MUHAMMAD ASHIQ Versus THE STATE

Muhammad Ashiq Constable was charged under section 468/409/411, P.P.C. and section 5(2) of the Prevention of Corruption Act, 1947 in the Court of Special Judge, Anti-Corruption, Lahore Camp at Okara. He was found guilty under section 411/468, P.P.C. read with section 5(2) of the Prevention of Corruption Act, 1947 and sentenced to six months' R.I. on each count under section 411/468, P.P.C. with a fine of Rs.10,000 on each count. In default of fine, he was to undergo R.I. for four months on each count. The sentence of -imprisonment was ordered to run-concurrently.

2. According to the trial Court, as offence under section 5(2) of Prevention of Corruption Act, 1947 was included in section 411/468, P.P.C. no separate sentence was being awarded under section 5(2) of Prevention of Corruption Act, 1947. The above conviction was recorded vide judgment dated 12-2-1995 and the same is now under appeal.

3. On the report of one Sarwar Din, a case was registered on 13-3-1991 vide F.I.R. No.75 of 1991 at Police Station, A-Division, Okara to the effect that his motorcycle Yamaha 80 CC, model 1985, Chassis No.5 Ko5252, K. Engine No.5 K2-05252, Registration No.7306/OK was stolen while parked outside his house situated in Nawab Colony, Okara. Intimation about the registration of this case was also sent to CIA/CRO, Lahore. As neither the stolen motorcycle was recovered and nor the accused could be traced, the file of this case was consigned as untracked on Tabulation of "Adam Pata" Report dated 24-4-1991 by Abdul Aziz, Inspector CIA, Okara, then seized of the investigation.

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4. On 13-11-1993 a police party from CRO/CIA, Staff, Lahore came to Okara for checking purposes. While they were at the gate of Police Station A-Division, they stopped Muhammad Ashiq, Constable (appellant) then posted ,as guard at the District Malkana situated in the premises of Police Station A-Division, Okara, to check his motorcylce which bore registration plate bearing NO.FDK,1115, with words "Punjab Police" written thereon.

5. On inspection, by C.I.A., Staff from Lahore, it transpired that Registration No. FDK 1115 was fake. Its actual registration number was OK-7306 and it was the same vehicle about the theft of which F.I.R. No.75 of 1991 already stood registered at Police Station 'A-Division'. It was thus taken into possession as a stolen vehicle and thereafter, an F.I.R. No.357 of 1993 was registered on the following day (14-11-1993) on the report of Arshad Latif, Inspector/S.H.O. Police Station 'A-Division' under direction of Superintendent of Police, Okara. Recovery memo. in respect of this motorcycle was prepared under F.I.R. 75 of 1991 and a copy thereof was also placed on the file of F.I.R. No.357 of 1993.

6. It is interesting that 'A-Division' Police prepared two challans in December, 1993 relatable to same stolen vehicle. One in respect of F.I.R. No.75 of 1991 under section 379/P.P.C. and 14/6/79, Islamic Law for trial of the appellant before Assistant Commissioner, Okara and the other challan against him was submitted simultaneously in F.I.R. No. 357 of 1993 under sections 409/468 and 5(2), P.C.A., 1947 to the Court of Special Judge, Anti Corruption.

7. In the case before the Court of Assistant Commissioner, charge was framed against the appellant under section 411, P.P.C. and evidence was adduced by the prosecution. After scrutiny and due appraisal of the prosecution evidence, the trial Court acquitted the appellant vide judgment dated 20-11-1994.

8. In the challan arising out of F.I.R. No.375 of 1993, the learned Special Judge, issued process on 16-11-1994 for 22-11-1994 on which date appellant was produced in custody and the matter was adjourned to 13-12-1994 for framing of charge. On this date appellant made an application under section 249-A, Cr.P.C. pointing out that his trial was unwarranted as he had been tried on that same facts earlier and acquitted by a competent Court vide judgment dated 20-11-1994 (Exh.DI). The learned Judge instead of attending to the application under section 249-A, Cr.P.C. proceeded to frame the charge under section 411/468/409, P.P.C. read with 5(2)47, P.C.A.

9. The appellant denied the charge and prosecution led the evidence. Muhammad Arshad Inspector Police appeared as P.W.1 and stated motorcycle recovered from the accused was stolen property of case registration vide F.I.R. No.75 of 1991 and on that account he registered F.I.R. No.375 of 1993 under order of Superintendent of Police, Okara. No evidence was produced in respect of entrustment of the motorcycle or forging of any documents. The other material witness was Sarwar Din P.W.6. He deposed about lodging of F.I.R. No.75 of 1991 and the ownership of the stolen motorcycle. Muhammad Mansha F.C. P.W.7 and Shahbaz, S.I. P.W.8 vouched for the recovery of this motorcycle from the possession of the accused and exhibited the recovery memo. The appellant pleaded false and malicious frame up at the behest of Shahbaz, S.I. and relied on Exh.Dl. The order of his acquittal dated 20-11-1994, passed by Assistant Commissioner, Okara.

10. The learned Special Judge found the appellant guilty under sections 468/411 and 5(2) 47. but held that as section 5(2)47 was included in section 411 /468 no sentence need be passed in that behalf.

11. Learned counsel for the appellant submits that as on these set of from appellant stood acquitted already, his fresh trial was violative of his fundamental right, enshrined in Article 13 of the Constitution of Islamic Republic of Pakistan, 1973. The conviction, on that score alone was not sustainable. He maintained that the registration of the second F.I.R. No.375 of 1993 and sending up challan thereunder was amounted to prosecuting the appellant twice for the same offenee/facts which too also not permissible either under section 25 of the General Clauses Act as well as section 403 of the Criminal Procedure Code.

12. Learned counsel for the State submits that the accused/appellant has been tried under different offences although arising out of the recovery of the same stolen motorcycle. He submitted that affixing a fictitious registration plate rendered the accused liable under section 468, P.P.C. for which he had been neither tried nor acquitted by the learned Assistant Commissioner. The trial before the Special Judge was protected by subsections (2), (3) and (4) of section 403, which were essentially provisos to section 403(1), Cr.P.C. He further argued that if one reads Article 13 of the Constitution of the Islamic Republic of Pakistan in conjunction with section 26 of the General Clauses Act and section 403, Cr.P.C. it cannot be said that the conviction of the appellant is repugnant to Constitution protection against double punishment. Supporting the judgment, he further added that the conviction of the appellant was in conformity with the evidence adduced by the prosecution.

13. To better appreciate the issues arising in this appeal it would be appropriate to examine these provisions. They are reproduced as under:-

"ARTICLE 13 OF THE CONSTITUTION OF PAKISTAN.

Protection against double punishment ... ...

No person... ... ...

(a) shall be prosecuted or punished for the same offence more than once

(b)???????

SECTION 403, CR.P.C.

Person once... ...acquitted not to be tried for same offence.

(1) A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while 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 36, 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 consequences 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 consequences 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 acts 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.

SECTION 26 OF GENERAL CLAUSES ACT

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.

Section 3(37) of General Clause Act (Definition) Offence

'Offence' shall mean any act or omission made punishable by any law for the time being in force.

Section 4(1)(o), Criminal Procedure Code (Definition) Offence.

'Offence' means an act or omission made punishable by any law for the time being in force:

It also includes any act in respect of which a complaint may be made under section 20 of the Cattle Trespass Act, 1871.

14. Article 13 of the Constitution provides that no person shall be prosecuted or punished for the same offence more than once. This Article enshrines fundamental right against double jeopardy to any person. It is a reiteration of legal Maxims: Nemo debet his vexari, si, constat curiae qnod sit pro una et eadem cause i.e. No one ought to be twice punished if it be proved to the Court that it be for one and the same cause. Legal Maxims by P. Sreenevasrow, 1873, Muhammad Niaz v. Martial Law Administrator PLD 1979 Quetta 179.

Prosecution against double jeopardy as a Constitutional right, was provided for the first time in the Constitution of Islamic Republic of Pakistan, 1973. Such a fundamental right did not exist either in 1956 Constitution or for that matter in 1962 Constitution.

Prior to the coming into force of Constitution of Pakistan, 1973 an accused person was protected against double jeopardy through the procedural safeguards provided by section 403, Criminal Procedure Code read with section 26 of the General Clauses Act. In this behalf Courts have regularly sought guidance from the common law interpretation of the time honoured maxim 'autre fois convict' and 'autre fois acquit'. Protection against double jeopardy also figures in another Maxim: 'Res judicata pro veritate accipitur'. The interpretations of these two principles of law rendered by the British Courts were given statutory recognition in the shape of section 403 of the Code of Criminal Procedure and section 132 of the Evidence Act, 1872 (now Article 15 of Qanun‑e‑Shahadat, 1984).

The Indian Constitution on the other hand tends to frame this right in a. rather narrow compass. In Article 20(2) it provides that no person shall be "prosecuted" and "punished" for the same offence more than once. It may be noted that unlike Article 13 of our Constitution, in the corresponding provision of the Indian Constitution the words "prosecution" and "punishment" have been used in conjunctively to accord Constitutional status only to the principle autre fois convict and not to the principle "autre fois acquit". In short the Indian Constitution raises only one limb of the common law to the level of fundamental right and the other is left to be regulated by general law of the land. In India, to seek protection of the Constitutional guarantee in this behalf, two preconditions are required to be fulfilled i.e. that there should be not only the "prosecution" but also a "punishment" in the first instance in order to bar a second prosecution and punishment for the same offence. The Indian Supreme Court has elaborated this point fair detail in cases like: Maqbool Hussain v. State of Bombay 1963 SC SCR 730; Venkataraman v. State of India 1954 SC SCR 115 and Kalaweati and another v. The State of Himachal Pradesh AIR 1953 SC 131.

15. The protection guaranteed by Article 13 of the Constitution of Islamic Republic of Pakistan, 1973 is, however, not contingent on an earlier conviction alone as in the case of Indian Constitution. Article 13 provides safeguard both against the second prosecution as well as sec6nd punishment for the same offence. The words "prosecution" and "punishment" it may be noted, have been used "disjunctively". In Muhammad Ishaque v. The State 1992 PCr.LJ 1273 this Court took a rather strict view and held that the second prosecution for the same offence is barred under Article 13 of the Constitution only where the prosecution has finally concluded and ended either in acquittal or conviction.

16. Similarly in. Muhammad Akram v. Government of Punjab PLD 1979 Lah. 462 it was observed that the bar of second trial under Article 13 of the Constitution operated only in the event of an accused having already been acquitted or convicted for the same offence or facts. The addition of word "facts" has enlarged scope of the word "offence" by construing it in generic sense.

The issue of double jeopardy was also examined rather liberally by the Karachi High Court in case of Pir Bakhsh's case 1979 PCr.LJ 24. The petitioner was being prosecuted under section 5 of West Pakistan Control of Goondas Ordinance, 1969 on the report of S.H.O. Police Station, Phulleli, District Hyderabad. While those proceedings were still pending the petitioner was again sought to be prosecuted under section 14 of the Crimes Control Act before the Tribunal set up therein on the same facts. Although Goonda Ordinance, 1959 stood repealed by the Crimes Control Act, 1975; the pending proceedings under Goonda Ordinance were saved by section 27 of the Crimes Control Act. In these circumstances, the Court quashed the proceedings under Crime Controls Act as it amounted to subjecting the petitioner to double jeopardy by prosecuting him on the same facts regarding the same charges under separate proceedings simultaneously. The proceedings were held repugnant to the Constitutional guarantee that no person shall be prosecuted or punished for the same offence more than once. It was observed that Constitution provided clearly a bar even with regards trial and prosecution apart from punishment to which a person may eventually subjected.

17. The issue of autre fois acquit and second trial amounting to double jeopardy also arose in the case of Tasawar Hussain v. State 1986 PCr.LJ 2218. In this case, the petitioner after having been convicted to 14 years, challenged 'his conviction before the High Court on the ground that the Commissioner while referring his case to Iirga did not hear him and the High Court set aside his conviction on that score. No order had been made by the High Court for retrial of the petitioner. The Ilaqa Magistrate again summoned him to face commitment proceedings. He challenged the process of commitment proceedings before the High Court on the ground that the proceedings were violative of protection against double jeopardy as envisaged under Article 13 of the Constitution.

18. Adopting a broad perception of the word "prosecution", this Court held that fundamental right indicated by Article 13 of the Constitution covered the principles of both autre fois acquit and autre fois convict. In this judgment Mr. Justice Rustam S. Sidhwa observed that if this Article was broken up, it would amount to laying down that no person who has been prosecuted for an offence earlier shall be prosecuted for the same offence .or no person who has been punished for the same offence earlier shall be punished for the same offence again. Basically the first part of the wording covered the second and the second part has been seemingly added to cover cases where the earlier prosecution should have been prosecution in the strict sense of the term and not of the proceedings akin to a criminal proceedings. However, in Zar Badshah Masood v. Commandant/Magistrate 1st Class and another 1985 PCr.LJ 499 this Court gave a procedural perspective to Article 13 by observing:-

"Plea of autre fois acquit, statutorily recognised in section 403, Code of Criminal Procedure can be successfully raised only when a person is tried again, for the same offence or 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 237. ..

Nevertheless, issue-estopped does not prevent the. trial of any offence as does autro fois acquit but only precludes evidence being led to prove a fact in issue as regards which evidence has already been led and a Court of competent jurisdiction. Therefore, both under Article 13, 'section 26 of the General Clauses Act, read with section 403 of the Code of Criminal Procedure to operate as a bar, the trial or subsequent prosecution must be for the 'same offence' an 'offence whose ingredients are the same Article 13 of the Constitution proceeds upon the same principle. "

From this observation one gains an impression that Article 13 of the Constitution of Islamic "Republic of Pakistan, 1973 has to be construed and interpreted interchangeably with section 403, Cr.P.C. With utmost respect, I, however, find it very difficult to ascribe to such a narrow and restrictive interpretation of a provision of the Constitution intended to safeguard a fundamental right relatable to freedom of an individual.

19. The case of the appellant is seemingly covered on all force by a Judgment of the Supreme Court in Sherin Bacha and others v. Namoos Iqbal and 3 others PLD 1993 SC 247. In this case the parties were closely related. They had a land dispute about which the respondents had made a complaint stating therein that despite delivery of the possession pursuant to settlement, the appellants had trespassed on the same and, therefore, committed the offence of trespass under section 447, P.P.C. This complaint was filed as not proved; but all same was revived and consequently a fresh inquiry/trial commenced. This view was set aside by the Government. The order of Government was challenged and the High Court upheld the plea that original complaint had not been properly tried by a proper forum, therefore, it required to be re-investigated and retried and the case was sent back for further trial for fresh proceedings. On the same premises, an F.I.R. had been lodged resulting in acquittal and the same was not challenged. The Supreme Court, held, neither the Constitution nor the law permitted the retrial of an offence for which a person having once been tried as accused stood finally acquitted. The judgment of the Magistrate having attained finality, the same accused could not be re-tried for the same offence in the complaint case. The judgment of the High Court remanding the case for fresh trial was thus set aside. The word "prosecution" as appearing in Article 13 of the Constitution was taken in a general sense, and rightly so, as this word has not been defined in the Criminal Procedure Code or for that matter in the General Clauses Act. In Law Terms and Phrases Judicially Interpreted by Sardar Muhammad lqbal Khan Mokal, "prosecution" has been defined in its generic sense as follows:-

"The term 'prosecution' will normally mean criminal proceedings in general. But for the purpose of the tort of malicious prosecution, it includes all criminal proceedings to which any oral obloquy is attached.

The word 'prosecution' is not to be taken in the restricted sense in which it is used in the Code of Criminal Procedure. It is not essential that the original proceedings should have been of such a nature as to render a person against whom it is taken liable to be arrested, fined or imprisoned. S.T. Sahib v. Hasan Ghani Sahib AIR 1957 Mad. 646. "

Similarly, in Words and Phrases Judicially Defined, Vol. 4 by Roland Burrows K.C. it is stated that "a prosecution in common parlance, means, not bringing an action, but preferring an indictment or information.' Rawlings v. Jonkins (1843) 4 QB 419 per Patteson, J. at 421. To render effective a Constitutional provision which Guarantees--a fundamental right, it has to be given a broad and liberal interpretation. A restrictive or procedural interpretation is likely to destroy rather than safeguard this right having bearing on liberty of an individual. Engrafting of the provisos to section 403, Cr.P.C. to Article 13 of the Constitution, therefore, seems a little inapt.

20. In this view of the matter, I reckon that Article 13 of the Constitution offers a complete protection to the appellant. Exceptions set out in section 403, Cr.P.C. as such cannot be read to whittle down the affect of this Constitutional Guarantee. The appellant once acquitted by a Court of competent jurisdiction and such findings having attained finality, his conviction on the same facts again is not permissible.

21. Resultantly, this appeal is accepted and the conviction of the appellantll is set aside. He is on bail. He is discharged of his bail bonds.

N.H.Q./M-486/L Appeal accepted