1. ' MUNIB AHMAD KHAN, J.---This application under section 561-A, Cr.P.C. Has been filed with the prayer that the proceedings of criminal case No,234 of 2006 may be quashed on the ground that on the same series of facts Drugs Court at Karachi has taken cognizance.
2. ' Learned counsel for the applicants submits that a raid was conducted on 14-6-2006 by the Director General Health Sindh in company of EDO Health and its team and thereafter a complaint was made to the Police Station. The said complaint was recorded in shape of F.I.R. Being Crime No,73/2006 for Offences under sections 276, 34, 406 and 420, P.P.C. He submitted that the said complaint has almost been reproduced without any observation of the police in respect to the alleged crime and thereafter a challan has been submitted. Learned counsel for the applicants submits that apart from above another detailed complaint was lodged before the Drugs Court by the Drugs Inspector on 9-9-2006 and that has been under section 23(1)(i), 23(a)(x) read with section 27(4) and section 34 of Drugs Act, 1976, these sections of law involve the punishment of five years. Learned counsel for the applicants states that on the same facts both the Courts are proceeding and being aware of double action each Court is awaiting for the outcome of another Court. Learned counsel for the applicants has further pointed out section 30 of the Drugs Act, 1976 and stated that according to sub-clause (2)(b) no Court other than the Drugs Court can try an offence punishable under the chapter providing punishment. He further submits that report in Drugs Court was submitted on 9-9-2006 while challan in the Magistrate Court was submitted on 25-9-2006 and the Drugs Department is proceeding in both the Courts which is not permitted in terms of Article 13 of the Constitution as well as section 26 of the General Clauses Act as same will amount to double jeopardy.
3. ' Today, the complainant of the F.I.R. Dr. Hafeez-ur-Rehman, EDO Health is present. He submits that intimation in respect to the offence was given to the police hence an F.I.R. Was registered otherwise this case is triable by Drugs Court. The Drugs Inspector Ghulam Ali Lakho states that case is being proceeded in the Drugs Court while the factual position in respect to the both cases is same. He submits that in the Drugs Court the applicants if found guilty can be punished with the sentence up to five years and fine while in the magisterial Court maximum punishment is six months.
4. ' Learned Assistant Advocate-General states that the learned Additional Sessions Judge by judgment, dated 13-8-2007 has upheld the order of the Magistrate on the application filed under section 249-A, Cr.P.C. And according to that judgment both the cases are under different sections but at the same time it has been observed in the order that since the case before the Drugs Court was filed later on therefore, applicants may make an application there. He submits that contention of the learned counsel for the applicants keeping in view the constitutional and legal provisions cannot be disputed as series of facts is same.
5. ' After hearing the learned counsel for the applicants it appears that nature of complaint is as provided in F.I.R. No,73 of 2006, which is reproduced as under:-- "It is to inform that during raid on medical stores of, wholesale market Sukkur conducted by the team headed by the Director General, Health Services Sindh, Chief Drugs Inspector, all inspectors of Drugs and concerned Drugs Inspector of the area.
6. ' The team found the medicines pertaining to Government of Sindh from the above named accused in their stores and shops. These medicines of Government property are kept in their stores for the purpose of sale.
7. ' You are, therefore, requested to lodge an F.I.R. Against the above-named accused under the relevant sections as per crime committed. The investigation should be done that which corner these medicines are sold to the above shopkeepers."
8. ' In the said F.I.R. There is no allegation that the applicants were found selling different drugs and were involved in the preparation. The exact allegation is that some Government stamped drugs were found with them while the genuineness of the drugs has not been disputed. In such a situation, section 276 of the P.P.C. Is applicable while ingredients of sections 406 and 420, P.P.C. Are not attracted keeping in view that the cognizance under the provisions of Drugs Act has already been taken by the Drugs Court while section 30 of the said Drugs Act provides that only the Drugs Court has to take cognizance of offence punishable under that Act. The said section of Drug Act, 1976 is reproduced as under:-- "(30) Cognizance of offence.---(1) Subject to the provisions of section 19, no prosecution shall be instituted under this Chapter except----
(a) ---------
(b) ---------
(2) Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (Act V of 1898),--
(a) an offence punishable under this Chapter other than an offence mentioned in subsection (1) of section 27, shall be non-cognizable, and
(b) no Court other than a Drugs Court shall try an offence punishable under this chapter."
9. ' Admittedly the case is being proceeded in two Courts on same facts and evidence which is contrary to Article 13 of the Constitution of Pakistan, as the same prohibit double punishment in following words:-- "(13) 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"
10. ' Moreover section 26 of the General Clause Act, 1897 also favours the applicants in following way:-- "(26) Provision as to offences punishable under two or more enactments.---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 of those enactments, but shall not be liable to be punished for same offence".
11. ' In such a situation when the applicants are facing trial before the Drugs Court and the sentence is more than the sentence provided in the F.I.R.; it will be better for the prosecution to remain contended with the proceedings before the Drugs Court. Keeping in view that the same factual position is involved while the set of evidence is also same hence double trial on the same basis is not permitted. Hence proceedings in crime No,73 of 2006 pending before the Court of IInd Civil Judge and Judicial. Magistrate, Sukkur, is quashed. The applicants to face trial before the Drugs Court.