P L D 1967 Lahore 186 (PLP)

2. Brief facts of the case .are that one Hakim Muzaffar, Hussain made a report at Police Station Sadar Montgomery on the 1st of October. 1964, alleging therein that strangers would visit the house of the petitioners, take wine and commit sexual intercourses and that the petitioners were living on the earning of prostitution and, as such, were running a brothel house in the area. Ch. Muhammad Shafi Saleem, Sub‑Inspector of Police, lodged a complaint Exh. P. A. under section 6 of the Ordinance in the Court of the Additional District Magistrate, Montgomery; against Mst. Ramzan Bibi petitioner. Learned Additional District Magistrate, on a preliminary objection raised by the defence, found that the offences under the Ordinance were non‑cognizable, and that as no non‑cognizable case could be investigated by a police officer without the order of a Magistrate as required under section 155 (2), Criminal Procedure Code, and there being no order of any Magistrate for the investigation of the present case, the trial before him would be illegal. Learned Additional District Magistrate, therefore, did not proceed to record evidence ‑and discharged Mst. Ramzan Bibi petitioner by his order dated the 17th of September 1964.

3. Presumably after getting the order of the Magistrate for the investigation of the case on the basis of the same report. Ch. Muhammad Shafi Saleem submitted another complaint in the Court of the Additional District Magistrate, wherein both Mst. Ramzan Bibi and her daughter, Mst. Harridan Bibi, were arraigned to face their trial under section 3 of the Ordinance. Learned Additional District Magistrate recorded evidence of the prosecution and' the ‑ defence and eventually came to the con clusion that the evidence on the file was evenly balanced and that the case against the petitioners was extremely doubtful. He; therefore, acquitted the petitioners by his order dated the 26th of February 1965, giving them the benefit of doubt.

4. During the pendency of the latter complaint case, which ‑resulted in the acquittal, of the petitioners on the 26th of February 1965, the aforesaid Hakim Muzaffar Hussain lodged yet another complaint against the petitioners under sections 3, 4 and 6 of the Ordinance, and it was entrusted for disposal to Ch: Fateh Muhammad, Magistrate 1st Class, Montgomery. To these pro ceedings a legal objection, obviously based on the principle of autre fois acquit contained in section 403 of the. Code of Criminal Procedure, was raised on behalf of the petitioners, and it was urged that the petitioners having been tried for, and acquitted of, an offence under section 3 of the Ordinance by a Court of competent jurisdiction and their acquittal having not been set aside, were not liable to be tried again on the same and identical facts stated in the fresh complaint of Hakim Muzaffar Hussain. Learned Magistrate did not agree and decided to proceed with the case, on the ground that the petitioners were not only being tried under section 3 of the Ordinance but also under sections 4 and 6 of the Ordinance and, therefore, section 403 of the Code of Criminal Procedure had no application. Aggrieved by this order of the learned Magistrate, which is dated the 31st of May 1965, the petitioners have, by this petition, sought the quashing of the proceedings pending against them in the Court of Ch. Fateh Muhammad, Magistrate 1st Class, Montgomery.

5. Learned counsel appearing on behalf of the petitioners has contended that (i) The Magistrate should not have entertained a fresh complaint on the same and identical facts which were previously known to the complainant and the evidence is also the same; and (ii) The Magistrate acquitted the petitioners under section 3 of the Ordinance but, in spite of the fact that it was within his powers to convict the petitioners under sections 4 and 6 of the Ordinance at the conclusion of the previous trial if there was satisfactory material on the record in view of the provisions contained in section 256, Criminal Procedure Code, he did not convict the petitioners under those two sections. This means that the petitioners were acquitted also of the offences under sections 4 and 6 of the Ordinance and the second trial of the petitioners for those offences is barred by law. Mr. H, A. Rahman, the learned counsel for the complainant, on the other hand, argues that the case of the petitioners is covered by section 403(4) of the Code of Criminal Procedure as they are being tried for distinct offences. According to him, the present trial of the petitioners is perfectly valid in the eye of law.

6. I have given my anxious consideration to the respective contention raised by the learned counsel for the parties, and I think that the contentions of the learned counsel for the petitioners have substance and must prevail. From the record of the case that has been placed' before me it would, seen that the allegations both in the present and the previous proceedings in substance are the same and appear to have been made in an endeavour to erase the effect of the previous acquittal of the petitioners. It is a well‑settled principle of law that no person will be tried for an offence on the same set of facts on which he has already been acquitted or convicted. On a reference to the judgment of the learned Additional District Magistrate, who acquitted the petitioners at the conclusion of the previous trial, I find that the present proceedings should not have been allowed to proceed. Learned Additional District Magistrate went very carefully into the case, exhaustively dealt with the evidence on the record, considered the probabilities of the case for and against the petitioners and came to the conclusion that the culpability of the petitioners had not been established beyond a reasonable doubt. No doubt the petitioners were tried for, and acquitted of, the offence under section 3 of the Ordinance at the conclusion of the previous trial, but the facts upon which the complainant has founded his present complaint against the petitioners under sections 4 and 6 of the Ordinance are absolutely inseparable from the facts upon which the previous case proceeded and the evidence which the complainant now wants to lead was available to him at the time of the first trial and the petitioners could be tried by the learned Additional District Magistrate for the offences B under sections 4 and .6 of the Ordinance. He seems to me to have omitted to consider the provisions of section 236 of the Code of Criminal Procedure which permit, the joinder and trial of charges of connected offences of similar nature. In this view of the matter, I am of opinion that the provisions of section 403(1) of the Code of Criminal Procedure are aptly applicable to the facts of the present case, and it is not legal to try the petitioners even under sections 4 and 6 of the Ordinance on the same facts which were the subject‑matter of the previous trial. In arriving at this conclusion, i am fortified also by the observations of my learned brother Anwarul Haq, J. made in Muhammad Ikram v. State (P L D 1965 Lah. 461). The relevant portion is to the following effect:‑ "After a careful consideration of the authorities I find myself in respectful agreement with the view that in cases of acquittal where section 403, Cr. P. C., does not apply in terms, the principle embodied in the section may be properly invoked in order to meet the ends of justice. When a person has been tried on certain charges and acquitted, it will be clearly unjust and highly oppressive and amount to an abuse of the process of the Court to permit his repeated prosecution on identical evidence in respect of identical charges, even though relating to different items. While the interest of the community at large is no doubt paramount, it is also the duty of the High Court to ensure that the process of the Court is not used in a manner oppressive to the individual citizen. It is clear, that the subsequent prosecution cannot but result in acquittal. I consider, therefore, that the subsequent trial on identical evidence and in regard to identical charges should not be allowed against those accused who have been acquitted by a competent Court in an earlier trial."

7. For the aforesaid reasons, it is clear to me that the proceedings against the petitioners are abuse of the process of the Court and are hereby quashed.

8. Before parting with this order, I wish to remind the Courts below that is their duty to save the persons from un necessary harassment. In the instant case it was not desirable or proper to allow the prosecution of the petitioners for the second time as the complainant had, at the time of the earlier trial, knowledge of the facts upon which he founded the latter complaint. K. M. A. Petition accepted.