Introduction
Blacks law dictionary defines Double Jeopardy : A second prosecution after a
first trial for the same offense. Double Jeopardy follows the principle of Latin
maxim “ Nemo Debet Bis Puniri Pro Uno Delicto” which means no man ought to
be punished twice for one offense .
It would be good to say that the right against double jeopardy has been provided in
all progressive states in the world . for example If we see in United States of
America, the 5th schedule contains double jeopardy clauses 4 which gives right
against double conviction for a same crime. It is very good initiative which is taken
by states over the world
Relevant Provision
Section 403 of [Link]
Meaning of Double Jeopardy
The act by which a person prosecute through a second trial of an offence for which
he has already been prosecuted or convicted .
if a person is prosecuted or convicted ones cannot be punished again for that
criminal act . or if a person is indicated again for the same offence in the court then
he has the right to plea of Double Jeopardy as his valid defense.
Case Law
2001 PCrLJ 248.
S.9 Control of Narcotics [Link], 1997, S.156(1) Customs Act, S.26 General
Clauses Act, S.403 CrPC. Art.199/13 Constitution, 1973. Quashing of proceedings.
Two trials for the same offence. Petitioner was charged for smuggling of narcotics
and was tried by Special Judge Customs. Trial before Special Judge under the
Control of Narcotics Substance Act, 1997, was initiated subsequently on the same
occurrence. Second trial was barred in view of Art.13 of the Constitution as also
under S.26 of General Clauses Act 1897, and S.403 CrPC. Proceedings before
Special Judge quashed. PROCEEDINGS QUASHED
2003 SCMR [Link] Muhammad V/S Qamar Iqbal & Others ([Link])
S.302/34 PPC. S.403 CrPC. Art.13 Constitution. Accused were arrested on 12-2-
1985 and sentenced to death by Military Court, accused remained in Death Cell till
10-12-1991. On appeal the case was remanded to Sessions Court for retrial which
convicted the accused U/S 302/34 PPC on 28-3-1994 and sentenced them to
imprisonment for life each with benefit of S.382-B [Link] during the
period of retrial of the case continuously remained under incarceration and after
availing the benefit of S.382-B CrPC had been released from jail. Since the
accused had served out the substantial/legal sentence for the offence of murder,
they could not be awarded another sentence for the same offence in violation of
Art.13 of the Constitution and S.403 CrPC. LEAVE TO APPEAL REFUSED.
2002 MLD 561.
S.561-A/403 CrPC. Art.13 Constitution of Pakistan. S.302/34 & 324/34 PPC.
Accused was tried by the Anti-Terrorism Court and was acquitted and his acquittal
was not challenged either by the State or by the complainant although he was
vigilant enough as he had challenged the order of remand passed in appeal before
Supreme Court. Complainant, thus, was never aggrieved of the acquittal of accused
by the trial court. High Court also in appeal despite being conscious of the acquittal
of accused deemed it fit to just only set aside the conviction of the appellants
therein, but intentionally refrained from reversing the whole judgment. Even
otherwise it was not conducive to justice to send the accused for retrial in
consequence of the judgment of Appellate Court in which he was neither a party
before the court nor he was heard before passing the judgment. Although the
judgment of High Court was challenged before the Supreme Court, yet it refused to
grant leave. Retrial of accused before the Sessions Court was patently illegal being
in derogation of the fundamental rights guaranteed under the constitution and in
flagrant violation of the CrPC and General Clauses Act and the same was
tantamount to the abuse of the process of law. PROCEEDINGS QUASHED
Essentials & What It Serve Doctrine Of Double Jeopardy
It seem very clear from the cases mentioned above that one can take the defense of
double jeopardy when one is convicted again for a same crime having same
elements of prosecution. If a person who has been prosecuted based on same facts
but in an offence having different elements of crime, he would not be able to claim
a defense under section 403 C r. PC 1989
The bare reading of section 403 of Cr .PC 1989 below clarifies that based on same
facts of a case a separate charge cannot be framed by prosecution . And if the
elements of a crime is same as before for which the accused is being prosecuted
the accused cannot be held guilty or a separate charge cannot be initiated against
that person.
it is very helpful and important for students and lawyers to know that if the
elements of an offence are different from which the accused is being charged, then
he will not be able to get defense under section 403 of [Link] 1989 as it clearly lays
down the condition that a person can be prosecuted based on same facts if an
offence involve different elements that satisfies different charge under a penal law.
One more important thing is that the matter should be tried by a competent
jurisdiction for an offence. And that authority itself should decide about the
conviction or acquittal of an accused.
Bare Act [Link] 1989
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 remains in force, not to 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 36, or for which 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.
(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 with which 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
Conclusion
We can say that double jeopardy means no any one should be tried twice in any
kind of case either it is to be criminal nature as well as in civil nature . . for
example in civil suit plaintiff file the civil suit against the defendant and defendant
successfully defend him self then plaintiff can not file the suit against the
defendant on same subject matter its also protect by cpc in section 11 …but same
case with section 403 double jeopardy that person should not be disturb twice for
the same offence if he is already tried by the competent court .
