Mst. Naushad Bibi vs Sher Khan

2013 P Cr. L J 666

[Peshawar]

Before Nisar Hussain Khan, J

Mst. NAUSHAD BIBI---Appellant

Versus

SHER KHAN and others---Respondents

Criminal Appeal No. 26-B of 2009, decided on 7th September, 2012.

(a)Penal Code (XLV of 1860)---

----Ss. 452, 354, 34, 337-F(i) & 337-F(iii)---Criminal Procedure Code (V of 1898), Ss. 403, 417 & 249-A---General Clauses Act (X of 1897), S.26---Constitution of Pakistan, Art. 13---Appeal against acquittal---Double jeopardy, protection against---Scope---Police report case and private complaint case---Magistrate acquitting accused from the police report case under S.249-A, Cr.P.C. on the sole ground that private complaint case was pending disposal in the same court and accused could not be tried twice for the same offence---Legality---Protection against double jeopardy had been provided against double punishment and not the trial of the offence---Had the accused been acquitted in the complaint case, Magistrate would have been justified to acquit the accused in the police report case on the principle of double jeopardy---Since there was no judgment of acquittal or conviction in either of the cases and both were under process of trial in the same court, Magistrate was legally obliged to stop the police report case and proceed with the complaint case---Impugned order of Trial Magistrate offended the principle of double jeopardy and was violative of the provisions of law as well as the Constitution---Appeal against acquittal was allowed, impugned order of Magistrate was set aside and case was remanded to the Trial Court with the direction to stay the police report case and proceed with the private complaint case and decide the same in accordance with the law.

Nur Elahi's case PLD 1966 SC 708 rel.

(b)Constitution of Pakistan---

----Art. 13---Criminal Procedure Code (V of 1898), S. 403---General Clauses Act (X of 1897), S.26---Double jeopardy, protection against---Scope---Protection against double jeopardy had been provided against double punishment and not the trial of the offence.

Qasim Khan Khattak for Appellant.

Abid Anwar for Respondents.

Ahmad Farooq Khattak, A.A.-G. for the State.

Date of hearing: 7th September, 2012.

JUDGMENT

NISAR HUSSAIN KHAN, J.---Appellant has called in question the order of learned Judicial Magistrate, dated 30-6-2008, whereby he acquitted the respondents under section 249-A, Cr.P.C., from the charge of section 337-F(i), P.P.C.

2.I have heard arguments of learned counsel for the parties and have gone through the record with their valuable assistance.

3.Perusal of the record reveals that appellant Mst. Noshad Bibi lodged a report in Police Station, Takhte-Nasrati, which was recorded vide Daily Diary No.4, dated 21-6-2003, wherein it was alleged by her that she was raising construction of a wall of her house at 10-00 a.m. When in the meanwhile a Curtain hanging between the houses of complainant/appellant and Sherin Khan fell due to windstorm. On this Sherin Khan came and inquired that how Curtain has fallen, as due to the same he has been disgraced. She replied that she has not seen that how the Curtain has fallen, she also added that construction of wall consumed, considerable time. On this he was infuriated and came with his sons Asif, Abid, Zahid and thrashed her, due to which, she sustained injuries on left thigh. On this report she was referred to the Doctor for medical examination, who also opined that injuries were simple and caused by blunt weapon. On this S.H.O directed to file report under section 337-F(i), P.P.C., which was complied with by the I.O. and that report was proceeded upon by the learned Judicial Magistrate. At the same time complainant filed an independent complaint before the court of learned Judicial Magistrate under sections 337-F(iii)/452/354/34, P.P.C. The accused filed application under section 249-A, Cr.P.C. in case of police report, which was accepted by the learned Judicial Magistrate on 30-6- 2008 and respondents/accused were acquitted on the sole ground that as another complaint filed by the complainant is also pending disposal in the same Court and accused cannot be tried twice for the same offence. It appears that learned Judicial Magistrate has acquitted the respondent on the plea of double jeopardy.

4.The protection against double jeopardy is enshrined under Article 13 of Constitution of Islamic Republic of Pakistan 1973, section 26 of the General Clauses Act, 1897 and section 403 of the Criminal Procedure Code 1898. When one goes through all these provisions of three enactments and Constitution, it becomes abundantly clear that this protection has been provided against double punishment and not the trial of the offence. There is a report filed by the police and complaint filed by the complainant about the same occurrence. Had the accused been acquitted in the complaint case, the learned Judicial Magistrate would have been justified to

acquit the respondents in police report case, on the said principle. But when there was no judgment of acquittal or conviction in one case and both the cases were under process of trial in the same court, learned Judicial Magistrate was legally obliged to stop the case of police report and proceed with the complaint case. This principle was once for all settled in Nur Elahi's, case

PLD 1966 SC 708.

5.In the present situation when respondents have been acquitted in police report case and that order is maintained, they may legitimately agitate the principle of double jeopardy before the trial Court. But the impugned order is offending the principle of double jeopardy and is violative of the provisions of law as well as Constitution, so is not sustainable.

6.Hence this appeal is allowed, impugned order of the learned Judicial Magistrate dated 30- 6-2008 is set aside. Consequently case is remanded to the learned trial Court, who would stay the police report case and proceed with the private complaint, filed by the complainant and then decide the case in accordance with law.

MWA/389/P Appeal allowed.