1. ' HAIDER ALI PIRZADA, J.--Since in these two petitions common points of law are involved, we intend to dispose of the same by this common judgment.
2. C.P. No, D-21 of 1988.
3. ' The facts leading to the filing of this petition are that petitioner is the owner/proprietor of Memon Shipping Agency which has been carrying on the business of customs clearing agents. The case of the petitioner as set out in the petition is that respondent No,3 filed a F.I.R. In the Court of Special Judge (Customs and Taxation), Karachi, against the petitioner and seven other persons as well as against the unnamed concerned staff of Karachi Customs for an offence under section 32 of the Customs Act, 1969, punishable under section 156(1)(82). The prosecution case as set out in the F.I.R.
4. Is that the Central Board of Revenue desired that the Directorate General of Intelligence and Investigation (Customs and Taxation), Islamabad, should investigate into an alleged complaint of fraudulent payment of export rebate claims alleged to have been manipulated by some unscrupulous persons/parties in collusion with some of the staff of the Preventive Collectorate of Karachi Customs House. The further case as set out in the F.I.R. Is that the preliminary inquiry revealed that five persons named as accused in the F.I.R. Had conspired jointly to manipulate receipt of export rebate claim against the alleged fraudulent exports. The further case as set out in the F.I.R. Is that in pursuance thereof, the said persons employed some firms, including that of the petitioner, in achieving their alleged mala fide actions and to facilitate their intended alleged fraudulent export of readymade garments. It was further alleged in the F.I.R. That 40 consignments were booked through the petitioner's concern as well as through one Munir Mushtaq.
5. ' The case of the petitioner as set out in the petition is that on 29-12-1987 respondent No,1 filed three F.I.Rs, bearing Nos. 30, 31 and 32 of 1987 (Annexures 'B', 'C' & 'D' annexed to the petition) in the Court of Special Judge (Customs and Taxation), Karachi, for offences under section 156(1)(14) of the Customs Act, 1969, and Section 5(2) of Act No,II of 1947. In F.I.R. No,30 of 1987 one Maghanmal and the petitioner as well as unnamed officers/officials of the Appraising, Preventive and Rebate Section of Customs Department, Karachi were named as accused. In case No,31 of 1987 also Maghanmal'and the petitioner as well as the unnamed officers/officials of the Customs Appraising, Preventive and Rebate Section, Customs Department, Karachi, were named as accused while in case No,32 of 1987 one M. Yahya A. Aziz and the petitioner as well as unnamed officers/officials of the Customs Appraising, Preventive and Rebate Section, Karachi, were named as accused persons.
6. It is the further case of the petitioner that on 2-1-1988 respondent No,1 also filed in the Court of Special Judge (Central), Karachi three F.I.Rs, also bearing Nos. 30/87, 31/87 and 32/87 which F.I.Rs, were the copies of the F.I.Rs, which were already filed by respondent No,1 in the Court of Special Judge (Customs and Taxation), Karachi on 29-12-1987. The certified copies of the said F.I.Rs, filed in the Court of Special Judge (Central), Karachi, have also been annexed to the petition as Annexures `E', 'F', and `G'. It is the further case of the petitioner that during the investigation by respondent No,3, the petitioner had given a statement to respondent No,3 in which he refuted the allegations made against the petitioner.
7. ' It is the further case of the petitioner that respondent No,3 had already initiated action under the Customs Act before respondent No,1 appeared on the scene. It is the further case of the petitioner that the prosecution case is based on assumptions, conjectures, presumptions and documents which have been manipulated and fabricated so as to involve the petitioner in the case. It is the further case of the petitioner that the three F.I.Rs: Annexures 'B', 'C' and 'D' filed on 29-12-1987 by respondent No,1 in the Court of Special Judge (Customs and Taxation), Karachi, as well as the three F.I.Rs, Annexures `E', 'F' and `G' filed by respondent No,1 in the Court of Special Judge (Central), Karachi on 2-1-1988 are the same and are based on the same set of facts, evidence and property and are against the same accused. It is the case of the petitioner that the investigation/prosecution in question by respondent No,1 as well as by respondent No,3 which is in respect of the same offence and based on the same set of acts, evidence and property are clearly in violation of section 26 of the General Clauses Act, 1897. It is the further case of the petitioner that the investigation/prosecution in question by respondent No,1 as well as by respondent No,4 is in clear violation of the fundamental rights of the petitioner as guaranteed under Article 13 of the Constitution of Pakistan and are thus ab initio void, without lawful authority and of no legal effect. It is the further case of the petitioner that the double prosecution being conducted by respondent No,1 as well as by respondent No,3 is clearly mala fide, vexatious and constitutes harassment and is in contravention of the petitioner's legal rights vested in him. C.P. No, D-117 of 1988 ' The facts leading to the filing of the above petition are that petitioners No,1 to 4 are Senior Preventive Officers serving with the Pakistan Customs at Karachi and the petitioners Nos. 5 to 7 are Assistant Collectors, Preventive, Appraisement and Rebate, Pakistan Customs, Karachi in Grade-17 with an unblemished professional record to their credit. Similarly the petitioners No,1 to 4 have also at no point of time in their profession/career ever earned any adverse comments in their professional conduct.
8. ' It is the case of the petitioners that on 26-12-1987 the Intelligence Officer, Directorate General of Intelligence and Investigation (Customs and Excise), Karachi registered F.I.R. On the same date i,e, 26-12-1987 in the Court of the Special Judge (Customs), Karachi entitled as "unnamed concerned staff of Karachi Customs House" for an offence under section 32 of the Customs Act, 1969, punishable under section 156(1)(14) and also punishable under section 156(1)(82) in which F.I.R. It was alleged that the Central Board of Revenue had on 25-11-1987 desired that the Directorate General of Intelligence and Investigation, Islamabad, should investigate into an alleged complaint of fraudulent payment of export rebate claims alleged to have been manipulated by some unscrupulous parties in collusion with some staff of the Preventive CoRectorate of Customs, Karachi. It was further alleged in the said F.I.Rs, that the preliminary inquiry revealed that 5 persons named as accused in the F.I.R. Had conspired jointly to manipulate receipts of export rebate claims against the alleged fraudulent exports. It was further alleged in the said F.I.Rs, that in pursuance thereof the said persons employed some firms in achieving their alleged mala fide actions and to facilitate their intended fraudulent export of Ready-made Garments. It was further alleged in the said F.I.Rs, that 40 consignments in question were booked through the exporter namely one MunkMushtaq. A copy of the F.I.R. Is annexed to the petition and marked as annexure 'A'.
9. ' It is further case of the petitioner that on 29-12-1987 respondent No,1 filed three F.I.Rs, bearing Nos.
10. 30, 31 and 32 of 1987 in the Court of Special Judge (Customs), Karachi for offences under section 156(1)(14) of Customs Act, 1969, read with section 5(2) of Act II of 1947. In case No,30 of 1987 one Maghanmal and one Ismail A. Rehman as well as unnamed officers/officials of the Customs Appraising, Preventive and Rebate Section, Karachi, were named as accused, while in Case No,31 of 1987 Maghanmal and Ismail A. Rehman as well as un-named officers/officials of Customs Appraising, Preventive and Rebate Section, Karachi, were named as accused persons. The said three F I Rs, related to the shipment of 40 consignments in respect of which the Intelligence Officer, Directorate of Intelligence, had already filed the F.I.R. In the Court of Special Judge (Customs), Karachi. Copies of the said - three P.I.Rs, have been filed alongwith the petition as Annexures 'B', 'C' and To' respectively.
11. ' It is the further case of the petitioners that on 2-1-1988 respondent No,.1 also filed in the Court of Special Judge (Central), Karachi, three F.I.Rs, bearing Nos. 30/1987, 31/1987 and 32/1987, which F.I.Rs, were the copies of the F.I.Rs, which were already filed by respondent No,1 in the Court of Special Judge (Customs), Karachi on 29-12-1987. Copies of the said three F.I.Rs, have been annexed to the petition as Annexures `E', 'F.' and `G'. It is the further case of the petitioners that the F.I.Rs, `B", 'C' and 'D' filed on 29-12-1987 by respondent No,1 in the Court of Special Judge (Customs) as well as the three F.I.Rs, marked as `E', 'F' and `G' filed by respondent Nd.1 in the Couri of Special Judge (Central)
12. Karachi on 2-1-1988 are the same and are based on the same set of facts, evidence and property and are against the same accused persons. It is the further case of the petitioners that the F.I.R.
13. (Annexure 'A') filed by the Directorate of Intelligenceand Investigation (Customs and Excise) on 26- 12-1987 in the Court of Special Judge (Customs), Karachi, is also based on the same facts, evidence and the property as in the F.I.R. Filed subsequently by respondent No,1 in the two Courts i,e, Special Judge (Customs and Taxation) and Special Judge (Central), Karachi.
14. ' It is the further case of the petitioners that the investigation/prosecution by respondent No,1 and Directorate of Intelligence (Customs and Excise) is in clear violation of the fundamental rights of the petitioners as guaranteed under Article 13 of the Constitution of Islamic Republic of Pakistan and is thus ab initio void, without lawful authority and of no legal effect.
15. ' Respondent No,1 filed counter-affidavit in C.P. No,D-21 of 1988 wherein he denied that the petitioner was being prosecuted by different agencies in different Courts for the same offence and alleged that the petitioner was being prosecuted by the two agencies for separate substantive. Offences under different enactments and, therefore, there was no violation of Article 13 of the Constitution of Pakistan or of General Clauses Act, 1897 and pleaded that the petition was not maintainable.
16. ' Messrs Sharaf Faridi and Raja Qureshi, learned counsel for the petitioners in both the petitions, raised the following contentions:--
(1) There are two different forums before whom the petitioners are being prosecuted on the same set of facts, evidence and property.
(2) Such prosecution negates Fundamental Right No,13.
(3) It also militates against judicial concept of evidence of conflicting judgments.
(4) The double trial negates the well established principles of evidence on issue of estoppel.
(5) The provisions of section 156(82) of the Customs Act, 1969 impliedly repealed provisions of Section 5(1)(d) of the Anti-Corruption Act.
17. ' On the other hand Mr. Abdul Waheed Siddiqui, learned counsel for the respondents while fairly conceding that the facts are the same and the incident is also same nonetheless submits that in the instant case provisions of section 156 of Customs Act and section 5(2) of Anti-Corruption Act are both attracted and as such the prosecution is not hit by double jeopardy provision.
18. ' Mr. A.A. Mohammadally, learned Additional Advocate-General, Sindh, submitted that the prosecution is not bad as suggested by the learned counsel for the petitioners. He supported the views of Mr. Abdul Waheed Siddiqui.
19. ' In order to appreciate the contentions of the learned counsel for the parties, it is advantageous to reproduce (1) Article 13 of the Constitution of the Islamic Republic of Pakistan, (2) Article 20(2) of Indian Constitution, (3) the Fifth Amendment to the Constitution of U.S.A. And (4) section 403 of the Code of Criminal Procedure, 1898, which read as under:-- Article 13 "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."
20. Article 20(2), "No person shall be prosecuted and punished for the same offence more than once."
21. Fifth Amendment to the Constitution of the U.SA "No person shall be............... Subject for the same offence to be twice put in jeopardy of life or limb."
22. Section 403. Cr P.0
(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 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.
(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).
(3) A person convicted of 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 consequences 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 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 provisions of section 26 of the General Clauses Act, 1897, or section 188 of this Code."
23. The question that arises for our determination is as to whether the proceedings pending before the Court of Special Judge (Customs and Taxation) Karachi and those pending before Special Judge*Anti-Corruption (Central) are one and the same and in respect of one and the same offence and are hit by Article 13 of the Constitution of Islamic Republic of Pakistan or under General Clauses Act?
24. ' There is no doubt that the act which constitutes an offence under section 32 of Customs Act is punishable under section 156(1)(14) as well as under section 156(1)(82) of the Customs Act and it is an offence under section 156(1)(82) of the Customs Act as well as under section 5(2) of Act No,II of 1947.
25. ' Clause 14 of section 156 provides that if any person commits an offence under section 32, such person shall be liable to a penalty not exceeding rupees twenty-five thousand or three times the value of the goods in respect of which such offence is committed, whichever be greater; and such goods shall also be liable to confiscation; and upon conviction by a Magistrate, such person shall further be liable to imprisonment for a term not exceeding three years, or to fine or to both.
26. ' Clause 182 provides that if any officer of Customs, or other person duly employed for the prevention of smuggling practices, or attempts to practice, any fraud for the purpose of injuring the Customs Revenue, or abets or connives at any such fraud, or any attempt to practice any such fraud, such officer or person shall, on conviction before a Special Judge be liable to imprisonment for a term not exceeding three years, or to fine, or to both.
27. ' Subsection (2) of section 5 of Prevention of Corruption Act, 1947 (Act No,II of 194 /), provides that any public servant who commits or attempts to commit criminal misconduct shall be punishable with imprisonment for a term which may extend to seven years or with fine or with both.
28. ' The word "offence" has not been defined in the Constitution. Section 3(37) of the Gener-al Clauses Act defines an offence to mean any act or omission made punishable by any law for the time being in force. Section 2(o) of the Code of Criminal Procedure also defines "offence" to mean any act or omission made punishable by any law for the time being in force; it also includes any act in respect of which a complaint may be made under section 20 of the Cattle Trespass Act, 1871. Thus there is no doubt that both under the provisions of section 156(14)(82) Customs Act, 1969 and section 5(2) of the Prevention of Corruption Act, 1947, the acts of the petitioners are punishable and constitute an offence.
29. ' However, in order to attract the operation of Article 13 of the Constitution, the petitioners must have been prosecuted or punished for the same offence when proceedings are taken before the Court of Special Judge (Central), Karachi. The Fundamental Right which is guaranteed in Article 13 enunciates the principle of prosecution or punishment for the same offence more than once. `Prosecution' or 'prosecute' in the special sense of law means, according to Webster's Dictionary: "
(a) to follow, pursue, to follow to the end, to seek to obtain, to enforce, or the like, by legal process, to prosecute a right or a claim in a Court of law; (b) to pursue to institute legal proceedings for redress or punishment; to proceed against judicially; esp., to accuse of some crime or breach of law, or to pursue for redress or punishment of a crime or violation of law, in due legal form before a j gal tribunal; the carrying on of a judicial proceeding on behalf of a complaining party, the institution and continuance of a criminal suit involving the process of exhibiting formal charges against an offender before a legal tribunal and pursuing them to find judgment on behalf of the State or Government".
30. ' According to Wharton's Law Lexicon by A.S. Oppe, 14th edition (1976 Reprint) page 810, 'prosecution' means "a proceeding either by way of indictment or information, in the Criminal Courts, in order to put an offender upon his trial".
31. ' The word 'prosecution' occurring in Article 13 would mean an initiation or starting of proceedings of criminal nature before a Court of Law or a Judicial Tribunal in accordance with the procedure prescribed in the Statute which creates the offences and regulates the procedure.
32. ' The word 'punish' occurring in Article 13 would mean "to cause the offender to suffer for the offence" or "to inflict penalty on the offender" or "to inflict penalty for the offence". The word 'punish' denotes or signifies some offence committed by the person who is punished.
33. ' The fifth amendment of the American Constitution enunciated this principle in the following manner:-- ' nor shall any person be subject for the same offence to be twice put in jeopardy of life and limb; nor shall be compelled in any criminal case, to be witness against himself............................................. tI ' WILLS in his Constitutional Law, at page 528, observes that the phrase "jeopardy of life or limb" indicates that the immunity is restricted to crimes of the highest grade, and this is the way Balckstone states the rule. Yet, by a gradual process of liberal construction, the Courts have extended the scope of the clause to make it applicable to all indictable offences, including misdemeanour. Under the United States rule, to be put in jeopardy there must be a valid indictment or information duly presented to a Court of competent jurisdiction, there must be an arraignment and plea, and a lawful jury must be impanelled and sworn. It is not necessary to have a verdict. The protection is not against second punishment but against the peril in which he is placed by the jeopardy mentioned.
34. ' In Millard F. Ball John C. Ball and Robert E. Bountwell v. United States (163 U.S. 3003), it was held that prohibition is not against being twice punished but being twice put in jeopardy; and the accused, whether convicted or acquitted, is equally put in jeopardy at the first trial.
35. ' In Thomas E. Kepner v. United States (195 U.S. 114) it was held as follows:-- ". . . . We have not been able to find a single American case where a retrial has been ordered or sanctioned by an appellate Court at the instance of the prosecution, after the defendant had been once put upon his trial for an alleged felony, upon a valid indictment before a competent Court and jury, and acquitted by the verdict of such jury; but we find a vast number of adjudications of the highest judicial tribunals of the different States and many of the Federal Courts to the effect that no such retrial is authorized by the common law, and is directly interdicted by the Constitution of the United States, and also of most of the several States."
36. ' In Homer E. Grafton v. United States (206 U.S. 1084) the principal contention of the accused was that his acquittal by the Court-martial forbade his being again tried in the Civil Court for the same offence. It was held:-- "It must, then, be taken on the present record that an affirmance of the judgment of the Civil Court will subject the accused to punishment for the same acts, constituting the same offence as that of which he had been previously acquitted by a military Court having complete jurisdiciton to try and punish him for such offense."
37. ' In United States v. Vito Lanza, Dick Barto, Premo Mazzoncini, and Euguini Mazzoncini (260 U.S. 314), the defendants insist that two punishments for the same act, one under the National Prohibition Act and the other under a State Law, constitute double jeopardy under the Fifth Amendment; and in support of this position, it was argued that both laws derive their force from the same authority, the 2d section of the Amendment, and therefore, that, in principle it is as if both punishments were in prosecutions by the United States in its Courts. Chief Justice Taft delivered the opinion of the Court and held: "It follows that an act denounced as a crime by both national and State sovereignties is an offence against the peace and dignity of both, and may be punished by each. The 5th Amendment, like all the other guarantees in the first eight amendments, applies only to proceedings by the Federal Government (Barron v. Baltimore, 7 Pet. 243, 8 L.Ed.672), and the double jeopardy therein forbidden is a second prosecution under authority of the Federal Government after a first trial for the same offence under the same authority. Here the same act was an offence against the state of Washington, because a violation of its law, and also an offence againt the United States under the National Prohibition Act. The defendants thus committed two different offences by the same act, and a conviction by the Court of Washington of the offense against that state is not a conviction of the different offence against the United States, and so is not double jeopardy."
38. ' In Harry Blockburger v. United States of America (284 U.S. 298 76 L. Ed. 306), the contention on behalf of the petitioner was that the two sales having been made to the same purchaser and following each other with no substantial interval of time between the delivery of the drug in the first transaction and the payment for the second quantity sold, constitute a single continuing offence. It was held that the contention was devoid of force ' In Wemyss v. Hopkins (L R 10 Q B 378) it was held that the first conviction was a bar to the second.
39. In the course of the discussion, it was observed by Blackburn, J.: "I think the fact that the appellant had been convicted by justices under one Act of Parliament for what amounted to an assault is a bar to a conviction under another Act of Parliament for the same assault. The defence does not arise on a plea of autrefois convict, but on the well-established rule at common law, that where a person has been convicted and punished for an offence by a Court of competent jurisdiction, transit in rem judicatam, that is, the conviction shall be a bar to all further proceedings for the same offence, and he shall not be punished again for the same matter; otherwise there might be two different punishments for the same offence. The only point raised is whether a defence in the nature of a plea of autrefois convict would extend to a conviction before two justices whose jurisdiction is created by statute. I think the fact that the jurisdiction of the justices is created by statute makes no difference. Where the conviction is by a Court of competent jurisdiction, it matters not whether the conviction is by a summary proceeding before justices or by trial before a jury."
40. ' In the same case, Lush, J. Held as follows:-- "I am also of opinion that the second conviction should be quashed, upon the ground that it violated a fundamental principle of law, that no person shall be prosecuted twice for the same offence. The act charged against the appellant on the first occasion was an assault upon the respondent while she was riding a horse on the highway, and it therefore became an offence for which the appellant might be punished under either of two statutes. The appellant was prosecuted for the assault, and convicted under one of the statutes, 3 & 4 Wm. 4, c. 50, s. 78, and fined, and he therefore cannot be afterwards convicted again for the same act under the other statute."
41. ' The contention of Mr. Sharaf Faridi relates to the construction of clause (a) of Article 13. It is submitted by him, in the first instance, that the word 'or' should be read as 'and' in a conjunctive sense and so read it would mean that no person shall be prosecuted or punished for the same offence more than once. It is undeniable that the word 'or' can sometimes be read as 'and' and vice versa if it is found necessary to do so to effectuate the Legislative intent. Can it be said that the Legislature intended that no person shall be prosecuted or punished for the same offence more than once? It is very strongly contended by Mr. Sharaf Faridi that the deliberate use of the word 'or' must of necessity mean that no person shall be prosecuted for the same offence twice is relatable to prosecution or punishment.
42. ' In Crawford on Statutory Construction (1940 Ed.), it is stated at page 322 that: "In ordinary use the word 'or' is a disjunctive that marks an alternative which generally corresponds to the word 'either'. In face of this meaning, however, the word 'or' and the word 'and' are often used interchangeably. As a result of this common and careless use of the two words in legislation, there are occasions when the Court, through construction, may change one to the other. This cannot be done if the statute's meaning is clear, or if the alteration operates to change the meaning of the law. It is proper only in order to more accurately express, or to carry out the obvious intent of the legislature, when the statute itself furnishes cogent proof of the error of the legislature, and especially where it will avoid absurd or impossible consequences, or operate to harmonize the statute and give effect to all of its provisions."
43. ' Sutherland, Statutory Construction (3rd Edition) Volume 2, also refers to the subject of conjunctive and disjunctive words at page 450 as follows:-- "Where two or more requirements are provided in a section and it is the legislative intent that all of the requirements must be fulfilled in order to comply with the statute, the conjunctive 'and' should be used. Where a failure to comply with any requirement imposes liability, the disjunctive `or' should be used. There has been, however, so great laxity in the use of these terms that Courts have generally said that the words are interchangeable and that one may be substituted for the other, if to do so is consistent with the legislative intent."
44. ' In the last analysis, therefore, the word 'or' can be used in a conjunctive sense as a substitute for 'and' if the compelling context so requires to carry out legislative intent which is otherwise obvious.
45. There are two indications in the provision of Article 13 itself to suggest that the word 'or' was used deliberately in a disjunctive sense and consequently the prosecution or punishment relates to the same offence more than once. Again when the Article speaks of "prosecution or punishment", there is an obvious inference that person should only be prosecuted or punished.
46. ' So far as the language of Article 13 is concerned, the words "no person shall be prosecuted or punished for the same offence more than once" are employed. Courts may take recourse to the legislative history as well as to the intention of the legislature but bearing always in mind that the intention is best expressed in the words used. In finding out the legislature's intent, the Courts cannot speculate and trespass into the field of legislation. Resort may be had, and in fact Courts are in some cases bound to do so, to ascertain the mischief left unprovoked for in the old law and sought to be remedied by the new statute. That course is adopted to find out the intention of the legislature in the statutes penned obscurely, but principally a law must be interpreted by the words of the statute itself. The words must be read in their ordinary sense, though they may be modified to avoid an absurdity or incongruity. Law reports abound with decisions holding that the Courts can go no further and we propose to adhere to that well-recognized rule.
47. We are not unmindful of the statutes in which sometimes the Courts do read word or as vice versa but there must be some strong reason to do so. For instance, such substitution may have to be made to give effect to the obvious intent of the legislature and effectuate the policy intended to be laid down by a given statute. The normal rule of construction, however, remains that the words must be given their primary meaning and, therefore, unless we are compelled by the scheme of the Fundamental Rights mentioned in the Constitution indicating an obvious intent of the legislature to adopt a contrary view, we must read 'or' as 'or' and not to go to the extreme limit of interpretation. It is not necessary to read 'or' for 'and' in the paramount interests of harmonious construction and effectuation of legislative intent.
48. ' Looked from all possible perspectives, we are of the view that no person I H shall be prosecuted or punished for the same offence more than once.
49. ' In Syed Alamdar Hussain Shah v. Abdul Baseer Qureshi and 2 others (PLD 1978 SC 121), the Hon'ble Supreme Court interpreted the word "prosecution" occurring in Article 13 of the Constitution of Pakistan and after referring to Webster's New International Dictionary (Second Edition) and Corpus Juris Secundum observed as follows:-- "The petitioner was, in the first instance, tried by the Military Court, but Martial Law was lifted before judgment could be pronounced and the case thus remained undecided. He was then tried by a Magistrate, before whom the trial was still in progress when the case was ordered to be transferred to the Sessions. In none of these forums was prosecution pursued to the end, with a view to its accomplishment; and it cannot be said that the petitioner's present trial is in any way derogatory to the principles of autrefois acquit or autrefois convict, or violative of Article 13 of the Constitution assuming its provisions were operative, which, however, is not the case."
50. ' In the facts and circumstances of the instant case, it cannot be said that the prosecution has been pursued to the end as the prosecution is still pending adjudication.
51. ' We take the other two contentions together.
52. ' It was contended by Mr. Sharaf Faridi on behalf of the petitioners that the above decision of the Hon'ble Supreme Court is not applicable to the facts of the instant case because at that time Fundamental Rights were suspended. We are unable to accept this contention as right. The rule laid down in that decision is in accordance with sound principle. Article 13 has no direct bearing on the question at issue. Evidently the petitioners want to spell out from this Article the rule of autrefois acquit embodied in section 403, Criminal Procedure Code. In order to get the benefit of section 403 of Criminal Procedure Code or Article 13 of the Constitution, it is necessary for an accused person to establish that he had been tried by a Court of competent jurisdiction for an offence and he is convicted or acquitted of that offence and the said conviction or acquittal is in force. If that much is established, it can be contended that he is not liable to be tried again for the same offence nor on the same facts for any other offence for which a different charge might have been made under section 342, Cr.P.Code or for which he might have been convicted. The wording of Article 13 of the Constitution and the words used therein show that the proceedings of the nature of criminal proceedings before a Court of law and prosecution in this context would mean an initiation or starting of proceedings of a criminal nature before a Court of law or a judicial tribunal in accordance with the procedure prescribed in the statute which creates the offence and regulates the procedure.
53. ' The point for consideration is that where an issue of fact has been tried by a competent Court on a former occasion and a finding has been reached in favour of an accused, such a finding would constitute an estoppel or res judicata against the prosecution not a bar to the trial and conviction of the accused for a different or distinct offence but as precluding the reception of evidence to disturb that finding of fact when the accused is tried subsequently even for a different offence which might be permitted by the terms of section 403(2) of Criminal Procedure Code.
54. ' The objection to the reception of evidence to prove an identical fact which has been the subject of an earlier finding between the parties is brought out in the following passage from the judgment of Wright, J. In The Queen v. 011is (1900) 2 Q.B. 758 at pages 768 & 769) which reads as follows:-- "The real question is whether this relevant evidence of the false pretence on July 5 or 6 ought to have been excluded on the ground that it was part of the evidence given for the prosecution at the former trial, at which the prisoner was charged with having obtained money from Ramsey on that false pretence, and was acquitted of that charge."
55. ' The learned Judge then went on to point out that if the acquittal at the first trial was based on the negativing of this basic fact that the evidence would be inadmissible but if that acquittal was based on other circumstances the evidence could be admissible. That is why he said: "An objection in the nature of a plea of `autrefois acquit' cannot of course he maintained, because on either indictment the prisoner could not have been convicted of the offences, or any of them, which were alleged in the other indictment. Nor can there be an estoppel of record or quasi of record, unless it appears by record of itself, or as explained by proper evidence, that the same point was determined on the first trial which was in issue on the second trial."
56. ' In Sambasivam v. Public Prosecutor, Federation of Malay (1950 A.C. 458) the facts of the case were that Sambasivam an Indian Tamil Clerk was travelling on foot in the company of two Chinese. They met a party of three Malays and a fight ensued, in the course of which one Chinese was killed and the appellant was seriously wounded. The other Chinese escaped and had not, apparently, been heard since. The Malays, who were armed with knives, alleged that they had been fired on by the Chinese and that the appellant had drawn and pointed a revolver at one of them before he had been wounded and disarmed. In connection with this incident, the appellant was charged with carrying a fire-arm and being in possession of ammunition. He was acquitted of the second charge of being in possession of ammunition and that acquittal became final. He was, later convicted of the offence of carrying a fire-arm and the appeal before the Privy Council related to the legality of this conviction. A number of contentions were raised including admissibility of the evidence of the prosecution witness who spoke of the revolver carried by the appellant being loaded with bullets and of the appellant carrying four bullets in a bag. Their Lordships rejected all the other contentions raised on behalf of the appellant but allowed the appeal on the ground that this evidence regarding the revolver being loaded and the appellant carrying a bag containing some bullets was inadmissible in law. In dealing with this Lord MacDermott speaking for the Board said: ' The effect of a verdict of acquittal pronounced by a competent Court on a lawful charge and after a lawful trial is not completely stated by saying that the person acquitted cannot be tried again for the same offence. To that it must be added that the verdict is binding and conclusive in all subsequent proceedings between the parties to the adjudication. The maxim 'Res judicata pro veritate accipitur' is no less applicable to criminal than to civil proceedings. Here, the appellant having been acquitted at the first trial on the charge of having ammunition in his possession, the prosecution was bound to accept the correctness of that verdict and was precluded from taking any step to challenge it at the second trial. And the appellant was no less entitled to rely on his acquittal in so far as it might be relevant in his defence. That it was not conclusive of his innocence on the firearm charge is plain, but it undoubtedly reduced in some degree the weight of the case against him, for at the first trial the facts proved in support of one charge were clearly relevant to the other having regard to the circumstances in which the ammunition and revolver were found and the fact that they fitted each other."
57. ' In The King v. Wilkes (77 CLR 511) Dixon, J. (High Court of Australia) n the course of his judgment observed at pages 518 and 519 as follows:-- ' it appears to me that there is nothing wrong in the view that there is an issue estoppel, if it appears by record of itself or as explained by proper evidence, that the same point was determined in favour of a prisoner in a previous criminal trial which is brought in issue on a second criminal trial of the same prisoner. That seems to be implied in the language used by Wright J. In R. v. 011is ((1900) 2 Q.B. 758, at p.769) which in effect I have adapted in the foregoing statement. Such a question must rarely arise because the conditions can seldom be fulfilled which are necessary before an issue estoppel in favour of a prisoner and against the Crown can occur. There must be a prior proceeding determined against the Crown necessarily involving an issue which again arises in a subsequent proceeding by the Crown against the same prisoner. The allegation of the Crown in the subsequent proceeding must itself be inconsistent with the acquittal of the prisoner in the previous proceeding. But in such a condition of affairs I see no reason why the ordinary rules of issue estoppel should not apply. Such rules are not to be confused with those of res judicata, which in criminal proceedings are expressed in the pleas of autre fois acquit and autre fois convict. They are pleas which are concerned with the judicial determination of an alleged criminal liability and in the case of conviction with the substitution of a new liability. Issue estoppel is concerned with the judicial establishment of a proposition of law or fact between parties. It depends upon well-known doctrines which control the relitigation of issues which are settled by prior litigation."
58. ' This decision was followed in Australia in Kemp v. The King (83 CLR 341). In that case it was held that the evidence which showed that the accused had been guilty of two offences of which he had been acquitted was wrongly admitted in a later trial. In Marz v. The Queen ((1956) 96 CLR 62) the High Court of Australia, over which Dixon, C.J. Presided, allowed an appeal against conviction for rape on the ground of issue estoppel. The accused had been charged with the murder of a woman, the case for the prosecution being that her death had been caused during or immediately after rape by the accused. He was acquitted of murder but convicted of manslaughter. He was then charged with rape and convicted of that. After a close analysis of the cause, the first trial took, the High Court came to the conclusion that the verdict showed that at the first trial the jury had found the accused not guilty of rape. 'It is enough' the Court said: "that an issue or issues have been distinctly raised and found. Once that is done, then, so long as the finding stands, if there be any subsequent litigation between the same parties, no allegations legally inconsistent with the finding may be made by one of them against the other. Res judicata pro veritate accipitur."
59. The case of Marz v. The Queen was followed by another Australian case, Brown v. Robinson ((1960)
60. 5 R (NSW) 297), where it was not doubted that issue estoppel applied in criminal cases but it was held that it was not possible to say that the jury's verdict was founded on the issue alleged to create the estoppel. These Australian cases show that in that country issue of estoppel has been accepted as operating in criminal proceedings. It may be pertinent that prior to 1964 there was no English decision which gave support to that view. In Connelly v. Director of Public Prosecutions ((1964) 2 A.E.R. 401 = (1964) A.C. 1254) Lord Morris of Borth-y-Gest, Lord Hodson and Lord Pearce thought that issue estoppel applied in criminal cases but that it did not apply in that case as it was not possible to identify from the jury's verdict of guilty of murder, which was quashed an appeal, any finding on the issue of robbery with which Connelly was charged after his conviction for murder had been quashed. Lord Devlin, who was of the opinion that if issue estoppel applied in the criminal field, it did not assist the appellant, expressed serious doubts about the value of the doctrine to the criminal law. Issue estoppel was considered in Mills v.
61. Cooper (1967) 2 AER 100 = (1967) 1 Q.B.
62. 459.
63. In R.V. Hogan (1974) 2 AER 142 = (1974) Q.B. 398, Hogan had been convicted of causing grievous bodily harm to a man with intent to do grievous bodily harm. After that, the man died and Hogan was charged with his murder. The prosecution contended that it was not open to Hogan on his trial for murder to put in issue any of the matters which could be taken as concluded against him, in favour of the prosecution at his first trial, and this conclusion was upheld by Lawson, J. Hogan was acquitted and after his acquittal Lawson, J. Gave his reasons for his ruling while there was no direct authority on the question, he held that issue estoppel applies between the Crown and the defendant in criminal proceedings. In Director of Public Prosecution v. Humphrys ((1976) 2 AER 497), the House of Lords held that the doctrine of issue estoppel had no application to criminal proceedings. In Sealfon v. United States ((1947) 332 U.S. 575), the accused had been accused in the first trial of conspiracy to commit a ration offence. He was subsequently prosecuted and convicted of aiding and abetting one of the alleged conspirators. The head note reads: "But res judicata may be a defense in a second prosecution. That doctrine applies to criminal as well as civil proceedings and operates to conclude those matters in issue which the verdict determined though the offences be different."
64. ' In Pritam Singh v. State of Punjab (AIR 1956 SC 415), the Supreme Court of India held:-- "The effect of a verdict of acquittal pronounced by a competent Court on a lawful charge and after a lawful trial is not completely stated by saying that the person acquitted cannot be tried again for the same offence. To that it must be added that the verdict is binding and conclusive in all subsequent proceedings between the parties to the adjudication. The maxim `res judicata pro veritate accipitur' is no less applicable to criminal than to civil proceedings. Thus an acquittal of an accused in a trial under section 19(f), Arms Act, is tantamount to a finding that the prosecution had failed to establish the possession of certain revolver by the accused as alleged. The possession of that revolver was a fact in issue which had to be established by the prosecution before he could be convicted of the offence under section 19(t). That fact was found against the prosecution and could not be proved against the accused in the subsequent proceedings between the Crown and him, under a charge of murder."
65. ' In Manipur Administration, Manipur v. Phokchom Verasingh (AIR 1965 SC 87), the above decision was followed and it was held that issue estoppel does not prevent the trial of any offence as does autrefois acquit but only precludes evidence being led to prove a fact in issue as regards which evidence has already been led and a specific finding recorded at an earlier criminal trial before a Court of competent jurisdiction.
66. ' In Piara Singh v. State of Punjab (AIR 1969 SC 961), it was held that the principle of issue estoppel is a different principle, viz. Where an issue of fact has been tried by a competent Court on a former occasion and a finding has been reached in favour of an accused, such a finding would constitute an estoppel or res judicata against the prosecution not as a bar to the trial and a conviction of the accused for a different or distinct offence but as precluding the reception of evidence to disturb that finding subsequently even for a different offence which might be permitted by the terms of section 403(2), Cr.P.Code.
67. ' In State of Andhra Pradesh v. Kokkiligada Meeraiah and another (AIR 1970 SC 771), it was held that the rule of issue estoppel prevents re-litigation of the issue which has been determined in a criminal trial between the State and the accused. If in respect of an offence arising out of a transaction a trial has taken place and the accused has been acquitted, another trial in respect of the offence alleged to arise out of that transaction or of a related transaction which requires the Court to arrive at a conclusion inconsistent with the conclusion reached at the earlier trial is prohibited by the rule of issue estoppel.
68. ' In Ravindar Singh v. State of Haryana (AIR 1975 SC 856), it was held that in order to invoke the rule of issue estoppel not only the parties in the two trials must be the same but also the fact in issue proved or not in the earlier trial must be identical with what is sought to be re-agitated in the subsequent trial. It was further held that issue estoppel does not prevent the trial of an offence as does autrefois acquit but only precludes evidence being led to prove a fact in issue as regards which evidence has already been led and a specific finding recorded at an earlier criminal trial before a Court of competent jurisdiction.
69. ' From the above-cited cases inter alia the following principles are deducible:--
(1) The parties in the two trials must be the same.
(2) The fact in issue proved or not in the earlier trial must be identical with I j what is sought to be re-agitated in the subsequent trial.
70. 'In the present case, the parties are the Director General of Intelligence and Investigation (Customs and Excise) and the present petitioners alongwith other accused. In the other case the parties are State through Assistant Director, FIA/CC-II, Karachi and the present petitioners alongwith other accused. Both the complaints are in respect of the same set of facts and same evidence is involved. Mr. Siddiqui and the learned Additional Advocate-General assert that both these complaints can continue at one and the same time.
71. ' As the proceedings before the Court of Special Judge (Customs and Taxation) Karachi, are still pending and the evidence is still to be recorded, in this view of the matter we are of the opinion that this is one of those cases in which it is in the interest of justice that the proceedings pending (in F.I.R. Nos. 30, 31 and 32 of 1987) before the Court of Special Judge (Central) for offences under section 156(1)(14) of the Customs Act, 1969, and section 5(2) of Act No,II of 1947 are stayed till the disposal of the proceedings in the Court of Special Judge (Customs and Taxation), Karachi.
72. ' On this view of the matter, we do not propose to deal with the other contentions raised by the learned counsel for the petitioners.
73. ' The result therefore is that the petitions will be allowed only to the extent that the proceedings pending before the Court of Special Judge (Central) are stayed till the disposal of the proceedings in the Court of Special Judge (Customs and Taxation) Karachi. In the circumstances of the case, the parties are directed to bear their own costs.