Syed ALAMDAR HUSSAIN SHAH vs ABDUL BASEER QURESHI AND 2 Other

ORDER

1. NASIM HASAN SHAH, J.-This petition is directed against the order dated 26-10-1977 of a learned Single Judge of the Lahore High Court, dismissing in limine the petitioner's Writ Petition No. 110 of 1977.

2. The petitioner, a Sub-Inspector of Police, and two others were accused of torturing a person while in police custody, as a result of which the latter died subsequently. Initially a case under section 330/342,, P. P. C. Was registered against the accused,. But the offence under section 304, P. P. C.

3. Was also added after the victim had expired. A judicial inquiry was ordered into the incident, and the Inquiry Magistrate recommended the accused's trial for the aforementioned offences.

4. Meanwhile, the prosecution authorities obtained a direction from the Martial Law Authorities on 29- 4-1971 for the trial of the accused by a Special Military Court. We are informed the trial continued there until Martial Law was lifted on 21-4-1972. By then the trial had practically concluded and orders were only to be pronounced, The case, consequently, went back for trial by a regular Court of law. A Magistrate framed the formal charge under section 304, P. P. C. However, as the prosecution was negligent in producing any evidence, the case of the prosecution was closed by him on 7-2-1976.

5. The brother of the deceased filed five revision petitions in the Court of the learned Sessions Judge against the above order and some other orders. The main plea taken was that the case should be withdrawn from the Magistrate as the trial by him was improper, because the accused was also liable to be tried under section 302, P. P. C. Which was triable by the Sessions Judge. The learned Additional Sessions Judge, by his order dated 8-3-1976, accepted the contention and directed the parties to appear before the Sessions Judge, who was to pass appropriate orders for the commencement of the trial: The petitioner filed a Revision Petition (Criminal Revision No. 378 of 1976) against the order of the Additional Sessions Judge in the High Court, which was dismissed by a learned Single Judge on 1- 6-1976; this order has not been filed before us. A Writ Petition (W. P. No. 110 of 1977) was then filed to challenge the same order of the Additional Sessions Judge. In the High Court the petitioner's trial by the Sessions Judge was assailed on the ground that as he had already been once prosecuted before a Magistrate, the prosecution before the Sessions Court amounted to a second prosecution and, therefore, the guarantee also envisaged in the Constitution that no person shall be prosecuted or punished for the same offence more than once, was violated. The High Court found that there was no fresh prosecution as the case had been transferred before the conclusion of the trial, and dismissed the writ petition on 26-10-1977. .

6. Before us, Ch. Muhammad Hussain, learned counsel for the petitioner, raised three contentions :-

(i) The petitioner had been prosecuted before three different forums firstly, before the Special Military Court where the trial had practically concluded and only orders remained to be pronounced ; secondly, before a Magistrate, where, too, the case of the prosecution had been closed and he was now, for the third time, being prosecuted before the Sessions Judge. This was against the provision of Article 13 of the Constitution of 1973, under which no person can be prosecuted or punished for the same offence more than once ;

(ii) The case could only be committed to the Sessions by a Committing Magistrate and the Additional Sessions Judge had no jurisdiction to transfer its trial to the Sessions ; and

(iii) The Additional Sessions Judge had acted improperly in directing the petitioner's trial under section 302, P. P. C."

7. So far as the second and third contentions are concerned, it is admitted that these were not raised before the High Court. We are, therefore, not inclined to allow these contentions to be raised for the first time before this Court.

8. As for the first contention, it is to be observed that the fundamental rights conferred by Chapter 1, Part Il of the Constitution stand suspended at the moment. Article 2(3) of the Laws (Continuance in Force) Order, 1977 provides :- "2(1)

9. (2)

(3) The Fundamental Rights conferred by Chapter I of Part II of the Constitution, and all proceedings pending in any Court, in so far as they are for the enforcement of any of those rights shall stand suspended."

10. This Court in the case of Begum Nusrat Bhutto v. Chief of Army Staff (PLD .1977 SC 657), found the above to be good law and held that the fundamental rights stood suspended by virtue thereof. No proceedings for their enforcement are, therefore, presently competent.

11. Be as it may, there is not much force in this connection even on the merits. Article 13 reads as follows :- "13. Protection against double punishment and self-incrimination. No person- "(a) shall be prosecuted or punished for the same offence more than . Once ; or

(b) shall, when accused of an ofence, be compelled to be a witness against himself."

12. According to the Commentary of Mr. M. Monir on the Constitution of the Islamic Republic of Pakistan, the Article in clause (a) relates to a constitutional status, the principle of autrefois convict and autrsfois acquit, embodied in section 403 of the Code of Criminal Procedure and a part of section 132 of the Evidence Act. Under the provision of section 403, Cr. P. C. a person who has once been tried by a competent Court for an 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.

13. The important word in Article 13 is "prosecution". According to Corpus Juris Secundum the term "prosecution" has different meanings when used in different relations and it is regarded as a word of limited or extended signification according to the intention of the law maker or the person using it. In its broadest sense the term would embrace all proceedings in the course of justice or even elsewhere for the protection or enforcement of a right or the punishment of a wrong, whether of a public or private character. In a more limited sense the term includes the .Act of conducting or waging a proceeding in Court; the following up or carrying on of an action or suit already commenced until the remedy be attained; the institution and carrying on of a suit in a Court of law or equity to obtain some right or to redress and punish some wrong. It includes commencing, conducting and carrying a suit to a conclusion in a Court of justice. It is in this limited sense that the word "prosecution" appears, to have been used in Article 13 of the Constitution. Significantly, the marginal heading indicates that this Article is a protection against double punishment, which tends to show that it is only where the prosecution has finally concluded and ended either in acquittal or conviction that a fresh prosecution for the same offence would be barred. Stroud's Judicial Dictionary explains the term "prosecution" amongst others in the following manner :- "The "prosecution" of an action ends with the ifinal judgment therein (Hume v. Druyff, L R 8 Ex. 214)."

14. The word "prosecute" is derived from a Latin word and signifies not' only "to'follow",but "to follow intensively" without intermission; thus, to, B follow or pursue with a view to reach, execute or accomplish.

15. According to the Webster's New International Dictionary (Second Edition) "prosecution" means, inter qlia, "the,, process of exhibiting formal charges against an offender before a legal tribunal, and pursuing them to final judgment on behalf of the State or Government as by indictment or information." And in the Oxford English Dictionary "prosecution" means "the following up, continuing, or carrying out of any action, scheme, or purpose, with a view to its accomplishment or attainment."

16. The petitioner was, in the first instance, tried by the Military Court, but Martial Law was lifted before judgment could be pronounced and the case thus remained undecided. He was then tried by a Magistrate, before whom the trial was still in progress when the case was ordered to be transferred to the Sessions. In none of these forums was prosecution pursued to the end, with a view to its accomplishment; and it cannot be said that the petitioner's present trial is in any way derogatory to the principles of autrefois acquit or autrefois convict, or violative of Article 13 of the Constitution assuming its' provisions were operative, which, however, is not the case This petition is accordingly dismissed.