' Through this revision petition the petitioner has challenged order, dated 3-11-1994 whereby the petitioner's application for framing a separate charge under section 319 of the P.P.C. And recording evidence in relation thereto was dismissed.
2. Briefly stated the facts of the case are that on a report lodged by Muhammad Akram son of Rab 'Nawaz a case was registered against the petitioner for an offence under section 338 of the P.P.C.
Vide F.I.R. No,161, dated 18-10-1992 read with section. 13 of the Arms Ordinance. After completing the investigation, the police submitted challan against the petitioner under section 319 of the P.P.C. In the Court of Illaqa Magistrate. The challan was subsequently forwarded to the Sessions Court for trial. The complainant did not feel satisfied with the police investigation and filed a private complaint under section 302 of the P.P.C. Against the petitioner on 20-12-1992. The same was also sent to the Court of learned Sessions Judge for trial. The trial Court has almost concluded the trial in the private complaint under section 302 of the P.P.C. And only arguments of the learned counsel for the parties have to be heard.
3. The learned counsel for the petitioner urged that the offence under section 319 of the P.P.C. Is distinct one for which separate trial has to take place . As per the provisions of section 233 of the Cr.P.C.; that in case the petitioner is convicted under section 302 of the P.P.C. In the complaint case then the challan case may be withdrawn by the prosecution but if he is acquitted then the prosecution would press for the petitioner's trial under section 319 of the P.P.C. Which would be violative of the rule of double jeopardy embodied under section 403 of the Cr.P.C.; that the rule laid down in the case of Nur Elahi v. The State etc. PLD 1966 SC 708 cannot be made applicable in the present case because in that case the offence was the same i,e, 302 of the P.P.C. But there were two sets of accused persons which necessitated institution of a private complaint and that in the said factual context it was ordered that the complaint case be tried first leaving it open to the State either to withdraw the challan case or pursue, if need be.
4. On the other hand, learned counsel for the respondent urged that the offence under section 319 of the P.P.C. Was a lesser one and While trying the case under section 302 of the P.P.C. The Court was competent to convict the accused under section 319 of the P.P.C. Even without framing a separate charge. In support of his contention, he placed reliance on the judgment in the cases of Mushtaq Ahmad v. The State 1992 M LD 262 and State v. Hadi Bakhsh 1981 SCM R 1008.
5. There is weight in the argument raised by the petitioner's learned counsel that in case the petitioner is acquitted in the complaint case under section 302 of the P.P.C. Then the prosecution would press the challan case and the petitioner's second trial would commence in respect of offence under section 319 of the P.P.C. Which would offend against the provisions of section 403 of the Cr.P.C. Had there been no challan case under section 319 of the P.P.C. Or had it been withdrawn then it might have been possible to say that while trying the case under section 302 of the P.P.C., the Court could have acquitted the accused under section 302 of the P.P.C. And convicted him under section 319 of the P.P.C. As it is a lesser offence. The offence under sections 302 and 319 of the P.P.C. Are essentially "murder" though the nature of each offence changes on the consideration whether it was deliberate and intentional or unintentional one resulting from mistake of act or fact.
Therefore, in a case in which there is no separate challan under section 319 of the P.P.C., the Court while trying the case for offence under section 302 of the P.P.C. Can convict the accused under section 319 of the P.P.C. Even without framing a separate charge as the said offence is of a lesser gravity. This view finds support from the judgments in the cases of Hadi Bakhsh and Mushtaq Ahmad, relied upon by the respondent's learned counsel. In Hadi Bakhsh's case the principle of double jeopardy embodied in the provisions of section 403 of the Cr.P.C. And Article 13 of the Constitution of Pakistan was discussed and applied to uphold dismissal of the State appeal filed against acquittal of the accused under section 302 of the P.P.C. As he was already convicted under section 304-A of the P.P.C. Hadi Bakhsh accused was tried and charged for an offence under section 302 of the P.P.C. But the Court convicted him under section 304-A o the P.P.C. On the finding that although the gun was fired by him, he had no intention of firing at the deceased or the other persons injured in the occurrence. The convict preferred an appeal in the High Court of West Pakistan which was dismissed with the observation that the trial Court had given very flimsy ground, in fact, no ground at all for reducing the offence from 302 to 304-A of the P.P.C. In view of the said observation, the State preferred an appeal against acquittal of the accused on the charge of murder but the said appeal was dismissed by the High Court of West Pakistan with the following observation:-- "One of the basic principles of Criminal jurisprudence is embodied in the ancient maxim 'nemo debt bis puniri prouno delicto' that is to say that no one ought to be punished twice for one offence."
' The judgment of the High Court was upheld by the Honourable Supreme Court. The Court was pleased to hold:-- "Whether the respondent's acquittal on the charge of murder be right or wrong, there has to be an end to litigation in every legal system, and in the instant case, on the dismissal of the respondent's appeal by the High Court, his acquittal on the charge of murder by a competent Court became final. It is true that the learned Single Judge, by whose judgment this acquittal became final, had misgivings about the judgment which he was upholding. But, he had the power to prevent that verdict from becoming final by adjourning the hearing of the appeal before him in order to enable the State to decide whether it should file an appeal against the respondent's acquittal on the charge of murder. And, as I will presently show, this is precisely what Munir, C.J., had done in Sultan Mahmood's appeal when this appeal had come up for hearing before him in the Lahore High Court.
But as the learned Single Judge did not follow this precedent, the result was that the judgment of the Sessions Court acquitting the respondent on the charge of murder became final, and it cannot be reopened on the principle of res judicata. Additionally, in my humble opinion, it would be shocking to the judicial conscience to try a man for the second time for the same offence and that is what would happen if we allow this appeal. I also venture to think that a violation of this rule about double jeopardy would be shocking to the public conscience and that is why Article 13 of the present Constitution prescribes that 'no person shall be prosecuted or punished for the same offence more than once'. This provision is of course not available to the respondent, but this Article only embodies the maxim 'nemo debt bis vexari pro una et eadem casua, on which the learned Judges relied. And, as observed by Broom (Legal Maxims, tenth edition, page 223) this maxim 'expresses a great fundamental rule of our criminal law, which forbids that a man should be put in jeopardy twice for one and the same offence. It is the foundation of the special pleas of autrefois acquit and autrefois convict. 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 at bar 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 consequence of the offence."
' In Mushtaq Ahmad's case, the accused was charged for offence under section 302 of the P.P.C. But in view of the material brought on the record was convicted for the lesser offence under section 304-A of the P.P.C. His appeal was dismissed and his conviction under section 304-A of the P.P.C.
Maintained by this Court.
6. In the present case, apart from the private complaint under section 302 of the P.P.C., there is a separate challan case under section 319 of the P.P.C. As mentioned above, the trial in the complaint case has almost concluded and if the petitioner is convicted for offence under section 302 of the P.P.C. The State obviously be not interested to prosecute the challan case under section 319 of the P.P.C. Conversely in case of acquittal of the petitioner for offence under section 302 of the P.P.C.
There is every likelihood of the second trial for offence under section 319 of the P.P.C. Which would be violative of the provisions of Article 13 of the Constitution of Pakistan and section 403 of the Cr.P.C. Therefore, it would be in the fitness of things to keep the complaint case pending and to direct the trial Court to take up the challan case at this stage and then decide both the cases simultaneously.
7. For the forgoing reasons, the revision petition is accepted and the trial Court is directed to commence proceedings in the challan case under section 319 of the P.P.C., record evidence of the parties and thereafter decide the two cases simultaneously so as to avoid two contradictory judgments.
Revision .