PESHAWAR: The Peshawar High Court has ordered the police to quash a sedition case identical to an FIR already registered by a police station against three Pakistan Tehreek-i-Insaf leaders declaring that such acts amount to double jeopardy.

A bench consisting of Chief Justice Mohammad Ibrahim Khan and Justice Ishtiaq Ibrahim ruled: “Courts are sanctuaries to protect the fundamental rights of citizens of the country and are under statutory obligation to respond in such situations to protect them from vexatious prosecution.”

The ruling came as the court accepted a petition jointly filed by Babuzai town mayor in Swat district Shahid Ali Khan, former MNA Saleemur Rehman and former MPA Fazal Hakeem against an FIR registered against them in Miramshah police station of North Waziristan tribal district on identical charges mentioned in two earlier cases.

The bench, however, declared that the complainant in the controversial FIR would be at liberty to record statements with the investigation officer in the case already registered against the petitioners in Swat that should be looked into in light of the principles set forth in a 2018 judgement by the Supreme Court.

The petitioners – the residents of Swat district – contended that an FIR of identical nature was already registered against them in police station Saidu Sharif, Swat, on May 9, 2023, and subsequently another FIR was registered in Spin Daim police station of Lower South Waziristan tribal district on Oct 28 against one of the petitioners, Saleemur Rehman.

Declares multiple FIRs for ‘same offence’ double jeopardy

They added that the impugned FIR was registered later, on Nov 2, under different Pakistan Penal Code provisions, including 124-A (sedition) and 120-B (criminal conspiracy).

The bench ruled: “The language of Article 13 of the Constitution is very much plain and clear which loudly speaks against double prosecution and punishment of an accused person.

“In light of clear commands of Article 13, the courts while applying the principle of double jeopardy and extending protection under Article 13 of the Constitution have to see whether the accused is being prosecuted twice for the same offence or otherwise. There is no cavil with the proposition in view of the salutary command of the Constitution that nobody can be prosecuted and punished for an offence when he has already been prosecuted and acquitted or punished for the same offence by the competent court of law.”

It, however, declared that if the case of the accused fell within certain exceptions provided in sub-clauses 2, 3 and 4 of Section 403 of the Code of Criminal Procedure, he might legitimately be tried for the same offence.

In the impugned FIR, North Waziristan resident Malik Abdullah Zeb said on Nov 1, he saw a social media video that showed that after the arrest of former prime minister Imran Khan by law-enforcement agencies in a criminal case, the three petitioners, while addressing a 200-250-strong mob used abusive and derogatory language against the government and Pakistan Army.

He also alleged that the petitioners also incited the mob to “rise up” against national institutions” and that their speeches hurt his feelings towards Pakistan and its army.

The petitioners’ lawyers, including Alam Khan Adenzai and Mohammad Inam Yousfzai, contended that as their clients were booked for the same offences, the registration of the impugned FIR was a violation of the law and the judgements of the superior courts.

In its 23-page detailed judgement authored by Justice Ishtiaq Ibrahim, the bench also referred to the Supreme Court’s orders in Senator Azam Khan Swati’s case to quash multiple FIRs registered against him for “uploading obnoxious tweets on his social media account.”

The bench referred to the judgements of Pakistani and Indian Supreme Courts and high courts on the same issue.

“For the sake of discussion if the impugned FIR is allowed to remain in the field, it will open a Pandora box as an unlimited and countless number of persons, on watching the said video on social media, will resort to the exercising of registration of separate FIR against the petitioners.

“Another situation, which is also possible if the impugned FIR is not quashed is that, if on conclusion of trials in the multiple FIRs about the same incident, the petitioners are found guilty and are convicted and sentenced, it would amount to double jeopardy which is against the mandate of Article 13 of the Constitution of the Islamic Republic of Pakistan, 1973,” it declared.

The court also referred to Section 403(1) of the CrPC and observed that the provision of the law disallowed the second trial of an accused for the same offence.

It added that while sub-clauses 2, 3 and 4 of Section 403 of the CrPC spoke about the “circumstances in which an accused could be retried for the same set of commission or omission constituting a different offence in different circumstances.”

Published in Dawn, january 1st, 2024