1971 P Cr (PLP)

Ahmad Bakhsh petitioner is being prosecuted, along with certain others, for offences under sections 420/468/471, 465/408, P. P. C., before the learned Special Judge, Multan. A complaint under section 11 of the West Pakistan Co‑operative Societies and Co‑operative Banks (Repayment of Loans) Ordinance, 1966 has also been lodged before a learned Magistrate at Vehari. As a result of this complaint, the petitioner has been summoned to stand trial under section 10 of the Ordinance. He has filed this petition under section 561‑A, Cr. P. C., calling in the question the pendency of the two proceedings before two different Courts on the grounds :‑ (a) that "two decisions by the different Courts on the same facts and evidence will be against the considered policy of law". (para. 10 of the petition). (b) that "defending the cases in two different Courts at two different dates entails unnecessary expense of time and money apart from causing mental agony to the petitioner". (para. 11 of the petition). The prayer in the petition is that the proceedings instituted on the complaint filed under section 11 read with section 10 of the Ordinance be quashed, or the two cases be consolidated under section 526, Cr. P. C., or the proceedings before the learned Magistrate be stayed till the decision by the learned Special Judge.

2. The prayer with regard to consolidation of the two cases has not been pressed, presumably because it is not possible under the law. The learned counsel has, however, urged that the proceed ings before the learned Magistrate be quashed and that the petitioner is willing to stand trial before the learned Special Judge.

3. Learned counsel for the petitioner has taken me through the F. I. R., which is the basis of the challan submitted before the learned Special Judge, though a copy of the challan has not been produced. He has also read the complaint which has been filed before the learned Magistrate. I have gone through, the facts as mentioned in the petition. The main allegation against the petitioner (as contained in the F. I. R.,) before the learned Special Judge is that he, acting as Treasurer of the Co‑operative Thrift and Credit Society at Chah Maulviwala, village Luddan, Tehsil Vehari, withdrew two amounts of Rs. 7,000 and Rs. 14,000 from Central Co‑operative Bank, Khanewal for the ostensible purpose of use by the said Society, but instead of putting the amount to legal use "he misused the whole amount in personal affairs showing fictitious loan in the name of fictitious members, with the conni vance and abetment of . . . . . ". The main allegation before the learned Magistrate (contained in the complaint) is that the petitioner having been treated as a borrower under the Ordinance by the Assistant Registrar, Co-operative Societies, Multan, failed to secure the so‑called loan in spite of a notice to do so. This, according to the complainant, constituted an offence under section 10 of the Ordinance.

4. There is no provision of law in any of the statutes which govern the proceedings' b6fore the two learned Courts that if the facts and evidence is the same, an accused person cannot be prosecuted in two different Courts. The principle of natural justice that nobody shall be punished twice, i.e., bar against double jeopardy, is a subject of statutory provisions in our system of law. Learned counsel was unable to point out any law under which the prosecution of the petitioner before one or the other forum, is not permitted. On the contrary, under the General Clauses Act when 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. If the condition, that the alleged act or omission is the same, is satisfied and if it constitutes an offence under two or more enactments, then the bat` is against double punishment and not against prosecution in different forums. On this assumption that the facts on the basis of which the petitioner is being prosecuted are the same, the benefit that the petitioner can get is that he shall not be punished twice for the same Act. But there is no bar to his prosecution for offences under more than one enactment. See Khizar Hayat's case (1) and State v. Mir Ahmad Shah, etc. CH. R. 37 of 1968 (Quetta). Mr. Bokhary, the learned A. A.‑G., however has vehemently contended that the facts constituted the offence under the Ordi nance are not the same as they are in the case pending before the earned Special Judge. It is not necessary to give any finding on this question and it is kept open to be determined by the learned Courts concerned. But even if it is assumed that the facts, which are the basis of the two prosecutions, are the same there is no legal bar to the prosecution of the petitioner before the two forums. As there is nothing illegal in the petitioner being prosecuted in two Courts, therefore the fact the other ground urged for quashing the proceedings, in para. 11 of the petition) that the petitioner shall incur unnecessary expense, loses its force. If the proceedings are not illegal and if it is inherent in them that the accused person trust incur sans expense, the High Court in its jurisdiction under section 561 A, Cr. P. C., is unable to help the petitioner. There fore, I find no force in either of the grounds' urged by the learned counsel for the petitioner and the petition, merits to be dismissed.

5. Before closing this Judgment, it needs to be mentioned that in such like cases where an accused person is being prosecuted before different Courts on the basis of the same facts, the Courts concerned do experience some difficulty because of the same record being needed in different trials. Sometimes an additional circum stance is also encountered that if one case is pending while the other is instituted and if both the Courts are required to give finding on the same issue involving the same facts, there at least an effort is made to avoid inconsistency of finding. In order to avoid such a situation, the Courts have ample power to adjourn tune case so as to await the decision in the other, In respect of this matter it is admitted that the case before the learned Special Judge was pealing when the complaint was logged before the learned Magistrate. Keeping in view all the above difficulties, if the learned Magistrate considers it necessary to await the conclusion of the proceedings before the learned Special Judge and deems it proper, in the interest of justice, to grant adjournment for that purpose, this or6er passed under section 561‑A, Cr. P. C , dismissing the petition shall not be a bar to his passing ;an appropriate order. It is also observed that as and when the proceedings start before the learned Magistrate, it will be within his power and jurisdiction to decide the question whether or not the complaint has been competently filed before him. With these observations, this petition is dismissed. Petition dismissed.