' SALAHUDDIN PANHWAR, J.---Through instant Criminal Revision Application, applicants Hasan and others have assailed order dated 15th April, 2013 passed by Special Court No,II (CNS) Karachi in Special Case No,469 of 2011 whereby application under section 403, Cr.P.C. Preferred by them was turn down.
2. Precisely, relevant facts of the case are that applicants were booked in F.I.R. No,344 of 2011 under sections 6/9 CNS Act, 1997 wherein it was alleged that huge quantity of narcotics substance including 53 Kg charas, 20 Kg heroin; 49 Kg chemical powder, 8 kg bhang and 900 bottles of desi intoxicant liquor was recovered from them. On completion of the investigation, the investigating officer submitted three challan(s)/Charge sheet(s) in the court(s) of law. First challan/charge sheet was for the offence pertaining to' 8 KGs Bhang under sections 6 and 9(a) CNS in the court of learned Judicial Magistrate, Central Karachi; second challan charge sheet for offence pertaining to 900 bottles of desi liquor under Article 4 of PEHO before the court of Judicial Magistrate- VIII Central Karachi while 3rd challan was pertaining to 53 Kgs Charas, 20 Kgs heroin powder and 49 Kgs of chemical powder before the court of Special Judge 2nd (CNS) Karachi.
3. Learned counsel for the applicants has, inter alia, argued that applicants were acquitted by both courts of Judicial Magistrate on merits regarding offence(s) punishable under section 9(a) CNS and Articles 3-4 PEHO; culminating to same F.I.R. Thus, trial before the Special Court CNS is not competent. Crime was one and same, thus applicants cannot be tried twice on same facts; learned trial court judge was not legally justified to dismiss the application of the applicant; trial of the applicant is nothing but a pure violation of section 403 of Cr.P.C.
4. The learned A.P.G., on his turn, has strongly refuted the arguments of the learned counsel for the applicant while contending that it is not a case of double jeopardy; applicant never challenged the separate trial (s) but after acquittal from the two courts of Magistrate the applicants are seeking quashment of the proceeding wherein the applicants are facing entirely a different charge.
5. Before responding to the issue involved and for a proper decision thereof we feel it quite justified and necessary to refer and examine the provision of section 403, Cr.P.C. For proper appreciation of the pleas of the applicant(s). The provision of section 403 of the Code reads as follows:-- S.403. Persons once convicted or acquitted not to be tried for 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 a different charge from the one made against him might have been made under section 236, or for which he might have been convicted under section 237.
' The bare perusal of the above provision makes it clear that above provision can well be parted in two parts which demands existence of:-
(i) a person should have been tried once;
(ii) Court (tried such a person) should be of competent jurisdiction for an offence;
(iii) Such trial should have ended in conviction or acquittal;
(iv) Such conviction or acquittal should remain in force; ' Only by establishing above (forming part-1), one cannot seek exception from his subsequent trial unless he proves the conditions, so mentioned in the second part of the provision of section 403(1), that subsequent trial is:
(i) for same offence;
(ii) Court tried was competent to try the offence
(iii) is 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 236, or for which he might have been convicted under section 237.
6. The condition I of part-II of the above provision makes it clear that it is confined to the term 'same offence' hence it needs no explanation, so we can very well say that if conditions in part-I of the above provision are established there can be no subsequent trial for 'same offence' of one who is holding a judgment of a 'Court of competent jurisdiction' passed after trial.
7. The condition III of the part-II of the above provision, though consists on the phrase 'on the same facts for any other offence', yet such phrase has further been confined/limited to those provided by sections 236 and 237 of the Code hence phrase 'on the same facts for any other offence', cannot be given any other widened meaning. Since the condition III of the provision of section 403(1) has deliberately been confined by the legislation to sections 236 and 237 of the Code, therefore, it would be relevant to refer those provisions which read as under:-- S.236. Where it is doubtful what offence has been committed. If a single act or series of acts is of such a nature that it is doubtful which of several offences; the facts which can be proved will constitute the accused may be charged with having committed all or any of the offences, and any number of such charges may be tried at once, or he may be charged in the alternative with having committed some one of the said offences. S.237. When a person is charged with one offence, he can be convicted of another.---(1). If in the case mentioned in section 236, the accused is charged with one offence, and it appears in evidence that he committed a different offence for which he might have been charged under the provisions of that section, he may be convicted of the offence which he is shown to have committed, although he was not charged with it.
' Joint reading of the above provisions elucidate that both these sections are strongly inter- connected with each other. The former vests jurisdiction in the Court to charge the accused with having committed all or any of the offences where Court is doubtful as to which of the several offences, appearing from act or series of acts, the offence or offences will be constituted. The later provision i,e, section 237 gives legal protection to the discretion, exercised by the court under section 236 of the Code whereby accused can competently be punished for an offence though he was not charged so. The provision of sections 236 and 237 of the Code could only come into play where all the offence (s) or offence, proved, though not charged, are within jurisdiction of the Court trying the accused.
8. At this juncture, we would like to add here that section 403 consists on five subsections. Since the subsection(s) are always explanatory hence a provision is always to be read and taken as a whole and not in isolation, as same is the demand of principles of interpretations. The legal position being so, demand a reference to subsection(s) of section 403, Cr.P.C, which are reproduced hereunder:-- ' Section 403(2) A person acquitted or convicted of any offence may be afterwards tried for any distinct offence for which separate charge might have been made against him on the former trial under section 235, subsection (1).
' This subsection legalizes the subsequent trial of an acquitted or convicted person but for a distinct offence with reference to provision of section 235 of the Code. The section 235 of the Code deals with 'trial for more than one offence'.
' Section 403(3) A person convicted of any offence constituted by any act causing consequence 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 consequences had not happened, or were not known to the Court to have happened, at the time when he was convicted.
' Instant subsection legalizes the subsequent trial of a convicted person while covering the situation where an offence is constituted as a consequence of any act which either not happened or not known the court.
' Section 403(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.
' Further, subsection requires a little more explanation because it legitimates that the subsequent trial of an acquitted or convicted person for any other offence constituted by same acts if it is found that earlier court (where the one was tried) was not competent to try.
9. From above it became obvious that except the subsection (1) of section 403 of the Code themselves permit the subsequent trial of the person who is either acquitted or convicted but the conditions that all such subsequent subsection(s) vests a jurisdiction in the Court while the Subsection (1) is mandatory in its nature as the legislature (s) in their wisdom have deliberately used word 'shall' in subsection (1) while the word 'may' in subsequent subsection (s). The use of word 'may' is always permissible in its meaning and nature which is used where the legislature intend to vest a discretion/option in an authority to choose one out of two or more. Accordingly, it is manifest that subsequent trial of accused is not prohibited under the law on same facts and on same set of witnesses where he is being tried for different offence. Thus, we can safely conclude that the provision of section 403, nowhere, prohibits subsequent trial of the accused on same facts and even on same set of evidence but shall come into play only where one is being vexed twice for same offence for which one has already been tried by a court of competent jurisdiction to try such offence or any other offence which acts or series of acts may constitute (with reference to section 236).
10. While reverting to the merits of instant case, it appears that an F.I.R. Was lodged by the police showing recovery of different contraband articles from possession of the applicant(s) but after completion of investigation three different charge sheet(s)/challan(s) were submitted before different courts of law, competent to take cognizance onto the offence for which charge sheet(s)/challan(s) were separately submitted. Here, it is worth to add that object of an F.I.R. Is always to bring the law into motion and it is not the F.I.R. Alone on the basis whereof one is arraigned but it is the investigation material which determines the charge or disposal of case crime otherwise. Moreover the F.I.R. Is lodged/recorded by the Incharge police station is on narration given by the informant while the charge sheet/challan is submitted with reference to outcome of the Investigation. It is not always necessary that if an F.I.R. Has been lodged/recorded for a particular offence the challan/charge sheet should also be submitted for same offence else the purpose of investigation shall stand frustrated. The investigation officer is competent to add or delete the section(s) in the charge sheet / challan which, however, shall be open to scrutiny by the court of law, taking cognizance. If in result of the investigation a single F.I.R. Results in constituting two different offence(s) and each offence has been shown to be triable by a different court of law, as categorized by section 6 of the Criminal Procedure Code or any other-law covering to such offence, then sending up one before different court(s) of law cannot be said to be illegal only on the plea that root(s) of all are one and same i,e, an F.I.R. Else the scheme and object of Schedule-II of the Code shall stand frustrated. The essentials of a challan produced by the police before the Trial Court include a description of the offence committed; production of the accused before the Court and the evidence/witness to prove the offence. Trial Court can commence the trial only when all these three are produced before it.
11. As regards to the plea of the applicant(s) that since facts and witnesses are one and same hence there can be no legal subsequent trial particularly when applicant(s) stood acquitted by two different court(s) on same set of facts and witnesses. It would be germane to say that applicants cannot claim benefit of section 403(1) Cr.P.C. Only by establishing or pleading that their subsequent trial is on same set of facts/acts and same set of witness but what matters is trial for same offence.
12. In the case of The State v. Anwar Khatak and others reported in PLD 1990 FSC 62 the very point involved in the present applications also came under consideration among other points before honourable Federal Shariat Court. The honourable Federal Shariat Court, after thrashing the case- law, and considering the relevant provisions of different statutes, observed at page 69 as under:- "14. Most of the goods mentioned in sub-clause (i) of clause (s) of section 2 may be possessed, transported, manufactured, processed, bottled, sold or even imported and exported from one Province to another without committing any offence or incurring any penalty. It is only at the border of Pakistan that taking out or bringing in would be an offence and that too if there is a notification laying down a prohibition or restriction. So, the goods by themselves are not contraband. The offence in violation of the notification issued by the executive authority. However, as far the narcotics are concerned the Articles 3 and 4 of the P.O. 4 of 1979 make it an offence to do any of those acts at any place even within Pakistan. Thus, prima facie the nature and extent of the two offences are quite different."
' It was further observed in the above noted case at page 72 as follows:-- "22. In the light of the above discussion we are of the view that whereas the offence under section 2(s) read with sections 16 and 156(8) arises on the violation of restriction or prohibition issued at the option of the Federal Government, the Articles 3 and 4 not only make 'import and export' an offence but even possession, transport, manufacture, processing and sale etc., also. Again the maximum sentence of imprisonment provided under section 156(8) is 10 years while it is imprisonment for life under Articles 3 and 4 of P.O. 4 of 1979. Further, appeal against a conviction under Articles 3 arid 4 lies before the Federal Shariat Court whereas the High Court is the appellate authority in respect of offences under the Customs Act. Finally, the Customs Court has the exclusive jurisdiction under the.
Customs Act whereas the Sessions Court and the Courts subordinate to it have the exclusive jurisdiction under Articles 3 and 4. There are, thus, two separate and distinct offences.
23. Thus, section 156(8) deals with all such things with regard to which there is a prohibition or restriction of bringing into or taking out of Pakistan. The power to impose restriction or prohibition is given to the Federal Government in section 16 of the Customs Act. As said above the P.O. 4 of 1979 makes every process or any dealing with the intoxicants an offence. Again, it is one of the Hudood Laws, the Customs Act on the other hand is an administrative law based on the residuary power of legislation entrusted to human beings. Admittedly, a man-made law cannot supersede a law based on Divine Hadd.
24. The result is that the two laws deal with different situations and create distinct offences and there is no conflict, repugnancy or resulting implied repeal. Again, the Customs Court has got exclusive jurisdiction under the Customs Act in respect of smuggling and it has not been given any power to try or decide the cases falling under other provisions of law or the P.P.C."
13. In another case of Karimi Rahmatullah v. The State (1994 PCr.LJ 428) it was observed by this court that the trial of the accused under section 156(1)(8) of Customs Act and under Articles 3-4 of Prohibition (Enforcement of Hadd) Order, 1979 by way of two challans in two different Courts on the basis of common set of facts is not barred.
14. Now let's examine whether earlier two trial(s) of the applicant(s) were for same offence which applicant (s) are facing before the learned Judge Special Court CNS. To appreciate this properly, it is surfaced that prosecution has alleged recovery of different contraband articles from possession of the applicant (s) i,e,
(i) 900 bottles of desi liquor;
(ii) 8 KGs Bhang;
(iii) 53 KGs Charas, 20 KGs heroin powder and 49 KGs of chemical powder.
'The Control of Narcotic Substances Act, nowhere, provides punishment for possessing desi liquor, however, punishment whereof has been provided under Articles 3 and 4 of Prohibition (Enforcement of Hadd) Order, 1979. The offence under Articles 3-4 Prohibition (Enforcement of Hadd) Order, 1979 is triable by the Court of Magistrate and is a distinct offence from that mentioned/provided under the Control of Narcotic Substances Act, 1997, thus trial of applicant(s) for such offence and acquittal thereof, is not helpful for the applicant (s) to press the provision of section 403(1) of the Code in a trial of different offence i,e, offence falling within meaning of section 9(c) of Control of Narcotics Substances Act, 1997.
15. So far as to the acquittal of the applicant (s) for offence under section 9(a) of Control of Narcotic Substances Act, 1997 by Magistrate in 8 Kg Bhang, suffice to say that same cannot legally come into play to quash the trial proceedings relating to offence punishable under section 9(c)
Control of Narcotic Substances Act, 1997 regarding different property. Because the provision of section 403(1) of the Code revolves two material phrases i,e, same offence and trial of offence by a court of competent jurisdiction, therefore, it would be appropriate to examine both offence (s) as defined by section (s) 9(a) and 9(c) of CNS Act, 1997) which are:-- ' Section-9. Punishment for contravention of sections 6, 7 and 8:- Whoever contravenes the provisions of Section 6, 7 and 8 shall be punished with::
(a) imprisonment which may extent to two years, or with fine; or with both, if the quantity of the narcotic drug, psychotropic substance or controlled substance is one hundred grams or less;
(b) ................. Does not exceed one Kilogram;
(c) death or imprisonment for life or imprisonment for a term which may extend to fourteen years and shall also be liable to fine which may be upto one million rupees, if the quantity of narcotic drug, psychotropic substance or controlled substance exceeds the limit specified in clause (b); (Under lining is ours, lays for emphasis)
' The comparative examination of both offence(s) i,e, 9(a) and 9(c) makes it clear that both are entirely different in their definition (s) and even provide different punishment(s), therefore, both offences cannot be, legally, termed as same offence.
16. Let's examine the above two offence (s) from the angle of the phrase 'competent to try the offence', used in the provision of section 403 of the Code. For this it would be relevant to refer the competence of court to try the offence (s). The competence to try an offence, falling within meaning of section 9(a) of the CNS Act, 1997, lies with the court of Magistrate while that of section 9(c) CNS Act, 1997 lies with Sessions Court (designated as Special Court for CNS). Thus it becomes quite clear and obvious that trial for an offence under section (a) CNS, on same facts, shall not preclude the prosecution from insisting to prove the offence under section 9(c) CNS as a Court of Magistrate is not competent to try the offence under section 9(c) CNS Act.
17. Having said so, what the perusal of the record shows that both charge sheet(s)/challan(s) were submitted confining the specific contraband article(s). In the charge sheet submitted for an offence under section 9(a) of the Control of Narcotic Substances Act, 1997 the prosecution was required to prove the guilt against the applicant(s) for recovery of 8 KGs Bhang while the charge sheet submitted for an offence under section 9(c) CNS was confined to the extent of recovery of 53 Kgs. Charas, 20 KGs heroin powder and 49 Kgs. Of chemical powder. The trial of the applicant(s) before the Magistrate for offence under section 9(a) CNS Act never required the prosecution to prove the recovery of 53 Kgs. Charas, 20 Kgs. Heroin powder and 49 Kgs. Of chemical powder hence it is quite safe to say that applicants are seeking their acquittal (quashment of proceedings) for an offence for which they have never been tried by a competent court of law and thus it is not the object and import of the section 403 of the Code.
18. Further, record, also reflects that the applicant(s) never questioned/challenged separate submissions of challan (s)/charge sheet(s) rather it appears that effort (s) were made to have the case(s) of lesser punishment concluded early. The applicant(s) continued with their trial for difference offence (s) before learned magisterial court (s) without any plea of prejudice but ever since on acquittal from such offence(s) the applicant(s) dressed up with a plea that their trial for a heinous offence, on same facts, amounts to vexing them twice. An acquittal or conviction, arising out of same facts, for an offence of lesser punishment, shall not bring the section 403(1) of the Code into operation, on two folds i,e, punishment is one of the criteria which makes difference in offence(s) and such difference also decides competence of a court to try the offence. Furthermore, in the pending trial not only the offence is different from that already faced by the applicant(s) but also the case property is different from which the applicant(s) have never faced a trial.
19. In view of above discussion, we are of the firm view that pending trial of the applicant(s) for an offence under section 9(c) is not illegal despite acquittal of the applicant(s) for offence(s) under section 9(a) CNS and 4 of Prohibition (Enforcement of Hadd) Order, 1979 nor such acquittal will cause any influence upon the merits of trial of the applicant(s) for such offence.
20. For foregoing reasons instant revision application was dismissed, being devoid of merits by our short order dated 17-1-2014.