2001 PLP 802 (MLD)

PLD 1999 Karachi 336 (Mark Mifsud Mrs. Rosemarie Maley's case).

2. Learned counsel for the respondent submits that petitioner was given benefit of the judgment dated 30‑7‑1998 by the learned Additional Sessions Judge. He further submits that the petitioner was acquitted on technical ground on the basis of concessional statement of Deputy Director of the respondents. He further submits that agreement/rent deed executed by the owner of the property with the petitioner or petitioner's sisters concern in violation of section 38 of the Lahore Development Act. Therefore, principle embodied in section 403, Cr.P.C. and Article 13 of the Constitution is not attracted. He further submit that case of the petitioner falls under Explanation of section 403 and the respondent is well within his right to file complaint against the petitioner as the offence committed by the petitioner is continuing offence.

3. I have given my anxious consideration to the contention of the learned counsel for the parties and perused the record myself. It is better and appropriate to give facts in chronological order and reproduce. Article 13 of the Constitution and section 403, Cr.P.C. and section 38 of LDA Act, 1975 to resolve the controversy between the parties:‑‑ (i) Rent deed was executed between the owner of the property Mr. Nasir Iqbal and M/s AES Pakistan on 30‑8‑1993 with clause (9) which reveals that owner of the property is responsible to pay the taxes and in case the tenant is made to pay any tax relating to the property in question, the same be adjusted from the rent payable. (ii) Respondent filed complaint before Special Magistrate LAD' under section 38 of LDA Act, 1975. (iii) Petitioner filed application under section 249‑A, Cr.P.C. which was accepted vide order 30‑7‑1998. (iv) Respondent filed complaint against the petitioner. (v) Petitioner filed application under section 403, Cr.P.C. on 30‑6‑1999 before the Special Magistrate who dismissed the same vide order, dated 28‑9‑2000. (vi) Petitioner filed revision petition before the Additional Sessions Judge who dismissed the same vide order, dated 1‑11‑2000. Article

13. Protection against double punishment and self‑incrimination‑‑‑No person‑‑ (a) shall be prosecuted or punished for the same offence more than once; or (b) shall, when accused of an offence, be compelled to be a witness against himself. Section 403, Cr.P.C. Person once convicted or acquitted not to be tried for same offence.‑‑‑(1) A person who has once been tried by the Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not a liable to be tried again for the same offence nor on the same fact 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 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 consequence 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 consequence 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 act 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 stoppoing of proceedings under 249 (or the discharge of the accused) is not an acquittal for the purposes of this section. Section 38 of LDA Act. Any conversion of property to a different use or purpose than the one provided under a scheme, by a person or agency, without the previous approval of the Authority in writing, shall be punishable with a fine which may extend to rupees five hundred per day from the date of its conversion till the default continues, or with imprisonment for a term which may extend to one year, or with both. The aforesaid section 38 clearly reveals that legislator has used the word person or agency. Therefore, the terms "person" means and includes the person in occupation and according to the General Clauses Act person shall include a corporation or any company or association of individuals whether the incorporated or not. It is settled principle of law that a Judge must wear all the laws of the Country on the sleev of his robe as per principle laid down by the Hon'ble Supreme Court in Muhammad Sarwar's case (OLD 1969 SC 278). The rent deed executed between the petitioner's sisters concerned with the aforesaid clause does not debar the respondent to file a complaint against the petitioner under section 38 of the LDA Act. This fact was not noted by the Special Magistrate in its judgment dated 30‑7‑1998. This fact brings the aforesaid judgment of the learned Magistrate that the judgment is void. It is settled principle of law that Article 13 is not attracted where previous prosecution or punishment is null and void or abortive. In arriving to this E conclusion I am fortified by the following judgment:‑‑ AIR 1957 SC 494 (Maqbool's case) It is also settled principle of law that clause (a) of Article 13 has no. application in case of continuing offences. If a person is prosecuted for having committed an offence during a particular period, there is no bar by prosecuting him again for committing a similar offence on some other date, and clause (A) of Article 13 will not be attracted. In arriving to this conclusion I am fortified by the reported judgment AIR 1965 Allahabad 160 (Kirpa Ram's case). As far as the question of double punishment is concerned does not attract to the facts of this case. Petitioner filed an application under section 249‑A, Cr.P.C. which was accepted by the learned Magistrate without adverting to section 38 of the LDA Act. Even if the word acquittal is used, it would not make any difference because neither the offence was assessed nor discussed. Had the learned Magistrate passed the impugned order after recording the entire evidence, the complexion might have changed. The judgments cited by the learned counsel for the petitioner are not attracted as in the cited cases there was no continuing offence committed by the accused person whereas in the present case it is a continuing offence as is evident by the learned Sessions Judge in its order and has given benefit of the order of the learned Magistrate dated 30‑7‑1998 as is evident from para. 7 of the impugned judgment of the Additional Sessions Judge. Explanation of section 403 was not noted in the cited judgments. The order of acquittal was not void in the cited cases whereas in the present case as mentioned above order dated 30‑7‑1998 was void. After going through the order impugned I find cogent reasons have been given by the learned Additional Sessions Judge to which no exception can be taken. Resultantly, Criminal Miscellaneous No.2529‑M of 2000 fails which is accordingly dismissed. N.H.Q./A‑173/L Petition dismissed.