Barrister Roman Awan
PROTECTION AGAINST DOUBLE PUNISHMENT & SELF-INCRIMINATION ARTICLE 13
Fundamental rights are critical for the civil and legal life of a citizen. Fundamental rights provide not only political rights but also legal rights. The dignity of man and due process of law is the hallmark of any administrative, legal and judicial process. It is a fundamental right in the constitution that no person shall be punished for the same offence more than once. The proposition raises the primary question; Should a person be punished twice for the same offence? No, he must not be. This is the first impression we get from the question, as it is close to natural justice. Therefore, it is a fundamental right that no one shall be punished twice for the same offence.
Article thirteen of the Constitution reads as follows;
Protection against double punishment and self-incrimination
No person_____
(a) shall be prosecuted or punished for the same offence more than once; or
(b) shall, when accused of an offence, be compelled to be a witness against himself.”
The rule against double punishment at common law provides that an offender should not be punished twice for the same criminal conduct.
Self-incrimination is the intentional or unintentional Act of providing information that will suggest your involvement in a crime or expose you to criminal prosecution. Hence, Article thirteen of the constitution provides protections against double punishment of an offence and self-incrimination.
This Article is inserted explicitly in the 1973 constitution as it did not find a place in the Constitution of 1956 or 1962. The right secured under Article 13 of the Constitution 1973 is grounded on the common law maximum defining that a man shall not be brought into danger for one and the same offence more than once. If a person is charged with the same offence, he can plead as a complete defense of his former acquittal or conviction, or as it is technically expressed, take the plea of “autrefois acquit or trefoil convict”. A similar protection is given in section 26 of the General Clauses Act, where an act or omission constitutes are offence under two or more enactments. The offender shall be prosecuted and punished under either or any of those enactments but shall not be liable to be punished twice for the same offence. If a court of competent jurisdiction has once acquitted an accused and such finding has attained finality, his subsequent conviction on the same facts is not permissible.https://republicpolicy.com/protection-against-retrospective-punishment-is-a-fundamental-right/
The common law principle is also the same, that “accused already convicted for offence, cannot be tried on the same charge once again, held “where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any one of those enactments, but shall not be liable to be punished twice for the same offence. If the accused is acquitted of the offence, he cannot be convicted of the same offence. However, the canon will not be attracted when the accused is discharged in commitment proceedings. Such discharges do not debar fresh proceedings which can be initiated in respect of the same offence on the same facts on a fresh complaint. The bar of a second trial is only in case an accused has already been acquitted or convicted for the same offence or facts.
The expression prosecution in Article 13 of the Constitution has been deliberate in a distinctive sense. Consequently, the prosecution or punishment relates to the same offence more than once. It would embrace all proceedings in the course of justice or even elsewhere for the protection or enforcement of a right or the punishment of a wrong, whether of public or private character. Prosecution against double punishment is applicable only where the prosecution has finally concluded and ended either in acquittal or conviction.
The bar in the constitution is against prosecution or punishment for the same offence a person has been previously tried or convicted of. In the case Muhamamd Ayub vs Chairman, Electricity Board WAPDA, it was held that any penalty imposed on a civil servant as a consequence of departmental proceedings under Efficiency and Discipline Rules after the accused has been acquitted of criminal charge is not barred, fresh trial and punishment for the same offence is barred and not the infliction of a penalty as a result of departmental proceedings.
It was held that the prosecution is in no way a violation of Article 13. The test for the “same offence” is whether the former offence and the offence subsequently charged have the same ingredients in the sense that the facts constituting the one are sufficient to justify the conviction of the other, not that the facts relied on by the prosecution are the same at the two trials. The prosecution cannot be said to be valid if the Court has no justification for trying the offence. Thus, the demand for an additional amount of tax is not an imposition of tax but only an additional liability for non-compliance with relevant provisions of the Act, is neither invalid for lack of legislature competence nor in conflict with provisions of Article 13; hence proceedings under the Incom-tax Act does not amount, either to prosecution or to punishment amounting to a violation of Article 13 of the Constitution.https://republicpolicy.com/explaining-article-11-of-the-constitution-abolishing-modern-slavery-is-a-fundamental-right/
The principle of double jeopardy is distinguished from the rule of estoppel in a criminal trial. The law is that where a competent court has decided an issue of fact on a former occasion, and a finding has been decided reached in favour of an accused, such conclusion would constitute estoppel or res judicata against the prosecution.
Clause 13(b) of the constitution declares that no person shall be compelled to be a witness against himself when accused of an offence. This provision embodies the principle of protection against the compulsion of self-incrimination, which is one of the primary cannons of the British System of criminal jurisprudence, which has been adopted by the American System and incorporated in the constitution. In a case, section 340 of the Code of Criminal Procedure was challenged as being an unjust provision of law and detrimental to the interest of the accused; hence violative of Article 13 (b) of the constitution, it was held that “the provision is not ultra-vires of the Article, because subsection (2) does not compel an accused person to be a witness against himself. It only makes an accused make a statement on otah in disposing of the charge against him.
The accused is a competent witness for the defense; however, the option lies with him to depose on oath as a witness or not, but merely asking an accused to produce documents and other things in his possession would not mean that he is being compelled to be a witness against himself.https://republicpolicy.com/arrest-and-detention-must-follow-the-law-article-10-safeguards-human-dignity/
Hence, the constitution of Pakistan provides protections against double punishments for the same offence and also provides protections against self-incrimination. However, it is more significant that these protections are applied in our administrative and judicial processes. One of the primary reasons that the fundamental right explained in Article 13 of the constitution is not applied is the callous administrative and judicial approach towards it. Therefore, Pakistan’s citizens must be aware of their fundamental rights, and they not only pursue them but also guard them.
