1989 PLP 2649 (MLD)

Mr. Zaheer Qureshi, learned counsel appearing for the State has contended that the order passed by Juvenile Court was illegal inasmuch as the offence was under section 12 of the Zina (Enforcement of Hudood) Ordinance, and therefore, the case was exclusively triable by the Court of Session. Mr. Nawaz A. Jajja, learned counsel appearing for the complainant has adopted the contentions raised by Mr. Zaheer Qureshi, leaned counsel appearing for the State. The learned counsel for both the parties have also produced certain decisions in support of their contentions. In view of the order which I propose to pass in this application, it is not necessary to refer to the contentions raised by the learned counsel and the decisions relied upon by them inasmuch as this application can be decided only on legal grounds. It is an admitted position that initially when the case was challaned before a Magistrate, he had sent up the same to the Court of Session, but the learned Additional Sessions Judge, who was pleased to send the same back to the learned Additional Civil Magistrate Juvenile Court No.X (South) Karachi. It is also admitted position that no objection was raised to the trial before Juvenile Court by the prosecution and the entire evidence was produced before the learned Magistrate. After recording the entire evidence, since the applicant was a juvenile offender he was sent to Remand Home. for one month. From the above narration of facts it is clear that the applicant had undergone trial under section 377, P.P.C. The offence under section 12 of Zina (Enforcement of Hudood) Ordinance, 1979 is also in respect of the same offence. In order to appreciate the legal position with regard to second trial it will be appropriate to refer the Article 13 of the Constitution of Islamic Republic of Pakistan, which reads as follows:- "NO PERSON: (a)??????? shall be prosecuted or punished for the same offence more than once. (b)??????? shall, when accused of offence, be compelled to be a witness against himself." In this connection it will also be appropriate to refer section 27 of Sind General Clauses Act, which reads as follows:- "PROVISION AS TO OFFENCE PUNISHABLE UNDER TWO OR MORE ENACTMENTS: Where an act or omission constitutes an offence under two or more enactments, 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:' In the case of Muhammad Ayub v. The Chairman, Electricity Board, WAPDA, Peshawar and another P L D 1987 SC 195 interpreting Article 13 of the Constitution of the Islamic Republic of Pakistan; their Lordships of the Supreme Court were pleased to observe that:- "The important words in the above provision are `the same offence'. The word `offence' while sometimes used in various senses, here implies a crime infringing public as distinguished from mere private rights and is punishable under the criminal law." It was further observed that:- "What this provision bars as observed earlier is a fresh trial and punishment for the same offence and not infliction of a penalty as a result of departmental proceedings." In view of the above factual as well as legal position, it is clear that once the applicant was tried under section 377, P.P.C. before the Juvenile Court and was sent to the Remand Home at the conclusion of the trial, he cannot be retired for the same offence although under different statute. I am, therefore, of the considered view that the learned Sessions Judge has erred in ordering retrial for the same charge, and therefore, the same is hereby set aside. H.B.T./H-144/K Application accepted.