2011 M L D 1506
[Quetta]
Before Muhammad Hashim Khan Kakar, J
ZAMIN ALI and another ---Petitioners
Versus
THE STATE ---Respondent
Criminal Quashment Petition No.32 of 2007, decided on 17th J une, 2011.
(a) Emigration Ordinance (XVIII of 1979) ---
----S. 22(b) ---Constitution of Pakistan, Art.13 ---Criminal Procedure Code (V of 1898),
Ss.403 & 561 -A---General Clauses Act (X of 1897), S.26 ---Receiving money
fraudulently for providing foreign em ployment ---Punishing the accused twice for the
same offence ---Petition for quashing of proceedings ---Earlier, as a result of proceedings
initiated by complainant, petitioners were convicted and sentenced under Ss.406 and
420, P.P.C. -Petitioners could have also been charged under S.22(b) of Emigration
Ordinance, 1979 which had not been done; it would be too late to initiate fresh
proceedings against the petitioners under the garb of S.22(b) of Emigration Ordinance,
1979 --Under the Principles envisaged in Ar t.13 of the Constitution, S.403 of Criminal
Procedure Code, 1898 and S.26 of General Clauses Act, 1897, a person could not be
punished or put in peril twice for the same offence and no person could be punished
twice for one and the same cause ---Simultaneou s action could be initiated, subject to
certain legal exceptions, but in view of the peculiar circumstances of the case,
simultaneous action could not be initiated against the petitioners, for the reasons that
action against them had already been finalized and . their acquittal on account of
compromise arrived at between the petitioners and complainant had attained finality ---
Person, once convicted or acquitted could not be tried for the same offence ---Criminal
charge, once having been adjudicated upon by a competent court, that adjudication was
final, whether it ended in acquittal or conviction ---Offence under S.22(b) of Emigration
Ordinance, 1979 was a lesser one and while trying a case earlier under Ss.420, 406, 417,
419, 467, 468 & 471, P.P.C., court was competent to convict the accused under S.22(b)
of Emigration Ordinance, 1979, even without framing a separate charge ---
Petitioners/accused in the present case, were not only subjected to criminal proceedings,
but were also arrayed in civil litigation ---Acquittal of the petitioners in circum stances,
had become final ---Proceedings were ordered to be quashed.
(b) Emigration Ordinance (XVIII of 1979) ---
----S. 22(b) ---Criminal Procedure Code (V of 1898), Ss. 561 -A & 417 -A---Receiving
money fraudulently for providing foreign employment ---Quashing of proceedings,
petition for ---Appeal against acquittal ---Acquittal carried double presumptions of
innocence in favour of accused ---Courts were always reluctant to interfere in an
acquittal order, unless and unti l it was shown that the same was perverse, ridiculous and
shocking; or the court had not taken into consideration any material evidence, having
direct bearing on the case ---In the present case beside the agony of criminal trial, the
petitioners were also a rrayed in civil litigation; and said longstanding litigation finally
ended, when the petitioners were acquitted of the charge by High Court on the basis of
compromise arrived at between the parties ---Petitioners had already suffered a lot, as
conceded by t he Standing Counsel ---Re-opening of a past and closed transaction would
serve no fruitful purpose ---On account of compromise effected between the parties, there
was no possibility of the petitioners being convicted of any offence ---Further proceedings
of the case would amount to abuse of the process of law ---Proceedings pending against the
petitioners, were quashed, in circumstances.
Muhammad Qahir Shah for Petitioners.
Ch. Mumtaz Yousaf, Standing Counsel for the State.
Date of hearing: 19th June, 2011.
ORDER
MUHAMMAD HASHIM KHAN KAKAR, J .---Petitioners Zamin Ali and Asif Ali, sons
of Ali Hassan, have filed this petition under section 561 -A of the Cr.P.C. for quashment of
F.I.R. No.75 of 2005 dated 17th August, 2005, under section 22(b) of the Emigration
Ordinance, 1979, lodged by Assistant Director, FIA, Passport Circle, Quetta on the
complaint of one Muhammad Essa.
2. The relevant facts of the above case appear to be that, FIA Passport Circle, Quetta, on the
complaint of above named Muhamma d Essa, conducted inquiries and after completion
thereof, it transpired that in the year 2003, the petitioners, along with absconding accused,
namely, Ali Madad, who happened to be their brother, received huge amount from
complainant Muhammad Essa for send ing his brother Ghulam Raza to abroad for
employment. It was alleged that the above named accused also sent the son of complainant,
namely, Ghulam Haider to abroad, whose whereabouts are not known. It was further alleged
that the accused persons also recei ved numerous amounts from different persons for the
purpose without any legal and lawful authority, however, after sending them to abroad, their
whereabouts are not - known. Consequently, the aforesaid case was registered.
3. Mr. Muhammad Qahir Shah, lear ned counsel for the petitioners, contended that since, on
the basis of same set of allegations, the petitioner's were tried and convicted by the Judicial
Magistrate concerned, therefore, the registration of 2nd F.I.R. by the FIA authorities against
the pet itioners is in violation of section 403 of the Cr.P.C., Article 13 of the Constitution of
Islamic Republic of Pakistan, 1973 (the Constitution) and section 26 of General Clauses
Act, 1897. It was next contended that the petitioners are facing rigors of the trial right from
2005 before the civil as well as criminal courts and have also been acquitted of the charge
by this court, therefore, on account of compromise affected between the petitioners and
complainant, there is no probability of conviction of the petitioners in the instant case and
the proceeding before the trial court are abused of the process of law.
4. On the other hand, learned Standing Counsel, representing the State, stoutly controvert
the view point as canvassed by Mr. Muhammad Qahir Shah, with the submission that the
order passed while dismissing application under section 265 -K of the Cr.P.C. being well
reasoned reflects no infirmity and warrants no interference.
5. I have carefully examined the respective contentions of the parties and have perused the
entire record with the eminent assistance of the learned counsel. The moot and pivotal
question, which needs determination, would be that the petitioners, having already been
convicted as result of a complaint, instituted by complainant Mu hammad Essa against them
under sections 406 and 420, P.P.C. by Judicial Magistrate -IV, Quetta by means of order
dated 16th December, 2006, can be punished again by any other court or authority for the
same charge, but under a different law? Admittedly, the answer would be in negative. In
view of the principle envisaged in the provisions enumerated in Article 13 of the
Constitution, section 403 of the Cr.P.C. and section 26 of the General Clauses Act, 1897, a
person cannot be punished or put in peril twice f or the same offence/matter. It is well
established by now that no person can be punished twice for one and the same cause. As
mentioned hereinabove that as a result of proceedings initiated on the private complaint of
Muhammad Essa, the petitioners were co nvicted and sentenced to suffer one year
imprisonment under sections 406 and 420, of the P.P.C. by means of order dated 16th
December, 2006 and the petitioners could have also been charged under section 22(b) of the
Emigration Ordinance, 1979, which was no t done so. It would be too late in the day to
initiate fresh proceedings against the petitioners under the garb of section 22(b) of the
Emigration Ordinance, 1979.
6. I am mindful of the fact the simultaneous action can be initiated, subject to certain l egal
exception, but in view of the peculiar circumstances of the instant case, simultaneous action
cannot be initiated against the petitioners, for the reason that action against them has already
been finalized and their acquittal by this court, on account of compromise arrived at
between the petitioners and private complainant Muhammad Essa, has attained finality. The
acquittal always carries double presumptions of innocence in favour of accused. It is a set
principle of law that the courts are always relu ctant to interfere in an acquittal order; unless
and until it is shown that the same is perverse, ridiculous and shocking or the court has not
taken into consideration any material evidence, having direct bearing on the case and since
the acquittal of the petitioner has attained finality, therefore, registration of the 2nd F.I.R.,
in no way, is permissible under the law.
7. It is worthwhile to mention here that the person, once convicted or acquitted, not to be
tried for same offence. The criminal charge once having been adjudicated upon by a
competent court, that adjudication is final, whether it ends in acquittal or conviction and it
may be pleaded at a bar in the subsequent prosecution for the same offence, whether charged
with or without matters of mer e aggravation and whether such matter relate to the intent with
which the offence was committed or to the consequence of the offence.
Admittedly, the offence under section 22(b) of the Emigration Ordinance, 1979 was a lesser
one and while trying the cas e under sections 420, 406, 417, 419, 467, 468, 471 read with
section 34 of the P.P.C., the court was competent to convict the petitioners under section
22(b) of the Emigration Ordinance, 1979, even without framing separate charge. The record
reflects that the petitioners were not only subjected to criminal proceedings, but were also
arrayed in civil litigation. After their conviction by the trial court in the complaint case, they
were acquitted by this court. Needless to mention here that after their acquit tal, the instant
proceedings under section 22(b) of the Emigration Ordinance, 1979 have been initiated. I am
afraid that after conclusion of the instant proceedings, the petitioners would be arrayed again
under the provisions of the Prevention and Control of Human Trafficking Ordinance, 2002.
My such apprehension emerges from the record, as serious allegations have been levelled
against the FIA authorities by the petitioners as well. There has to be an end to litigation in
every legal system and in the inst ant case, the acquittal of petitioners by this court became
final.
8. As has been observed hereinabove, besides the agony of criminal trial, the petitioners were
also arrayed in civil litigation and this longstanding litigation finally ended on 24th
September, 2007, when the petitioners were acquitted of the charge by this court on the basis
of compromise arrived at between the parties. The petitioners have already suffered a lot, as
frankly conceded by the learned Standing Counsel and now re -opening of a past and closed
transaction would serve no fruitful purpose. Needless to add here that on account of
compromise effected between the parties, there is no possibility of the petitioners being
convicted of any offence, as such, further proceedings of the ca se would amount to abuse of -
the process of law.
In view of what has been discussed hereinabove, the petition is allowed. The proceedings,
pending against the petitioners Asif Ali and Zamin Ali, sons of Ali Hassan, before the
Additional Sessions Judge -IV, Quetta are, accordingly, quashed.
H.B.T./50/Q Petition allowed.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.