PLJ 2024 Cr.C. (Note) 82
[Lahore High Court, Multan Bench]
Present: Ch. Abdul Aziz and Sohail Nasir, JJ.
GHULAM QASIM and another--Appellants
versus
STATE and another--Respondents
Crl. A. No. 1017 & M.R. No. 133 of 2019, decided on 21.3.2022.
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302/34--Constitution of Pakistan, 1973, Art. 13--Criminal Procedure Code, (V of 1898), Ss. 154/173/200/403/537-- Qatl-i-Amd--Principle of autrefois convict and autrfois acquit--After registration of criminal case, report u/s 173 CrPC was placed before the trial Court, however, mother of the deceased filed private complaint--trial Court indicted the accused/appellants in both the cases separately for the murder of one deceased, passed two separate judgments and through each of them handed down guilty verdict--Admittedly, the trial Court disposed of the state case as well as the complaint case through two judgments but did not keep the case as dormant and such approach is contrary to the majority decision of the Hon’ble Supreme Court of Pakistan--Conviction and sentence of the appellants and so that of the co-convict are set aside and the matter is remanded to the trial Court with the direction to re-write the judgment on the basis of material available on the record and hearing of both the parties--Trial Court will keep in mind the law and the principle of autrefois convict and autrfois acquit.
[Para 7] A, B, C, D, E, F, G, H, I, J
PLD 1966 SC 708; PLD 2016 SC 70 ref.
Constitution of Pakistan, 1973--
----Art. 13--No person shall be vexed twice for the same offence--Art. 13 is based on the principle of Autrefois convict and prohibits the subsequent prosecution of an accused for the same cause if he is punished/convicted in an earlier trial. [Para 7] C & E
Criminal Procedure Code, 1898 (V of 1898)--
----S. 403--Maxim “nemo bis puniture aut vexature pro odum delicto’ which means that no one should be subjected to peril twice for the same offence. [Para 7] D
Criminal Procedure Code, 1898 (V of 1898)--
----S. 403--The rule is postulated in section 403 CrPC with the modification of adding the principle of “Autrefois acquit, autrefois convict” and thereby embargo is placed on subsequent prosecution if the earlier one had culminated in acquittal. [Para 7] F
Criminal Procedure Code, 1898 (V of 1898)--
----Ss. 154/173/200--Administration of justice--Challan/State case and private complaint--The law is settled by now that if different versions of the same incident are advanced by rival parties through cross version and such different versions contain different set of accused person then trial of such cross cases is to be held simultaneously and side by side. [Para 7] H
2000 SCMR 641; PLD 1986 SC 37; PLD 1981 SC 522;
PLD 1971 SC 713 ref.
Criminal Procedure Code, 1898 (V of 1898)--
----Ss. 154/173/200--Administration of justice--Challan/State case and private complaint--The law is equally settled on the point that where the same party lodging the FIR, also institutes a private complaint containing the same allegations against the same set of accused person then the trial Court is to hold a trial in the complaint case first and in the meanwhile the challan case is to be kept dormant awaiting the fate of the trial in the complaint case.
[Para 7] I
PLD 1966 SC 708; PLD 1979 S C 53; 1981 SCMR 361; 1984 SCMR 221; PLD 1986 SC 737; PLD 1987 Lahore 245 ref.
Khawaja Qaiser Butt, Advocate for Appellant.
Mr. Muhammad Maalik Khan Langah, Advocate for Complainant.
Ch. Muhammad Akbar. Additional Prosecutor General with Muhammad Afzal DPO, Rajanpur, for State.
Date of hearing: 21.3.2022.
Judgment
Ch. Abdul Aziz, J.--Ghulam Qasim & Zafar Hussain (appellants) along with two others, namely, Imdad Hussain and Mukhtiar Hussain involved in case FIR No. 241/2018 dated 13.07.2018 registered under Sections 302 & 34, PPC at Police Station Kotmithan, were tried by learned Additional Sessions Judge, Rajanpur. Trial Court vide judgment dated 11.10.2019 while acquitting Mukhtiar Hussain (co-accused) proceeded to convict and sentence the appellants as well as Imdad Hussain in the following terms:-
(1) Imdad Hussain (convict)
Under Section 302(b), PPC to suffer death sentence with direction to pay Rs. 1,00,000/- as compensation to the legal heirs of Mst. Zubaida Mai (deceased) as provided under Section 544-A of Cr.P.C. and in default whereof to undergo simple imprisonment for six months.
(2) Ghulam Qasim & Zafar Hussain (appellants)
Under Section 302(b), PPC to suffer life imprisonment with direction to pay Rs. 1,00,000/- as compensation to the legal heirs of Mst. Zubaida Mai (deceased) as provided under Section 544-A of Cr.P.C. and in default whereof to further undergo simple imprisonment for six months.
Challenging their conviction and sentence, Ghulam Qasim & Zafar Hussain (appellants) filed Criminal Appeal No. 1017 of 2019 whereas trial Court sent reference under Section 374, Cr.P.C. which was numbered as Murder Reference No. 133 of 2019 for the confirmation of otherwise of death sentence awarded to Imdad Hussain (convict). Both these matters are being disposed of through this single judgment.
2. Succinctly stated the facts of the prosecution case as disclosed by Abdul Sattar (PW.9) in FIR (Exh.PA/1) are that he is resident of Khawaja Noorpur and labourer by profession; that about 1½ years prior to the incident, he contracted Court marriage with Mst. Zubaida Bibi and from the said wedlock one child, namely Muhammad Ayan was born; that 5/6 days before the occurrence, his mother-in-law and others while enticing Zubaida Bibi took her from his house situated at Rakh Dhiama; that on 13.07.2018 at about 12:30 p.m., he along with Shamer Khan and Khalil Ahmad reached Basti Ghulam Gate in the search of his wife along with child and heard the noise of firing from the house of Ghulam Qasim; that Imdad Hussain armed with pistol .30 bore, Ghulam Qasim and Zafar Hussain came out of an unknown house and kept on saying that they had killed Zubaida Kali.
3. On 13.07.2018 Malik Ghulam Nabi SI (PW.7) after the receipt of information about the occurrence reached the spot where Abdul Sattar (PW.9) got recorded his statement (Exh.PA), which was sent to the police station through Mazhar Hussain 776/C for the registration of formal FIR. He inspected the dead body, prepared injury statement (Exh.PD/1), inquest report (Exh.PD and sent the corpse to RHC Kot Mithan under the escort of Munammad Javed 577/C for autopsy. From the spot, he also secured blood stained earth and two crime empties (P.1/1-2) through memos. Exh.PF & Exh.PG respectively. He arrested Imdad Hussain (convict) on 20.07.2018 who on 29.07.2018 made a disclosure and in pursuance thereof led to the recovery of pistol .30 bore (P.6) which was taken into possession through memo. Exh.PK. During investigation conducted by Qaiser Abbas SI (PW.8), Mukhtiar Ahmad (since acquitted) was not found present at the place of occurrence, however he was found guilty to the extent of Section 109, PPC. Subsequently, the matter was also investigated by Abid Aziz ASI (PW.12) who on 02.12.2018 arrested Ghulam Qasim and Zafar Hussain (appellants). On 04.12.2018 the complainant Abdul Sattar appeared before Abid Aziz ASI got recorded his supplementary statement wherein he nominated Mukhtiar Hussain as accused who was mentioned in the FIR as unknown.
4. Prosecution in order to prove its case against the accused produced as many as 12-PWs, which includes Dr. Sobia Sadaf (PW.4) who conducted autopsy of Mst. Zubaida Mai on 13.07.2018 and prepared PMR (Exh.PC), Ghulam Nabi SI (PW.7). Qaiser Abbas SI (PW.8) and Abid Aziz ASI (PW.12) who investigated the case, Abdul Sattar (PW.9), Shamir Khan (PW.10) and Khadim Hussain (PW.11) who saw the accused coming out of an unknown house while saying that they had killed the deceased. The trial Court also examined Anwar Mai & Munir Hussain as CW.1 & CW.2. After conclusion of prosecution evidence, the accused were examined under Section 342, Cr.P.C., who refuted the allegations levelled against them and pleaded their innocence. The appellants neither appeared under Section 340(2), Cr.P.C., nor produced any evidence in defence; however Imdad Hussain (convict) produced application to record statement (Exh.DA/1), comments (Exh.DA/2), order dated 27.11.2018 (Exh.DA/3), copy of FIR No. 150/2017 (Exh.DA/4) and copy of CNIC of Ghulam Raza (Exh.DA/5) in his defence. On the conclusion of trial, the appellants and Imdad Hussain were convicted and sentenced as afore-sated, hence, the instant criminal appeal and murder reference.
5. At the very outset, learned Additional Prosecutor General submits that the learned trial Court while disposing of Complaint Case as well as State Case has committed illegality which is not curable under Section 537 of Cr.P.C. While elaborating the illegality, learned law officer submitted that the trial Court proceeded to dispose of both the cases i.e. State Case and the complaint case though through two different judgments but without keeping the State case as dormant. He further submitted that in such an eventuality the matter is to be remanded to the learned trial Court for re-writing of the judgment. Learned counsel for the appellant as well as of the complainant raised no objection to it.
6. Arguments heard. Record perused.
7. If evinces from the review of record that case in hand is arising out of an incident having occurred on 13.07.2018 at about 12:30 p.m. wherein Mst. Zubaida Bibi, who was none other than the wife of complainant Abdul Sattar (PW.9) lost her life. To be precise, the allegation of committing the crime was attributed to the appellants and their co-convict Imdad Hussain, who allegedly were coming out of an unknown house and were heard by the complainant and other PWs while saying that they slew Zubaida Kali. The law was set into motion upon the statement/Fard Bian (Exh.PA) of the complainant which he got recorded before Malik Ghulam Nabi SI (PW.7) upon his arrival at the crime scene. A wade through the record further (sic) that after thorough probe report under Section 173, Cr.P.C. was placed before the trial Court, however Mst. Anwar Mai (CW.1) who was mother of Zubaida Bibi (deceased) filed private complaint (Exh.CA). The learned trial Court indicted the accused/appellants in both the cases i.e. complaint case and State case separately for the murder of Zubaida Mai (deceased), passed two separate judgments and through each of them handed down guilty verdict. The anomaly so mentioned, gives rise to the proposition that whether the appellants and their co-convict could be awarded guilty verdict in two separate trials for the murder of Zubaida Mai (deceased) In this context, we have noted that Article 13 of the Constitution of Islamic Republic of Pakistan, 1973 places an embargo that no person shall be vexed twice for the same offence and for reference sake the relevant portion of foregoing Article is being mentioned hereunder:
“No Person ---- (a) shall be prosecuted or punished for the same offence;”
The afore-mentioned rule has its roots in the maxim “nemo bis puniture aut vexature pro odum delico” which means that no one should be subjected to peril twice for the same offence. Article 13 is based on the principle of outrefois convict and prohibits the subsequent prosecution of an accused for the same cause if he is punished/ convicted in an earlier trial. The same rule is postulated in Section 403, Cr.P.C. with the modification of adding the principle of autrefois acquit and thereby further embargo is placed on subsequent prosecution if the earlier one had culminated in acquittal. The terms “autrefois acquit” and “autrefois convict” are defined in Halsoury’s Laws of England (2nd Edn), Vol.9, pages 152-153 as under:
“The plea of ‘autrefois convict’ or ‘autrefois acquit’ avers that the defendant has been previously convicted or acquitted on charge of the same offence as that in respect of which he is arraigned. The question for the jury on the issue is whether the defendant has previously been in jeopardy in respect of the charge on which he is arranged for the rule of law is that a person must not be put in peril twice for the same offence. The test is whether the former offence and the offence now charged have the same ingredients in the sense that the facts constituting the one are sufficient to justify a conviction of the other, not that the facts relied on by the Crown are the same in the two trials. A plea of “autrefois acquit” is not proved unless it is shown that the verdict of acquittal of the previous charge necessarily involves in acquittal of the latter.”
From the perusal of the record, we have noticed that the approach of learned Additional Sessions Judge is not in accordance with the directions contained for deciding such like cases, The learned trial Court has admittedly disposed of the State case as well as the Complaint Case though through two judgments but did not keep the complaint case as dormant and such approach is contrary to the majority decision of the Hon’ble Supreme Court of Pakistan in the case of Nur Elahi v. The State etc. (PLD 1966 Supreme Court 708). In another case reported as Niaz Ahmed v. Hasrat Mahmood and others (PLD 2016 Supreme Court 70) the Hon’ble Supreme Court of Pakistan while dilating upon the matter in issue held as under:
“The law is settled by now that if different versions of the same incident are advanced by rival parties through cross-cases and such different versions contain different set of accused persons then trial of such cross-cases is to be held simultaneously and side by side and a reference in this respect may be made to the cases of Muhammad Sadiq v. The State and another (PLD 1971 SC (sic), Abdul Rehman Bajwa v. Sultan and 9 others (PLD 1981 SC 522), Rashid Ahmad v. Asghar Ali, etc. (PLD 1986 SC 37) and Mst. Rasool Bibi v. The State and another (2000 SCMR 641). The law is equally settled on the point that where the same party lodging the FIR also institutes a private complaint containing the same allegations against the same set of accused persons then the trial Court is to hold a trial in the complaint case first and in the meanwhile the Challan case is to be kept dormant awaiting the fate of the trial in the complaint case and a reference in this respect may be made be to the cases of Nur Elahi v. The State, etc. (PLD 1966 SC 708), Zulfiqar Ali Bhutto v. The State (PLD 1979 SC 53), Syed Muhammad Hussain Shah v. Abdul Hamid and 5 others (1981 SCMR 361), Mumtaz and others v. Mansoor Ahmed and another (1984 SCMR 221), Rashid Ahmad v. Asghar Ali and others (PLD 1986 SC 737), and Aziz-ur-Rehman v. The State (PLD 1987 Lahore 245)”.
Thus, while seeking guidance from the judgments referred to above, it would be in the witness of things to remand the matter to the learned trial Court for the purposes of re-writing of judgment. Consequently, conviction and sentence of Ghulam Qasim & Zafar Hussain (appellants) and as that of Imdad Hussain (convict) are set-aside and the matter is remanded to the learned trial Court with the direction to re-write the judgment on the basis of material available on the record and hearing both the parties. While doing this exercise, the learned trial Court will keep in mind the law and the principle of autrefois convict and autrefois acquit, mentioned supra. During this period, the appellants shall be deemed as under trial prisoners. It will not be out of context to mention here that Imdad Hussain (convict) absconded at the time of pronouncement of judgment and till now he is at large. It also evinces from the record that though learned trial Court issued non-bailable warrants of arrest of Imdad Hussain (convict) while passing the guilty verdict dated 11.10.2019 but till date no effort whatsoever was made to arrest him. In this backdrop, Muhammad Afzal DPO, Rajanpur was summoned, who in attendance assured that he would make all out efforts for the arrest of Imdad Hussain (convict) and no stone would be left unturned in this regard. Hence, trial Court while proceeding with the matter will take coercive measures towards the arrest of Imdad Hussain (convict) and then pass the verdict according to law. Resultantly Criminal Appeal No. 1017 of 2019 is disposed of, whereas Murder Reference No. 133 of 2019 is answered in the NEGATIVE and Death Sentence awarded to Imdad Hussain (convict) is NOT CONFIRMED.
(A.A.K.) Appeal disposed of
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