P L D 1985 Supreme Court 335 (PLP)

NASIM HASAN SHAH, J.-This petition is directed against the judgment of a Division Bench of the High Court of Baluchistan, Quetta dated 2U-3-1984 dismissing the Constitutional Petition (C. P. No. 51 of 1983) preferred by the petitioner. The facts. which form the background, are stated to be that on 13-7-1979 one Allah Bakhsh son of Gajan alongwith his elder brother Maula Bakhsh and cousin Muhammad Essa were proceeding from Shahani towards Kosh Kalat on a motor-cycle when they were stopped near Nok Band by two persons at about 10-20 p.m. who were riding on another motor-cycle. One of them caught hold of Maula Bakhsh and told him to leave the motor-cycle. Maula Bakhsh after stopping the motor-cycle started grappling with one of these persons, namely, Muhammad Noor, the petitioner herein. During the scurHe the petitioner pulled out his pistol and shot at Maula Bakhsh, who fell down. However, during the scufe, the pistol of Muhammad Noor fell down. The petitioner and his accomplice Dil Murad, however, were able to make good their escape on their motor-cycle. Maula Bakhsh, however, succumbed to the injuries received by him on account of the pistol shot fired by the petitioner at him. After the usual investigation the police submitted a challan on 15-10-1981. This was placed before the Tribunal constituted under the Criminal Law (Special Provisions) Ordinance 11 of 1968. Since Dil Murad accused had absconded, the present petitioner alone was tried for the offence under section 302, P. P. C. It appears that the police also submitted another challan in the Court of the Additional Sessions Judge, Turbat, for trial under section 393, P. P. C. and the Offence against the Property (Enforcement of Hudood)B Ordinance (VI of 1979) for attempting robbery. No action has been taken on the aforesaid challan. In the meanwhile, the Tribunal constituted under the Criminal Law (Special Provisions) Ordinance 11 of 1968 proceeded to try the petitioner for the offence under section 302, P. P. C. without any objection from him that be could not be so tried on account of the submission of the ohallan against him under the provisions of the Hudood Ordinance. The Tribunal after making an inquiry found the petitioner guilty of the charge of murder and forwarded its finding to the Deputy Commissioner Turbat who sentenced him to 14 years' R. 1. and awarded a fine of Rs. 15,000 vide order dated 3-10-1982. An appeal against the above order was preferred before the Commissioner, Makran Division, as also a reference was made to him for confirmation of sentence. The Commissioner accepted the reference and dismissed the appeal preferred by the petitioner by his -order dated 4-12-1982. The petitioner then filed a revision petition in the Court of the Member, Board of Revenue. This was dismissed by him on 1-11-1983. The petitioner thereupon filed a constitutional Petition (C. P. No. 51 of 1983) before the High Court. Before the High Court it was submitted that the nature of the offence committed by the petitioner fell under the definition of "Haraabah" as given in section 15 of the Offence against the Property (Enforcement of Hudood) Ordinance (VI of 1979) ; therefore, the trial of the petitioner under Ordinance 11 of 1968 was bad in law because the petitioner could only be tried under the provisions of section 17(4) of Ordinance VI of 1979. In this connection, it was submitted that in so far as section 3 of the Ordinance VI of 1979 had overriding effect its provisions were to be given effect to notwithstanding anything contained in section 302 of the Penal Code. The learned Judges in the High Court observed that the trial under Ordinance VI of 1979 has not started so far and the petitioner not found guilty of Haraabah nor convicted for the commission of the said offence. The petitioner has only been tried for committing the murder of the deceased Maula Bakhsh under the Penal Code and no objection can be taken to the aforesaid conviction. The High Court, no doubt, further observed that it would have been appropriate for the State to have proceeded against the petitioner under Hudood Ordinance, if such challan had indeed been submitted ; but went on to add that this did not m,-an that the trial of the petitioner must be set-aside simply on the ground that another case on the same cause of action is pending against him. It was also observed that under section 17(4) of Ordinance VI of 1979 the punishment provided is death whereas in the instant case the petitioner was sentenced to 14 years' R.

1. In case he was tried under Ordinance VI of 1979 and convicted for the offence of haraabah then the present sentence would be merged in that sentence. In case, the petitioner was acquitted of the said charge the present conviction and sentence has to be maintained for the simple reason that the tribunals of the competent jurisdiction have held him guilty for committing the murder of Maula Bakhsh. He may be acquitted for the charge of commiting theft, but he cannot be absolved if it was established that he had committed the murder. The High Court further observed that the petitioner bad been found guilty by the tribunals below on the assessment of the evidence. It was, therefore, not a fit case for interference in the writ/jurisdiction of the High Court. In support of this petition before us it is submitted that the prosecution has submitted two separate challans against the petitioner ; one before the Additional Sessions Judge, Turbat, under the provisions of section 17 of the Offence against Property (Enforcement of Hadd) Ordinance, 1979 and the second under the provisions of section 302/34, P. P. C. before the functionaries .acting under the provisions of Criminal Law (Special Provisions) Ordina ce 11 of 1968 and because under the provisions of section 3 of the Offence against the Property (Enforcement of Hudood) Ordinance (VI of 1979), the offences falling under the definition of Haraabah are exclusively triable by Sessions Judge, the functionaries acting under the provisions of Criminal Law (Special Provisions) Ordinance II of 1968 had no jurisdiction and lawful authority to try such offences. We observe that the punishment for haraabah under section 17 of Ordinance VI of 1979 is contained in subsection (4) of the said section, which reads : "(4) Whoever, being an adult, is guilty of haraabah in the course of which he commits murder shall be punished with death imposed as hadd." The definition of haraabah is given in section 15 which reads as under : "

15. Definition of haraabah.-When any one or more persons, whether equipped with arms or not, make show of force for the purpose of taking away the property of another and attack him or cause wrongful restraint or put him in fear of death or hurt ; such person or persons are said to commit haraabah." And according to section 16 "the provisions of section 7 shall apply mutatb mutandis, for the proof of harrabah." Section 7 is in the following terms: "

7. The proof of theft liable to hadd.-The proof of theft liable to hadd shall be in one of the following forms, namely : (a) the accused pleads guilty of the commission of theft liable to hadd ;and (b) at least two Muslim adult male witnesses, other than the victim of the theft, about whom the Court is satisfied, having regard to the requirement of tazkiya Al-,)huhood, that they are truthful persons and abstain from major sins (Kobair), given evidence as eye-witnesses of the occurrence Provided that, if the accused is a non-Muslim, the eye-witnesses may be non-Muslim Provided further that the statement of the victim of the theft or the person authorized by him shall be recorded before the statements of the eye-witnesses are recorded Explanation.-In this section, tazkiya Al-shuhood means the mode of inquiry adopted by a Court to satisfy itself as to the credibility of a witness." 1t appears that the prosecution was not sanguine that it could, in view of the above strict provisions for proof of theft, prove a case o Haraabah under the Hudood Ordinance and has, therefore, not taken any? step for proceeding with the challan submitted under section 17 of Ordinance VI of 1979 before the Additional Sessions Judge.. In the meanwhile, the petitioner has been tried under section 302, P. P. C. under the provisions of the Criminal Law (Special Provisions) Ordinance II of 1968, convicted and sentenced. This conviction and sentence is not per se void and coram non Judice. It is only where some order is passed under the provisions of Ordinance VI of 1979 then notwithstanding anything contained in any other law for the time being in force, the said order would prevail and supersede the order passed under the other law. In this case there are no two inconsistent orders passed under different laws. Hence section 3 of the Ordinance VI of 1979 is not attracted and the occasion of considering its effect on an order passed under any other law does not arise. The apprehension that in case the conviction of the petitioner under the Penal Code is not quashed he is liable to be punished twice for the same act, is, in our opinion, somewhat premature. In any case, in Syed Alamdar Hussain Shah v. Abdul Baseer Qureshf and others (P L D 1978 S C 121), where the question of protection against double punishment as provided under Article 13 of the 1973-Constitution was being considered, some observations were made which are also relevant in the present context. It was, inter alia, observed : "Under the provision of section 403, Cr. P. C. a person who has once been tried by a competent Court for as offence and convicted or acquitted of such offence, shall while such conviction or acquittal remains in force not be liable to be tried again for the same offence nor on the same facts 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, P. P. C." The same principle is laid down in section 26 of the General Clauses Act which provides that if an act or omission constitutes offence/offences under two or more enactments, then the offender though can be prosecuted under either or any of those enactments, but cannot be punished twice for the same offence. We think that if the offence of murder committed by the petitioner f was punishable both under the provisions of Ordinance Vl of 1979 andJ also finder section 302, P. P. C. the prosecution should have proceeded E against him under the provisions of Ordinance VI of 1979, but having elected to try him under section 302, P. P. C. it cannot now fall back on the provisions of the Hudood Ordinance for seeking conviction of offence of murder on the same facts, under the said Ordinance. The upshot is that no ground for interference in the judgment of the High Court is made out and this petition is dismissed hereby. M. A.Z.??????????????????????????????????? ? Petition dismissed,