' Through this petition under section 439, Cr.P.C. Read with section 561-A, Cr.P.C., the petitioner seeks setting aside of the impugned order, dated 28-2-2003 passed by the learned Additional Sessions Judge, Muzaffargarh, whereby in view of acquittal order passed in the private complaint, the challan case regarding the same occurrence has been cosigned to record declaring that no further proceedings are required therein.
2. The brief facts of the case are that Abdul Rashid nephew of the petitioner was murdered in the night between 2/3-1-2001 at about 10/11-00 p.m. The petitioner initially got registered F.I.R. No,2 of 2001 on 3-1-2001 at 8-25 a.m. At Police Station Shah Jamal, District Muzaffargarh under section 460, P.P.C. Against five persons alleging that they after lurking house trespass committed dacoity and then done his nephew Abdur Rashid to death by firing. Later on, on 12-2-2001 D.S.P., C.I.A. Converted the offence to sections 302, 148, 149, 109, P.P.C. During investigation Bashir Ahmad, Muhammad Saleem, Khadim Hussain son of Ghulam Hassan, Khadim Hussain son of Ahmad Bakhsh and Abdul Hafeez respondents Nos.2 to 5 were arrested who were shown in Column No,3 of the report under section 173, Cr.P.C. After the submission whereof a private complaint was filed by the petitioner against respondents Nos.2 to 5 alongwith Noor Muhammad, Abdul Majeed and Abdul Ghaffar wherein all the accused including respondents Nos.2 to 5 were summoned to face the trial under sections 302/148/ 149/109, P.P.C. Following the dictum laid down by the Supreme Court of Pakistan in Noor Elahi's case reported as PLD 1966 SC 708. The proceedings were initiated in the private complaint instead of the challan case. The learned trial Court recorded the statements of the complainant as well as the witnesses produced by him and the remaining witnesses shown in the challan case were examined as Court witnesses. After the conclusion of the trial as above in the private complaint the learned trial Court finding the case as false has acquitted all the respondents from the charges vide judgment, dated 28-2-2003 and through the same dated separate order has also acquitted the respondents accused in the challan case and consigned it to Record Room.
3. Learned counsel for the petitioner contends that the order is illegal and unlawful as in Nur Elahi's case (supra) the Supreme Court of Pakistan has held that after the acquittal of the accused in the private complaint, the challan case can be tried by the same Court for the same offences relating to the same occurrence hence the impugned order may be set aside. Also relies upon Syed Muhammad Hussain Shah and 5 others v. Abdul Hamid and others 1981 SCMR page 361.
4. I have heard the learned counsel for the petitioner at length and also gone through the case-law cited by him. The judgment reported as Syed Muhammad Hussain Shah v. Abdul Hamid and 5 others 1981 SCMR 361 is not applicable to the facts and circumstances of the present case as in the said case a private complaint was filed after the submission of report under section 173, Cr.P.C. By the complainant and the learned Additional Sessions Judge had initially ordered for the trial in the private complaint but subsequently, recalled his order and directed for initiation of trial in the challan case before the trial in the private complaint which order was set aside by this Court and the Honourable Supreme Court also held that the trial in the complaint case should be taken up first while in Nur Elahi v. The State PLD 1966 SC 708 it has been held that if there are two versions of case with two totally different set of accused, put forward by the complainant in private complaint and by the State in police challart, complaint case to be taken up first and prosecution witnesses listed in the police challan to be also examined as Court-witnesses under section 540, Cr.P.C. It has been further held that police challan to be taken up only if complaint case results in acquittal and in case of conviction, police case to be withdrawn by the Public Prosecutor under section 494, Cr.P.C. But the facts and circumstances of the present case are entirely different. Here respondents Nos.2 to 5 alongwith others have already faced the trial for the murder of Abdur Rashid in the private complaint filed by the petitioner himself and the witnesses examined during the investigation of police case got recorded on the statement of the petitioner too (shown in the calendar of the witnesses but not produced by the petitioner) were also examined and recorded as C.Ws. Only whereafter the accused nominated in the private complaint including those respondents Nos.2 to 5 challaned in the police case were acquitted. Since, the challan case relates to the same set of accused/witnesses included in the private complaint, the commencement of trial in the police case will definitely be hit by the principle of double jeopardy. For ready reference, section 403(1), Cr.P.C. Is reproduced as under:--
403. Person once convicted or acquitted not to be tried for same offence.-- (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 he might have been convicted under section 237."
5. For the foregoing reasons I do not find any illegality in the impugned order which has been passed in accordance with iaw. Moreover, it may be pointed out that through the impugned order the respondents were acquitted and in view of provisions of subsection (2-A), of section 447, Cr.P.C.
The revision petition is not maintainable under section 439(5), Cr.P.C. This petition has no merit and is dismissed in limine.