2002 PLP 561 (MLD)

Mr. Syed Madad Ali Shah learned counsel appearing as Amicus Curia has invited my attention to para No.9 of the Judgment passed in Special Anti‑Terrorism Appeal No.12 of 1998, wherein it was held that the trial Court viz. the Court of Special Judge Anti‑Terrorism Hyderabad and Mirpurkhas Division at Hyderabad had no jurisdiction to take cognizance of the matter and that the entire proceedings before him were coram non judice. Learned counsel has also invited my attention to para. No.7 of the judgment passed by the Division Bench of this Court in the above said appeal wherein while discussing the facts it was observed that the appellants, found guilty and were convicted and sentenced as above, whereas co‑accused Shahzad was acquitted. Learned counsel accordingly submitted that Honourable Judges were quite conscious of the fact that the present applicant was acquitted by the trial Court, and because of this reasons the learned Division Bench of this Court constituted for hearing the Special Anti‑Terrorism Appeal did not, set aside the entire judgment, but specifically set aside conviction meaning thereby that the acquittal of the applicant was not disturbed/ reversed. Mr. Madad Ali Shah has placed on record photostat copy of the Judgment passed by the Honourable Supreme Court of Pakistan in Criminal Petition No. 15‑K of 1999 on appeal from the judgment, dated 25‑2‑1999 of this Court in Special Anti‑Terrorism Appeal No. 12 1998 and has stated that the complainant Syed Akhlaque Hussain has challenged the said judgment passed by Division Bench of this Court before the Honourable Supreme Court but the leave in the matter was refused and as such the order passed by this Court was maintained. Learned counsel has contended that since no appeal was filed against the acquittal of the present applicant, therefore, his acquittal by the learned Special Court Anti ‑Terrorism had attained finality irrespective of the fact that the cognizance taken by the said Court was declared to be illegal and invalid and for this reason alone the case was remanded to be tried by the learned Sessions Judge, Hyderabad. He further contended that more particularly when the complainant has challenged the order of remand passed by Division Bench of this Court in the Supreme Court though the leave was refused, but the complainant had acquiesced in, in so for the acquittal of the present applicant was concerned because he did not challenge the said acquittal by filing a criminal acquittal appeal. Mr. Syed Madad Ali Shah learned amicus curiae placing his reliance on the case‑law of Honouable Supreme Court has urged that in the circumstances the re‑trial of the acquitted applicant was not warranted by the law. The learned counsel appearing for the State has supported the arguments rendered by the learned amicus curiae and was of the view that the re‑trial of the applicant was illegal. The point for consideration by this Court will be that since the appellant was tried and acquitted, and his acquittal having never been challenged whether his re‑trial was lawful in the circumstances. Similar point came to be considered by Honourable Supreme Court in the case of Muhammad Ali v. The State 1970 SCMR

189. In the above referred case, on the conclusion of trial two accused were convicted and sentenced to death while two co‑accused were acquitted by the trial Court. On appeal by the condemned Prisoners and reference under section 372, Cr.P.C. a Division Bench of the High Court set aside their conviction on the finding that the trial was bad in law. Consequently the case was remanded for retrial. The names of the acquitted persons were deleted from the list of accused persons in view of their acquittal. The petitioner felt aggrieved thereby and filed revision application in the High Court and pleaded that since the trial was set aside as a whole the acquittal of the accused person was also set aside and that they should be retried alongwith co‑accused. The petition' was rejected following the principle of autrefois acquit embodied in section 403, Cr.P.C. In the circumstances the Honorable Supreme Court was pleased to dismiss the petition for leave to appeal observing that since the acquitted accused persons were not even party to the proceedings before High Court and further that neither the State nor petitioner had moved High Court against their acquittal, the acquitted persons, therefore, could not be re‑tried on the same charges after the order of acquittal had become final. Honourable Supreme Court in the case of Noor Muhammad v. The State PLD 1977 SC 508, while hearing a criminal petition for special leave to appeal was pleased to observe that even on the view taken by the Courts below that it was a case under section 304(1), P.P.C., the acquittal of accused was wholly, unwarranted. Though it was observed in the above case, that the acquittal of the accused was untenable, yet no interference was made as there was no State Appeal against his acquittal. It was thus observed as under:‑‑ "Since, however, there is no petition before us challenging his acquittal, that seems to be the end of the matter so far as his case is concerned. But his acquittal on untenable ground would hardly furnish any justification to re‑examine the case of the petitioner who on the basis of the concurrent assessment of the Courts below was found guilty under section 304, Part I, P.P.C., though tried on charge of murder. There being no State Appeal against the acquittal of the petitioner from charge of murder or a revision for enhancement of sentence " Honourable Supreme Court in the case of Haji Muhammad Arshad v. Muhammad Fayyaz Ali and 9 others 1995 SCMR 241, while hearing a criminal petition for leave to appeal was pleased to observe as under:‑ "We find that the petitioner as well as State having not challenged the acquittal of the five respondents before the High Court through appeal or revision, the present petition against the acquittal to their extent is not maintainable. " Honourable Supreme Court in a case Shereen Begum and others v Namoon Iqbal and three others PLD 1993 SC 247 in similar circumstances was pleased to observe as under:‑‑ "This judgment was not challenged by the respondents side in any higher forum nor an attempt was made to move any other Court or forum for re‑examination of the findings rendered by the criminal Court in the aforementioned judgment of acquittal. The Constitution and the Code of Criminal Procedure read with General Clauses Act do not permit the re‑trial of an offence in which a person having once been tried as accused stands finally acquitted. The said judgment by the Magistrate having attained finality the same accused cannot be re‑tried for the same offence in the complaint case. Accordingly for this reason alone this appeal merits to be accepted. The same is allowed with result that the impugned judgment of the High Court remanding the case for fresh trial in accordance with the law is set aside." In the case of State through Advocate‑General, Sindh v. Inam Rehman Alvi 1991 MLD 1818, a Division Bench of this Court dealing with a case in the similar circumstances held that whereas the acquittal of the accused on factual merits cannot stand but his acquittal for want of jurisdiction cannot be interfered with. It was, thus held that it will not be conducive to the interest of equity and justice to direct the re‑trial of the accused person. So far as the facts of the present case are concerned, it is crystal clear that the applicant was tried by the learned Judge Special Anti -Terrorism Court and was acquitted. His acquittal was not challenged either by the State or by the complainant though in this particular case the complainant appears to be vigilant as he has challenged the order of remand passed in Special Anti‑Terrorism Appeal No. 12 of 1998 before the Honourable Supreme Court. He, however, did not come forward to challenge the acquittal of the present applicant tempts one to believe that the complainant was never aggrieved of his acquittal. While delivering the judgment the Division Bench of this Court being quite conscious of the factum of acquittal of the present applicant, deemed it fit to, just only set aside the conviction awarded to the appellants, but intentionally refrained from reversing the whole judgment. Even otherwise it does not appear to be conducive to send the present applicant for re‑trial in consequence of a judgment passed by a Division Bench of this Court, in which he was neither party before the Court nor he was heard before passing of the judgment. Though the order of Division Bench of this Court was challenged before the Honourable Supreme Court, yet the Honourable Supreme Court refused to grant leave. In view of the law laid down by the Honourable Supreme Court I have arrived at an irresistible conclusion that the re‑trial of the applicant before the learned Sessions Judge was patently illegal, the same being in derogation of fundamental rights guaranteed under the Constitution of Islamic Republic of Pakistan, and in flagrant violation of the provisions of Criminal Procedure Code and General Clauses Act. Since the re‑trial of the applicant was tantamount to the abuse of the process of law, it was a tit case for exercising the inherent jurisdiction of this Court to prevent the abuse and to secure the ends of justice. In the circumstances the proceedings against the applicant Shahzad in Sessions Case No.78 of 1999 St. v. Moinuddin and others, arising out of Crime No, 1.1 of 1998 Police Station "A" Section Latifabad Hyderabad are quashed. Before parting with this judgment I must express my sincere gratitude to Mr. Syed Madad Ali Shah who took relentless pain in searching the law and rendering valuable assistance in disposal of this matter. N. H. Q./S‑161/K Proceedings quashed.