‫ﺑﺴﻢ ﷲ اﻟﺮﺣﻤﻦ اﻟﺮﺣﯿﻢ‬

‫ﻧﺤﻤﺪه و ﻧﺼﻠﯽ ﻋﻠﯽ رﺳﻮﻟہ اﻟﮑﺮﯾﻢ‬

Law of Previous Acquittals or

Convictions
Ch: XXX (S. 403) Cr. P. C. 1898

[Justice ® Dr. Munir Ahmad Mughal]

http://ssrn.com/author=1697634

Introduction

There is an ancient maxim of Latin:

Nemo debis bis vexari which means in
the English language: A person cannot
be tried a second time for an offence
which is involved in the offence with
which he was previously charged.
The same principle Autrifois acquit
(formerly acquitted) and Autrefois
convict (formerly convicted) is
prevailing in the common law. Important
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principles underlying invocation of this
rule is that if such person is tried by a
Court of competent jurisdiction for an
offence irrespective of the fact whether
he is convicted or acquitted he cannot be
tried again for the same offence and
contemplates of a situation where a
person has once been tried by a Court of
competent jurisdiction and acquitted by
such Court cannot be tried again for the
same offence nor for an other offence
based on similar facts.
Chapter XXIV of Part VI of the Code of
Criminal Procedure, 1898 which
contains only one section (i.e. section
403 Cr. P. C.) and has exhaustively
covered the subject of Double Jeopardy.
This paper discusses it in the light of the
judicial precedents.

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What is the text of the law
contained in section 403 of the
Code of Criminal Procedure, 1898 ?

Section 403 Cr. P. C. 1989 reads as

under:

“403. Persons once convicted or

acquitted not to be tried for the same
offence.”
(1) A person who has once been tried
by a Court of competent jurisdiction
for an offence and convicted or
acquitted of such offence shall, while
such conviction or acquittal remain
in force, not be liable to be tried
again for the same offence, nor on the
same facts for any other offence for
which a different charge from the one
made against him might have been
made under section 236, or for which

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 he might have been convicted under
section 237.
(2) A person acquitted or convicted
for any offence may be afterwards
tried for any distinct offence for
which a separate charge might have
been made against him on the former
trial under sections 235, subsection
(1).
(3) A person convicted of any offence
constituted by any act causing
consequences which together with
such act, constituted a different
offence from that of which he was
convicted, may be afterwards tried
for such last-mentioned offence, if the
consequence had not happened, or
were not happened, or were not
known to the Court to have happened,
at the time when he was convicted.

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(4) A person acquitted or convicted of
any offence constituted by any acts
may, notwithstanding such acquittal
or conviction, be subsequently
charged with, and tried for any other
offence constituted by the same acts
which he may have committed if the
Court by which he was first tried was
not competent to try the offence he is
subsequently charged.
(5) Nothing in this section shall affect
the provision of section 26 of the
General Clauses Act, 1897, or
section 188 of this Code.
Explanation. The dismissal of a
complaint, the stopping of proceedings
under section 249 or the discharge of
the accused is not acquittal for the
purpose of this section.

Illustrations:

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(a) A is tried upon a charge of theft
as a servant and acquitted. He cannot
afterwards, while the acquittal
remains in force, be charged with
theft as servant, or, upon the same
facts, with theft simply or with
criminal breach of trust.
(b) A is tried upon a charge of
murder and is acquitted. There is no
charge of robbery, but it appears that
A committed robbery at the time
when the murder was committed; he
may afterwards be charged with, and
tried for robbery.
(c) A is tried for causing grievous
hurt and convicted. The person
injured afterwards tries A. A may be
tried again for culpable homicide.
(d) A is charged before the Court of
Session and convicted of the
culpable homicide of B. A may not

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 afterwards be tried on the same facts
for the murder of B.
(e) A is charged by a Magistrate of
the First Class with, and convicted by
him of voluntarily causing hurt to B.
A may not afterwards be tried for
voluntarily causing grievous hurt to b
on the same facts, unless the case
comes within paragraph 3 of this
section.
(f) A is charged by a Magistrate of
the Second Class with, and convicted
by him of theft of property from the
person of B. A may be subsequently
charged with, and tried for, robbery
on the same facts.
(g) A, B, and C are charged by a
Magistrate of the First Class, with,
and convicted by him of robbing D.
A,B and C may after wards be

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 charged with and tried for dacaoity
on the same facts.”

Analysis of Section 403 Cr. P. C.

 Section 403 Cr. P. C. is based on the

maxim “Nemo debet bis vexari pro
una act eadem causa”1.
 Section 403 Cr. P. C. along with
section 26 of the General Clauses Act,
1897 provides a procedural shield.2
 Section 403 Cr. P. C. comes into play
after criminal proceedings are
culminated to their logic end after
trial.
 Section 403 Cr. P. C. contains a bar
against twice vexation of an accused
person. It will be applicable only,
1
It means no person should be twice disturbed for the same
cause.
2
PLD 1998 Lahore 239.

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 when, inter alia, the predominant
conditions are satisfied, i.e. that the
accused has been tried by a Court of
competent jurisdiction; that he has
been convicted or acquitted for such
offence; and that his conviction or
acquittal is still in force.
 The whole basis of section 403 (1) of
the Cr. P. C. is that the first trial
should have been before a Court of
Competent to h ear and determine the
case and to record a verdict of
conviction or acquittal. If the Court is
not so competent it is irrelevant that it
would have been competent to try
other cases of other class or indeed
the case against the particular
accused in different circumstances
e.g., if a sanction has been obtained. 3

3
PLD 1949 Privy Council 108; PLD 1951 Lahore 430.

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  The principles underlying this section
are founded on public policy. It is
exhaustive on the subject to the effect
of previous acquittal or conviction. 4

Elevation of the principle of

double jeopardy to the status of a
Constitutional right

Article 13 of the Constitution of the

Islamic Republic of Pakistan, 1973 reads:

“No person shall be prosecuted or

punished for the same offence more than
once; or
shall when accused of an offence be
compelled to be a witness against
himself.”

4
AIR 1939 Calcutta 65.

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Article 13 is a complete protection
against prosecution and punishment for
the same offence more than once which
means that no person should be
jeopardized or vexed twice for the same
offence.5

What is the wisdom behind the

legislation of section 403 Cr. P. C.?
If an accused is tried on certain charges
and acquitted, it will be clearly unjust
and highly oppressive and amount to an
abuse of the process of the Court to
permit his repeated prosecution on
identical evidence in respect of identical
charges even though relating to different
items. In case of acquittal where section
403 Cr. P. C. does not apply in terms ,
the principle of autrefois acquit
embodied in the section may be properly
5
2007 P. Cr. L. J. 1623.

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invoked in order to meet the ends of
justice.6

Benefit of doubt

Where an accused is given benefit of

doubt and acquitted, he cannot be
prosecuted for same offence a second
time.7

Order of discharge on merits

An order of discharge which is passed on
merits and which is not plainly or
substantially an order passed in default,
although it does not in law constitute a
legal bar will practically have the same
effect as an order of acquittal.8

6
PLD 1965 Lahore 461
7
PLD 1982 FSC 265.
8
PLD 1962 SC 242; PLD 1962 Dacca 671.

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When a case is not hit by the
principle of double jeopardy?

 Where offence emanates from

different set of facts.
 Where first complaint was withdrawn
and second complaint was made. The
bringing of second complaint does
not violate the provisions of section
403 Cr. P. C., nor attracts rule of
double jeopardy arising out of Article
13 of the Constitution.9
 Where offence is continuing
offence.10
 Where previous prosecution and
punishment are null and void.11
 Facts not at all alleged at the previous
trial.12
9
2001 YLR 1107.
10
2001 MLD 802.
11
2001 MLD 802.
12
PLD 2005 Quetta 1.

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How to test that an offence is
distinct for the purposes of
section 403 Cr. P. C.
The principle enshrined in section 403 Cr.
P. C. is analogous to the spirit of the
General Clauses Act, 1897.
The judicial precedent is available in
Muhammad Noor’s case13 where the
honoubale Supreme Court of Pakistan
observed:
“ The same principle is laid down in
section 26 of the General Clauses Act,
1897 which provides that if an act or
omission constitutes offence/offences
under two or more enactments, then the
offender though can be prosecuted either
or any of those enactments, but cannot be
punished twice for the same offence.”
13
PLD 1985 SC 325.

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This principle is not applicable where the
offences are distinct. While explaining
the expression “distinct offence”, it need
not necessarily be totally unconnected
because same transaction may involve
distinct offenders in which case they
cannot be said to be totally unconnected.
The test to determine whether the
offences charged at two trials are distinct
for purpose of section 403 Cr. P. C.
would be whether , if the offences were
charged at the same trial, separate
sentence could be passed in respect
thereof under section 71 of the Penal
Code. Another test it to see whether the
evidence necessary to prove the two
offences is the same or different. Where
the two charges are in respect of totally
distinct offences committed by different
accused at different times, merely
because same accused happens to be

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common in both the cases or that the
later offence may be have been
committed with a view to destroy or
cause disappearance of certain evidence
which would have been material in the
other case cannot bar a trial for the
subsequent offence. Even if the finding
that the offences which are the subject
matter of the two cases are “similar” can
be accepted. Section 403 Cr. P. C. would
not bar such a trial. Where the first
charge is under section 9 (a) (iii) read
with section 10 of the NAB Ordinance,
1999 and also under section 409 PPC,
read with serial No. 6 of Schedule
annexed with the Ordinance but the
second charge under which the accused
was convicted under serial No. 8 of the
NAB Ordinance, there might be some
overlapping in certain sub-heads of the
second charge but the conviction under

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the remaining sub-heads of the second
charge was held valid as the sub-heads
are distinct offence. 14

Interpretative Approach:
Guidelines

 Keeping in view that the rule

envisaged in section 403 CrPC has
been elevated to Constitutional right,
the provision of this section has to be
given a broad and liberal
interpretation. A restrictive or
procedural interpretation is likely to
destroy rather than safeguard this
right having bearing on liberty of an
individual.15

14
2004 YLR 3201 (Lahore).
15
PLD 1997 Lahore 307.

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  Where plea of section 403 Cr. P. C. is
not technically available, the
principle would be available to the
person proceeded against under the
provisions of Sind Crimes Control
Act, 1975 when the interest of justice
requires its extension in his favour.16

Significance of section 403 CrPC

and Article 13 of the Constitution
1973
Liberty of human beings is the most
important thing in any social order. The
above two provisions specially take care
of it. However, rights of the complainant
are also equally important and the
Constitution and law do take care of it.
This is also the requirement of fair and
just administration of justice.

16
1989 P. Cr. L. J. 821.

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 Table of Contents
Introduction.................................................................................................................1
What is the text of the law contained in section 403 of the Code of Criminal Procedure,
1898 ? .........................................................................................................................3
Analysis of Section 403 Cr. P. C..................................................................................8
Elevation of the principle of double jeopardy to the status of a Constitutional right....10
What is the wisdom behind the legislation of section 403 Cr. P. C.? .......................... 11
Benefit of doubt.........................................................................................................12
Order of discharge on merits...................................................................................... 12
When a case is not hit by the principle of double jeopardy? .......................................13
How to test that an offence is distinct for the purposes of section 403 Cr. P. C...........14
Interpretative Approach: Guidelines ..........................................................................17
Significance of section 403 CrPC and Article 13 of the Constitution 1973 .................18

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