2020 M L D 1651
[Balochistan]
Before Naeem Akhtar Afghan and Abdul Hameed Baloch, JJ
SHAFI MUHAMMAD ---Petitioner
Versus
MUHAMMAD GUL and another ---Respondents
Constitutional Petition No.1014 of 2019, decided on 10th December, 2019.
(a) Criminal Procedure Code (V of 1898) ---
----Ss. 200, 203 & 403---Constitution of Pakistan, Art. 13--- Protection against double
punishment and self -incrimination ---Person once convicted or acquitted not to be tried for
same offence---Dismissal of private complaint---Scope ---Complainant, after acquittal of
respondents by Trial Court, filed a private complaint against them, which was dismissed
through impugned order ---Respondents had faced trial in the FIR case on registration of FIR
and the same allegations were levell ed in the private complaint, as such Art. 13 of the
Constitution as well as S. 403, Cr.P.C., came into play--- Subject matter had already been
tried by the court of competent jurisdiction in registered case between the same parties therefore, Magistrate had rightly dismissed the private complaint--- Constitutional petition
was dismissed.
(b) Constitution of Pakistan ---
----Art. 13--- Criminal Procedure Code (V of 1898), S. 403--- Protection against double
punishment and self -incrimination ---Person once convict ed or acquitted not to be tried for
same offence---Scope ---Once a person is prosecuted for an offence and is acquitted, he
cannot be subsequently tried for the same offence.
The State through Collector of Customs v. Nasim Amin Butt and others 2011 SCMR
1083 and Muhammad Nadeem Anwar v. Securities and Exchange Commissioner of Pakistan
through Director NBFs Deptt: Islamabad 2014 SCMR 1376 ref.
Nazir Ahmad v. Capital City Police Officer, Lahore and another 2011 SCMR 484 rel.
(c) Maxim ---
----Nemo bis punitu r aut vexatur pro eodem delicto--- Meaning: No one should be vexed
twice for the same offence.
Muhammad Ilyas Mughal for Petitioner.
Date of hearing: 28th November, 2019.
ORDER
ABDUL HAMEED BALOCH, J. --This order shall dispose of Constitution Petition
No.1014 of 2019, which is directed against the order dated 31st August, 2019 (impugned
order) passed by the learned Additional Sessions Judge, Sariab Quetta (Revisional Court),
whereby the order dated 22.06.2019, passed by the learned Judicial Magistrate -XIV, Quetta
was upheld.
2. Brief facts of the case are that the petitioner filed a complaint under Section 200,
Cr.P.C. before the trial court against the private respondents, alleging therein that the private respondents launched an attack upon him and caus ed injuries on his head and other parts of
the body. He further alleged that out of the assailant, Muhammad Gul and Ghulam Mustafa
were armed with daggers while the others were having sticks in their hands.
Pursuant to the above the respondents appeared before the trial court and filed an
application under section 203, Cr.P.C. The trial court after hearing the parties dismissed the
complaint vide order dated 22nd June, 2019. The petitioner feeling aggrieved of the order of the trial court filed a Criminal Revision Petition before the Revisional Court, which was also
dismissed vide impugned order. Hence this petition.
3. We have heard the learned counsel for the petitioner and have
perused the available record. The perusal of record reveals that prior to fil ing the referred
complaint, an FIR No.67 of 2017 was also lodged with PS New Sariab Quetta in respect of the referred to occurrence, wherein the respondents Nos.1 to 3 were nominated, who faced the trial, whereafter the trial court vide order dated 17th Ju ly, 2018 acquitted the respondents
of the charge. Besides the petitioner also filed a C.P. No.1095/2018 before this court, but when confronted with the maintainability of the Constitutional Petition in view of the dictum laid down by the Hon' able Supreme Court on the case of Mst Sughra Bibi v. State PLD 2018 SC 595, in respect of registration of second FIR, the appellant did not press the Constitution Petition and intended to avail the remedy of filing the private complaint, hence the complaint was filed b efore the trial court, and the trial court initiated the inquiry and after recording the
statement of witnesses, dismissed the complaint and revision petition filed before the Revisional Court was also dismissed vide impugned order.
4. Since the respondents Nos.1 to 3 faced trial in respect of case FIR No.67 of 017 and
the same allegation as levelled in the referred FIR was leveled in the complaint, under such circumstances Article 13 of the Constitution of Islamic Republic of Pakistan 1973 (the Constitution) as well as section 403 of the Code come into play, therefore in order to
comprehend the issue effectively, it would be appropriate to reproduce the aforesaid two provisions of law as under: -
"Article 13 of the Constitution:
Protection agains t double punishment and self - incrimination. 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"
"Section 403 of the Code:
Persons once convicted or acquitted not to be tried for the 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 for ce, not to be liable to be tried again for the some 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 36, or for which he might have been convicted under secti on 237.
(2) A person acquitted or convicted for any offence may be afterwards tried for any distinct offence for which a separate charge might have been made against him on the former trial under sections 235, subsection (1).
(3) A person convicted of an y offence constituted by any act causing consequences
which together with such act, constituted a different offence from that of which he was convicted, may be afterwards tried for such last -mentioned offence, if the
consequence had not happened, or were not happened, or were not known to the Court to have happened, at the time when he was convicted.
(4) A person acquitted or convicted of any offence constituted by any acts may, notwithstanding such acquittal or conviction, be subsequently charged with, an d tried
for any other offence constituted by the same acts which he may have committed if the Court by which he was first tried was not competent to try the offence with which
he is subsequently charged.
(5) Nothing in this section shall affect the provis ion of section 26 of the General
Clauses Act, 1897, or section 188 of this Code 9."
5. Admitted the aforesaid law is based on ancient principle of law that "Nemo bis
punitur aut vixatur pro eodem delicto" which means that no one should be vexed twice for the same offence. It is an admitted fact that after final adjudication of the matter by the court
of competent jurisdiction the same cannot be permit to reopen. The same principle i.e. "autrefois acquit (formerly acquitted) and autrefois convict (formerly convicted)" is prevailing in the common law. This fundamental principle of law which has been embodied in our Constitution as well the Code and the General Clauses Act is that once a person was prosecuted and acquitted for an offence, he cannot be subsequen tly tried for the same and
this view was affirmed in 2011 SCMR 484 titled "Nazir Ahmad v. Capital City Police Officer, Lahore and another", 2011 SCMR 1083 titled "The State through Collector of Customs v. Nasim Amin Butt and others" and 2014 SCMR 1376 titl ed "Muhammad Nadeem
Anwar v. Securities and Exchange, Commission of Pakistan through Director NBFs Deptt: Islamabad".
6. In Nazir Ahmad's case, the Supreme Court of Pakistan has laid down the following
principles for applicability of Article 13 of the Cons titution so as to bar re -trial of an accused
for the same offence: -
"Article 13 of the Constitution sanctifies the well- settled principle of law that no
person will be tried for an offence on the same set of facts on which he has already
been acquitted or convicted. For applicability of the rule of "autre fois acquit",
essential conditions to be satisfied are: (1) there must have been a trial of the accused for the offence charged against him, (2) the trial must have been by a court of competent jurisdiction, and (3) there must have been a judgment or order of acquittal, (4) the parties in the two trials must be the same, (5) fact -in-issue in the earlier trial
must be identical with what is sought to be re -agitated in the subsequent trial."
7. In view of above, sine the subject matter has already been tried by the court of
competent jurisdiction in FIR's case between the same parties, therefore while following the referred principle laid down by the Hon'able Supreme Court of Pakistan, we are of the conside red opinion that the learned counsel for the petitioner has failed to point out any
illegality and irregularity in the orders passed by the court below warranting interference by this court in a constitutional jurisdiction.
Thus, this petition being devoi d of merits is dismissed in limine.
SA/173 Bal. Petition dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
let us know.