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Criminal Miscellaneous No. 100/Q of 1971, decided on 11^th May 1971.

S. 403(1)‑Persons tried and convicted by Council of Elders for offence of murder but Haq conviction set aside by High Court as being in conflict with Funda mental Rights‑Such persons, held, neither convicted nor acquitted in terms of S. 403(1)‑Retrial, in circumstances, not barred‑Penal Code (XLV of 1860), S. 362/34.

Abdul Ghani v. Emperor 29 I L R 412; Nur Hussain v. Emperor A I R 1931 Lah. 767 ; Rafique‑ud‑Din Ahmad and others v. Emperor ,A I R 1935 Cal. 184: Sanyashi Gain and others v. Emperor A I R 1937 Cal. 269 ; Executive Officer, Municipal Board, Ghaziabad v. Harsaran Das A I R 1940 All. 19; Abdus Sattar v. The Crown P L D 1954 F C 120 ; The State v. Karam Ali 1968 P Cr. L J 1707 and Muhammad Ali v. The State and 2 others 1970 P Cr. L J 1182 distinguished.

Ramchandra Naik and another v. Emperor A I R 1947 Pat. 428 ; Edward Ezra and others v. The State A I R 1953 Cal. 263 and In re: Govilan A I R 1958 Mad. 286 ref.

Ss. 561‑A & 439‑Quashment of proceedings‑Retrial‑Delay in prosecution‑Proceed ings against petitioners pending for last 10 years‑Delay in finalisa tion of case, held, by itself no deciding factor in ordering or not ordering retrial‑offence charged being of gravest kind, i.e., murder, petitioners ordered to be retried by competent Court in ends of justice Penal Code (XLV of 1860), S. 302/34.

S. M. Almas Ali for Applicant.

Rustam Sidhwa for the State.

Date of hearing : 11th May 1971.

The petitioner Feroze Khan has prayed for quashment of the proceedings pending against him and his two co‑accused, Muhammad Husain and Ghulam Mustafa, under section 302/34 of the Pakistan Penal Code in the Court of the Additional Sessions Judge at Sargodha.

2. The offence relates to the year 1961. In the year 1963 the accused persons were committed to stand their trial before the Court of Session when the case was withdrawn from the regular Courts by an order made by the. Deputy Commissioner, Sargodha, on the 9th of April 1963, and referred for trial to a counsel of Elders under the Frontier Crimes Regulation. The Council of Elders found the accused persons guilty under sections 302/34 and 397/34 of the Pakistan Penal Code. A formal order of conviction was recorded by the Deputy Commissioner, Sargodha, on the 2nd of August 1963, and each of the three accused were sentenced to undergo rigorous imprisonment for fourteen years and seven years, respectively, on each count. The sentence of fourteen years, awarded for the offence of murder, required confirmation by the Commissioner under section 12 of the Frontier Crimes Regulation. This confirmation was made by the Commissioner by his order dated the 21st of January 1964. While maintaining the convictions and sentences of the petitioner and his co‑accused, fie modified the order of the Deputy Commissioner to the extent that the sentences were ordered to run concurrently.

3. The petitioner Feroze Khan as well as his co‑accused Muhammad Husain challenged their convictions and sentences by filing two separate writ petitions in the High Court, namely, Writ Petitions Nos. 2158 of 1965 and 660 of 1966. Both these petitions were heard together and accepted by a Division Bench of this Court by its order, dated the 17th of October 1967, holding that the order of confirmation passed by the Commissioner with regard to the sentence of fourteen years rigorous imprisonment awarded to the accused persons under section 302/34, P. P. C.1 was void and inoperative in view of the enforcement of the Funda mental Rights before the date of the order. However, the convictions and sentences recorded under section 397/34, P. P. C. were maintained.

4. The result of the order made by the High Court in the two writ petitions was that the case against the petitioner and his co‑accused remained pending in so far as the offence falling under section 302/34, P. P. C. was concerned. It appears that the accused persons have now been called upon to face the trial before the learned Additional Sessions Judge of Sargodha.

5. It is contended by the learned counsel for the petitioner that the present trial amounts to double jeopardy for the same offence, as the petitioner and his co‑accused have already been tried in this behalf and their convictions and sentences have been set aside as being void and inoperative. It is submitted that the fresh trial is clearly hit by the provisions contained in section 403 of the Code of Criminal Procedure. It is next contended that, in any case, on principles of natural justice and equity the petitioner should not be retried after the lapse of ten years since the offence was committed, and eight years after he was first convicted by the learned Deputy Commissioner of Sargodha.

6. After hearing the learned counsel for the parties at some length, I am of the view that this petition has to be dismissed. The case is clearly not covered by any of the subsections of section 403 of the Code of Criminal Procedure. It is true that the petitioner and his two co‑accused were tried by a Council of Elders, but the conviction and sentence recorded against them under section 302/34, P. P. C. were sot aside by the High Court as being in conflict with Fundamental Rights. There was thus neither a conviction nor an acquittal in force such as could bar a retrial in terms of subsection (1) of section 403 of the Code.

7. The learned counsel fur the petitioner has referred to a large number of cases in support of his submission that a retrial cannot take place in this case. Mention may be made of Abdul Ghani v. Emperor (291 LR412), Nur Hussain v. Emperor (AIR1931Lah.70), Rafique‑ud‑Diu Ahmad and others v. Emperor (A I R 1935 Cal. 184), Sanyashi Gain and others v. Emperor (A I R 1937 Cal. 269), Executive Officer, Municipal Board Ghaziabad v. Harsaran Das (A I R 1940 All. 19), Abdus Sattar v. The Crown (P L D 1954 F C 120), The State v. Karam Ali (1968‑P Cr. L J 1707.) and Muhammad Ali v. The Stare and 2 others (1970 P Cr. L J 1182). A perusal of these authorities shows that in law a retrial was held to be barred only when there had been an acquittal or con viction which continued to be in force, but nevertheless the question of the advisability and expediency of afresh trial was examined in the light of the circumstances of each case.

8. On behalf of the State, it is contended by Mr. Rustam Sidhwa that the offence alleged against the petitioner being of a serious nature, namely, murder, and the conviction and sentence recorded against him having been found to be void and inopera tive in law, it is a. clear case where a proper trial, according to law, should be allowed to proceed in the interest of justice. In support of this proposition, the learned counsel has referred me to Ramchandra Naik and another v. Emperor (A I R 1947 Pat. 428), Edward Ezra and others v. The State (A I R 1933 Cal. 263) and In re: Govilan (A I R 1958 .Mad. 286).

9. There being no valid order of the acquittal or conviction in force in respect of the offence of murder charged against the petitioner, there is no legal bar in the way of his fresh trial by the Additional Sessions Judge, Sargodha. The only question is whether there are any circumstances justifying interference with the normal course of law. It is submitted by the learned counsel for the petitioner that the alleged offence of murder took place nearly ten years ago and if the conviction and sentence recorded against him had not been found to be void and inoperative in law, he would have served a substantial part of his sentence, con currently with the sentence awarded to him under section 397/34 of the Pakistan Penal Code. It is submitted that the fresh trial now proceeding against the petitioner would result in great hardship to him in case he is convicted and ordered to undergo further punishment.

10. It is, indeed, unfortunate that the proceedings against the petitioner have remained pending for such a long period, but delay in the finalisation of the case is by itself certainly not the deciding factor in this case. The offence, as already stated, is or the gravest kind, namely, murder, and the ends of justice do‑require that there should be a proper trial by a competent Court of law.

11. For the foregoing reasons, the petition fails and is hereby dismissed.

Petition dismissed.

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