the offence under section 302, P.P.C. The petitioner submitted an application before the Additional Deputy Commissioner (G), Sheikhupura, for dispensing with the commitment proceedings, as the petitioner had already been acquitted by the High Court for the same offence. The said application who rejected on 28-4-1970. The petitioner thereupon filed the present revision petition for quashment of the said commitment proceedings, which is now before me for disposal.
2-a. The only question that now arises in this case is whether the plea of autre fois acquit applies and that the petitioner should be released from the jeopardy of a second trial.
3. The plea of autre fois acquit is founded on the maxim that a person should not be put in peril for one and the same offence more than once. Amongst various further principles flowing out of this maxim, is one which states that the acquittal or conviction should be on a verdict given by a jury on a good indictment on which he could be legally convicted and that if there was an abortive trial, without a verdict, the same would not act as a legal bar to a second trial either on the same or a fresh indictment. Thus, where a judgment of conviction is reversed for error R. v. Drury, 18, L.J.M.C.
189, or for the imposition of a sentence unauthorised by the law Conlin v. Patterson, 1915, 2 K.B. 169, the plea of autre fois acquit has been held to be inapplicable.
4. In Yusof Ali Mulla Noorbhoy's case 76 Ind. App 158, two orders sanctioning the prosecution of the accused, as required by section 14 of the Hoarding and Profiteering Prevention Ordinance, 1943, were produced in two separate cases against the accused on two separate charges of hoarding and profiteering. The Magistrate acquitted the accused in both the cases on the ground that the two sanction orders were invalid. Later, fresh sanctions to prosecute the accused having been obtained from the Government of India, two fresh prosecutions were instituted against the accused for the same offences on the same facts, as in the former two cases. The Magistrate acquitted the accused on the plea of autre fois acquit under section 403 of the Code of Criminal Procedure. The Government of Bombay appealed against the said orders of acquittal, which appeals were allowed. Being aggrieved by the said decision, the accused appealed to the Privy Council, where the Judicial Committee, following the decision of the Federal Court in Basdeo Agarwalla's case 1945 F.C.R. 93, held that a Court could not be stated to be competent to hear and determine a prosecution, the institution of which was prohibited by law and where a section of an Act prohibited the institution of a prosecution in the absence of a proper sanction, in the absence of the same, the Court become incompetent to proceed with matter. Sir John Beaumont, who wrote the judgment, held-that the whole basis of section 403(1) of the Code was that the first trial should have been before a Court competent to hear and determine the case and to record a verdict of conviction or acquittal and if the Court was not so competent by virtue of the absence of sanction, it was irrelevant that it would have been so competent to try other cases of the same class, or, indeed, the case against the particular accused in different circumstances, for example if a sanction had been obtained. Since the trial was not before a Court competent to pass a valid order of acquittal or conviction, the request of Mr. Page, learned counsel for the appellant, to apply the plea of autre fois acquit on the common law rule was also rejected, on the basis that under the common law also the said plea could only be raised where the first trial was before a Court competent to pass a valid order of acquittal or conviction. The appeal was consequently dismissed.
4-a. Thus, a judgment setting aside a conviction on the ground that proper sanction has not been granted or is not available, does not amount to an acquittal for the purposes of section 403 of the Code of Criminal Procedure. In a number of cases in the Indian jurisdiction, such a order of acquittal is treated as one of discharge. (See The State v. Nilam Das and another AIR 1952 Him: Para. 74 and Harendra Chandra Barori v. Emperor AIR 1947 Cal. 290). But I need not labour on this matter. However, so far as the present case is concerned, the plea of autre fois acquit is not available to the petitioner under section 403 of the Code of Criminal Procedure.
4-b. It is further contended on behalf of the petitioner that the plea of autre fois acquit is available to him under Article 13 of the Constitution of Pakistan, which reads as follows:- "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.
It is asserted that since the petitioner was prosecuted under section 302, P.P.C. By the Jirga Tribunal, which conviction was maintained by the executive Hierarchy up to the highest level and later set aside by the High Court in its constitutional jurisdiction, the petitioner should not now be vexed by a second prosecution in respect of the same offence.
5. In the Indian Constitution, Article 20(2) only deals with the principle of autre fois convict and not autre fois acquit as the said provision states that "no person shall be prosecuted and punished for the same offence more than once". Thus, this Fundamental Right is not available, if a person is acquitted in a previous trial (See Sm. Kalawati and another v. The State of Himachal Pradesh AIR 1953 SC 131 and S.A. Venkataraman v. The Union of India AIR 1954 SC 375), though he may be able to plead the principle of autre fois acquit under section 403 of the Code of Criminal Procedure.
Obviously, the word "prosecution" refers to initiation of proceeding of, a criminal nature before a Court of law or a judicial Tribunal, in accordance with the procedure prescribed in the statute which creates the offence and regulates the procedure. (See Maqbool Hussain v. The State of Bombay I R 1953 SC 325 and Thomas Dana v. State of Punjab AIR 1959 SC 375). In the Indian jurisdiction, where a Tribunal does not act judicially or does not possess the trappings of a judicial Tribunal, Article 20(2) is held not applicable (See Venkataraman v. Union of India AIR 1954 SC 325).
6. The Supreme Court of Pakistan, however, has not treated the word "prosecution", as appearing in Article 13(a) of the Pakistan Constitution 1973, as being used in any strict sense. (See Alamdar Hussain Shah v. Abdul Baseer Qureshi PLD 1978 SC 121). It has treated the word "prosecution" as indicating the act of conducting waging a proceeding in Court. But Article 13(a) states that "no person shall, be prosecuted or punished for the same offence more than once This Fundamental Fight thus covers the principle of both autre fois acquit and autre fois convict. If the language of this Article is broker up, it would mean that no person who has been prosecuted for an, offence earlier, shall be prosecuted for the same offence again, or no person who has been punished for an offence earlier, shall be punished for the same offence again. What is actually intrinsic in the language of the two parts is that the person who has been prosecuted earlier for an offence, has been prosecuted by a Court of Tribunal competent to try the same and such prosecution has led to him ultimate acquittal or conviction and that where the person has been punished earlier for an offence, he has been so punished by a Court or Tribunal competent to try the offence. Basically, the first part of the wording covers the second, but perhaps the second part has been added to cover cases where the earlier prosecution may not have been a prosecution in the strict sense of the terms, but the person has been punished in the criminal sense in proceedings of a criminal nature or proceedings akin to criminal proceedings. Thus, loose proceedings in the criminal sense giving rise to punishment, could perhaps be covered by the second part of clause (a). Perhaps the- common law rule of sutra fois convict could also, in appropriate case, be covered by this part.
However, what is basic to Article 13(a) of the Pakistan Constitution is that person who has been prosecuted or punished by a Court of law it, judicial Tribunal should be one who bas been prosecuted or punished by a Court or Tribunal competent to deal. With the case. If the person has been prosecuted before an incompetent Court or Tribunal, the proceedings are a mere nullity and it cannot be said that the accused was "prosecuted or punished". Where a Court tries an offence, in the absence of proper sanction, its status is reduced to that of a Court incompetent to try the case and its proceedings are rendered a nullity. The position is the same in the Indian jurisdiction in relation to the attitude of the Courts via-a-via Article 20(2) of the Indian Constitution. (See Baijnath v. State of Bhopal AIR 1957 SC 494). In this view of the matter, I would hold that Article 13(a) of the Pakistan Constitution is of no avail to the petitioner.
7. For the foregoing reasons, there is no merit in this petition, which is dismissed.
8. The files of the case should be sent to the District Magistrate, Sheikhupura, for further action.
S.G.D. Revision disallowed.