H. MUNAWAR ALI Versus SARWAR BANO

MUHAMMAD AFZAL LONE, J.‑‑ Rehmat son of Khair Din, the petitioner herein, alongwith three others was proceeded against under section 302/34, P.P.C. for the murder of one Faqir Muhammad, under the provisions of the West Pakistan Criminal Law (Amendment) Act, 1963. On cosideration of the Tribunal's report sent by it, to the learned District Magistrate, Sialkot, in pursuance of section 10 of the Act, the latter by his order, dated 17‑8‑1971 came to the conclusion that the prosecution failed to establish the case against the petitioner beyond shadow of doubt. He was thus given benefit of doubt and acquitted. However, agreeing with the findings of the Tribunal, the learned District Magistrate held the co‑accused Ruqqia Begum and Sultan Mochi guilty of offence under section 302/34, P.P.C. and sentenced them to undergo 10 years rigorous imprisonment each.

2. Mst. Ruqqia Begum challenged the validity of her conviction and sentence through invocation of writ jurisdiction. The Writ Petition No. 248 of 1972 filed by her was accepted on 17‑5‑1972 and the District Magistrate's order aforesaid declared as without jurisdiction and a direction given for retrial of the case by ordinary criminal Court. The reason which influenced the decision of the learned Judge in Chamber was that the Tribunal failed to submit report to the learned District Magistrate by the specified date.

3. On the strength of the High Court's order, retrial of the accused was commenced before a Magistrate who by his order, dated 1‑6‑1973 (Annexure `D') issued non‑bailable warrants against the petitioner, to procure his presence. The validity of this order is under challenge in this revision.

4. We have heard the learned counsel for the parties and are of the view that the learned Magistrate was ill‑advised, to rope m the petitioner and issue processes against him for his retrial. The High Court's judgment is judgment‑in personam and good against only those who were party to it. It is conclusive only against the co‑accused Mst. Ruqqia Begum and cannot be extended to commence fresh trial against the petitioner who had already been acquitted under the orders of the learned District Magistrate. In this connection a reference‑to section 403. Cr.P.C. will provide that a person tried by a competent Court of an offence and A acquitted, cannot be tried again for the same offence, as long as the acquittal ‑remains in force. Under section 10 of the Act the learned District Magistrate was competent to hear the matter. He could decide it rightly as well as wrongly. His order, dated 17‑8‑1971 qua the petitioner not having been challenged before higher forum, attained finality and was in force when warrants for arrest of the petitioner were issued by the learned Magistrate. In this view of the matter the criminal case against the petitioner could not be reopened. Faced with this situation the learned counsel for the State could not urge much in defending the impugned order.

4‑A. This revision petition is, therefore, accepted and the orders passed by the learned Magistrate for retrial of the petitioner are set aside with no order as to costs.

M.Y.H./A‑165/L

Petition allowed.