2002 P Cr (PLP)

Ch. Muhammad Hanif Khatana, Addl. A.‑G. for the State. Date of hearing: 22nd November, 2001. Through this Constitutional petition the petitioner has challenged the impugned order, dated 8‑8‑2001 passed by the learned Special Judge, Anti‑Corruption, Lahore, by which the petitioner has been directed to face .the trial in case F.I.R. No.136 of 1990 registered on 20‑7‑1990 against the petitioner and his co‑accused under sections 409/109, P.P.C. with Police Station Saddar, Okara.

2. The brief facts of the case are that the petitioner was an accused alongwith Muhammad Siddique and Talib Masih and after the conclusion of the investigation the challan was submitted in the Court of learned Special Judge, Anti‑Corruption, Lahore, who, vide judgment, dated 28‑9‑1994 convicted the co‑accused, namely, Muhammad Siddique and Talib Hussain and sentenced them to six months' R.I. each with a fine of Rs.2,000 each. In default of payment of fine they were to undergo further R.I. for one month each. This conviction has been passed under section 409, P.P.C. However, the petitioner was acquitted from the charge. The co‑accused who was convicted in the abovesaid case filed criminal appeal against the judgment which has been accepted by, holding that Syed Ijaz Hussain Rizvi, Special Judge, Anti‑Corruption, Lahore wasm not duly appointed and the judgment delivered by him was set aside and retrial of the case has been ordered.

3. Ch. Karamat Ali, Sahi, learned Special Judge, Anti‑Corruption, Lahore after the remand of the case has also summoned the petitioner to face the trial.

4. Learned counsel for the petitioner contends that the petitioner was acquitted through judgment, dated 28‑9‑1994 and the State did not file any appeal or revision against the acquittal of the petitioner hence the judgment to his extent has attained finality. The petitioner cannot be summoned to face the trial again as retrial of the petitioner, is hit by the principle of double jeopardy under section 403, Cr.P.C. Hence the order is illegal and may be set aside.

5. On the other hand learned Additional Advocate‑General, Punjab has opposed this petition on the ground that the earlier judgment has been declared as illegal by this Court and the petitioner can be ordered to face the retrial as the earlier judgment is a nullity in the eye of law.

6. I have heard the learned counsel for the parties and also perused the judgment impugned in this petition. The petitioner faced the trial in the abovesaid criminal case and has been acquitted vide judgment, dated 28‑9‑1994. State had not filed any appeal or revision against the impugned judgment to the extent of acquittal of the petitioner, hence the judgment to the extent of the petitioner has attained finality and to the extent of the petitioner is still in the field. The contention raised by the learned counsel for the petitioner has force. Though the judgment has been set aside in appeal filed by the co‑accused persons but the judgment of the appellate Court will have the effect only to the extent of the co‑accused and will not affect the acquittal of .the petitioner as this matter was not thrashed out by the appellate Court as the petitioner was never summoned by the appellate Court hence the order of the appellate Court is only to the extent of the co‑accused and not to the extent of the petitioner. The resummoning of the petitioner is definitely hit by the principle of double jeopardy and is covered by section 403, Cr.P.C. hence the petitioner cannot be tried for the same offence again, as such this writ petition is accepted and the impugned order, dated 8‑8‑2001 to the extent of summoning of the petitioner is set aside. There will be no order as to costs. H.B.T./T‑70/1Petition accepted. ‑‑‑‑‑‑‑‑‑‑‑