Muhammad Ismail VS State

JUDGMENT SHEET

LAHORE HIGH COURT,

BAHAWALPUR BENCH, BAHAWALPUR

JUDICIAL DEPARTMENT

Crl. Appeal No.180 of 2010 (Muhammad Ismail VS. The State etc.)

Date of hearing: 18.12.2013

Appellant by: Mian Muhammad Tayyab Wattu, Advocate Respondent by: Muhammad Saleem Faiz, Advocate State by: Mr. Khalid Pervaiz Uppal, learned DPG.

SADAQAT ALI KHAN, J.:- This judgment

shall dispose Criminal Appeal No.180 of 2010 filed by Muhammad Ismail present appellant against the order dated 05.04.2010 passed by learned Magistrate Section 30, Tehsil Chishtian, District Bahawalnagar according to which respondents No.2 to 6 were acquitted in case FIR No.157/2005 dated 28.08.2005 under section 337A(i), A(iv) and 34 PPC, Police Station Shahar Farid, Tehsil Chishtian, District Bahawalnagar.

2.Brief facts of the case are that initially present appellant being complainant got registered a case FIR No.157/2005 dated 28.08.2005 under section 337A(i), A(iv) and 34 PPC, Police Station Shahar Farid, Tehsil Chishtian, District Bahawalnagar against respondents No.2 to 6 for causing injuries to present appellant and his brother, having dissatisfied with the investigation of the local Police present appellant filed a private complaint against respondents No.2 to 6 on 30.06.2006 in the court of learned Magistrate Section 30 where report under section 173 Cr.PC. in case FIR No.157/2005 dated 28.08.2005 under section 337A(i),

A(iv) and 34 PPC was also submitted by the Police. Both the State case and private complaint were consolidated by the trial court and charge was framed in the private complaint and evidence was recorded on 11.03.2010. On 19.03.2010 the present appellant made statement for withdrawal of the private complaint and result of which respondents No.2 to 6/accused were acquitted by the trial court in the private complaint as well as in the State case observing therein that complainant/present appellant cannot be allowed for re- trial of the accused persons on 05.04.2010. Hence, this Criminal Appeal before this court.

3.Learned counsel for the appellant contended that the impugned order is against law and facts on the file and is patently illegal, perverse and is liable to be set aside. It is submitted that learned Magistrate has not considered the sufficient incriminating evidence available on record against the accused persons /respondents No.2 to 6 while acquitting them. It is further submitted that appellant withdrew his private complaint as the trial of the State case was commenced in the trial court and appellant was pursuing the State case and appellant did not give any statement for not pursuing the State case. Thus the impugned order is against law and facts and is liable to be set aside. It is further submitted that charge was framed and evidence of the appellant was recorded by the trial court and respondents No.2 to 6 are liable to be punished. It is further submitted that the impugned order may be set aside and case may be remanded to the trial court for decision on merits. Reliance has been placed on “2005 MLD 1859” and “PLD 1987 Lahore 245”.

4.On the other hand learned DPG and learned counsel for the accused/respondents No.2 to 6 submitted that withdrawal of complaint under section 248 of Cr.PC. would result in acquittal of accused and for the same offence the accused/respondents No.2 to 6 could not be tried in view of section 403 of Cr.PC. It is submitted that appeal may be dismissed. Reliance has been placed on “1993 P.Cr.LJ 576” and “2011 P.Cr.LJ 936”.

5.I have heard the learned counsel for the parties and perused the record.

6.FIR No.157/2005 was registered by the present appellant Muhammad Ismail on 28.08.2005 against respondents No.2 to 6 at Police Station Shahar Farid, Tehsil Chishtian, District Bahawalnagar for causing injuries to him and his brother Waqas and thereafter appellant filed a private complaint on 30.06.2006 against the accused/respondents No.2 to 6 in the court of Magistrate, Chishtian having dissatisfied with the investigation of the Investigating Officer. In the FIR case challan was also submitted. State case and the private complaint both were consolidated by the trial court and charge was framed. After framing of the charge evidence was recorded on 11.03.2010 whereafter complainant/appellant made a statement on 19.03.2010 for withdrawal of the private complaint. On 05.04.2010 learned trial court passed following order.

“Since case was consolidated with this private complaint filed and preferred by the complainant in which evidence was recorded on 11.03.2010 and complainant vide his statement dated 19.03.2010 has withdrawn the private complaint. Keeping in view the

statement of complainant this private complaint is hereby withdrawn and accused are hereby acquitted of the charge leveled against them. They are present in the court on bail, their bail bonds and sureties are discharged from the liability of bail bonds. As far as the matter of initiance of proceedings in the State case is concerned same was consolidated with this private complaint preferred to get the proceedings initiated in this private complaint and he cannot be allowed for retrial of the accused persons, therefore, no further proceedings can be initiated even in State case which is also hereby consigned to the record room alongwith this private complaint.”

The facts and the offences of the private complaint case and the FIR are same. Section 248 of Cr.PC. is reproduced as under for reference

“Withdrawal of complaint. If a complainant, at any time before a final order is passed in any case under the Chapter, satisfies the Magistrate that there are sufficient grounds for permitting him to withdraw his complaint the Magistrate may permit him to withdraw the same and shall thereupon acquit the accused.” According to above referred provision of law after the permission of the concerned Magistrate on the withdrawal of a private complaint accused/respondents No.2 to 6 in the instant case were acquitted by the Magistrate on the withdrawal of the private complaint by the present appellant on 05.04.2010. The section 403 of Cr.PC. is hereby reproduced as under for reference:- “Persons once convicted or acquitted not to be tried for the 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 such conviction

or acquittal remains in force, not to 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 for any offence may be afterwards tried for any distinct offence for which a separate charge might have been made against him on the former trial under section 235, subsection

(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 consequence had not happened, or were 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 provision of section 26 of the General Clauses Act, 1897, or section 188 of this Code.”

In view of the above provision of law no person shall be liable to be tried again for the same offence nor on the same facts after acquittal while such acquittal remains in force as section 403 of Cr.PC. contemplates of a situation where a person has once when tried by a court of competent jurisdiction and acquitted by such

cannot be tried again for the same offence nor for any other offence based on similar facts. Criminal charge once having been adjudicated upon by a competent court, that adjudication is final whether it ends in acquittal or conviction. In the instant case as complainant/present appellant has withdrawn his private complaint after recording of the prosecution evidence and learned Magistrate has acquitted accused/respondents No.2 to 6 in view of section 248 of Cr.PC. now after earning acquittal in view of section 248 of Cr.PC. cannot be tried in State case in view of section 403 of Cr.PC. being double jeopardy, person cannot be tried a second time for the same offence in presence of the acquittal as acquittal bars the retrial of the acquitted accused in accordance of the provision of sub-section (1) of section 403 Cr.PC. The same principle has been elevated to the status of a Constitutional right in Article 13 of the Constitution of Pakistan 1973

“No person:

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

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

7.The impugned order of the learned trial court is quite legal warranting no interference. For the foregoing reasons this appeal has no merits and is dismissed.

(Sadaqat Ali Khan) Judge M.Afzal

Approved for reporting