' This revision application is directed against the order, dated 31-10-1996, passed by Additional Sessions Judge, Tando Adam, whereby he has dismissed an application under section 265-K, Cr.P.C., moved by the applicants/accused (hereinafter referred to as the "accused").
2. Briefly stated the facts of the case are that on 16-7-1989, complainant Muhammad Umar lodged F.I.R. At Police Station Tando Adam, alleging therein that on the day of incident, they had a water rotation and his brother Mohabat had gone there. At 11-30 a.m. He along with his cousin Muhammad Hassan and Ali Nawaz were also going to their lands. They saw all accused coming, who were duly armed with hatchets and Lathis. They started causing hatchet and Lathi blows to his brother Mohabat, Cousin Muhammad Hassan and Ali Nawaz. They raised cries, which attracted so many villagers and the accused made their escape good. Injured Muhammad Hassan later on.
Died I i the hospital and the F.I.R. Was converted to section 302, P.P.C.
3. The police after recording the F.I.R., started conducting investigation but the complainant being dissatisfied with the investigation, filed a direct complaint in the Court.
4. The direct complaint was entertained and the statement of complainant Muhammad Umar was recorded in the first instance by learned Additional Sessions Judge, Shandadpur on 17-8-1989. Later on, P.E. Was held and ultimately, the direct complaint was registered and process was issued against the accused. The case was registered being Sessions Case No,17 of 1990 (Muhammad Umar v. Achar and others).
5. The learned Trial Court keeping in view the principle laid down in the case of Noor Illahi v. The State PLD 1966 SC 708, wherein it was held that, the direct complaint was to proceed first. As such, the direct complaint case was taken first and the same ended in acquittal on 5-10-1996. By the judgment all the seven used were acquitted. The accused, namely Wahid Bux had expired during pendency of trial and the proceedings were abated against him.
6. Thereafter, the same Court started trial against accused in State case.
' The accused then moved an application under section 265-K, Cr.P.C. On the ground that the proceedings of State case are violative of the provisions of section 403, Cr.P.C. And Article 13 of the Constitution of Islamic Republic of Pakistan, 1973. The application under section 265-K, Cr.P.C. Was dismissed by the learned Additional Sessions Judge, Tando Adam, on 7-10-1996. The said order is impugned here in this revision application.
7. I have heard Mr. Ghulam Rasool Qureshi, learned counsel for accused and Mr. Mukhtar Ahmed Khanzada, appearing for the State. The latter does not support the impugned order.
8. The learned counsel for accused contended that the accused have faced the agony of trial of direct complaint case for about 8 years and they cannot be tried twice for same offence. The facts of Noor Illahi's case (supra) were quite different from the instant case and this would be a case of double jeopardy which is not allowed under section 403(1), Cr.P.C. And Article 13 of the Constitution of Islamic Republic of Pakistan, 1973; that the accused have been tried in a same murder case, the trial Court had examined all the prosecution witnesses and ultimately acquitted all the accused in direct complaint case; that the instant case falls directly under the dictum of double jeopardy and section 403, Cr.P.C. Is attracted in this regard.
9. I will now turn up to section 403, Cr.P.C. As the question is whether the accused can be placed in double jeopardy for the same offence. Subsection (1) of section 403, Cr.P.C. Is relevant and it reads as under:-- "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 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 might have been convicted under section 237."
10. I have carefully examined the F.I.R., direct complaint and judgment of acquittal, passed by learned trial Court. The complainant, prosecution witnesses and the accused are same in both the cases. The judgment of acquittal has come from competent Court and prosecution evidence is fully assessed by the Trial Court.
11. The instant cave is covered by rule, that no man shall be vexed twice for the same offence and has its roots in the ancient maxim "Memo bus puncture auto feature proeodum delicto" which means that no one should be subjected to peril twice for the same offence. It is a fundamental rule of criminal law that no one should be exposed to hazards of punishment and convicted twice for one and the same offence. This doctrine is enshrined deeply in the legal system of the countries.
12. In this context I am also fortified by the decisions in the case of the State v. Hadi Bux and others 1981 SCM R 1008 and Bashir v. The State 1997 PCr.LJ 177.
13. In view of the aforesaid legal position and the case-law cited above, I am of the considered view that the fresh trial of an accused for the same offence would be violative of section 403(1), Cr.P.C.
And .The State case would not end in conviction. The counsel for State, therefore, has very rightly not supported the impugned order.
14. For the foregoing reasons, the revision application is accepted and State case being Sessions Case No,311 of 1989 (State v. Din Muhammad and others, pending in the Court of Additional Sessions Judge, Tando Adam, is hereby quashed.