1984 P Cr (PLP)

S. 403 - Double jeopardy, principle of -- For all practical purposes trial of accused before Special Judge (Central) relating to same offences for which accused already faced trial before Special Military Courts and either acquitted or convicted-Second trial by Special Judge (Central), held, barred under 'provisions of S. 403, Cr. P. C.--Conviction and sentence set aside, in circumstance. P L D 1962 S C 242 (1897), (1) Queens Bench .214 (1914) 2 K B 570, (1920) 2 K B 239, (1890) 24 K B, 239 and (1898) (60) J P 909 ref. Agha Ghulam Ali for the State. Criminal Appeal No. 239/69 is filed by Ibrahim Dada, who is represen ted by Mr. Muhammad Hayat Junejo, Advocate: 2. Criminal Appeal No. 241/69 is filed by appellants Muhammad Siddiq, Nazir Ahmad Butt Jaffar and Iqbal. Out of these appellants, appel lant Muhammad Siddiq is represented by Mr. Muhammad Hayat Junejo, Advocate and appellant Nazir Ahmed is represented by Mr. Usman Ghani Rashid, Advocate. Appellants Jawad and Iqbal, according to the bailiff report dated 25th March, 1982, are not traceable at the given addresses and since these appeals are pending right from 1969, keeping in view the law laid down by the Supreme Court in the case of Hayat Bakhsh v. State (1981 S C M R 1), I propose to dispose of this appeal in the absence of these appellants on merits, against them as well. 3. Appeal No. 246/69 is filed by appellants Noor Muhammad, Adam, and Dawood, who are represented by Mr. Usman Ghani Rashid, Advocate. 4. Criminal Appeal No. 259/69 is filed by appellant Hussain and according to the bailiff reported dated 25th March, 1982 he is not avail able at the given address and present whereabouts are not known. Since this appeal arises out of a common judgment, I propose to dispose of this appeal on merits as well, on the basis of the law laid down by Supreme Court in 1981 S C M R 1. 5. Appeal No. 268/69, is filed by appellants are Usman, Mazhar, Attaullah and Shamsuddin. Out of these appellants, Usman is present in person, whereas appellant Attaullah is reported to be dead. The remaining two appellants Mazhar and Shamsuddin, according to the bailiff report dated 25th March, 1982 are not available at the given addresses and the present whereabouts are not known. In view of this, I propose to dispose of the above appeal on merits, in view of the decision of the Supreme Court reported in 1981 S C M R 1. 6. Since all the above five appeals arise out of the common judgment dated 26th July, 1969, of the Special Judge (Central), Karachi, in Case No. 64/63, I propose to dispose of all the above 5 appeals by this common judgment. 7. 1 have heard the learned counsels for the appellants, who are represented as well as Mr. Agba Ghulam Ali, Advocate for the State. Learned counsels for the appellants have taken me through depositions of certain witnesses, on which they are relying in respect of their contentions, that the appellants before this Court were already tried by Special Military Court in the year 1962 for same Compensation Books, in question under Martial Law Regulations No. 59/5, in which appellant Muhammad Siddiq in Criminal Appeal No. 241/69 and Ibrahim appellant in Criminal Appeal No. 239/69 were acquitted whereas the remaining appellants were sentenced to the various terms by the Special Military Court, Haiderabad and on the basis of their Mercy Petitions, they were released and the un-expired portion of the sentences awarded to them were remitted. In support of these contentions, learned counsel for the appellants Ibrahim and Siddiq has drawn my attention to the certificate Exh. 1032 at page 332 of Part V of the paper book and Exh. 1028 at page 325, Part V of the paper book, whereas learned counsel for the appellants Noor Muhammad Adam, Dawood and Nazir Ahmad Butt has produced copy of the letter, dated 7th April, 1966 of the Judge Advocate-General addressed to the Superinten dent Central Prison, Karachi confirming the remission of sentences in respect of 2 appellants before me and states, that similar letters are avail able with the other appellants who are not present in Court today. The letter produced by the learned counsel is kept on record. 8. Mr. Muhammad Hayat Junejo, learned Advocate submitted before me, that in view of the above fact, that appellants in the above appeals were tried by the Special Military Court, Haiderabad in 1962 and either acquitted or convicted to various terms of imprisonment, their fresh trial before the Special Judge (Central), Karachi, in respect of the same Compen sation Books was illegal, in view of the provisions of section 403, Cr. P. C. and as such on this ground alone, the judgment of the learned trial Court is liable to be set aside, without consideration of the other grounds raised in the above appeals. 9. In support of his contention, learned counsel drew my attention to the evidence of P. W. 164 Abdul Qadir, p. 200 Part V of the paper book, P. W. 165 Kh. Ziaullah, p. 219 of the paper book, Part V, P. W. 166 Afzal Hussain, p. 279 of the paper book Part V, and P. W. 80 Alamchand p. 232 of the paper book part 3 and submitted, that it is clear from the evidence of these witnesses that the very Compensation Books, on the basis of which the present appellants were tried and convicted by the Special Judge (Central), Karachi, in the present case, were produced as evidence against these appellants before the Special Military Court, Haiderabad in the year 1962, in which except for the 2 appellants namely, Siddiq and Ibrahim who were acquitted, rest of the appellants were sentenced to various terms of imprisonment. Learned counsel further pointed out the state ment of P. W. 80 Alamchand, that the alleged confession of accused Siddiq, who is also appellant in Criminal Appeal No. 241/69, according to this witness, was produced against him, both before the Special Military Court as well as before the Special Judge (Central) Karachi in the present case. Learned counsel in view of these facts submitted that trial of all the present appellants before Special Judge (Central) Karachi resulted in double trial of the appellants in respect of same offences and as such on this ground alone the impugned judgment dated 26th July, 1969 of the learned Special Judge (Central) Karachi liable to be set aside and all the appellants are entitled to acquittal. Learned counsel in support of his contentions, relied on cases reported fn P L D 1962 S C 242 (1897) (1) Queens Bench, 214 (1914) (2) King Bench, 570, (1920) (2) King Bench, 239, (1890) (24) King Bench, 239 and (1898) (60) J. P., 809 and submitted, that on the basis of these authorities no person can be tried again for the same offence and put to double jeopardy and as such he submitted, that on this ground alone all the above appeals be allowed specially as the appellants have been suffering agony of the trial right from 1961 and the above appeals are pending since 1969. 10. Mr. Usman Ghani Rashid, Advocate for the appellants Noor Muhammad, Alam, Dawood and Nazir Ahmad Butt has fully supported the above arguments of Mr. Muhammad Hayat Junejo, learned Advocate and has relied on the same authorities as cited by him. Appellant Usman, appellant in Criminal Appeal No. 268/69, submitted that he is innocent and was already convicted for the allege offences by Special Military Court, Haiderabad in 1962. 11. Learned counsel for the State appearing in all the above five appeals rightly and fairly conceded at the outset, that State is not in a position to deny, that the present appellants in the above appeals were tried and either convicted or acquitted by the Special Military Court, Haiderabad in the year 1962 in respect of very Compensation Books, which were made the basis of the trial in the present case. In view of the above honest and straightforward admission of the learned State counsel, the authorities cited by the learned counsel for the appellants are fully appli cable to the contentions raised by the learned counsels for the appellants before me, that the appellants in the present case cannot be tried for the second time, in respect of the cases arising out of the same Compensation Books, for which according to the learned counsel they have already been tried by the Special Military Court, Haiderabad. I find from the judgment of the learned trial Court that although this argument was advanced before the learned trial Court, the learned trial Court instead of giving benefit of doubt, about this position in favour of the appellants, brushed aside this contention and gave benefit to the prosecu tion and disposed of the case in question on merits, against all the appellants. In my opinion, such course adopted by the learned trial Court is contrary to the well-established proposition of law as laid down by various authorities not only of this Court but as well as of the Hon'ble Supreme Court, which I need not quote in this judgment, as they are well -known to every one practising in this Court. Beside the above position, I find that right from 1961 the present appellants have been facing the trials, in one Court or the other as mentioned in the impugned judgment and keeping in view this fact, even otherwise on merits, I would have to take this fact into consideration, if I did not agree with the contentions of the learned counsel for the appellants. 12. Since I find great force in the above contention of the learned counsel for the appellants, that trial of the present appellants before the Special Judge (Central), Karachi in the present case amounted to their re trial for the same Compensation Books in respect of which they were already tied and either convicted and/or acquitted by the Special Military Court, Haiderabad, which is evident from the statements of prosecution witnesses through whose statements learned counsel Mr. Muhammad Hayat Junejo, has taken me through, as hereinabove mentioned and in view of the statement of the learned counsel for the State Mr. Agha Ghulamali before me, that he was not in position to deny this contention of the learned Advocates of the appellants, as the proceedings of the trial before Special Military Court, Haiderabad in the year 1962, are not available with him and it is impossible now to get record and proceedings of the said trial and after nearly 20 years and keeping in view the fact, that request of the learned trial Court to forward R & P of said proceedings was not complied with by office of the Special Military Court in question, which is evident from letter No. 1790-M. L./J. A. G., dated 1st February, 1969, which is on record at page 128 of paper book Part V. It may further be noted that on receipt of the reply dated 1st February, 1969 from Judge Advocate-General Office. the appellants individually moved applications for deputing a person, as suggested by Judge Advocate-General to get the copies of certain documents, which were essential according to the appellants in support of their defence pleas. One of such application, dated 26th March, 1969 is at page 128 of paper book Part V, on which the learned trial Court passed an order on the same day, by which the said application was rejected, but the appellants were directed to obtain the certified copies and produce before the Court. It may be noted, that according to the learned counsel for the appellants, that there was no practice for grant of certified copies by the office of the Judge Advocate -General and consequently the appellants were unable to obtain such copies and produced the same before the learned trial Court. In view of this, the contention of the learned Advocates for the appellants in this connec tion cannot be brushed aside and the benefit of non-availability of R & P of Special Military Court, Haiderabad must go to the appellants and not to the prosecution. "I am of the opinion that the second trial ought not to have taken place, and that the objection was good. The man had clearly been convicted of a misdemeanour in respect of obtaining credit for the same goods which were the subject of the charge of larceny ; and it is against the very first principles of the criminal law that a man should be placed twice in jeopardy upon the same facts ; the offences are practically the same, though not their legal operation. The course adopted is altogether inconsistent with what is right and just, and though the defendant will in fact get no practical advantage from our decision, he is entitled to have this second conviction quashed." "No doubt it seems a little starling that a conviction for a common assault, accompanied by a shilling fine or a dismissal of the com plaint as too trifling for any punishment should afford and answer to a subsequent indictment for that same assault, upon conclusive evidence that it was accompanied by an intent to murder; but reason and good sense point out that, even at the risk of occasional miscarriage of justice, when once a criminal charge has been adjudi cated upon by a Court having jurisdiction, that adjudication ought to be final, and, after all, such miscarriages are very rare." 15. It is clear from the above questions, that for all practical purposes the trial of the appellants before the Special Judge (Central), Karachi related to the same offences for which appellants already face trial before A the Special Military Court, Haiderabad in 1962. 16. Therefore, I am of the considered opinion, on the basis of state ments of P. Ws. 164, 165, 166 & 80, which I have very carefully gone through, that appellants abovenamed were tried by Special Military Court, Haiderabad in the year 1962, in respect of offences committed by them in connection with same Compensation Books, for which they have been tried and convicted in Case No. 64 of 1963, by the Special Judge (Central). Karachi, out of which judgment, dated 26th July, 1969, all the above appeals arise and as such this second trial was barred under the provisions of section 403, Cr. P. C. on the basis of authorities cited by the learned Advocates for the appellants hereinabove mentioned, with which autho rities I am in respectful agreement, for the reasons given in these autho rities and consequently, I allow all the above five appeals and set aside the convictions and sentences awarded to all the appellants in the above appeals and acquit them. I further direct, that bail bonds executed by all the appellants are hereby discharged. S. G. D. Appeal allowed.