1995SCMR626 (PLP)

MUHAMMAD AFZAL LONE, J.‑‑‑This criminal appeal by leave to appeal from the judgment of the Lahore High Court, Lahore, presents questions concerning interpretation of Article 13(a) of the Constitution and section 403(1) of the Criminal Procedure Code.

2. The facts which led to the institution of this appeal are that at about mid‑night falling between 7th and 8th December, 1976, four persons, namely, Abdullah Khan, his two sons Muhammad Amin, Zakaullah and their relative Manzoor were murdered in village Machikey Guraya, at a distance of 8 miles from the Police Station Sadar, Gujranwala. The F.I.R. was lodged on December, 1976, at 8‑15 a.m. on the basis of the statement of Muhammad Saleem son of Abdullah Khan deceased, who is an eye‑witness in this case.

3. According to the prosecution, the first informant alongwith his father Abdullah Khan, his elder brother Muhammad Amin and his mother Mst. Rasool Bibi, were sleeping in the `Dalan' of their house; his eldest brother Zaka Ullah was sleeping alongwith his wife Mst. Rashida Bibi in another room of the same house. That Muhammad Ashraf alias Achhu, Irshad alias Shada and their father Inayat, the appellants, alongwith Iqbal alias Bala (absconder), and Ghulam Muhammad alias Gamma, all armed with pistols, except Muhammad Ashraf who had a .12 bore gun with him, entered the courtyard of the house after scaling the outer wall, broke open the door of the `Dalan' and entered therein. Muhammad Ashraf fired a shot with his gun at Abdullah Khan, which landed on the upper portion of his right hip near the abdomen, and he succumbed to the injury at the spot. The appellants and their two co accused then fired with their respective weapons at Muhammad Amin hitting him at his abdomen, chest and shoulder etc. He fell down, became unconscious. After that, all the assailants broke open the glass of the door of the adjoining room, entered therein after unbolting the same, and each one of them fired one shot at Zaka Ullah, who died there and then. After committing these murders, the appellants and other two assailants went to the nearby house of Nasrullah Khan, who is a cousin of the first informant, and after breaking open the glass of the door went into the room, wherein Manzoor deceased was sleeping. He, being a close relative, was called by Mst. Fatima Bibi, the wife of Nasrullah, to stay in the house, as the male members of the family having been involved in a criminal case, were in the judicial lock‑up. Muhammad Ashraf and Iqbal (absconder) fired two shots and one shot, respectively, at Manzoor, hitting him at his right shoulder and back, as a result whereof he also died at the spot. The appellants then ran away from the place of occurrence. This occurrence was witnessed by Mst. Fatima Bibi. Muhammad Amin was removed to the District Headquarters Hospital on 8‑12‑1976, where he died on the following day.

4. Strangely enough, in the course of investigation, quite contrary to the version of complainant side, the police formulated the opinion that these murders were actually committed by Muhammad Khan, Muhammad Rafique, Muhammad Sharif and Muhammad Ashraf alias Achhu, appellant, and that they were the real culprits. The Police sent up for trial two sets of the accused; one set consisting of the three appellants Ghulam Muhammad and Iqbal nominated in the F.I.R. and the other of the aforesaid four persons and Muhammad Ashraf appellant. The name of the latter thus, figured in both the sets. The two sets of the accused were tried separately but simultaneously. In the course of trial, Iqbal, who had been released on bail, absconded, and his case was separated.

5. During the trial, rested on the F.I.R. lodged by Muhammad Saleem, the motive disclosed in the prosecution evidence was that about one year prior to the occurrence War, a brother of Muhammad Ashraf appellant, was murdered; Nasarullah Khan and his two sons, namely, Ajmal and Azhar were challaned. The complainant party pursued this murder case and helped the three accused therein; the appellants therefore, nourished a grudge against thecomplainant side.

6. The appellants in their statements under section 342, Cr.P.C. pleaded innocence; admitted the murder of Zafarullah about one year before the present occurrence for which Nasarullah and his two sons were facing the trial. They further contended that Muhammad Ashraf, Irshad, appellants, and Ghulam Muhammad were the prosecution witness in that case. It was urged that Muhammad Saleem and Fatima Bibi P.Ws. conspired together to implicate the appellants.

7. The Investigating Officer collected blood‑stained earth from the scene of the four murders and also took into possession four empty cartridges; two from the courtyard and two from the `Dalan' of the house of Abdullah Khan deceased. Two empty cartridges were taken into possession from the spot where Manzoor was murdered. The appellants after their arrest led to the recovery of fire‑arms, but as these were not sent to the Forensic. Science Laboratory, the recoveries were neither relied upon by the trial Court nor the High Court. The autopsy on the four dead bodies of the victims was conducted by Dr. Shah Nawaz (P.W. 6). The prosecution case was thus wholly founded on the motive, medical evidence and the ocular testimony of Muhammad Saleem (P.W.7), Mst. Rashida Bibi (P.W. 8) and Mst. Fatima Bibi (P.W. 9).

8. The learned Additional Sessions Judge, Gujranwala, by his judgment dated 19‑10‑1982 convicted the three appellants and Ghulam Muhammad under section 302 read with section 149, P.P.C.., and sentenced them to death on four counts and to pay a fine of Rs.10,000 each, or in default to suffer rigorous imprisonment for a period of three years. All of them were also sentenced under section 449/199, P.P.C., to undergo imprisonment for a term of five years each and to pay a fine of Rs.5,000 each, in default of payment of fine to suffer rigorous imprisonment for two years. They were further charged, convicted and sentenced under section 148, P.P.C., and each one of them was sentenced to undergo rigorous imprisonment for a period of two years. After his conviction Ghulam Muhammad died in the Jail.

9. As regards the other set of the accused, the prosecution evidence was largely founded on extra‑judicial confession of the accused before Inayat and Muhammad Akram P.Ws. who made inchoate and self‑contradictory statements before the trial Court; their testimony was disbelieved and the recoveries were not considered as creditworthy. Accordingly, the trial Court by its judgment dated 19‑10‑1982 acquitted Muhammad Khan, Muhammad Siddique and Muhammad Sharif. Muhammad Rafique co‑accused had absconded and was declared as a proclaimed offender. So far as Muhammad Ashraf alias Achhu, appellant, is concerned, the trial Court maintained that he had already been convicted and sentenced during the trial of the first set of the accused, the judgment in respect whereof evidently was made and announced prior in time than the judgment of acquittal in the other case.

10. The three convicts, namely, Muhammad Ashraf, Irshad and Inayat preferred an appeal before the High Court, which was heard alongwith reference under section 374 Cr.P.C. Before the High Court, on behalf of the appellants, it was contended that the three eye‑witnesses being inimical, their evidence was tainted and required corroboration, which was lacking in this case; it was, therefore, not safe to rely upon their testimony. It was also stressed that Muhammad Saleem complainant was not present at the time of occurrence, otherwise he would not have been spared by the appellants, who were determined to do away with all the male members of the complainant's family. These contentions, however, did not weigh with the High Court, which took the view that Muhammad Saleem was present in the house when the occurrence took place; it was sheer good luck that he was saved; the fact that he survived would not necessarily lead to the conclusion that he did not witness the occurrence. The High Court maintained that the testimony of Muhammad Saleem and the two female witnesses was of such a character that it would be acted upon without corroboration and in any case the circumstances showed a. nexus between the appellants and the crime. In this view of the matter, in the opinion of the High Court, the motive and the medical evidence furnished corroboration. In this context, it was also noticed that the number of injuries on the dead bodies of the four victims indicated that more than one person participated in the occurrence. As a result of these findings, the appeal was dismissed on 16‑12‑1987, and the death sentence of Muhammad Ashraf and Inayat' confirmed. The conviction of Irshad under section 302 read with section 149, P.P.C., was not disturbed, but the death sentence awarded to him was altered to life imprisonment on the ground that at the time of occurrence he was hardly 18 years old, and the possibility that he committed the crime under the influence of his elders could not be ruled out.

11. It is obvious that Muhammad Ashraf appellant was arraigned twice before the Sessions Court. In the case commenced on the strength of F.I.R. lodged at the instance of Muhammad Saleem he was convicted and sentenced to death, but his other trial concluded in the pronouncement of judgment of acquittal . By reason of his dual trial, Mr. K.MA. Samdani, Advocate, has argued that the said appellant was vexed twice for one and the same offence which is violative of Constitutional guarantee provided by Article 13 (a) of the Constitution and also in contravention of section 403(1) of the Criminal Procedure Code. He contended that Article 13 (a) extends protection to an individual against the prosecution for the same offence and the possible conviction more than once. He submitted that double trial on the same accusation is against the Constitutional guarantee. Thus, it was urged that the trial of Muhammad Ashraf stood vitiated and his conviction and sentence were wholly illegal. However, on merits the learned counsel did not have much to stress and confined his submissions to the repetition of the argument that Muhammad Saleem P.W. was not present when the occurrence took place. The contention is that had he been present, he would not have survived at the hands of the assailants, who as reflected by their conduct, were bent upon doing away with all the male members of the complainant's family with whom they came across on the fateful night.

12. The rule that no one shall be vexed twice for the same offence has its roots in the ancient maxim "Nemo bis debet puniri pro uno delicto" which means that no one should be subjected to peril twice for the same offence. It is a fundamental rule of Criminal Law that no one should be exposed to hazards of punishment and convicted twice for one and the same offence. This doctrine is enshrined deeply in the legal system of the countries following Anglo American Jurisprudence. It is incorporated in one form or another in the statutory law, or as a Constitutional guarantee in tae Constitutions of the some of the countries. The rule is ingrained in the Fifth Constitutional Amendment to the American Constitution, which ordains that "no person shall be subjected for the same offence to be twice put in jeopardy for life or limb". In Halsbury's Laws of England (2nd Edn.), Vol. 9, pages 152‑153, para. 212, it is stated as under:‑‑ "The plea of `autrefois convict' or `autrefois acquit' avers that the defendant has been previously convicted or acquitted on a charge for the same offence as that in respect of which he is arraigned. The question for the jury on the issue is whether the defendant has previously been in jeopardy in respect. of the charge on which he is arraigned, for the rule of law is that a person must not be put in peril twice for the same offence. The test is whether the former offence and the offence now charged have the same ingredients in the sense that the facts constituting the one are sufficient to justify a conviction of the other, not that the facts relied on by the Crown are the same in the two trials. A plea of "autrefois acquit" is not proved unless it is shown that the verdict of acquittal of the previous charge necessarily involves an acquittal of the latter:' In our Constitution this rule is enacted in Article 13(a) which provides that: "No person shall be prosecuted or punished for the same offence more than once:" xxxxxxxxxxxxxxxxxxx It will be seen that the protection given by this Article is against prosecution and double punishment. By prosecution is meant a trial followed by judgment of acquittal or punishment. It includes the entire proceedings starting with taking cognizance of an offence by the Court, followed by examination of evidence, addressing of arguments and ending with the pronouncement of judgment. It seems to us that if as a result of prosecution for an offence the trial ends in acquittal, Article 13(a) is not attracted. Constitutional guarantee is available only if the accused is convicted and punished. Thus if the first prosecution results in acquittal, so far as this Article is concerned, the second prosecution is not prohibited. It is, however, open to the legislature to enlarge the scope of Constitutional guarantee and further extend the protection envisaged by Article 13 (a). Such extension of rule of double jeopardy is to be found in section 403 (1) of the Criminal Procedure Code, which is reproduced below:‑‑ "A person who has once been tried by Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while 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." It is to be noticed that the Constitutional guarantee is confined only to duplicate punishment and is silent in so far as acquittal is concerned. Section 403 (1) however prohibits the second trial for an offence during the course of existence of conviction or acquittal of a person, as the case may be, in consequence of final adjudication of such an offence by a Court of competent jurisdiction. Thus the rule against "autrefois acquit" finds place in section 403(1) and the counterpart of this rule "autrefois convict" has received recognition in the Constitutional guarantee embodied in Article 13(a).

13. In the light of these Constitutional and statutory provisions it needs to be examined as to whether the conviction of Muhammad Ashraf appellant and the death sentence awarded to him suffer from any illegality. As already observed that one trial ended in conviction and punishment and in the second case he was acquitted. When the two judgments are placed in juxtaposition it becomes evident chat the judgment of conviction in point of time was rendered first and shall hold the field. The appellant's subsequent acquittal cannot reflect upon his conviction and sentence awarded to him on the basis of the trial, founded on the F.I.R. lodged by Muhammad Saleem. Here a reference may also be made to section 26 of the General Clauses Act, which is reproduced below:‑‑ "Whether an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments but shall not be liable to be punished twice for the same offence:" It will thus appear that under section 26 of the General Clauses Act there is no bar on the simultaneous prosecution; what is prohibited is duplicate punishment and not the trial. In view of the foregoing analysis of the Constitutional and statutory provisions, the judgment impugned before us is neither violative of the fundamental right nor in contravention of section 403 (1), Cr.P.C.

14. The argument of the appellants' learned counsel, touching the merits of the case, has hardly any substance. In this behalf, in our opinion, there is much weight in the view taken by the High Court. Merely because Muhammad Saleem escaped does not necessarily lead to the inference that he is not an eye‑witness and has been introduced subsequently. This aspect of the case has been attended to by the High Court carefully, and we have not been persuaded to differ with the conclusion reached by it in this behalf. There is no merit in this appeal, which is hereby dismissed. M.B.A./M‑2258/S Appeal dismissed.