P L D 1966 (W (PLP)

M. A. Manan for the State. Date of hearing : 2nd February 1966. The three petitioners along with one Habib Ullah, allegedly raided the house of one Captain Allah Dad on the night between 18th and 19th July 1961, and used fire‑arms and hand grenades, causing injuries to a lady and some animals. A case under section 307, P. P. C. was registered against the petitioners and Habib Ullah, who were tried by a Council‑of‑Elders, the Deputy Commissioner accepting the recommendation of the Jirga acquitted the three petitioners and convicted their co‑accused Habib Ullah, who was sentenced to ten years' R. I. It would be useful to reproduce the following observation of the Deputy Commissioner, made in this regard: "I have carefully considered the findings of the Council‑of Elders and have also examined the circumstances leading to this murderous assault. I agree with the Council that the case against Ghulam Akbar, Ata Ullah and Muhammad Iqbal accused is not proved. Ghulam Akbar accused is a very old man and has no motive to participate in such a crime when his previous record is unblemished. Similarly Ata Ullah and Muhammad Iqbal accused cannot be connected with this offence as they could not be identified even by Captain Allah Dad, the complainant. He has implicated them, merely on suspicion. These three accused are consequently acquitted." This order was passed by the Deputy Commissioner on 2nd January 1962. On 20th April 1962, a fresh challan against the petitioners and the aforesaid Habib Ullah under sections 4 and 5 of the Explosive Substances Act (VI of 1908) was prepared and they were sent up to stand their trial before Khan Muhammad Yusuf Khan, Magistrate First Class, Mianwali. The case of Habib Ullah the convict accused in the previous case under section 307, P. P. C. was separated from that of the petitioners. Taking the view that a second trial would be legally incompetent and hit by section 403, Cr. P. C. and that, it would be a sheer hardship to‑ the accused, if a fresh trial were allowed to proceed in these circumstances, the learned trial Magistrate discharged them under section 253, subsection (2) of the Code of. Criminal Procedure, vide his order dated 17th May 1963.

2. This order was successfully challenged in revision before the learned Sessions Judge, who took the view that the case clearly fell within the ambit of subsections (2) and (4) of section 403, Cr. P. C., and the offence under the Explosive Substances Act being a distinct offence, and, not being triable by the Council of Elders, the second trial could legally proceed under subsections (2) and (4) of section 403, Cr: P. C. He accordingly remanded the case for fresh trial according to law, vide his order dated 14th December 1963, giving rise to the present revision petition, under section 439 read with section 561‑A, Cr. P. C.

3. It was argued by the learned counsel for the petitioners in the first instance, that a fresh trial under sections 4‑and 5 of the Explosive Substances Act, was hit by section 25 of the West Pakistan General Clauses Act, 1956 which reads as follows: "

25. Provision as to offences punishable under two or more enactments. Where an act or omission constitutes an offence under two or more enactments, then 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." It was argued that the petitioners were sought to be tried one again for the same act. This argument of the learned counsel has obviously no substance as the allegation under sections 4 and 5 of the Explosive Substances Act relating to the keeping of an Explosive Substances or its possession per se constitute distinctly different act; amounting to an offence irrespective of the fact that such Explosive Substances might have been caused to be exploded in the course of an attack.

4. The legal position as discussed by the learned Sessions Judge and the view taken by him in his impugned order was frankly conceded by the learned counsel. It is thus clear that technically speaking there is no escape from the, position that a second trial under the Explosive Substances Act would be legal and competent. That finding is, therefore, upheld. However, there is another equally important aspect of the matters Section 4 of the Explosive Substances Act deals with and punishes an attempt to cause explosion or the making or keeping of explosive substance with an intention to endanger life and property. The succeeding section 5 of the Act punishes the making or possessing of explosives under suspicious circumstances. A perusal of the first information report, which is 'common to both the cases, that is the one under section 307, P. P. C. already decided, as well as the instant case under the Explosive Act, only alleges that two hand‑grenades were thrown by four persons including the three petitioners. There are no specific allegations against any one of the petitioners of either having possessed or used the hand‑grenades. In the course of the trial in the earlier case under section 307, P. P. C. Ata Ullah, Iqbal and Muhammad petitioners were not even identified by Allah Dad, the complainant in the case Ghulam Akbar petitioner was considered to be too old to have participated in such a crime. As would be clear from the relevant observation of the Deputy Commissioner reproduced earlier in the judgment, there was a definite finding that the petitioners were implicated merely on suspicion. They were acquitted as far back as the 2nd of January 1962. To allow a fresh trial of an offence allegedly committed as far back as July 1961, with not a ghost of chance of the trial ending in conviction, even though legally competent, would obviously amount to an abuse of the process of the Court, resulting in unnecessary expense and waste of time, besides harassment to the petitioners. I, therefore, allow the petition and lorded quashment of proceedings in the case. S. Q. Petition allowed.