2007 P Cr (PLP)

NADEEM AZHAR SIDDIQI, J.

Applicants Mahmood and Ghulam Abbas, both by caste Khokhar, through this application seek quaihment of F.I.R. bearing Crime No.4 of 2007 of Police Station A.C.E., Larkana, registered under sections 468, 420, 471, 477-A and 34, P.P.C. read with section 5(2), Act II of 1947. The facts of the case as per F.I.R. lodged by complainant/respondent No.1 Mumtaz Ali Bughio on 8-1-2007, are that he had purchased a house bearing. City Survey No.1466/2-C, Ward "B", Larkana, area 45.3 sq. yards from it's previous owner Mst. Rasheeda through orders of First Senior Civil Judge, Larkana on 16-8-1988 through registered sale-deed, such entry was kept in his name in the city survey record. It is alleged in the F.I.R: that the accused/applicants Mahmood and his son Ghulam Abbas in collusion with one Muhammad Ali Memon, the then City surveyor, Larkana, committed fraud and got the city survey record of the said house changed in their names on 20-6-1990, which the complainant/respondent No.1 subsequently, got cancelled from the then Deputy Commissioner, Larkana on 18-7-1990. Mr. Ali Nawaz Ghanghro, the learned counsel for the applicant, has contended that before the present F.I.R. the complainant on the same facts has filed direct complaint before the Court of Special Judge, Anti-Corruption, Larkana, which was dismissed on 27-2-1995 and another direct complaint before Vth Additional Sessions Judge, Larkana, which was dismissed on 10-12-1996 and the Criminal Revisions Application No.2 of 1997 was also dismissed by the High Court on 25-8-1998. The learned counsel submits that on the same facts the, applicants cannot be prosecuted twice and the pendency of proceedings amounts to abuse of process of law and Court. He further submits that in view of earlier dismissal of direct complaint and acquittal of applicants there is no possibility of conviction of the applicant. Mr. Mumtaz Ali, who is appearing in person, has submitted that the applicants have filed number of civil suits, which were dismissed and the last suit was dismissed on 25-8-2004 axed thereafter the F.I.R. was lodged as the Civil Court has confirmed that the applicants have acted fraudulently. He further submits that the F.I.R. was lodged on different set of facts and the proceedings cannot be quashed. Mr. Mushtaq Ahmed Kourejo, the learned counsel for the State, has supported the version of the applicants and submits that .the earlier direct complaints and the present F.I.R. is based on same facts and the grievance of the complainant is the same. Mr. Ali Nawaz Ghanghro further submits that the applicants have filed appeal against the judgment in Suit No.160 of 1997 (Old No. 1 80 of 1990) and the matter instill sub-judice. I have heard the learned counsel for the parties and perused the record made available before me. The grievance of the applicant, in the earlier direct complaints and in the present F.I.R. is that he purchased the house bearing C.S. No. 1466/2-C from its owner and his name was entered in the City Survey Record and with the connivance of the staff of City Survey office the said house was transferred in the name of applicant. No. 1 Mahmood, who thereafter gifted the same to applicant No.2. All the three proceedings are based an same facts. The former offence and the offence presently charged have same ingredients Section.403, Cr.P.C. provides that persons once convicted or acquitted not to be tried for the same offence. Article 13 of the Constitution of Islamic Republic of Pakistan, 1973 also provides protection against double punishment and self-incrimination. Before proceeding further it would be advantageous to reproduce section 403, Cr.P.C, and Article 13 of the Constitution. Section

403. Person once convicted or acquitted not to be tried for, the 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. Article 13 of the Constitution, reads as under:-- Article 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. means that a person cannot be tried a second time for an offence, which is involved in the offence with which he was previously charged. The principle is that the accused being once acquitted by a Court of competent jurisdiction and such finding having attained finality, his trial on the same facts again by the Court is not permissible. Article 13 offers a complete protection against prosecution and punishment for the same offence more than once. It means that no person should be jeopardized and vexed twice for the same offence. In the reported case of Alamdar Hussain Shah v. Abdul Baseer Qureshi PLD 1978 SC 121 the Honourable Supreme Court while defining word "prosecution," has held that where prosecution has finally concluded or coded either in acquittal or' conviction, a person's prosecution for the same offence would be barred. The proceedings under section 561-A, Cr.P.C. can be quashed in exceptional circumstances without waiting for trial Court to pass order under section 249-A or 265-K, Cr.P.C. if the circumstances of case so warrants. The train consideration for quashing the proceedings is that continuance of proceeding before the trial Court would be futile exercise, wastage of time and abuse of process of Court. The proceeding may also be quashed if on the basis of fact admitted on record no offence is made out and there appears no possibility of accused to be convicted. In the present case the applicants were earlier acquitted of the same offence by the learned Vth Additional Session Judge, Larkana and the judgment of the trial Court attained finality by dismissal of revision by the high Court. Since the law does not permit that once a person was convicted or acquitted cannot be tried for same offence, this is a fit case for exercise of jurisdiction under section 561-A, Cr.P.C. and to quash the proceedings as the continuance of proceeding amounts of abuse of process of Court. In view of the above circumstances, this criminal miscellaneous application was allowed by short order, dated 6-7-2007 and the above are the reasons. H.B.T./M-95/K Application allowed.