---------
PLJ 2012 SC 245
[Appellate Jurisdiction]
Present: Tassaduq Hussain Jillani, Muhammad Sair Ali & Sarmad Jalal Osmany, JJ.
SHER MUHAMMAD UNAR and others--Petitioners
versus
STATE--Respondent
Crl. Petition No. 267 of 2011, decided on 18.10.2011.
(Against the judgment of the High Court of Sindh Karachi dated 1.6.2011 passed in Cr. Rev. Application No. 152 of 2010).
Criminal Procedure Code, 1898 (V of 1898)--
----S. 193--Constitution of Pakistan, 1973, Art. 13--Principle of double jeopardy cannot be invoked--Application u/S. 193, Cr.P.C. to summon petitioner was allowed in earlier round of litigation--Order was reversed by High Court--Challenged before Supreme Court--Question of--Whether petitioners who had been declared innocent during investigation could be summoned by trial Court and whether such would amount to double jeopardy--Protection against double punishment and self incrimination--Validity--Even if when an accused was discharged by trial Court, consequence would be that he was discharged from his, bond at stage when his custody was no longer required by investigating agency--But such an order was only an executive order passed at investigating stage when the case has yet to get for trial--Court can still try if same fresh material was brought before it--Petitioners were not even discharged by trial--Order of discharged based on police report cannot be equated with acquittal--Court was not bound by such finding of innocence reflected in final report submitted u/S. 173, Cr.P.C.--Trial Court having assessed their evidence came to prima facie conclusion that a case was made out against petitioners and summoned them--Concurrent prima facie assessment of evidence had not been found by Supreme Court to be either arbitrary or against record to warrant interference--Witness examined before framing of charge against petitioners will have to be examined afresh after framing of charge--It was for trial Court to assess the evidence which was finally recorded in presence of all accused, consider defence plea including the one which was being convassed before Supreme Court--Appeal was dismissed. [Pp. 253 & 254] A, B & C
1972 SCMR 335, PLD 1967 SC 425, PLD 2006 SC 365, PLD 1978 SC 21, 1997 MLD 1430, 1996 PCr.LJ 1673 & 2001 YLR 387, ref.
Mr. Abdul Hafiz Pirzada, Sr. ASC, Miangul Hassan Aurangzeb, ASC and Mr. Mehmood A. Sheikh, AOR alongwith Petitioner No. 1 in person.
Mr. Zafar Ahmed Khan, Addl. P.G. for State.
Complainant in person.
Date of hearing: 18.10.2011.
Order
Tassaduq Hussain Jillani, J.--Through this petition, petitioners have challenged the judgment of the High Court of Sindh, Karachi vide which Criminal Revision Application No. 152 of 2010 filed by the petitioners was dismissed and the order of the learned trial Court dated 25.9.2010 was upheld.
2. Facts giving rise to the instant petition briefly stated are that on the application of complainant Syed Ijaz Ali Shah, a case was registered vide FIR No. 104 of 1999 at P.S. Qaziabad under Sections 302, 324, 148, 149 PPC wherein he alleged that he, his father and his uncle Wazir Ali resided in the same house; that about six months prior to the occurrence, Ehsan Mian Unar accused had a quarrel with complainant's brother Syed Kamil Shah whereupon he got a case registered against the said Ehsan Mian Unar and others and since then they were not on speaking terms; that on the fateful day at about noon time, his cousin Zulfiqar Ali Shah and Shahid Mian, brother of Ehsan Mian, exchanged hot words and at 4.30 p.m. while the complainant was sitting in his Bungalow, Raes Sher Muhammad son of Shahnawaz Unar gave him a telephonic call that they would sort out the complainant party for having criminal cases registered against them and trying to attain equal status. At about 4:45 p.m., when the complainant along with his brother Kamil Shah, cousin Zulfiqar Ali Shah son of Wazir Ali Shah, Muhammad Ramzan alias Miro Khaskheli and others were sitting in front of their house, an Alto Car of white color being driven by Zulfiqar Ali son of Haji Ali Nawaz Unar stopped in front of their house. Ehsan Mian son of Shoukat Mian was sitting in the front seat armed with a Kalashnikov and on the back seat were sitting Iftikhar son of Dost Muhammad Unar, armed with a Mouser in his hand and Mumtaz Ali son of not known having .30 bore pistol in his hand. As soon as the car stopped, Zulfiqar Ali Unar who was on the driving seat raised a lalkara and on his bidding Ehsan Mian fired with his Kalashnikov which hit Zulfiqar Ali Shah. Iftikhar Unar, Mumtaz and others also fired but the complainant party saved themselves. The firing attracted persons of the locality and the accused fled away. Zulfiqar Ali succumbed to the injuries and died at the spot. The police after due investigation submitted report under Section 173 Cr.P.C. before the trial Court wherein it challaned only two accused namely Ehsan Mian and Mumtaz Ali Dahri. By order of the learned High Court of Sindh dated 3.10.2003 passed in Criminal Revision No. 45 of 2003, the case was transferred to the Special Court established under the STA. The complainant filed an application under Section 193 Cr.P.C. to summon the petitioners which was allowed on 25.4.2005. This order was challenged before the High Court which was allowed on 30.5.2005, however, this order was challenged before this Court in Criminal Petition for Leave to Appeal Nos. 231 & 232 of 2005 which was disposed of vide order dated 22.9.2005 with the consent of the parties in terms as under:--
"(a) The order of the learned trial Judge, to the extent of summoning the three private respondents in the trial in question, is declared legal and restored and to the said extent, the impugned order of the learned High Court is set aside. The said accused persons shall however, have the right to approach the learned trial Judge for recall of the said order.
(b) The order of the learned trial Judge to the extent of issuing bailable warrants for the arrest of the accused persons in question is declared to be a transgression in law and offensive of the principles regulating the subject and the said extent, the order of the learned High Court is maintained."
3. Pursuant to the afore-referred order of this Court, petitioners moved the trial Court for recalling the order of summoning (dated 25.4.2005) which prayer was granted with the consent of the respondent-complainant with stipulation that the application under Section 193 Cr.P.C. (filed by the complainant) shall be considered after some evidence is recorded. The order (dated 15.9.2006) reads as follows:--
"Heard Mr. Muhammad Jameel Choudhry advocate for respondents, Mr. Nasir Ali Shah advocate for complainant and with the consent of the learned counsels, the order dated 25.4.2005, joining respondents Sher Muhammad Unar, Zulfiqar Ali Unar and Iftikhar Unar as accused is recalled and charge be framed against the accused Ehsan Mian and Mumtaz Ali, and after recording the evidence, if the matter comes on record against the respondents Sher Muhammad Unar, Zulfiqar Ali Unar and Iftekhar Ali Unar, then their application U/S. 193 Cr.P.C. will be considered at that stage."
4. The learned trial Court recorded some evidence and having considered the said evidence, it allowed complainant's application vide order dated 25.9.2010, the operative part of which reads as follows:--
"After hearing Advocate for both the parties and perusal of record it transpires that the accused Sher Muhammad, Zulfiqar Ali, and Iftikhar are nominated in the F.I.R. along with co-accused. Ehsan Mian and Mumtaz Ali who are facing trial, for commission of offence. The incident has taken place at day time therefore there is no question of mis-identity of the accused. The F.I.R. was lodged by the complainant promptly therefore, there is no question of falsely implicating the accused by consultation or due deliberation. So far the enmity over politics or exchange of hot words or fight between Ehsan Mian Unar and Kamil Shah is concerned, the enmity cuts on both sides. The prosecution in this case had examined complainant and eye-witnesses and they have implicated the accused Sher Muhammad, Zulfiqar, and Iftikhar. The evidence against the accused Zulfiqar and Iftikhar is that the accused Zulfiqar Ali was driving the Car, and accused Ehsan Mian Unar was sitting with him in front seat having Kalashnikov in his hand, and accused Iftikhar armed with Mouser was sitting on back seat along with co-accused Mumtaz who was having .30 bore pistol. Thus the accused Iftikhar has facilitated the accused by bringing them at the place of incident to commit the offence. It is also alleged that accused Iftikhar along with Mumtaz Ali fired shots from their pistols upon complainant and P.Ws who fell down and save themselves. Thus the accused Iftikhar has practically participated in the commission of offence. So far the accused Rais Sher Muhammad is concerned, against whom allegation is that he on the day of incident rings the complainant on telephone and issued him threats that they are registering cases against him and trying to become equal to them, therefore, they will see the result very soon. Then after one hour and fifteen minutes the accused arrived on Car at the place of incident and committed the offence. Thus there is sufficient evidence against the accused to connect them with the commission of offence. The facts and circumstances of the case law cited by the Advocate for the accused are distinguishable from the facts and circumstances of this case therefore the same is not helpful to the accused.
In view of above reason I allowed this application and join the accused Sher Muhammad, Zulfiqar Ali and Iftikhar Ahmed as accused in this case, and let the Advocate for the accused informed the accused to appear before this Court on next date of hearing to face trial."
5. This order has been maintained by the learned High Court vide the impugned judgment.
6. Mr. Abdul Hafeez Pirzada, Sr. ASC submitted that the police having thoroughly investigated the case declared the petitioners to be innocent and it was not open for the trial Court to summon the petitioners as that would amount to double jeopardy which is violative of Article 13 of the Constitution; that there is no evidence tenable in law to warrant summoning of the petitioners; that the learned trial Court had no jurisdiction to summon the petitioners whose names had neither been mentioned in Column No. 2 or Column No. 3 of the report under Section 173 Cr.P.C. and once the petitioners stood exonerated in terms of Section 169 Cr.P.C. by the investigating agency, the only option available to the complainant was to file a fresh complaint; that the prosecution witnesses examined behind the back of the petitioners have no evidentiary value; that the application of the respondent was politically motivated as Kamil Shah brother of the complainant had contested elections for the seat of Union Council Nazim and was defeated by petitioner Zulfiqar Ali Unar; the said Kamil Shah had also contested election for the seat of Nazim and was defeated by petitioner Iftikhar Ali Unar; that the father of complainant Maqbool Shah and Kamil Shah had contested the election of Provincial Assembly seat in the year 1985 against petitioner Sher Muhammad and were defeated by the said Sher Muhammad. In support of the submissions made, learned counsel relied on Nasrullah v. the State (1997 MLD 1430), Arshad Ali Shah v. Saeed Ahmed Ashraf (1996 P.Cr.L.J 1673) and Ghulam Hussain v. State (2001 YLR 387).
7. The complainant who argued the case himself submitted that he is a Security Officer in the PIA and has nothing to do with politics; that the petitioners-accused are influentials of the area; that they not only killed his cousin Zulfiqar Ali in the instant case but have also been trying to prolong the trial by dragging the complainant in Courts; that despite notices issued, they have not been appearing before the trial Court; that they got a criminal case registered against one of their prosecution witnesses; that they obtained a stay order from the High Court of Sindh against the trial Court and that in the last 12 years, the accused have not been brought to justice. He further submitted that after recording of evidence, the learned trial Court summoned the petitioners on the basis of the incriminating evidence led against them and no case for interference in the impugned judgment is made out.
8. We have heard learned counsel for the petitioners Mr. Abdul Hafeez Pirzada, Sr. ASC and the complainant, have perused the record and have given anxious consideration to the issues raised.
9. The question whether petitioners who were declared innocent during investigation could be summoned by the trial Court after considering fresh material/evidence incriminating them and whether this would amount to double jeopardy with reference to Article 13 of the Constitution would of necessity warrant a comment on the import and rationale of this Constitutional provision which 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 offence, be compelled to be a witness against himself."
10. According to learned counsel, the expression `prosecute' appearing in the afore-referred provision would include investigation leading to a finding of guilt or innocence by the investigating officer and once a final report in terms of the said finding has been submitted before the trial Court under Section 173 Cr.P.C., wherein the petitioners having been declared innocent were not made accused, their summoning by the trial Court would amount to double jeopardy which is hit by the afore-referred provision. The word `prosecute' though not defined in the Constitution has been a subject of judicial comment and has to be construed in the context in which it has been used. In Alamdar Hussain Shah v. Abdul Baseer Qureshi (PLD 1978 SC 121), this Court while dilating on this expression held as follows:--
"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 final judgment therein (Hume v. Druyff L R 8 Ex. 214)."
The word "prosecute" is derived from a Latin word and signifies not only "to follow", but "to follow intensively" without intermission; thus, to, follow or pursue with a view to reach, execute or accomplish.
According to the Webster's New International Dictionary (Second Edition) "prosecution" means, inter alia, 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. "
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. "
11. In Abdul Malik v. The State (PLD 2006 SC 365), a larger Bench of this Court laid down parameters of the afore-referred provision with reference to its genesis and universal application. Speaking for the Court in a judgment authored by one of us (Tassaduq Hussain Jillani, J.), it was held as follows:--
The genesis of this provision can be traced to the English Common Law rule "nemo debet bis vexari", which in literal sense means that a person may not be put twice in peril for the same offence. This principle by now has come to assume a universal application and is found in constitutions of most of the countries. Reference to few would be in order. In U.S.A. this principle is couched in the 5th amendment of the Constitution which mandates, "nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb." In England this principle was evolved in Common Law and Blackstone describe it as, "this universal maxim of the Common Law of England, that no man is to be brought into jeopardy of his life more than once for the same offence." In India the provision is found in sub-Article (2) of Article 20 which reads, "no persons shall be prosecuted and punished for the same offence more than once." Article 39 of the Constitution of Japan provides that, "no person shall be held criminally liable in any act of which he has been acquitted nor shall he in any way be placed in double jeopardy". Article 14.7 of the U.N Covenant on Civil & Political Rights, 1966 embodies the same principle and mandates, "no one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country".
14. This almost universally accepted principle and as enshrined in Article 13 (a) of our Constitution in its import and as evolved through the precedent case-law, has following implications:--
(i) A person may not be tried for a crime in respect of which he has previously been acquitted or convicted.
(ii) In respect of the crime of which he could on some previous charge/indictment has been lawfully convicted.
(iii) Where the offence charged is in effect the same or substantially the same as one in respect of which the person charged has previously been acquitted or convicted or in respect of which he could on some previous indictment, have been convicted.
(iv) The evidence necessary to support the second indictment or the facts which constituted the second offence would have been sufficient to procure a legal conviction upon the first indictment either as to the offence charged or as to an offence of which on the indictment the accused could have been found guilty.
(v) The offence charged in the second indictment must have been committed at the time of the first charge i.e. a conviction or acquittal for an assault will not bar a charge of murder if the assaulted person later died.
(vi) The earlier adjudication leading to guilt or innocence of a person charged must have been through a valid process and by a Court of competent jurisdiction.
(vii) The conviction or acquittal in the previous proceedings must be enforced at the time of the second trial.
(viii) The proceedings in which the plea of double jeopardy is being raised must be fresh proceedings where the person is sought to be prosecuted for the same offence for the second time.
12. The finding of guilt or innocence by the police at the investigation stage is not a finding in trial culminating in conviction or acquittal and therefore the principle of double jeopardy cannot be invoked by the petitioners. Even if when an accused is discharged by the Magistrate/trial Court, the consequence would be that he is discharged from his bond at a stage when his custody is no longer required by the investigating agency. But such an order is only an executive order passed at the investigating stage when the case has yet to go for trial. Nevertheless, the Court can still try him if some fresh material is brought before it. Petitioners were not even discharged by the trial. The order of discharge based on police report cannot be equated with acquittal. The Court is not bound by such a finding of innocence reflected in the final report submitted under Section 173 Cr.P.C. and it can still summon the accused. In Falak Sher v. The State (PLD 1967 SC 425), it was observed as follows:
"Now, the question is, if he disagrees with the report, can he take action under clause (b) against those whose names have been placed under column 2 of the challan. As already pointed out, the Magistrate is not bound by the report submitted by the police under Section 173. When the said report is received by the Magistrate, the Magistrate on the report itself may not agree with the conclusions reached by the investigating officer. There is nothing in Section 190 to prevent a Magistrate from taking cognizance of the case under Clause (b) in spite of the police report."
13. This view was reiterated in Muhammad Akbar v. The State (1972 SCMR 335), wherein it was held as follows:
"Even on the first report alleged to have been submitted under Section 173, Cr.P.C, the Magistrate could, irrespective of the opinion of the Investigating Officer to the contrary, take cognizance, if upon the materials before him he found that a prima facie case was made out against the accused person. After all the police is not the final arbiter of a complaint lodged with it. It is the Court that finally determine upon the police report whether it should take cognizance or not in accordance with the provisions of Section 190(1)(b) of the Code of Criminal Procedure."
14. The instant case has a chequered history. The application of respondent-complainant under Section 193 Cr.P.C. to summon the petitioners was allowed in the earlier round of litigation vide order dated 25.4.2005. The said order was reversed by the High Court on 30.5.2005. Thereafter, the latter order was challenged by the complainant before this Court and Criminal Petition for Leave to Appeal Nos. 231 & 232 of 2005 were disposed of with a consent order to which reference has been made in Para-2 above. It was pursuant to the said order of this Court that the trial Court, with consent of both the parties, vide its order dated 15.9.2006, while recalling the earlier order of summoning the petitioners (dated 25.4.2005), observed that, .............. charge be framed against the accused Ehsan Mian and Mumtaz Ali, and after recording the evidence, if the matter comes on record against the respondents Sher Muhammad Unar, Zulfiqar Ali Unar and Iftekhar Ali Unar, then their application U/S. 193 Cr.P.C. will be considered at that stage." After the passage of the afore-referred order, statements of seven witnesses including the ones who claimed to be eye-witnesses namely Ijaz Ali complainant (PW-1), Syed Kamil Shah (PW-4) and Muhammad Ramzan (PW-5) were recorded and admittedly they have named the petitioners to be involved in the commission of alleged offence. The learned trial Court having assessed their evidence came to the prima facie conclusion that a case was made out against the petitioners and summoned them vide the impugned order. The learned High Court has upheld the order of the trial Court. This concurrent prima facie assessment of the evidence (which is preliminary in nature) led by the respondent-complainant has not been found by this Court to be either arbitrary or against the record to warrant interference. However, the witnesses examined before the framing of the charge against the petitioners will have to be examined afresh after framing of the charge.
15. So far as the argument of learned counsel for the petitioners that petitioners' involvement is product of mala fide and political rivalry is concerned, we would not, at this stage, comment on it lest it may prejudice the case of either side during trial. Suffice it to say that it is for the trial Court to assess the evidence which is finally recorded in the presence of all the accused, consider the defence plea including the one which is being canvassed before us, strictly in the light of the principles laid down by this Court for safe administration of justice.
16. For what has been discussed above, we do not find any merit in this appeal which is dismissed.
(R.A.) Appeal dismissed
PLJ 2012 SC 245
[Appellate Jurisdiction]
Present: Tassaduq Hussain Jillani, Muhammad Sair Ali & Sarmad Jalal Osmany, JJ.
SHER MUHAMMAD UNAR and others--Petitioners
versus
STATE--Respondent
Crl. Petition No. 267 of 2011, decided on 18.10.2011.
(Against the judgment of the High Court of Sindh Karachi dated 1.6.2011 passed in Cr. Rev. Application No. 152 of 2010).
Criminal Procedure Code, 1898 (V of 1898)--
----S. 193--Constitution of Pakistan, 1973, Art. 13--Principle of double jeopardy cannot be invoked--Application u/S. 193, Cr.P.C. to summon petitioner was allowed in earlier round of litigation--Order was reversed by High Court--Challenged before Supreme Court--Question of--Whether petitioners who had been declared innocent during investigation could be summoned by trial Court and whether such would amount to double jeopardy--Protection against double punishment and self incrimination--Validity--Even if when an accused was discharged by trial Court, consequence would be that he was discharged from his, bond at stage when his custody was no longer required by investigating agency--But such an order was only an executive order passed at investigating stage when the case has yet to get for trial--Court can still try if same fresh material was brought before it--Petitioners were not even discharged by trial--Order of discharged based on police report cannot be equated with acquittal--Court was not bound by such finding of innocence reflected in final report submitted u/S. 173, Cr.P.C.--Trial Court having assessed their evidence came to prima facie conclusion that a case was made out against petitioners and summoned them--Concurrent prima facie assessment of evidence had not been found by Supreme Court to be either arbitrary or against record to warrant interference--Witness examined before framing of charge against petitioners will have to be examined afresh after framing of charge--It was for trial Court to assess the evidence which was finally recorded in presence of all accused, consider defence plea including the one which was being convassed before Supreme Court--Appeal was dismissed. [Pp. 253 & 254] A, B & C
1972 SCMR 335, PLD 1967 SC 425, PLD 2006 SC 365, PLD 1978 SC 21, 1997 MLD 1430, 1996 PCr.LJ 1673 & 2001 YLR 387, ref.
Mr. Abdul Hafiz Pirzada, Sr. ASC, Miangul Hassan Aurangzeb, ASC and Mr. Mehmood A. Sheikh, AOR alongwith Petitioner No. 1 in person.
Mr. Zafar Ahmed Khan, Addl. P.G. for State.
Complainant in person.
Date of hearing: 18.10.2011.
Order
Tassaduq Hussain Jillani, J.--Through this petition, petitioners have challenged the judgment of the High Court of Sindh, Karachi vide which Criminal Revision Application No. 152 of 2010 filed by the petitioners was dismissed and the order of the learned trial Court dated 25.9.2010 was upheld.
2. Facts giving rise to the instant petition briefly stated are that on the application of complainant Syed Ijaz Ali Shah, a case was registered vide FIR No. 104 of 1999 at P.S. Qaziabad under Sections 302, 324, 148, 149 PPC wherein he alleged that he, his father and his uncle Wazir Ali resided in the same house; that about six months prior to the occurrence, Ehsan Mian Unar accused had a quarrel with complainant's brother Syed Kamil Shah whereupon he got a case registered against the said Ehsan Mian Unar and others and since then they were not on speaking terms; that on the fateful day at about noon time, his cousin Zulfiqar Ali Shah and Shahid Mian, brother of Ehsan Mian, exchanged hot words and at 4.30 p.m. while the complainant was sitting in his Bungalow, Raes Sher Muhammad son of Shahnawaz Unar gave him a telephonic call that they would sort out the complainant party for having criminal cases registered against them and trying to attain equal status. At about 4:45 p.m., when the complainant along with his brother Kamil Shah, cousin Zulfiqar Ali Shah son of Wazir Ali Shah, Muhammad Ramzan alias Miro Khaskheli and others were sitting in front of their house, an Alto Car of white color being driven by Zulfiqar Ali son of Haji Ali Nawaz Unar stopped in front of their house. Ehsan Mian son of Shoukat Mian was sitting in the front seat armed with a Kalashnikov and on the back seat were sitting Iftikhar son of Dost Muhammad Unar, armed with a Mouser in his hand and Mumtaz Ali son of not known having .30 bore pistol in his hand. As soon as the car stopped, Zulfiqar Ali Unar who was on the driving seat raised a lalkara and on his bidding Ehsan Mian fired with his Kalashnikov which hit Zulfiqar Ali Shah. Iftikhar Unar, Mumtaz and others also fired but the complainant party saved themselves. The firing attracted persons of the locality and the accused fled away. Zulfiqar Ali succumbed to the injuries and died at the spot. The police after due investigation submitted report under Section 173 Cr.P.C. before the trial Court wherein it challaned only two accused namely Ehsan Mian and Mumtaz Ali Dahri. By order of the learned High Court of Sindh dated 3.10.2003 passed in Criminal Revision No. 45 of 2003, the case was transferred to the Special Court established under the STA. The complainant filed an application under Section 193 Cr.P.C. to summon the petitioners which was allowed on 25.4.2005. This order was challenged before the High Court which was allowed on 30.5.2005, however, this order was challenged before this Court in Criminal Petition for Leave to Appeal Nos. 231 & 232 of 2005 which was disposed of vide order dated 22.9.2005 with the consent of the parties in terms as under:--
"(a) The order of the learned trial Judge, to the extent of summoning the three private respondents in the trial in question, is declared legal and restored and to the said extent, the impugned order of the learned High Court is set aside. The said accused persons shall however, have the right to approach the learned trial Judge for recall of the said order.
(b) The order of the learned trial Judge to the extent of issuing bailable warrants for the arrest of the accused persons in question is declared to be a transgression in law and offensive of the principles regulating the subject and the said extent, the order of the learned High Court is maintained."
3. Pursuant to the afore-referred order of this Court, petitioners moved the trial Court for recalling the order of summoning (dated 25.4.2005) which prayer was granted with the consent of the respondent-complainant with stipulation that the application under Section 193 Cr.P.C. (filed by the complainant) shall be considered after some evidence is recorded. The order (dated 15.9.2006) reads as follows:--
"Heard Mr. Muhammad Jameel Choudhry advocate for respondents, Mr. Nasir Ali Shah advocate for complainant and with the consent of the learned counsels, the order dated 25.4.2005, joining respondents Sher Muhammad Unar, Zulfiqar Ali Unar and Iftikhar Unar as accused is recalled and charge be framed against the accused Ehsan Mian and Mumtaz Ali, and after recording the evidence, if the matter comes on record against the respondents Sher Muhammad Unar, Zulfiqar Ali Unar and Iftekhar Ali Unar, then their application U/S. 193 Cr.P.C. will be considered at that stage."
4. The learned trial Court recorded some evidence and having considered the said evidence, it allowed complainant's application vide order dated 25.9.2010, the operative part of which reads as follows:--
"After hearing Advocate for both the parties and perusal of record it transpires that the accused Sher Muhammad, Zulfiqar Ali, and Iftikhar are nominated in the F.I.R. along with co-accused. Ehsan Mian and Mumtaz Ali who are facing trial, for commission of offence. The incident has taken place at day time therefore there is no question of mis-identity of the accused. The F.I.R. was lodged by the complainant promptly therefore, there is no question of falsely implicating the accused by consultation or due deliberation. So far the enmity over politics or exchange of hot words or fight between Ehsan Mian Unar and Kamil Shah is concerned, the enmity cuts on both sides. The prosecution in this case had examined complainant and eye-witnesses and they have implicated the accused Sher Muhammad, Zulfiqar, and Iftikhar. The evidence against the accused Zulfiqar and Iftikhar is that the accused Zulfiqar Ali was driving the Car, and accused Ehsan Mian Unar was sitting with him in front seat having Kalashnikov in his hand, and accused Iftikhar armed with Mouser was sitting on back seat along with co-accused Mumtaz who was having .30 bore pistol. Thus the accused Iftikhar has facilitated the accused by bringing them at the place of incident to commit the offence. It is also alleged that accused Iftikhar along with Mumtaz Ali fired shots from their pistols upon complainant and P.Ws who fell down and save themselves. Thus the accused Iftikhar has practically participated in the commission of offence. So far the accused Rais Sher Muhammad is concerned, against whom allegation is that he on the day of incident rings the complainant on telephone and issued him threats that they are registering cases against him and trying to become equal to them, therefore, they will see the result very soon. Then after one hour and fifteen minutes the accused arrived on Car at the place of incident and committed the offence. Thus there is sufficient evidence against the accused to connect them with the commission of offence. The facts and circumstances of the case law cited by the Advocate for the accused are distinguishable from the facts and circumstances of this case therefore the same is not helpful to the accused.
In view of above reason I allowed this application and join the accused Sher Muhammad, Zulfiqar Ali and Iftikhar Ahmed as accused in this case, and let the Advocate for the accused informed the accused to appear before this Court on next date of hearing to face trial."
5. This order has been maintained by the learned High Court vide the impugned judgment.
6. Mr. Abdul Hafeez Pirzada, Sr. ASC submitted that the police having thoroughly investigated the case declared the petitioners to be innocent and it was not open for the trial Court to summon the petitioners as that would amount to double jeopardy which is violative of Article 13 of the Constitution; that there is no evidence tenable in law to warrant summoning of the petitioners; that the learned trial Court had no jurisdiction to summon the petitioners whose names had neither been mentioned in Column No. 2 or Column No. 3 of the report under Section 173 Cr.P.C. and once the petitioners stood exonerated in terms of Section 169 Cr.P.C. by the investigating agency, the only option available to the complainant was to file a fresh complaint; that the prosecution witnesses examined behind the back of the petitioners have no evidentiary value; that the application of the respondent was politically motivated as Kamil Shah brother of the complainant had contested elections for the seat of Union Council Nazim and was defeated by petitioner Zulfiqar Ali Unar; the said Kamil Shah had also contested election for the seat of Nazim and was defeated by petitioner Iftikhar Ali Unar; that the father of complainant Maqbool Shah and Kamil Shah had contested the election of Provincial Assembly seat in the year 1985 against petitioner Sher Muhammad and were defeated by the said Sher Muhammad. In support of the submissions made, learned counsel relied on Nasrullah v. the State (1997 MLD 1430), Arshad Ali Shah v. Saeed Ahmed Ashraf (1996 P.Cr.L.J 1673) and Ghulam Hussain v. State (2001 YLR 387).
7. The complainant who argued the case himself submitted that he is a Security Officer in the PIA and has nothing to do with politics; that the petitioners-accused are influentials of the area; that they not only killed his cousin Zulfiqar Ali in the instant case but have also been trying to prolong the trial by dragging the complainant in Courts; that despite notices issued, they have not been appearing before the trial Court; that they got a criminal case registered against one of their prosecution witnesses; that they obtained a stay order from the High Court of Sindh against the trial Court and that in the last 12 years, the accused have not been brought to justice. He further submitted that after recording of evidence, the learned trial Court summoned the petitioners on the basis of the incriminating evidence led against them and no case for interference in the impugned judgment is made out.
8. We have heard learned counsel for the petitioners Mr. Abdul Hafeez Pirzada, Sr. ASC and the complainant, have perused the record and have given anxious consideration to the issues raised.
9. The question whether petitioners who were declared innocent during investigation could be summoned by the trial Court after considering fresh material/evidence incriminating them and whether this would amount to double jeopardy with reference to Article 13 of the Constitution would of necessity warrant a comment on the import and rationale of this Constitutional provision which 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 offence, be compelled to be a witness against himself."
10. According to learned counsel, the expression `prosecute' appearing in the afore-referred provision would include investigation leading to a finding of guilt or innocence by the investigating officer and once a final report in terms of the said finding has been submitted before the trial Court under Section 173 Cr.P.C., wherein the petitioners having been declared innocent were not made accused, their summoning by the trial Court would amount to double jeopardy which is hit by the afore-referred provision. The word `prosecute' though not defined in the Constitution has been a subject of judicial comment and has to be construed in the context in which it has been used. In Alamdar Hussain Shah v. Abdul Baseer Qureshi (PLD 1978 SC 121), this Court while dilating on this expression held as follows:--
"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 final judgment therein (Hume v. Druyff L R 8 Ex. 214)."
The word "prosecute" is derived from a Latin word and signifies not only "to follow", but "to follow intensively" without intermission; thus, to, follow or pursue with a view to reach, execute or accomplish.
According to the Webster's New International Dictionary (Second Edition) "prosecution" means, inter alia, 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. "
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. "
11. In Abdul Malik v. The State (PLD 2006 SC 365), a larger Bench of this Court laid down parameters of the afore-referred provision with reference to its genesis and universal application. Speaking for the Court in a judgment authored by one of us (Tassaduq Hussain Jillani, J.), it was held as follows:--
The genesis of this provision can be traced to the English Common Law rule "nemo debet bis vexari", which in literal sense means that a person may not be put twice in peril for the same offence. This principle by now has come to assume a universal application and is found in constitutions of most of the countries. Reference to few would be in order. In U.S.A. this principle is couched in the 5th amendment of the Constitution which mandates, "nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb." In England this principle was evolved in Common Law and Blackstone describe it as, "this universal maxim of the Common Law of England, that no man is to be brought into jeopardy of his life more than once for the same offence." In India the provision is found in sub-Article (2) of Article 20 which reads, "no persons shall be prosecuted and punished for the same offence more than once." Article 39 of the Constitution of Japan provides that, "no person shall be held criminally liable in any act of which he has been acquitted nor shall he in any way be placed in double jeopardy". Article 14.7 of the U.N Covenant on Civil & Political Rights, 1966 embodies the same principle and mandates, "no one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country".
14. This almost universally accepted principle and as enshrined in Article 13 (a) of our Constitution in its import and as evolved through the precedent case-law, has following implications:--
(i) A person may not be tried for a crime in respect of which he has previously been acquitted or convicted.
(ii) In respect of the crime of which he could on some previous charge/indictment has been lawfully convicted.
(iii) Where the offence charged is in effect the same or substantially the same as one in respect of which the person charged has previously been acquitted or convicted or in respect of which he could on some previous indictment, have been convicted.
(iv) The evidence necessary to support the second indictment or the facts which constituted the second offence would have been sufficient to procure a legal conviction upon the first indictment either as to the offence charged or as to an offence of which on the indictment the accused could have been found guilty.
(v) The offence charged in the second indictment must have been committed at the time of the first charge i.e. a conviction or acquittal for an assault will not bar a charge of murder if the assaulted person later died.
(vi) The earlier adjudication leading to guilt or innocence of a person charged must have been through a valid process and by a Court of competent jurisdiction.
(vii) The conviction or acquittal in the previous proceedings must be enforced at the time of the second trial.
(viii) The proceedings in which the plea of double jeopardy is being raised must be fresh proceedings where the person is sought to be prosecuted for the same offence for the second time.
12. The finding of guilt or innocence by the police at the investigation stage is not a finding in trial culminating in conviction or acquittal and therefore the principle of double jeopardy cannot be invoked by the petitioners. Even if when an accused is discharged by the Magistrate/trial Court, the consequence would be that he is discharged from his bond at a stage when his custody is no longer required by the investigating agency. But such an order is only an executive order passed at the investigating stage when the case has yet to go for trial. Nevertheless, the Court can still try him if some fresh material is brought before it. Petitioners were not even discharged by the trial. The order of discharge based on police report cannot be equated with acquittal. The Court is not bound by such a finding of innocence reflected in the final report submitted under Section 173 Cr.P.C. and it can still summon the accused. In Falak Sher v. The State (PLD 1967 SC 425), it was observed as follows:
"Now, the question is, if he disagrees with the report, can he take action under clause (b) against those whose names have been placed under column 2 of the challan. As already pointed out, the Magistrate is not bound by the report submitted by the police under Section 173. When the said report is received by the Magistrate, the Magistrate on the report itself may not agree with the conclusions reached by the investigating officer. There is nothing in Section 190 to prevent a Magistrate from taking cognizance of the case under Clause (b) in spite of the police report."
13. This view was reiterated in Muhammad Akbar v. The State (1972 SCMR 335), wherein it was held as follows:
"Even on the first report alleged to have been submitted under Section 173, Cr.P.C, the Magistrate could, irrespective of the opinion of the Investigating Officer to the contrary, take cognizance, if upon the materials before him he found that a prima facie case was made out against the accused person. After all the police is not the final arbiter of a complaint lodged with it. It is the Court that finally determine upon the police report whether it should take cognizance or not in accordance with the provisions of Section 190(1)(b) of the Code of Criminal Procedure."
14. The instant case has a chequered history. The application of respondent-complainant under Section 193 Cr.P.C. to summon the petitioners was allowed in the earlier round of litigation vide order dated 25.4.2005. The said order was reversed by the High Court on 30.5.2005. Thereafter, the latter order was challenged by the complainant before this Court and Criminal Petition for Leave to Appeal Nos. 231 & 232 of 2005 were disposed of with a consent order to which reference has been made in Para-2 above. It was pursuant to the said order of this Court that the trial Court, with consent of both the parties, vide its order dated 15.9.2006, while recalling the earlier order of summoning the petitioners (dated 25.4.2005), observed that, .............. charge be framed against the accused Ehsan Mian and Mumtaz Ali, and after recording the evidence, if the matter comes on record against the respondents Sher Muhammad Unar, Zulfiqar Ali Unar and Iftekhar Ali Unar, then their application U/S. 193 Cr.P.C. will be considered at that stage." After the passage of the afore-referred order, statements of seven witnesses including the ones who claimed to be eye-witnesses namely Ijaz Ali complainant (PW-1), Syed Kamil Shah (PW-4) and Muhammad Ramzan (PW-5) were recorded and admittedly they have named the petitioners to be involved in the commission of alleged offence. The learned trial Court having assessed their evidence came to the prima facie conclusion that a case was made out against the petitioners and summoned them vide the impugned order. The learned High Court has upheld the order of the trial Court. This concurrent prima facie assessment of the evidence (which is preliminary in nature) led by the respondent-complainant has not been found by this Court to be either arbitrary or against the record to warrant interference. However, the witnesses examined before the framing of the charge against the petitioners will have to be examined afresh after framing of the charge.
15. So far as the argument of learned counsel for the petitioners that petitioners' involvement is product of mala fide and political rivalry is concerned, we would not, at this stage, comment on it lest it may prejudice the case of either side during trial. Suffice it to say that it is for the trial Court to assess the evidence which is finally recorded in the presence of all the accused, consider the defence plea including the one which is being canvassed before us, strictly in the light of the principles laid down by this Court for safe administration of justice.
16. For what has been discussed above, we do not find any merit in this appeal which is dismissed.
(R.A.) Appeal dismissed
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