1. This is an application under section 561-A read with section 439, Cr.P.C. For setting aside the order dated 24-2-1987, passed by the learned Sessions Judge, West, Karachi, in Criminal Appeal No. 13 of 1986.
2. The brief facts of the case are that on 22-3-1983, Mst. Mansooba wife of Rehman Gul lodged a report at Police Station Pak. Colony, inter alia alleging therein that at 3-00 p.m. Her son aged about six years came to the house weeping and informed the complainant that son of Yousuf shopkeeper had caught hold of him put off his trousers and committed sodomy on him and thereafter he had run away to his house. The F.I.R. Was recorded under section 377, P.P.C. Read with section 12 of Zina (Enforcement of Hudood) Ordinance, 1979. After necessary investigation it appears that the case was challaned under section 377, P.P.C. Before a Magistrate. The case was sent up by learned Magistrate to the Court of Session but the learned Additional Sessions Judge Hudood returned the case to the Court of Magistrate for trial. Thereafter, the applicant was tried in Juvenile Court as he happened to be about 14 years of age at the time of incident. The learned Magistrate Juvenile Court No. X (South) Karachi, after examining the witnesses produced by the prosecution passed the following order on 30-10-1986:-- "Since the matter relates to 22-3-1983 and more than 3-1/2 years have been elapsed. The Juvenile offender was regularly attending the Court under Democale's sword of prosecution. At the time of commission of alleged offence the age of the Juvenile offender was only 14 years and was Juvenile.
3. The word conviction and sentence is not to be used in relation to children. However, looking to the gravity of the offence and considering the prolonged enquiry, I am satisfied that it would be expedient to deal with Juvenile offender and order to detain him in Remand Home for the period of one month accordingly."
4. Being aggrieved with the above order, the complainant filed an appeal before the learned Sessions Judge (West) Karachi, being Criminal Appeal No. 13 of 1986, and the learned Sessions Judge was pleased to accept the appeal, set aside the impugned order and remanded the case to the trial Court with a .Direction to send the same to the Court of Session for trial under section 12 of Ordinance, vide judgment dated 24th February, 1987. The present application has been filed against the above order of remand.
5. I have heard Mr. Gul Zaman Khan, learned counsel appearing for the applicant, Mr. Zaheer Qureshi, learned counsel appearing for the State and Mr. Nawaz A. Jajja, learned counsel appearing for the complainant.
6. It has been contended by Mr. Gul Zaman Khan, learned counsel appearing for the applicant that the incident took place on 22-3-1983, and the applicant was sent to Remand Home for one month after the trial under section 377, P.P.C. And he was released before the impugned order/judgment was passed by the learned Sessions Judge. That under the law an accused cannot be tried twice for the same offence. That the order passed by the learned Sessions Judge was illegal on the face of it.
7. Mr. Zaheer Qureshi, learned counsel appearing for the State has contended that the order passed by Juvenile Court was illegal inasmuch as the offence was under section 12 of the Zina (Enforcement of Hudood) Ordinance, and therefore, the case was exclusively triable by the Court of Session.
8. Mr. Nawaz A. Jajja, learned counsel appearing for the complainant has adopted the contentions raised by Mr. Zaheer Qureshi, leaned counsel appearing for the State.
9. The learned counsel for both the parties have also produced certain decisions in support of their contentions.
10. It is an admitted position that initially when the case was challaned before a Magistrate, he had sent up the same to the Court of Session, but the learned Additional Sessions Judge, who was pleased to send the same back to the learned Additional Civil Magistrate Juvenile Court No.X (South) Karachi. It is also admitted position that no objection was raised to the trial before Juvenile Court by the prosecution and the entire evidence was produced before the learned Magistrate.
11. After recording the entire evidence, since the applicant was a juvenile offender he was sent to Remand Home. For one month. From the above narration of facts it is clear that the applicant had undergone trial under section 377, P.P.C. The offence under section 12 of Zina (Enforcement of Hudood) Ordinance, 1979 is also in respect of the same offence. In order to appreciate the legal position with regard to second trial it will be appropriate to refer the Article 13 of the Constitution of Islamic Republic of Pakistan, which reads as follows:- "NO PERSON: (a)shall be prosecuted or punished for the same offence more than once.
12. (b)shall, when accused of offence, be compelled to be a witness against himself."
13. "PROVISION AS TO OFFENCE PUNISHABLE UNDER TWO OR MORE ENACTMENTS: Where an act or omission constitutes an offence under two or more enactments, 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 the same offence:'
14. PLD 1987 SC 195 interpreting Article 13 of the Constitution of the Islamic Republic of Pakistan; their Lordships of the Supreme Court were pleased to observe that:- "The important words in the above provision are `the same offence'. The word `offence' while sometimes used in various senses, here implies a crime infringing public as distinguished from mere private rights and is punishable under the criminal law."
15. It was further observed that:- "What this provision bars as observed earlier is a fresh trial and punishment for the same offence and not infliction of a penalty as a result of departmental proceedings."
16. H.B.T./H-144/K