POST-MID ASSIGNMENT Criminal Procedure Code What is double jeopardy and its legal effects under CrPC? 5th May, 2020. INSTRUCTOR Sir Sher Abbas SUBMITTED BY Fatima Tariq Tariq 2 Overview of Assignment The point of discussion of this paper is to have a detailed overview of doctrine of “Double Jeopardy'' under the “Code of Criminal Procedure 1898”. This paper will begin by discussing what Double Jeopardy is, then it will discuss the legal provisions on Double Jeopardy applicable in Pakistan. It will explain the basis of sec on 403 CrPC. The cri cal review of this doctrine will be given in this paper at hand. This paper will briefly discuss the condi ons necessary for the applicability of the doctrine of double jeopardy. Furthermore, it will be discussed what the law under CrPC explicitly states and how it is implemented by the judiciary. In addi on to that this paper will also discuss excep ons to the doctrine of double jeopardy. It precisely states how the concept of public interest overrides the doctrine of estoppel. Relevant case laws have been cited. Tariq 3 OUTLINE OF PAPER 1. INTRODUCTION 2. RELEVANT PROVISIONS 3. MEANING OF DOUBLE JEOPARDY 4. MEANING OF CONVICTION & ACQUITTAL 5. RULE OF DOUBLE JEOPARDY UNDER SECTION 403 CrPC 6. BASIS OF SECTION 403 CrPC 7. CONDITIONS 8. PROVISIONS OF LAW ○ PROHIBITION AGAINST TRIAL FOR SAME OFFENCE ○ PROHIBITION AGAINST TRIAL ON SAME FACTS FOR ANY OTHER OFFENCE ○ TRIAL FOR ANY DISTINCT OFFENCE ○ TRIAL FOR DIFFERENT OFFENCE ○ TRIAL FOR ANY OTHER OFFENCE 9. EXCEPTIONS TO SECTION 403/RULE OF JEOPARDY ○ SEVERAL OFFENCES: ○ DEPARTMENTAL INQUIRIES: ○ SEPARATE OFFENCE: ○ INCOMPETENCY OF COURT TO TRY OFFENCE: ○ CONTINUING OFFENCE: ○ OFFENCE PUNISHABLE UNDER DIFFERENT LAWS: 10. RULE OF ESTOPPEL OR PUBLIC POLICY 11. WHAT TIME TO TAKE PLEA 12.CONCLUSION 13.REFERENCES Tariq 4 INTRODUCTION The principle of criminal law called the double jeopardy rule is that no person should be punished more than once for the same offense and that no person ought to be placed twice in jeopardy (at risk) of being convicted. This means that a person who has been charged, tried, and acqui ed cannot be charged again for the same ma er. The rule plays a vital role in the protec on of the integrity of the criminal jus ce system including the precious human rights of the accused persons. The existence of the rule is very essen al as far as a criminal jus ce administra on is concerned irrespec ve of the nature of the system. The double jeopardy principle is one such value protected by the system. This principle protects people from being tried for the same crime twice in a court of law. RELEVANT PROVISIONS i. Sec on 403 of the Criminal Procedure, 1898 ➔ Cross Reference i. Ar cle 13(a) of the Cons tu on of Pakistan, 1973 ii. Sec on 11 of the code of Civil Procedure, 1908 iii. Sec on 26 of the General Clauses Act, 1897 Case Reference In Mst. Naushad Bibi v. Sher Khan and others, it was laid down that Ar cle 13 of the Cons tu on of Pakistan, Sec on 403 of the Criminal Procedure Code (V of 1898), Sec on 26 of the General Clauses Act (X of 1897), Protec on against double jeopardy had been provided against double punishment and not the trial of the offence.1 1 2013 P Cr. L J 666 Tariq 5 MEANING OF DOUBLE JEOPARDY The term “Double Jeopardy” means “Trail for the same offence”.2 According to Oxford Dictionary of Law: “ A defence to a prosecu on for a crime, raising the claim that the accused is being placed on trial for a second me for the same offence. ” 3 MEANING OF CONVICTION & ACQUITTAL ● Meaning of Conviction: Convic on means convic on for a criminal offence i.e; an offence which may be punishable with fine or depriva on of liberty.4 ● Meaning of Acquittal: Acqui al means verdict of the jury per the final judgment of the Court that the prison goes there without day.5 RULE OF DOUBLE JEOPARDY UNDER SECTION 403 CrPC Sec on 403 Cr.P.C contemplates a situa on where a person has once been tried by a court of competent jurisdic on and acqui ed or convicted by such court, he/she cannot be tried again for the same offence or for any other offence based on similar facts. The Hon'ble Supreme Court of Pakistan has interpreted this rule by observing in case Syed Alamdar Hussain Shah v. Abdul Baseer Qureshi & two others6. It was held that where the prosecu on finally concluded ended either in acqui al or convic on that a fresh prosecu on for the same would be barred. 2 https://dictionary.cambridge.org/dictionary/english/double-jeopardy 3 https://www.oxfordlearnersdictionaries.com/definition/american_english/double-jeopardy 4 Asanga 2019: 10 5 Asanga 2019: 11 6 PLJ 1978 Supreme Court 221 Tariq 6 BASIS OF SECTION 403 CrPC Sec on 403 CrPC is based on the ancient maxim: NEMO DEBET BIS VEXARI PRO UNA ET EADEM CAUSA which is translated as: No person shall be vexed twice for the same cause. In Imran Ahmed v. Federation of Pakistan through Secretary, Ministry of Interior, Islamabad,7 it was held that the protec on against double punishment and self-incrimina on has been provided under Ar cle 13 of the Cons tu on, which embodies the provision of the maxim Nemo debet bis vexari pro una et eadem causa. The same principle Autrefois Acquit (Formally Acqui ed) and Autrefois Convict (Formerly Convicted) is prevailing in the common law which means that no one should be punished or put in peril twice for the same ma er.8 In the case Hassan V. The State9, it was held that principles of autrefois acquit and autrefois convict contained in S.403(1), Cr.P.C. forbid a new trial a er a convic on or acqui al on the basis of the same facts had a ained finality. CONDITIONS In order to bar the trial of any person already tried, it must be shown that; i. He has been tried by the competent court for the same offence, or one for which he might have been charged or convicted at that trial, on the same facts. ii. He has been convicted or acqui al is in force. iii. Such convic on or acqui al is in force. 7 PLD 2014 Karachi 218 8 Autrefois acquit is a defense plea available to the accused in a criminal case, that he has been acquitted previously for the same offence and thus entitling a discharge. Likewise, Autrefois convict discharges an accused, as he has been convicted previously for the same offence. 9 PLD 2013 SC 793 Tariq 7 In Khadim Hussain Palh V. State it was held that, Concept of double jeopardy was (only) a racted where accused had been tried for the offence charged in a competent court and there was a judgment of convic on or acqui al, Mere lodging of F.I.Rs would not a ract the rule of double jeopardy. 10 PROVISIONS OF LAW (Explanation of Section 403 CrPC) Criminal Procedure code have provided following provisions in respect of double jeopardy: 1) PROHIBITION AGAINST TRIAL FOR SAME OFFENCE A person, who has been tried by a court of competent jurisdic on for an offence and has been convicted or acqui ed of such offence, should not be liable to be tried again for the same offence especially when such convic on or acqui al remains in force.11 In Secretary Local Government and Rural Development, Government of Punjab, Lahore v. Ahmed Yar Khan, it was held that No person can be punished twice for the same offence 2) PROHIBITION AGAINST TRIAL ON SAME FACTS FOR ANY OTHER OFFENCE A person, who has been tried by a court of competent jurisdic on for an offence, should not be liable to be tried again on the same facts for any other offence for which a charge might have been made under sec on No. 236 of Criminal procedure Code when such charge is different from that charge, which has been made against him or for which he might have been convicted under sec on No. 237 of Criminal Procedure Code.12 Aijaz Ahmed & 10 2014 PCrLJ Karachi 1698 11 Section 403(i) of Code of Criminal Procedure, 1898 12 Section 403(i) of Code of Criminal Procedure, 1898 Tariq 8 another V/S Bashir Ahmed bhutto & 3 others13: In this case, the accused from whom heroin had been recovered had been convicted and sentenced under the Customs Act, 1969, which he had undergone. Accused on the same facts had again been summoned and on his having pleaded guilty had been convicted and sentenced under sec on 9 of the Cont. of Nar. Subs. Act, 1997 by the Special Court. Offence commi ed under the Customs Act, 1969, having covered the offence under the Cont. of Nar. Subs. Act, 1997, could not be tried for the second me under the later Act and the accused could not be punished twice for the same act as ordained by Art.13 of the cons tu on. Convic on and sentence of accused under the Contr. of Nar. Subs. Act, 1997 were consequently quashed. 3) TRIAL FOR ANY DISTINCT OFFENCE A person, who has been acqui ed or convicted of any offence, can a erwards be tried for any dis nct offence for which a separate charge might have been made against him on former trial under subsec on 1 of Sec on No. 235 of criminal procedure code.14 4) TRIAL FOR DIFFERENT OFFENCE If a person has been convicted of any offence and such offence has been cons tuted by any act and such act has caused those consequences which, together with such act, cons tuted a different offence from that of which was convicted, such person can be a erwards tried for such last-men oned offence when the consequences have not happened or we not known to court to have happened at that me when he was convicted. 13 2000 MLD 364. 14 Section 403(i) of Code of Criminal Procedure, 1898 Tariq 9 5) TRIAL FOR ANY OTHER OFFENCE When a person has been acqui ed or convicted of any offence, which has been cons tuted by any acts, even then he, a er such acqui al or convic on, can be subsequently charged with and tried for any other offence, which has been cons tuted by the same acts, which he may have commi ed if court, which first tried him, was not competent to try that offence with which he is subsequently charged. EXCEPTIONS TO SECTION 403/RULE OF JEOPARDY 1) SEVERAL OFFENCES: Sec on 403 has no applica on to a case where the subsequent offence for which the accused is being tried subsequently didn't form part of the offence alleged at the previous trial, nor is this Sec on a racted to a case in which the subsequent offence is not, in any manner connected with the facts alleged at the earlier trial. This excep on has been held in Muhammad Ikram and others vs. The State.15 2) DEPARTMENTAL INQUIRIES: The scope of Sec on 403 is restricted to criminal proceedings and cannot be extended to department inquiries. Therefore, the fact that a person has been punished a er a departmental inquiry will not be sufficient to bar his trial for an offence under An -Corrup on Act is not prohibited. 15 PLD 1965 (W.P.) Lahore 461 Tariq 10 3) SEPARATE OFFENCE: The bar under Sec on 403 does not extend to cases which are completely dis nct or those which arise out of facts not alleged at the previous trail.16 4) INCOMPETENCY OF COURT TO TRY OFFENCE: The acqui al or convic on, in order to be an actual defense of the charge, must be a Court of competent jurisdic on. If the Court which held the first was not competent to try the charge put forward at the second trial, this Sec on would have no applica on.17 5) CONTINUING OFFENCE: The provisions of Sec on 403 do not apply to the con nuing offences. This principle is upheld in Khisro Nawaz v. Khanimulla and others.18 6) OFFENCE PUNISHABLE UNDER DIFFERENT LAWS: Where an offence is punishable under two different laws and different provisions of a law, accused cannot be said to have commi ed only one offence and acqui al from one cannot be considered acqui al from the other as well. RULE OF ESTOPPEL OR PUBLIC POLICY The principle underlying in sec on 403 i.e; double jeopardy does not rest on any doctrine of estoppel but on grounds of public policy. “Judicial estoppel” is an equitable doctrine which can be invoked where the party to be stopped. Important public policy reasons precluded 16 PLJ 2010 Lahore 472 17 https://www.lawctopus.com/academike/autrefois-acquit-autrefois-convict/ 18 PLD 1962 SC 242 Tariq 11 applica on of the collateral estoppel doctrine. This concept is taken from English Case Law: People v. Moreno19. WHAT TIME TO TAKE PLEA Proper me to take a plea under sec on 403 is when the accused is called upon to plead. But a plea of bar under this sec on can be raised at any stage of the case. It can be raised even in revision. CONCLUSION To conclude that it is the golden principle of law that no one should be punished twice for the offence has already been punished or acqui ed because this would lead to unnecessary interrup ons or delay and needless li ga on will con nue for a long me. Double jeopardy is a procedural defence that forbids a defendant from being tried again on the same (or similar) charges following a legi mate acqui al or convic on. Sec on 403 is exhaus ve on the subject of the effect of previous convic on or acqui als. The scope of sec on 403 is restricted to criminal proceedings and not to civil proceedings and departmental inquiries. According to my point of view, the logic behind this principle of law is that human dignity is to be respected and on the plea of suspicion the earlier exercise of formal charge and trial is not to be undone. Further, if this prac ce is allowed there will be no end to li ga on and none will be secure from the jeopardy or danger. 19 319 Ill.App.3d 445, 744 N.E.2d 906 (1st Dist. 2001) Tariq 12 REFERENCES 1. Admin. “Autrefois Acquit And Autrefois Convict.” Academike, 1 Mar. 2019, www.lawctopus.com/academike/autrefois-acquit-autrefois-convict/. 2. Bodaragama, Asanga. “CONVICTION, ACQUITTAL AND DISCHARGE OF ACCUSED AND SUSPECTS IN CRIMINAL CASES - MAGISTRATE'S PERSPECTIVE.” Academia.edu, www.academia.edu/19571486/CONVICTION_ACQUITTAL_AND_DISCHARGE_OF_ACC USED_AND_SUSPECTS_IN_CRIMINAL_CASES_-_MAGISTRATE_S_PERSPECTIVE. 3. “The Code of Criminal Procedure, 1898.” The Code of Criminal Procedure, 1898 | Punjab Judicial Academy, www.pja.gov.pk/thecodecriminalprocedure. 4. “DOUBLE JEOPARDY: Meaning in the Cambridge English Dic onary.” Cambridge Dictionary, dic onary.cambridge.org/dic onary/english/double-jeopardy. 5. “Double-Jeopardy Noun - Defini on, Pictures, Pronuncia on and Usage Notes: Oxford Advanced American Dic onary at OxfordLearnersDic onaries.com.” Double-Jeopardy Noun - Definition, Pictures, Pronunciation and Usage Notes | Oxford Advanced American Dictionary at OxfordLearnersDictionaries.com, www.oxfordlearnersdic onaries.com/defini on/american_english/double-jeopardy. 6. “People v. Moreno, 744 N.E.2d 906.” CourtListener, www.courtlistener.com/opinion/2232105/people-v-moreno/.