GHULAM MUSTAFA MENGAL, J. - This Custom appeal under Section 185(f) of Customs Act, 1969 .Is directed against the Judgment dated 4.11.2003 passed by learned Special Judge, Customs, Quetta, whereby appellant has been convicted under Section 156(89) of the Customs Act, 1969 and sentenced to suffer R.I. For 2 years and fine of Rs. 50,000/- or in default thereof to suffer R.I. For 6 months, with benefit of Section 382-B, Cr.P.C.
2. Briefly stated, facts of the case are that on 10.02.2003, a case under Sections 420, 468, 471, P.P.C, and under Section 156(89), Customs Act, was registered In Police Station, City, Quetta vide F.I.R. ;no. 32 of 2003 on the report of Essa Khan Shahwani, IT ,C.I.A. Quetta, wherein he alleged that on 1.2.2003, he alongwith Muhammad Ali, S.I and other staff were on routine checking at Meezan Chowk, Quetta. At 5:30 p.m. The appellant in a suspected vehicle bearing Registration No. BC-8712-Karachi, engine No. 2590563, Chassis No. LT-78-0011859 Model, 1998, grey colour came there. The vehicle alongwith its registration book was taken into custody vide Roznamcha No, 14 under Section 550, Cr.P.C. Thereafter the documents, of the vehicle were sent to the E.T.O, Motor Registration, Karachi for verification, meanwhile complaint was sent to the competent Court of law. On receipt of report from E.T.O. Motor Registration Civic Centre, Karachi, above-said F.I.R was registered against the appellant.
3. After completion of investigation, challan of the case was sent to the Court of Special Judge, Customs, Quetta, where charge under Section 156(1)(89) of Customs Act was framed against the appellant to which the appellant did not plead guilty and claimed trial.
4. After framing the charge, prosecution examined P.W-1 Essa Jan, I.P, complainant, who produced Murasala vide Ex. P/1-A and photo-copy of recovery memo. Vide Ex. P/I-B. P.W-2 Aurangzaib, Constable, produced recovery memo. Ex. P/2-A. P.W-3 Qaisar Khan, Appraiser Officer, Collectorate of Custom, produced valuation certificate of vehicle as Ex. P/3-A and P.W-4 Muhammad Ali, S.I/investigating Officer, produced report Ex. P/4-A, which was received from E.T.O. Karachi as well as Notice under Section 171 of Customs Act as Ex. P/4-B.
5. The statement' of the appellant was recorded under Section 342, Cr.P.C, wherein he denied having committed the offence. The appellant also appeared in person as his own witness under Section 340(2), Cr.P.C, wherein he deposed that he had purchased the vehicle in question from one Abdul Muhammad vide agreement Ex. D/l. The appellant also produced D.W-1 Muhammad Anwar and D.W-2 Muhammad Iqbal in his defence.
6. Learned Trial Court after hearing learned counsel for the parties convicted and sentenced the appellant as stated above and also confiscated the vehicle to the government, hence the present appeal.
7. I have heard Mr. Obaidullah Quresh; learned counsel for the appellant and Ch. Mumtaz Yousuf, Standing Counsel for the State.
8. Mr. Obaidullah Quresh, learned counsel for the appellant has contended that the Challan of appellant in same F.I.R, is in breach of Article 13(a) of the Constitution of the Islamic Republic of Pakistan, as well as, in contravention of Section 403, Cr.P.C, as the trial of the appellant amounts to double jeopardy, which is not warranted by law and that the appellant cannot be vexed twice for the same offence, therefore, the impugned judgment is liable to be set aside.
9.. Learned Standing Counsel has contended that the appellant was convicted by the Special Judge, Customs, Quetta for being found in possession of smuggled vehicle, which is punishable under Section 156(89) of the Custom Act, whereas the second Challan' was submitted under Sections 420, 46*7, 468 and 471, P.P.C. Since both the offence are not the same, therefore, there is no breach of Article 13(a) of the Constitution of Islamic Republic of . Pakistan or of Section 403, Cr.P.C, as such,, the principle of double jeopardy is not applicable in the case of appellant.
10. I have also heard the learned counsel for the parties and gone through the facts of the case and judgments passed by the Court below, It would be appropriate to reproduce the relevant provisions of Customs Act, 1969 and related provisions of P.P.C. The punishment for contravention of any provision of Customs Act, 1969 is provided under Section 156 of the Act.. The appellant was convicted and sentenced under Section 156(89) of the Customs Act, 1969 and under Sections 468 and 471, P.P.C, which read as Under- Section 156(89):-(1) If any person without lawful excuse, the^proof of which shall be on such person, acquires possession of, or is in any way concerned in carrying, removing, depositing, harbouring, keeping or concealing, on in any manner dealing with smuggled goods or any goods with respect to which there may be reasonable suspicion that they are smuggled goods: Provided that if the smuggled goods be gold bullion or silver bullion the onus of proving the plea that such bullion was obtained by processing or other means employed in Pakistan and not by smuggling shall be upon the person taking that plea.
(2) [Such goods shall be liable to confiscation and any person concerned in the offence shall be liable to a penalty not exceeding ten times the value of the goods; and, where the value of such goods exceeds one hundred thousand rupees, he shall further be liable, upon conviction by a Special Judge, to imprisonment for a term not exceeding six years and to a fine not exceeding ten times the value of such goods and if the Special Judge in his discretion so orders also to whipping]
468. Forgery for purpose of cheating.-Whoever, commits forgery, intending that the document forged shall be used for the purpose of cheating, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
471. Using as genuine a forged document.- Whoever fraudulently or dishonestly uses as genuine any document which he knows or has reason to believe to be a forged document, shall be punished in the same manner as if he had forged such document.
11. The plain reading and comparative study of the above-said provisions of two different statutes/laws reveals that the offence of smuggling of goods is punishable under the Customs Act, 1969; whereas offences of forgery and using forged documents as genuine are punishable under Sections 468 and 471, P.P.C. Thus the offences are not same.
12. Lt will also be appropriate to reproduce the relevant provisions of Section 403, Cr.P.C, and Article 13 (a) of the Constitution, 1973 as quoted by the appellants counsel:--
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 be liable to be tried again for the same offence, nor on the same facts for any other offence for which is different charge from the one made against him might have been made under Section 237.
(2) A person acquitted or convicted for any offence may be afterwards tried for any district offence for which is separate charge might have been made against him on the former trial under Section 235, sub-section (1).
(3) A person convicted for 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 known to the Court to have happened, at the time when he was convicted.
(4) A person acquitted or convicted for 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 of 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 provisions of Section 26 of the General Clauses Act, 1897, or Section 188 of this Code.
Article 13(a) Shall be prosecuted or punished for the same offence more than once; or
13. A bare perusal of above provisions of law reveals that second trial would be only barred, when offence is the same, in case, offences are different/distinct then the accused can be tried by the two different Courts under two different enactments on the basis of common set of facts and trial would not be barred. Thus the contention put forth by the learned counsel for appellant has no force, as such, is repelled.
14. The upshot of the above discussion is that the appellant was not tried for the same offence but under the different and distinct offences in different Courts, therefore, his trial is not barred under Section 403, Cr.P.C, or on the principles of double jeopardy. Insofar as the question of sentence is concerned, it requires consideration, appellant was arrested on 7.4.2003 and since then he is facing the hardships of trial. There is nothing on the file to indicate that the appellant is habitual offender or was ever involved previously in the case of smuggling. Keeping this fact in view, the sentence of the appellant is reduced to the period already undergone by him; however, the sentence of fine or in default thereof and confiscation of the vehicle is maintained.
15. Appeal is dismissed with the above modification in the quantum of sentence.