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Reference No. 23 of 1953, decided on 11th May 1953 under section 438, Cr. P. C.

S. 403‑Accused acquitted of charge under S. 189, P. P. C.‑Again sent up for trial under S. 353, P. P. C. on same facts‑Proceedings quashed.

Sh. Muhammad Arif, Public Prosecutor for the Crown.

‑This is a reference from the District Magistrate, Zhob, under the provisions of section 438, Cr. P. C. The brief circumstances of this case are that three persons were challaned in the Court of a II Class Magistrate for an offence under section 189, P. P. C. They were duly acquitted under section 494 (b), Cr. P. C. Thereafter, they were again challaned for an offence under section 353, P P. C. and the learned District Magistrate has referred the case to this Court on the grounds that they cannot again be tried in view of the provisions of section 403, Cr. P. C.

The learned Public Prosecutor was asked to appear and he argues that in view of the provisions of subsection (2) of section 403, Cr. P. C. there is no legal bar to the trial of these accused persons because they are alleged to have committed a separate and distinct offence. There is no doubt that this sub section of section 403 of the Cr. P. C. does allow for a person who has been acquitted of one offence, to be tried for another offence, provided the second offence is entirely distinct and separate. It has, however, been held as a general rule, that no person will be tried again, even for another offence on the same set of facts on which he has already been acquitted. Moreover, this subsection is undoubtedly not designed to allow for the harassment of persons who have already stood their trial and have been acquitted.

The facts of this case in the original trial indicate that the accused were alleged to have abused a Police‑constable and on the evidence recorded they were duly acquitted. It is clear to me that on the same set of facts, which is evident from the police reports on record, the police have now endeavoured to challan them once more for an offence falling under the provisions of sections 353/109/34, P. P. C. It is relevant to observe that, in the first instance, when the knowledge of the, alleged offence came to the notice of the police authorities, they were at perfect liberty to challan the accused at the first trial by a joinder of charges, if necessary. It is certainly not the intention of the Legislature to allow for the prosecution of the accused persons under one section of the Pakistan Penal Code and if the prosecution fails to allow for a subsequent trial to take place for another alleged offence on the same set of facts.

In my opinion this is a clear case in which the police have endeavoured to harass the persons who were accused and in due course acquitted when they first stood their trial. Under no circumstances can I countenance such harassment, I therefore accept the reference made by the learned District Magistrate and direct the proceedings against the accused will now be quashed.

A. H. Proceedings quashed.

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