2025 PLP 972 (YLR)

Sadiq Mahmud Khurram, J.

Through this petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 read with section 561-A Cr.P.C.. the part of the judgment dated 30.11.2019, passed by the learned Additional Sessions Judge/Judge MCTC, Vehari in case FIR No.490 of 2017, dated 12.12.2017, registered at Police Station Saddar Burewala, District Vehari, whereby he directed the D.P.O., Vehari to register a case in respect of offence under section 302 P.P.C as against the petitioner for Qati-i-Amd of Amanat Ali (deceased), has been assailed. The brief facts of the case leading up to the filing of the instant petition are that the petitioner got registered case FIR No.490 of 2017, dated 12.12.2017, in respect of offences under sections 302, 324,, 186, 427 and 34 P.P.C at Police Station Saddar Burewala, District Vehari, stating therein that Amanat Ali (deceased) had died due to firing made by Abid Ali and after investigation of the case, report under section 173 Cr.P.C. was submitted as against the said Abid Ali and the said Abid Ali was tried by the learned Additional Sessions Judge, Additional Sessions Judge/Judge MCTC, Vehari, however, the said Abid Ali was acquitted of the charges by the learned Additional Sessions Judge/Judge MCTC, Vehari vide judgment dated 30.11.2019 but while passing the judgment, the learned Additional Sessions Judge/Judge MCTC, Vehari, in para No.17 of the judgment, issued a direction to the D.P.O. Vehari, to register a case against the petitioner in respect of offence under section 302 P.P.C with regard to Qatl-i-Amd of Amanat Ali (deceased).

3. The learned counsel for the petitioner submitted that the order passed by the learned Additional Sessions Judge/Judge MCTC, Vehari, dated 30.11.2019, whereby respondent No.2, District Police Officer, Vehari, was directed to register an FIR against the petitioner for Qatl-i-Amd of Amanat Ali (deceased) was against the law and facts; that the petitioner had been tried for Qatl-i-Amd of Amanat Ali (deceased) in a case instituted upon the private complaint titled Abdul Aziz v. Muhammad Ishfaq Gill-Inspector/S.H.O. Police Station Saddar Burewala and 11 others and after a trial he was acquitted of the said charge by the learned Additional Sessions Judge/Judge MCTC, Vehari, vide judgment dated 30.11.2019, hence, once the petitioner had been tried for Qatl-i-Amd of Amanat Ali (deceased) and acquitted of the charge, the petitioner could not be prosecuted for the same offence again in view of the provisions of section 403 Cr.P.C. and Article 13 of the Constitution of the Islamic Republic of Pakistan, 1973, hence the impugned order passed by the learned Additional Sessions Judge/Judge MCTC, Vehari, dated 30.11.2019, was liable to be set aside.

4. The learned Assistant Advocate General Punjab submitted that it was a fact that the petitioner was tried as an accused with regard to the charges of Qatl-i-Amd of Amanat Ali (deceased) and was acquitted of the charges in the case instituted upon the private complaint as lodged by Abdul Aziz in respect of Qatl-i-Amd of Amanat Ali (deceased) and therefore, no order for registration of another case with regard to Qatl-i-Amd of Amanat Ali (deceased) could have been issued by the learned Additional Sessions Judge/Judge MCTC, Vehari.

5. I have heard the learned counsel appearing on behalf of the petitioner and the learned Assistant Advocate General Punjab and perused the record with their able assistance.

6. The perusal of the record reveals that the petitioner got registered case FIR No.490 of 2017, dated 12.12.2017, in respect of offences under sections 302, 324, 186, 427 and 34 P.P.C at Police Station Saddar Burewala, District Vehari, stating therein that Amanat Ali (deceased) had died due to firing made by Abid Ali and after investigation of the case, report under section 173 Cr.P.C. was submitted as against the said Abid Ali and the said Abid Ali was tried by the Additional Sessions Judge/ Judge MCTC, Vehari, however, the said Abid Ali was acquitted of the charges by the learned Additional Sessions Judge/Judge MCTC, Vehari vide judgment dated 30.11.2019 but while passing the judgment, the learned Additional Sessions Judge/Judge MCTC, Vehari, in para No.17 of the judgment, issued a direction to the D.P.O. Vehari, to register a case against the petitioner in respect of offence under section 302 P.P.C with regard to Qatl-i-Amd of Amanat Ali (deceased). It is an admitted fact that one Abdul Aziz also filed a private complaint as against the petitioner as well as eleven other co-accused titled 'Abdul Aziz v. Muhammad Ishfaq Gill and 11 others' in respect of offences under sections 302, 364, 149, 148 and 109 P.P.C with the allegations that the petitioner and his co-accused had committed the Qatl-i-Amd of Amanat Ali (deceased) after abducting him. The petitioner and co-accused were summoned to face the trial of the said case instituted upon the private complaint titled Abdul Aziz v. Muhammad Ishfaq Gill-Inspector/S.H.O. Police Station Saddar Burewala and 11 others and after completion of trial, the learned Additional Sessions Judge, Vehari, acquitted the petitioner and other co-accused vide judgment dated 30.11.2019 of all the charges against them. As mentioned above, the case which was got lodged by the petitioner himself bearing FIR No.490 of 2017, dated 12.12.2017,in respect of the offences under sections 302, 324, 186, 427 and 34 P.P.C at Police Station Saddar Burewala, District Vehari, with regard to Qatl-i-Amd of Amanat Ali (deceased) was also decided on the same day by the learned Additional Sessions Judge/Judge MCTC, Vehari and the judgment dated 30.11.2019 was passed, however, while passing the said judgment it was directed that a case be registered against the petitioner in respect of an offence under section 302 P.P.C. for committing Qatl-i-Amd of Amanat Ali (deceased). It is apparent from the perusal of the judgment passed by the learned Additional Sessions Judge/Judge MCTC, Vehari in case FIR No.490, dated 12.12.2017, registered in respect of offences under sections 302, 324, 186, 427 and 34 P.P.C, at the Police Station Saddar Burewala, District Vehari and the judgment passed by the Additional Sessions Judge in the case instituted upon the private complaint titled Abdul Aziz v. Muhammad Ishfaq Gill-Inspector/S.H.O. Police Station Saddar Burewala and 11 others that both the cases relates to the allegation regarding the abduction and Qatl-i-Amd of Amanat Ali (deceased) and the petitioner was acquitted after trial of the charge of abduction and Qatl-i-Amd of Amanat Ali (deceased) vide judgment dated 30.11.2019 passed by the learned Additional Sessions Judge, Vehari, however, by way of the judgment dated 30.11.2019, passed by the learned Additional Sessions Judge, Vehari in the case instituted upon the police report regarding FIR No. 490 of 2017, dated 12.12.2017, registered in respect of offences under sections 302, 324, 186, 427 and 34 P.P.C, at Police Station Saddar Burewala, District Vahari, a direction was issued to register a case against the petitioner for the Qatl-i-Amd of Amanat Ali (deceased) which simply could have not been done under Article 13 of the Constitution of Islamic Republic of Pakistan, 1973 as well as provisions of section 403 Cr.P.C. Both the Article 13 of the Constitution of Islamic Republic of Pakistan, 1973 as well as provisions of section 403 Cr.P.C. provide that a person cannot be tried for the allegation of committing an offence more than once for the same offence. Article 13 of the Constitution of Islamic Republic of Pakistan, 1973 provides as under:- "

13. Protection against 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 Cr.P.C. provides 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. (2) A person acquitted or convicted of 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 section 235, subsection (1). (3) A person convicted of any 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 consequences had 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, and 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 provisions of section 26 of the General Clauses Act, 1897 (X of 1897), or section 188 of this Code." It may be of benefit to note that the above cited provisions of law have been based on the legal maxim "Nemo Debet Dis Vexari Pro Una Et Radem" (it is a rule of law that no person shall be twice vexed for one and the same cause). In the case of Sherin Bacha v. Namood Iqbal (PLD 1993 SC 247), the respondents had filed a complaint under section 447, P.P.C. alleging that after delivery of possession the appellants had tried to dispossess them, however the complaint on being found to be false, was ordered to be filed but the same was, somehow, got revived and fresh inquiry/trial commence however, on receipt of a revision application, the Government set aside the order of revival of the complaint, holding that possession having been delivered by the Tribal Affairs Department, there was no occasion for a fresh trial but the Government's decision was challenged before the High Court in its Constitutional jurisdiction and the High Court held that as the complaint under section 447, P.P.C. had not been dealt with properly; it required to be re-investigated/re-tried and the case was, consequently sent back to the trial court for fresh proceedings but the august Supreme Court of Pakistan held that after the appellants had been tried already on the same facts in a case instituted on police report and acquitted vide judgment dated 13-3-1989 passed by E.A.C. Malakand, the retrial of the appellants was not permitted.In the present case, the impugned direction as issued by the learned Additional Sessions Judge/Judge MCTC, Vehari, vide his judgment dated 30.11.2019 passed in the case instituted upon the police report of case FIR No.490 of 2017, dated 12.12.2017, registered in respect of offences under sections 302, 324, 186, 427 and 34 P.P.C at Police Station Saddar Burewala, District Vehari, militates against both Article 13 of the Constitution of Islamic Republic of Pakistan, 1973 and section 403 Cr.P.C.

7. In view of the above discussion, the instant petition is allowed and the direction as contained in Para No.17 of the judgment dated 30.11.2019, passed by the learned Additional Sessions Judge/Judge MCTC, Vehari, in the case instituted upon the police report of FIR No.490 of 2017, dated 12.12.2017, registered in respect of offences under sections 302, 324, 186, 427 and 34 P.P.C at Police Station Saddar Burewala, District Vehari, regarding the direction to the D.P.O. Vehari, to register a case against the petitioner under section 302 P.P.C. for Qatl-i-Amd of Amanat Ali (deceased) is set aside. JK/I-3/L Petition allowed.