' JAMAL KHAN MANDOKHAIL, J.---Facts in brief are that an FIR No,08/2007 was registered against the appellant under sections 23 and 27 of the Drugs Act read with sections 109, 275, 276, 419, 420, 468 and 471, P.P.C. With an allegation that the appellant was found dealing .In fake, unregistered and spurious drugs. On 13th June 2007, the Investigating Officer submitted a report under section 173 Cr.P.C. Before the Court of the Judicial Magistrate-IV, Quetta against the appellant only to the extent of sections 109, 275, 276, 419,420, 468 and 471 P.P.C., which proceeded with the trial. Similarly, on the same allegations, a criminal complaint bearing No,04 of 2008 was also filed against the appellant by the Chief Drugs Inspector on 26th April, 2008 before the Chairman, Drugs Court for Balochistan, which too proceeded the trial.
2. The Judicial Magistrate after conclusion of the trial, convicted and sentenced the appellant under sections 109, 275, 276, 419,420, 468 and 471, P.P.C. By means of the judgment dated 26th June 2008, against which no appeal was filed. Thereafter, the Drug Court by means of the judgment dated 16th June 2009, allowed the complaint and also convicted and sentenced the appellant under sections 23 and 27 of the Drugs Act, hence the appellant through the instant appeal, challenged the judgment of the Drugs Court. This Court while admitting the appeal on 7th October 2009, opted to consider the judgment passed by the Drugs Court on the touchstone of Article 13 of the Constitution, section 403, Cr.P.C. And section 26 of the General Clauses Act 1807. The appellant was released on bail, but subsequently he did not appear, hence he was proceeded against by forfeiting his bond and non-bailable warrants for his arrest were issued.
3. The learned Standing Counsel stated that absconsion of the appellant amounts to wavier of his right of appeal, as such, the appeal is liable to be dismissed for non-prosecution. He relied upon the case of Sikandar v. The State reported in (2001 M LD 2000). He further added that the appellant was involved in two different offences, one under the Pakistan Penal Code, whilst the other under the. Drugs Act, as such, both the Courts had rightly proceeded with trial, therefore, the appellant cannot take advantage of Article 13 of the Constitution, section 403 of the Cr.P.C. And section 26 of the General Clauses Act. He contended that the prosecution has succeeded in proving its case, on the basis of which, the Drugs Court, after proper appraisal of the evidence and material, has rightly convicted and sentenced the appellant.
4. The appellant was unrepresented, however we have heard the learned Standing Counsel and have perused the record. Section 421 Cr.P.C. Provides a right of an appeal to a convict against a judgment of a trial Court. The appellate Court on receiving a memo of an appeal, if consider that there is no sufficient ground for interfering in the impugned judgment, it may dismiss the same summarily. If the appellate Court finds that the evidence requires reappraisal, then it may admit the appeal by exercising powers under section 423, Cr.P.C., which is reproduced as under:
423. Powers of Appellate Court in disposing of appeal. (1) The Appellate Court shall then send for the record of the case, if such record is not already in Court. After perusing such record, and hearing the appellant or his pleader, if he appears, and the Public Prosecutor, if he appears, and, in case of an appeal under section 411A, subsection (2) or section 417, the accused, if he appears, the Court may if it considers that there is no sufficient ground for interfering, dismiss the appeal or may:
(a) In an appeal from an order of acquittal, reverse such order and direct that further inquiry be made, or that the accused be retried or [sent for trial to the Court of Session or the High Court], as the case may be or find him guilty and pass sentence on him according to law; (b)In an appeal from a conviction, (1) reverse the finding and sentence, and acquit or discharge the accused, or order him to be retried by the Court of competent jurisdiction subordinate to such Appellate Court or sent for trial, or (2), alter the finding, maintaining the sentence, or, with or without altering the finding reduce the sentence, or, (3) with or without such reduction and with or without altering the finding, alter the nature of the sentence but, subject to the provisions of the section 106, sub-section (3) not so as to enhance the same; (c)In an appeal from any other order alter or reverse such order; (d)Make any amendment or any consequential or incidental order that may be just and proper; (2). [Omitted by Law Reforms Ordinance, 1972 Item 147 Cr. P. C. ] "
The principle contained in the above provision of law casts a duty upon the appellate Court that after calling the record of the trial Court and after perusing the same, it should decide the appeal on merits. In this section, paragraph "and hearing the appellant or his pleader, if he appears, and the public prosecutor, if he appears"</i> provides an option to the appellant or his pleader and to the prosecutor to argue the case, if they appear. Thus, after providing opportunities of arguments to the appellant or his pleader or the prosecutor at the time of hearing of an appeal, if any of them fails to appear or fails to argue the appeal, it does not relieve the appellate Court of its duty of disposing of an appeal on merits. It is a well settled principle of law that once an appeal is admitted for regular hearing, it must be decided on merits by assigning reasons rather than dismissing the same for non-prosecution. In this behalf, reliance has been placed upon a case of Muhammad Ashique Faqir v. State reported in (PLD 1970 Supreme Court 177). Under such circumstances, the case law cited by the learned Standing Counsel cannot be relied upon, as such, we have no option, but to decide the appeal on merits.
5. The main contention of the appellant in his memo of appeal and the initial arguments advanced by his counsel at the time of admission of the appeal was that the punishment awarded to him by the Drugs Court through the impugned judgment amounts to a Double Jeopardy, as on the same facts, the Judicial Magistrate has already sentenced the appellant. Before going to discuss the merits of the case, it would be appropriate to reproduce Article 13 of the Constitution, section 403, Cr.P.C. and section 26 of the General Clauses Act: "Article 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 ".
"403 Cr.P.C.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 difference 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 section 235, subsection (1).
(3)A person convicted of any offence constituted by an 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."
"26 (General Clauses Act). 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 twice for same offence."
' According to Article 13 of the Constitution, there is a bar on a subsequent prosecution and punishment for the same offence. Similarly, under, section 403, Cr.P.C. no Courts shall try a person already tried by a Court of a competent jurisdiction for the same offence, either convicted or acquitted. Besides, under section 26 of the General Clauses Act, if an act or omission constitutes an offence under two or more different enactments, then the offender shall be liable to be prosecuted and punished under either or any of these enactments, but shall not be liable to be punished twice for the same offences.
6.An act or omission that causes a person to be hurt, angry, upset or something that is wrong, improper or in violation of any law, which is punishable under any enactment for the time being enforced, is an "offence". Certain offences, consist upon series of acts in one and the same transaction. Every separate movement of such act is to be considered as a single act. Sometimes one offence is punishable under two or more. different enactments. If a person is charged and prosecuted under different enactments for the same offence and subsequently, convicted or acquitted of the offence under one enactment by a competent Court of law, the Constitution and the law prohibits subsequent prosecution and punishment of the accused for the same offence.
Bar to subsequent prosecution is to avoid duplication of punishment for one and the same offence.
To get benefit of Article 13 of the Constitution, Section 403 Cr.P.C. and Section 26 of the General Clauses Act, the Hon'able Supreme Court in the case of Nazir Ahmed v. Capital City Police Officer, reported in (2011 SCM R 484) highlighted the essential conditions to be satisfied are (1) that there must have been a trial of an accused for the offence charged against him; (2) that the trial must have been by a Court of competent jurisdiction; (3) there must have been a judgment or order of conviction or acquittal; (4) the parties in two trials must be the same; (5) facts in issue in the earlier trial must be the same, with what is sought to be re-agitated in the subsequent trial.
7.Now, considering the case of the appellant on the touchstone of the above provision of law. The prosecution case is that the Federal Investigation Agency (FIA) on 26th May 2007, through a fake purchaser, negotiated with the appellant to purchase the injections with the name of Norgesic.
During the transaction, the dummy purchaser signaled the FIA authorities, who caught the appellant and recovered 1000 injections from him, which were taken into possession through a recovery memo. The prosecution registered the above referred FIR against the appellant and challan was submitted before the Court of Judicial Magistrate-IV, Quetta. Subsequently, the compliant was also submitted before the Drugs Court Balochistan against the appellant by the FIA.
After completion of the trial, the Judicial Magistrate convicted and sentenced the appellant, which decision remained unchallenged. Subsequently the Drugs Court Balochistan also convicted and sentenced the appellant through the impugned judgment. The allegation leveled against the appellant is that he had fake, unregistered and spurious drugs in his possession. Such act is an offence, which is punishable under Section 275 of the P.P.C. and under Section 27 of the Drugs Act.
Facts in issue parties and witnesses in both the cases, tried by the Judicial Magistrate and the Drugs Court were the same. This is one of a classical example of an offence punishable under two enactments. Under such circumstances, the appellant was liable to be prosecuted and punished for the offence in either of the two enactments. Once he is convicted and sentenced by a Court of a competent jurisdiction, i,e, Judicial Magistrate, then there was a bar to subsequent prosecution and punish by the Drugs Court, but despite such bar, the Drugs Court continued the trial, which was unwarranted, therefore, the conviction awarded to the appellant by the Drugs Court is against the provisions of Constitution and the law.
' Thus, in view of above, the appeal is allowed. The impugned judgment dated 16th June 2009 passed by the' Drugs Court Balochistan, Quetta is set aside, resultantly, the complaint is dismissed.
The appellant is since no more required in respect of appeal, therefore, warrants of arrest issued against him shall stand discharged.##TE#