2021 Y L R Note 53
[Balochistan]
Before Muhammad Kamran Khan Mulakhail, J
BAHAWAL KHAN--- Petitioner
Versus
RAB NAWAZ and another ---Respondents
Criminal Miscellaneous Quashment No.78 of 2019, decided on 23rd October, 2019.
Criminal Procedure Code (V of 1898) ---
----S. 561- A---Penal Code (XLV of 1860), Ss. 419, 420, 467, 468 & 471---Constitution of
Pakistan, Art. 13--- Cheating by personation, cheating and dishonestly inducing delivery of
property, forgery for valuable security, forgery for purpose of che ating, using as genuine a
forged document ---Petition for quashing of FIR ---Double jeopardy ---Scope ---Petitioner
sought quashing of FIR lodged against him on the grounds that the complainant registered
FIR against the petitioner with the allegation that the petitioner had managed to manipulate a
forged mutation in respect of disputed property about which both the parties claimed ownership---Investigation was carried out and challan was filed--- Petitioner was acquitted of
the charge after trial ---Complainant for the same alleged act had succeeded to register
another FIR, therefore, petitioner filed petition for quashment of the said FIR ---Validity ---
Record showed that the petitioner had filed a declaratory suit against the father of complainant, which was fina lly decided and decree was assailed but appeal was dismissed ---
Petitioner was prosecuted for producing the abstract of false mutation entries and during the trial he produced photocopy of the purported agreement in his defence ---Said forged
Mutation entry was based on agreement, therefore, dragging the petitioner in the impugned FIR was not only a unique example of exploitation, but also amounted to mockery of law ---
Present was a fit case falling within the definition of "double jeopardy", which was against
the principles of law and the stipulation contained in Art.13 of the Constitution---Complainant had lodged the subsequent FIR but no proceedings in respect of already adjudicated allegation could be re -prosecuted in the second FIR ---Petition for quashing of
FIR was accepted, in circumstances.
Nazir Ahmad v. Capital City Police Officer, Lahore and another 2011 SCMR 484;
The State through Collector of Customs v. Nasim Amin Butt and others 2011 SCMR 1083 and Muhammad Nadeem Anwar v. Securities and Exchange, Commission of Pakistan
through Director NBFs Deptt: Islamabad 2014 SCMR 1376 rel.
Sultan Muhammad Taran for Petitioner.
Ms. Rubina Mohsin for Respondent No.1.
Muhammad Younas, A.P.G. for the State.
Date of hearing: 26th August, 2019.
JUDGMENT
MUHAMMA D KAMRAN KHAN MULAKHAIL, J. ---This Criminal Misc: Quashment
Petition under section 561- A, Cr.P.C. has been preferred for quashment of an FIR bearing
No. 28 of 2019 ("the impugned FIR") dated 20th February 2019 lodged under sections 419,
420, 467, 468 and 4 71 Pakistan Penal Code (P.P.C.) with Police Station Civil Line, Quetta,
on a report submitted by respondent No.1 (complainant).
2. Brief facts as stated in the petition are that the petitioner claimed to be owner of land
situated at Sariab Road, Quetta, wh ile one Shah Nawaz son of Behram Khan, (father of
respondent) was also claiming ownership of the said land, in respect of which both the claimants have filed a suit against each other. During pendency of the lis, the complaint registered an FIR No. 70 of 2017 against the petitioner at Police Station Sariab, Quetta under sections 419, 420, 467, 468 and 471, P.P.C., with the allegation that the petitioner has managed to manipulate a forged mutation in respect of property Khasra No. 189/1- 396,
Khewit No. 54, K hatooni No. 59 Mohal and Mouza Khushkaba Sariab, Tappa Shadinzai,
Tehsil City, District Quetta ("disputed property"). Investigation was carried out and challan
was filed, on completion of the trial the petitioner was acquitted of the charge by the
Additional Sessions Judge, Sariab, Quetta. Now for the same alleged act the respondent has succeeded to register another FIR bearing No. 28 of 2019 dated 20th February 2019, with Police Station Civil Line, Quetta under sections 419, 420, 467, 468 and 471, P.P.C., therefore, the instant petition is filed for Quashment of the said FIR, which is impugned
herein.
3. Learned counsel for the petitioner inter alia contended that the respondent
(complainant) being in league with the police officials got registered a false and fabricated FIR in respect of the same property, for which cases in the civil courts were pending. He further maintained that prior to instant FIR, another FIR No. 70 of 2018 was registered with the same allegation, but the petitioner was acquitted of the charge by the learned Additional
Sessions Judge, Sariab, as such, the registration of second FIR for the alleged offence, when the earlier was already decided by the court, did not stand to any valid lawful reason, thus, the subsequen tly registered FIR is liable to be declared null and void. The learned counsel
referred to Article 13 of the Constitution and also section 403 of the Criminal Procedure Code (Cr.P.C.) relating to the principle of double jeopardy and stated that no person c an be
waxed twice for the same offence, therefore, the second FIR for the same act is liable to be quashed.
4. Conversely, learned counsel for the private respondent opposed the contentions of the
learned counsel for the petitioner and prayed for dismissal of the petition. She also filed a
miscellaneous application and sought permission for placing certain documents relating to previous civil and criminal litigations between the parties, which being judicial record was allowed. Learned APG supported the con tentions of the learned counsel for the private
respondent and he also urged for dismissal of the petition.
5. Heard. Record perused.
6. The perusal of record reveals that a civil lis was pending before the parties and both
the parties were claiming the ow nership of the disputed property, however, during course of
trial of the civil cases, the complainant registered an FIR No. 70 of 201.8 with Police Station
Sariab Quetta, with the allegation that the petitioner had managed to manipulate a false mutation of the disputed property in his favour, as such, the petitioner was indicted before
the Additional Sessions Judge, Sariab Quetta. On completion of the trial the learned Additional Sessions Judge, Sariab Quetta acquitted the petitioner of the charge, vide judgment dated 15th November 2018.
7. It was mainly asserted on behalf of the petitioner that the respondent again chose to
approach the Police Station Civil Line, Quetta for registration of FIR, with new allegation in respect of the same property, whereupon, the SHO PS Civil Line, Quetta registered FIR No.
28 of 2019; that the contents of both the FIRs are same being based on same allegation, whereas the proceedings to the extent of FIR No. 70 of 2018 has come to an end. In essence the petitioner took shelter behind the Article 13 of the Constitution as well as section 403 of
the Criminal Procedure Code 1898, and sought Quashment of subsequently registered FIR.
8. In order to comprehend the issue effectively, it would be appropriate to reproduce the
afore -referred two provisions of the Constitution and the law: -
"Article 13 of the Constitution of the Islamic Republic of Pakistan 1973 stipulates:--
Protection against double punish- ment 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 of Criminal Procedure 1898 states: -
Persons once convicted or acquitted not to be tried for the same offe nce.
(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 to 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.
(2), (3), (4), (5) .............
9. Indeed the aforesaid law is based on centuries old principle of common law i.e.
"Nemo bis puniture ant vexature pro eodum delico" which means that no one should be subjected to peril twice for the same offence. This fundamental principle of law which has
been embodied in our Constitution as well in the Code and the General Clauses Act, 1897, it
is clearly ordained that once a person was prosecuted and convicted or acquitted for an
offence, he/she cannot be subsequently tried for the same offence.
This view was approvingly laid down in "Nazir Ahmad v. Capital City Police Officer,
Lahore and another", (2011 SCMR 484), "The State through Collector of Customs v. Nasim Amin Butt and others" (2011 SCMR 1083) and "Muhammad Nadeem Anwar v. Securities and Exchange, Commission of Pakistan through Director NBFs Deptt: Islamabad (2014 SCMR 1376)".
In Nazir Ahmad's case, the august Supreme Court of Pakistan has laid down the
following principles for applicability of Article 13 of the Constitution so as to bar re -trial o f
an accused for the same offence: -
"Article 3 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) ther e 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."
10. Perusal of the record shows that the petitioner filed a 'Declaratory Suit' against the
father of respondent No.1 (complainant) namely, Shah Nawaz son of Haji Behram Khan,
which was transmitted to the file of Civil Judge -III, Quetta and registered as Civil Suit No.
120 of 2016. The sa id suit was adjudicated by the trial court and was finally decided vide
judgment and decree dated 07th June 2017, which was assailed before the District Judge in appeal, which on transmission to the file of Additional District Judge -II, Quetta being Civil
Appeal No. 5 of 2017, was dismissed vide judgment and decree dated 03rd May 2018.
Whereas the earlier FIR bearing No.70 of 2017 was lodged against the petitioner on 05th
April 2017, whereby, it was alleged that the petitioner has succeeded to manipulate a forged mutation entry in his favour and the said abstract of revenue record was produced during the trial before the Civil Court. Similarly Haji Shah Nawaz (father of respondent No.1) also filed a civil suit against the petitioner, which was transferred to a file of Civil Judge -V, Quetta and
registered as Civil Suit No. 14 of 2019. The said suit was decreed vide judgment and decree
dated 13th April 2019, whereas an appeal preferred against the said judgment and decree was
transmitted to the file of Addition al District Judge -V, Quetta being Civil Appeal No. 27 of
2016, was finally dismissed vide judgment dated 26th June 2019.
11. It goes without saying that the alleged abstract of the alleged false mutation entries
was produced before the civil courts, when t he suits filed by the parties against each other
were still pending adjudication. Meanwhile, the respondent No.1, submitted an application
before the concerned police and succeeded to lodge an FIR against the petitioner. It may not be out of place to obser ve that when the abstract of said mutation entries was produced
before the civil court and though the said mutation record was not accepted concurrently by the courts below, in result whereof, the suit filed by the petitioner was dismissed and the suit filed by the respondent was decreed. On both occasions, neither the trial courts nor the
appellate courts passed any order with regard to alleged forgery allegedly committed by the
petitioner. But it could not be reconciled on record that even the earlier FIR lodged against
the petitioner was without any direction of the court. It is unfortunate to observe that neither
the learned Additional Sessions Judge -II, Quetta being designated Justice of the Peace, when
directed for registration of FIR, nor the learned trial court took notice of this legal aspect of the case that section 195(1)(c), Cr.P.C. imposes a particular bar on taking cognizance by any
court. This provision of law in Cr.P.C. being relevant is reproduced herein below, which
stipulates:
"195. (1) No Court shall take cognizance.
(a) Prosecution for contempt of lawful authority of public servants: …. …. …..
(b) Prosecution for certain offences against public justice; ………
(c) Prosecution for certain offences relating to documents given in evidence; of a ny
offence described in section 463 or punishable under section 471, section 475 or
section 476 of the same Code, when such offence is alleged to have been committed by a party to any proceeding in any Court in respect of a document produced or given in ev idence in such proceeding, except on the complaint in writing of such Court, or
of some other Court to which such Court is subordinate.
(2) In clauses (b) and (c) of the sub- section (1), the term 'Court' includes a Civil, Revenue
or Criminal Court, but doe s not include a Registrar or Sub- Registrar under the
[Registration Act, 1908].
(3) …. …. ….. ….
The afore quoted provision strictly and without any ambiguity imposes a clear bar on
taking cognizance by any court relating to prosecution of certain offences in respect of
documents given in evidence.' However, the petitioner was acquitted of the charge by the Additional Sessions Judge, Sariab Quetta vide judgment dated 15th November, 2018.
12. The aforesaid unjust exploitation of law still did not meet a logical end and when
during the trial of the earlier registered FIR No. 70 of 2017, the petitioner entered in oath and recorded his statement under section 340(2), Cr.P.C. He, in order to justify the alleged false mutation, produced a photocopy of an agreement pertaining to year 1970 as Ex- P/D-1,
purportedly executed between the petitioner and one Chohdry Muhammad Hussain. However, during cross -examination, when the petitioner was asked to produce the original of
Ex-D/1, he sought time, on 24th October, 2018 he again appeared and stated that he was not
in a position to produce the original copy of the (agreement) Ex- D/1. Although the petitioner
was acquitted of the charge, but again another attempt was made and second application for registration of FIR was subm itted, but now in respect of EX -D/1 by alleging that purported
EX-D/1 was having stamped with seal of the Naib Tehsildar City Quetta, in the year 1970,
whereas the office of Naib Tehsildar came into force in the year 2005.
13. Be that as it may, but the learned Additional Sessions Judge, Sariab being trial court,
did not pass any order in respect of alleged forgery, but once again while, bypassing the referred to provision of section 195(1)(c), Cr.P.C, the FIR was lodged against the petitioner.
It is worthwhile to reiterate here that on any occasions, neither the Civil Judge -III, Quetta,
nor the Civil Judge -V, Quetta and nor the Additional Judge, Sariab, Quetta passed any order
with regard to alleged forgery or for initiating prosecution against the petitioner for
producing false documents before the court. Moreover, when the petitioner was prosecuted for producing the abstract of false mutation entries and during the trial he produced photocopy of the purported agreement (Ex- D/1) , in its essence, the alleged forged mutation
entry was based on agreement EX -D/1, therefore, dragging the petitioner in the impugned
FIR was not only a unique example of exploitation, but also amounted to mockery of law, thus, it was a fit case falling within the definition of double jeopardy, which was against the principles of law and the stipulation contained in Article 13 of the Constitution 1973.
14. In the context of the present case, the complainant has lodged the subsequent FIR, on
same set of alle gation levelled in the first FIR, which fate was decided, as such, keeping in
view the above referred law and the principles laid down by the Hon'ble apex Court, no proceedings in respect of already adjudicated allegation can be re- prosecuted in the second
FIR.
The instant petition, for the above reasons, is accepted. Consequently, the impugned
FIR No. 28 of 2019 dated 20th February 2019 Police Station Civil Line, Quetta under sections 419, 420, 467, 468 and 471, P.P.C. is hereby quashed. It is ordered tha t ad-interim
order dated 16th July 2019 is hereby confirmed, and the petitioner shall neither be arrested nor be indicted in the impugned FIR bearing No. 28 of 2019 Police Station Civil Line, Quetta.
The petition stands accepted in the above terms.
JK/187/Bal. 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.