P L D 2004 Lahore 591 (PLP)

(i) that the registration of case by the police was an attempt to distort the facts of the occurrence; (ii) that respondent No.4, by disputing the veracity of F.I.R, had levelled serious allegations against the complainant of the F.I.R, and other police officials. Evidence was led during judicial inquiry to prove that the police killed the deceased who were already in their custody; (iii) that dissatisfied with the conduct of local police, respondent No.4 filed W. P. No. 16735 of 2002 and it was in compliance to the observation made by this Court in the said petition that the District Police Officer assured that the action would be taken in the light of the final inquiry; (iv) that so far as her version is concerned neither any case was earlier registered nor anybody was tried. The registration of second F.I.R with a different version with regard to the same occurrence would neither be a bar nor would it attract the provisions of section 403, Cr.P.C.

4. Heard.

5. In seeking quashment of the order of the learned District & Sessions Judge directing registration of a criminal case, learned counsel has primarily relied upon the mandate of section 403 Cr.P.C. This provision of law is based on the Latin maxim nemo debet bis vexari pro eadem causa (no person should be twice disturbed for the same cause) which led to the development of two common law principles of equity, namely, autre fois acquit (acquitted formally) and autre fois convict (convicted formally). Section 403, Cr.P.C., reads 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,or section 188 of this Code. Explanation.--The dismissal of a complaint, the stopping of proceedings under section 249 or the discharge of the accused is not an acquittal for the purposes of this section. "

6. A careful reading of the afore-referred provision would suggest that basically following pre-conditions are required to attract S.403. Cr.P.C:-- (i) there must have been earlier trial of the accused seeking protection against second trial for the offence charged; (ii) the facts alleged in the earlier trial were the same sought to be proved in the second prosecution/trial; (iii) the trial must have been conducted by a Court of competent jurisdiction; and (iv) the trial must have ended in a judgment of conviction or acquittal. If accused is not the same, the charge is not the same and the facts alleged are distinguishable, then the protection of section 403, Cr.P.C cannot be extended and it cannot be contended that the second trial amounts to double jeopardy. The ambit and import of the afore-referred provision has been subject of judicial comment. In Muhammad Ikram and others v. The State (PLD 1965 WP Lahore 461), after a survey of the precedent case law on this issue, this Court, at page 467, held as under:-- "

11. A perusal of the authorities referred to at Bar as well as of the clear language employed in the various subsection of section 403, Cr.P.C., leaves no doubt that this section has no application to a case where the subsequent offence for which the accused is being tried subsequently did not form part of the offence alleged at the previous trial; nor is this section attracted to a case in which the subsequent offence is not, in any manner, connected with the facts alleged at the earlier trial. Apart from the offence for which the accused may have already been tried and convicted or acquitted at the previous trial, the protection contained in subsection (1) of section 403, Cr.P.C, extends, to an offence for which a charge different from the previous trial might have been made on the same facts under section 236, Cr.P.C; and also in respect of an, offence for which he might have been convicted at the previous trial under section 237, Cr.P.C. but the protection clearly does not extend to those offences which are completely distinct or those which arise out of facts not at all alleged at the previous trial. A distinction has to be made here between same and similar facts. The bar against a fresh trial does not extend to similar facts." The afore-referred view was expressed, approved and reiterated by the august Supreme Court of Pakistan in Ch. Tanveer Khan v. Chairman, National Accountability Bureau and others PLD 2002 SC 572, wherein, at page 579, the apex Court observed as under:- " ... ... ...It may be noted that to attract the provisions of section 403, Cr.P.C., the law givers have laid stress on the word "same offence" for the purpose of debarring second trial of an accused person who has been once convicted or acquitted from an offence charged against him. Apart from the offence for which the accused may have already been tried and convicted or acquitted at the previous trial, the protection contained in subsection (1) of section 403 extends to an offence for which a charge different from the one made against the accused at the previous trial might have-been made on the same facts under section 236, Cr.P.C and also in respect of an offence for which he might have been convicted at the previous trial under section 237, Cr.P.C, but the protection clearly does not extend to those facts not at all alleged at the previous trial ."

7. Coming to the facts of the instant case, admittedly, three persons died in the occurrence and the case was registered not under section 302, P.P.C (vide F.I.R No.181 of 2001 dated 3-9-2001, under sections 324/353/216/171/420/411, P.P.C, 7/21/91 S.A., 5/6 Explosive Act and 6/7 of ATA, 1997, Police Station Saddar Sangla Hill, Sheikhupura). Two persons were tried, namely, Mehboob Ahmad and Ijaz Ahmad and the learned trial Court vide its judgment dated 11-12-2002 held as under:- " .. The fact that two notorious outlaws were killed in police encounter at the spot would show that the accused had been harbouring them by providing living shelters and food etc ......... The stance of the accused that the said two outlaws were brought by the police, is not supported by any evidence " Petitioner was complainant. He was therefore, not tried. Thus no question of double jeopardy. None of the afore-referred accused were charged under section 302, P.P.C for the murder of those killed in the said occurrence as there was neither allegation nor charge against them to that effect. The finding of the learned trial Court was as follows:-- " ... ... ... ...All the P.Ws stated that exchange of firing remained brewing up non-stop till the next evening when exchange was shelved on account of stormy wind, and drizzling in the area." This judgment, in any case, has been set aside by a learned Judge in Chambers vide judgment dated 21-7-2003 passed in Criminal Appeal No.964 of 2003.

8. The facts alleged in the case sought to be registered on the statement of respondent No.4, are distinct. She had filed Writ Petition No.16735 of 2002 seeking registration of a criminal case against the petitioner Police 'Inspector and others on the allegations; inter alia, that the police encounter was fake, that her brother was killed by the police; that the police be directed to transfer investigation and that the trial in the case registered (vide F.I:R No.181 of 2001 dated 3-9-2001, under section 324/353/216/171/420/411 P.P,C, 7/21/91 S.A., 5/6 Explosive Act and 6/7 of ATA, 1997, Police Station Saddar Sangla Hill, Sheikhupura), be stayed till the final disposal of the writ petition. The said writ petition was disposed of by a learned Division Bench of this Court vide order dated 2-1-2002 with a direction to the concerned Magistrate conducting Inquiry, to conclude the same within sixty days. The said inquiry was completed within the stipulated period a copy of which has been annexed with this petition in which the learned Magistrate, at page 14 of the Inquiry Report, found as under:- "According to the statement of wife and brothers of Faiz Rasul alias Billi DSP CIA, Arshad Latif and other officials entered into the house of Faiz Rasul at 5.00 a.m. They took Faiz Rasul and his brothers, Fawad Ahmad and Shahzad Ahmad into custody and were made to sit under banyon trees. Two persons, namely, Waheed and Ilyas who were already in custody of police were killed in police custody and subsequently Faiz Rasul was killed by Arshad Latif and Gbulam Qasim Niazi .......... The facts alleged were never an issue in the earlier trial, murder charge was never framed for the murder of three persons killed in the occurrence and the petitioner and none of the persons, who are sought to be made an accused in the complaint filed by respondent No.4, were ever tried in the earlier case, for the murder of afore-referred persons and the evidence sought to be produced by respondent No.4 in the complaint, is also different. The principles of autre fois acquit or autre fois convict, in the afore-referred circumstances, ate not attracted. The order impugned dated 10-4-2003 passed by the learned District & Sessions Judge Sheikhupura is neither illegal nor does it reflect any jurisdictional defect to call for interference in the Constitutional jurisdiction of this Court. This petition, having no merit, hereby dismissed. M.H./M-255/L Petition dismissed.