1997 PLP 1672 (MLD)

(c) Criminal Procedure Code (V of 1898)‑‑‑ ‑‑‑‑S. 403‑‑‑Scope of S.403, Cr.P.C.‑‑‑Section 403, Cr.P.C. contemplates of a situation where a person having once been tried by a Court of competent jurisdiction and acquitted by such Court cannot be tried again for the same offence nor for any other offence based on similar facts. Muhammad Jahangir Khan for Petitioner. Aman Khan for the State. Date of hearing: 20th October, 1996. Shehryar son of Pehlwan lodged a report at Police Station Munda District Dir under section 447/34, P.P.C. against Bacha, Sameer, Hidayat Khan and Abdul Ghaffar. It was entered at Serial No. 94 at the Police Station on 8‑3‑1994.

2. During investigation the police, in its view, found the respondents innocent and so the respondents were released by the Assistant Commissioner, Jandool on 17‑7‑1994 under section 169, Cr.P.C. As a result of such release, proceedings under section 182, Cr.P.C. were taken up against Shehryar, the complainant.

3. On the other hand, the complainant on the same charge brought a private complaint under section 200, Cr.P.C. on 3‑8‑1994, which on 9‑3‑1995 was dismissed by Ilaqa Qazi Samar Bagh on the ground that on that very cause of action case lodged through F.I.R. had failed. Revision against the said order was also dismissed by the learned Additional Sessions Judge, Samar Bagh on 13‑7‑1995 who held the view that under section 403, Cr.P.C. it amounted to vexing the accused twice for the same offence. The petitioner has come up to this Court for quashment of such order being abuse of the process of Court.

4. It is a known principle of law as well as practice that criminal proceedings are mostly initiated under section 200, Cr.P.C. when a case filed' under F.I.R. is declared by the Investigating Agency to be unfounded. Remedy under section 200, Cr.P.C. is totally independent of what has already happened to police case lodged through F.I.R. The only difference is that in complaint case the complainant takes upon himself the responsibility of proving the case independent of the assistance sought from the police. The matter raised under section 200, Cr.P.C. being independent of the matter initiated through F.I.R., both the Courts below have failed to exercise the jurisdiction vested in them.

5. Section 403, Cr.P.C. contemplates of a situation where a person having once been tried by a Court of competent jurisdiction and acquitted by such Court, cannot be tried again for the same offence nor for any other offence based on similar facts. In the instant case the respondents were never tried under section 447, P.P.C. by any Court of competent jurisdiction. Rather, they were released under section 169, Cr.P.C., much before the taking of cognizance of the offence by the Court of competent jurisdiction. Thus, the circumstances never at all attracted the provisions of double jeopardy as laid down by section 403, Cr.P.C.

6. The petition is accepted and the orders dated 9‑3‑1995 of Ilaqa Qazi Samar Bagh and 13‑7‑1995 of the learned Additional Sessions Judge, Samar Bagh are set aside with direction to the Ilaqa Qazi to take cognizance and to proceed with the private complaint filed by the petitioner Shehryar under section 200, Cr.P.C. Parties are directed to appear before Ilaqa Qazi Samar Bagh on 27‑11‑1996. N.H.Q./2070/P Petition accepted.