' GUL MUHAMMAD KHAN, C.J.---It appeared in a newspaper that one Anwar Khattak, being found in possession of huge quantity of narcotics, was challaned under Customs Act and allowed bail by the Court of Special Judge (Customs & Taxation), Karachi. It also came to the notice of the Court that the provisions of Prohibition (Enforcement of Hadd) Order, 1979 (P.O. No, 4 of 1979) were not applied in the F.I.R. Nor was the accused challaned under Articles 3 and 4 of the said Prohibition Order. Consequently,, a notice calling for the record was issued, under Article 203-DD of the Constitution, in order to look into the legality etc., and regularity of the proceedings before the Customs Court.
2. On 5th May, 1990 the records of cases No, 142 of 1985 and No, 213 of 1988, of the Court of Customs and Taxation, Karachi, were perused and it was found that bail had been allowed by the Court twice and the accused was to be tried only under section 156(1)(8) of the Customs Act and not the P.O. 4 of 1979. Notices were, therefore, issued to the Deputy Attorney-General, Karachi, Advocate- General Sindh, Director, Pakistan Narcotics Control Board, Islamabad, Director, Pakistan Narcotics Control Board, Karachi Region, M/s. Azizullah Shaikh, Amir Naqvi and Shamim Raza, Advocates, karachi, who were counsel in the above two cases. Notice was also issued to the Collector of Customs, Karachi. The case was also referred to Full Bench and it came up for hearing at Karachi on 16th May, 1990. However, the learned counsel and the Officers were not fully prepared and therefore, they prayed for adjournment and requested that the case may be fixed at Islamabad.
3. Today, we have heard Mr. Niaz Ahmad Khan, counsel for the Federal Government. He represents all the agencies of the Federal Government including the Department of Customs. He submitted that according to section 2(s) of the Customs Act, 1969, it was a case of 'smuggling' and, therefore, was not covered by Articles 3 and 4 of P.O. 4 of 1979. He further submitted as this was a seizure under section 18 of the Customs Act, the Customs Authorities had no option but to submit the case to the Special Judge Customs under section 185-A of the same Act.
4. The learned counsel further submitted that the offences in the two cases fell under section 156(8) and (89) of the Customs Act and, therefore, the respondent could not have been challaned by the Customs Authorities under Articles 3 and 4 of the P.O. 4 of 1979 for which they, in any case, have no authorisation. Learned counsel also relied on a case of Jamshed Ali v. The State 1988 Pakistan Criminal Law Journal 881 to say that there was no repugnancy or conflict between Customs Act and P.O. 4 of 1979 and that even the P.O. 4 of 1979 did not impliedly repeal the Customs Act. The learned counsel aLso disputed the jurisdiction of this Court to send for the record at a time when the case has not been finally decided. He relied on Article 203-DD of the Constitution in this regard.
5. Mr. Muhammad Ashraf, learned counsel for Anwar Khattak accused also relied on section 2(s) and section 156(8) of the Customs Act and stated that if the law was amended so that the sentence provided under section 165(8) was enhanced to life imprisonment, the controversy will be over. The case of Shah Nawaz PLD 1986 FSC 242 was also relied on to say that a suggestion can be made to the Government for the necessary amendment.
6. Mr. M.B. Awan, Deputy Director, Narcotics Control Board, appeared and submitted that he was authorised by Mr. Kaleem Dil Khan, Chairman, Pakistan Narcotics Control Board to say that his Department has no objection if the obligation to prosecute in respect of narcotics was conferred on the Customs Authorities.
7. Before going into the merit of the case, we may look into the preliminary objection taken by the learned counsel about the jurisdiction of this Court. The contention was that as it is not a 'case decided', therefore, the notice sent for the record was premature under Article 203-DD(1) which reads as under:-- "The Court may call for and examine the record of any case decided by any criminal Court under any law relating to the enforcement of Hudood for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed by, and as to the regularity of any proceedings of such Court and may, ...
(Underline supplied).
8. The question arising under this Article is whether it was a 'case decided' or not? It is not disputed that the trial Court has twice granted bail in this case. We also know that the complaint had also been sent up only under section 156(8) of the Customs Act and even the charge would be thereunder. The Supreme Court of Pakistan explained the term 'case decided' in Bashir Ahmad Khan v. Qaisar Ali PLD 1973 SC 507 as under:-- "There has undoubtedly been a conflict of judicial opinion as to the meaning of the phrase 'case decided' but it seems to us that the view, taken by the majority of the Full Bench of 7 Judges of the High Court of West Pakistan in S. Zafar Ahmad v. Abdul Khaliq PLD 1964 Kar. 149 states the position correctly, namely, that section 115 would be attracted if a Court subordinate to the High Court has given a decision in respect of any state of facts after judicially considering the same. The decision need not necessarily dispose of the whole matter or suit pending before the subordinate Court."
(Underline supplied).
9. In the present case the grant of bail in a criminal case did involve judicial application of mind and it is well-settled that the Revisional Court can call for the record of a case in which a Court has allowed bail. Even framing of charge may be subject to that power. The 'charge' is not defined in the Cr.P.C. But the Courts have defined it as under:-- "A charge may he defined to be a written document containing description of the offence which the Court, either in an inquiry or trial, finds, prima facie, proved by evidence before it, to have been committed by the accused, so as to require him to defend himself. See Queen-Empress v. Appa Subhana ILR 8 Boni.
200. In Reily v. Empress, a charge is defined as a "precise formulation of the specific accusation made against a person who is entitled to know its nature at the very earliest stage. See Weroo v. Empress AIR 1948 Sindh 40."
10. Thus the framing of the charge also involves, judicial decision taken by the trial Court, in a criminal case. It forms the basis of the trial, and the accused has notice of it to defend himself. The framing of the charge by a Court thus, does also call for the application of mind to the facts placed on the record by the prosecution on the basis of investigation or on the facts collected in an inquiry before taking the decision thereon. Consequently, both on the ground of order of bail and the framing of the charge the rule laid down by the Supreme Court in the case cited above would be met and the situation would he ripe for this Court to call for the record. Consequently, we have no doubt that a notice, issued after grant of bail or the framing of the charge would be valid and interference may be made when it is thought that more important aspects of the offence had been left out. The notice in this case is thus not premature and therefore, was quite valid.
11. The second question arising in the case is whether the offences under the two enactments i.e, section 156(8) of Customs Act and Articles 3 and 4 of the P.O. 4 of 1979 in respect of smuggling or import and export of the narcotics make the same offence punishable twice and whether acquittal or conviction in one would be a bar to try and punish under the other. Even the Article 13 of the Constitution and section 26 of the General Clauses Act deal with a similar situation.
12. During the course of hearing of the case, the basis of the arguments, on all sides, was that P.O. 4 of 1979 is a later enactment providing for Hudood offences and the arguments revolved round that.
However, after the arguments were over, the judgment had been reserved and the Court closed, Mr. Niaz Ahmad Khan came up to inform that the definition of section 2(s) had been subsequently amended by Finance Ordinance 12 of 1982 so that "narcotics and narcotic and psychotropic substances" were added to other goods given in its sub-clause (i). The argument probably would be that as this amendment came up subsequent to P.O. 4 of 1979 the Customs Court alone would have the jurisdiction in the matter in case it was the same offence in both the enactments.
However, if the two offences were distinct and separate the omission on the part of the Customs Authorities not to challan under P.O. 4 of 1979 and the proceedings before the Special Court Customs did not suffer from any infirmity.
13. In order to know whether the offences are the same in the two enactments or they are different and distinct, the rule applied by the Indian Supreme Court in Manipur Administration v. Biba Singh AIR 1965 SC 87 was that to operate as a bar to the second prosecution and the consequential punishment thereunder must be for the same offence whose ingredients are the same. A comparison of enactments is, therefore, called for. Section 2(s) of the Customs Act, 1969 as amended in 1982 reads as under:--
(s) "smuggle" means to bring into or take out of Pakistan in breach of any prohibition or restriction for the time being in force or evade the payment of customs (duty) or taxes leviable thereon,
(i) gold bullion, silver bullion, Narcotics and narcotic psychotropic substances or
(ii) manufactures of gold..
(Underline supplied).
' It appears, for our purposes that the offence under Customs Act, 1%9 lies in bringing into or taking out of Pakistan in breach of anyprohibition or restriction any article or substance as mentioned in sub-clauses (i) and (ii) or in a manner which violates sub-clause (iii). The penalties and punishments for the offence are provided in section 156(8). The prohibition or restriction is laid down by a notification of the Government issued under section 16.
14. Most of the goods mentioned in sub-clause (i) of clause (s) of section 2 may he 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 is violation of the notification issued by the executive authority. However, as far the narcotics are concerned the Articles 3 and 4 of 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.
15. Further the penalty and punishment provided for the offence under the Customs Act arc as under:-- "S. 156(8), If any goods be smuggled into or out of Pakistan. --Such goods shall be liable to confiscation and any person concerned in the offence shall be liable to penalty not exceeding ten times the value of the goods; and upon conviction by a Special Judge he shall further be liable to imprisonment for a term not exceeding ten years and to fine not exceeding ten times the value of such goods, and, if the Special Judge in his discretion so orders, also to whipping: ' Provided that, in the case of such goods essential to the life of the community as may be notified by the Federal Government in the official Gazette, the sentence of imprisonment shall not be less than five years and the person convicted shall also be awarded sentence of whipping, and the whole or any part of his property shall also he liable to confiscation in accordance with the provisions of the Prevention of Smuggling Act, 1977."
16. It will be differentiated that Customs Authorities are only concerned with smuggling of the goods, as mentioned in clause (s) of section 2 and as notified, only when they are brought in or taken out of Pakistan, in violation of the prohibition or restriction as mentioned therein. So the essential ingredient of the offence of smuggling under the Customs Act is that an act must be in violation of that prohibition or restriction for the time being in force. While in Articles 3 and 4 the offence about import, export, transport, manufacture, sale and possession, keeping in custody etc. Is absolute.
17. Under Articles 3 and 4 of the P.O. 4 of 1979 the sentences provided are as follows:- "Article 3.--Imprisonment of either description for a term which may extend to five years and with whipping not exceeding thirty stripes, and shall also be liable to fine.
' Imprisonment for life or with imprisonment which is not less than two years and with whipping not exceeding thirty stripes, and shall also be liable to fine.
' Article 4.--Imprisonment of either description for a term which may extend to two years, or with whipping not exceeding thirty stripes and shall also be liable to fine.
' Imprisonment for life or with imprisonment which is not less than two years and with whipping not exceeding thirty stripes and shall also be liable to fine."
' We have thus found that both the ingredients and the punishments under the two enactments are distinct and separate.
18. Now the other question to be answered is whether the prosecution, trial and punishment under the above two laws are violative of Article 13 of the Constitution and section 403 of the Cr.P.C. It may be useful to reproduce the two provisions in order to verify the situation:-- Art. 13: No person--
(a) shall be prosecuted or punished for the same offence more than once; or (b)
' The guarantee provided here is against prosecution or punishment for an offence for more than once.
' Section 403, Cr.P.C.:
(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 he 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)
(3)
(4)
(5) Nothing in this section shall affect the provisions of section 26 of the General Clauses Act, 1897, or section 188 of this Code.
' The restriction under this provision is in respect of a second trial after the accused is once tried and convicted or acquitted for the same offence.
19. A Division Bench of the Dacca High Court in the case of Amir Khan v. The State PLD 1963 Dacca 92 approved the following rule:-- "One of the tests the Commissioners of the. Tribunal in the case before us have observed in their judgment is whether facts are the same or not, but the true test as has been said in cases decided by this Court is not so much whether the acquittal or conviction from the first charge necessarily involves an acquittal or conviction in the second charge: See 48 Cal. 78 (Ram Sabay Ram v.
Emperor)."
(Underline supplied)
' In Basavegowda v. Government of Mysore AIR 1938 Mysore 33 the Mysore High Court observed as under:-- "The first trial concerned with forgery and the present trial for impersonation. Though both may he considered acts arising out of the same transaction, it cannot be said that they are not distinct offences. In fact in the present case charges were framed for both the offences; one was tried and disposed of at first, the other now under enquiry is but the continuation of the same trial for the offence for which a charge was originally made. The later decisions of Rangoon High Court are conclusive that the offences concerned in these cases are distinct."
20. The Indian Supreme Court in Dharmanand v. The State AIR 1957 SC 592 observed as under:- "This Court has recently held in Om Parkash Gupla v. State of U.P. Criminal Appeals Nos. 42 of 1954 and 3 and 97 of'1955: (s) AIR 1957 SC 458(A), that the offence of criminal misconduct punishable under section 5(2) of the Prevention of Corruption Act II of 1947 is not identical in essence, import and content with an offence under section 409 of the Indian Penal Code. The offence of criminal misconduct is a new offence created by that enactment and it does not repeal by implication or abrogate section 409 of the Indian Penal Code. In the common judgment in those appeals the conclusion has been expressed in the following words:- "Our conclusion, therefore, is that the offence created under section 5(1)(c) of the Prevention of Corruption Act is distinct and separate from the one under section 405 I.P.C. And, therefore, there can be no question of section 5(1)(c) repealing section 405 I.P.C."
21. The Sindh High Court in Jamshed All v. The State 1988 P Cr.L.J. 881 considered the above-noted provisions and observed as under:-- "Firstly it may be pointed out that the Customs Act, 1969 deals with the smuggling of goods and evasion of Customs duty. Smuggling as defined under Customs Act means, to bring in or take out of Pakistan any goods in breach of prohibition or restriction for the time being in force by any route other than that which is declared under section 9 of the Act; or evading payment of customs duty or taxes leviable on any goods notified by the Federal Government in the official Gazette, clearance of which at a custom station is sought or affected through concealment, fraud or misdeclaration.
The punishments for the above offences are prescribed under section 156 of the Act. It will thus he seen that mere possession of a narcotic substance or its transportation, sale, serving or dealing in any manner with it, is not punishable under the provisions of the Customs Act. It is only when by virtue of the notification issued by the Federal Government the bringing in and taking out of Pakistan, of a narcotic or psychotropic substance is prohibited that such acts or any attempt or abetment thereof become punishable under the Customs Act. As compared to this, the provision of P.O. 4 of 1979, makes a general provision prohibiting import, export, transportation, manufacturing, possessing, bottling, selling and/or dealing in any manner with any kind of intoxicants and makes all such acts punishable under that law. Upon comprison of the provisions of the two statutes there can be no doubt that the provisions contained in P.O. 4 of 1979 are of general nature and are very wide in its scope and impact as compared to the provisions of the Customs Act."
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 and 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 arc 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 administraive 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.
25. On the other hand, we find that the Customs Officers who apprehend the accused possessing, transporting or attempting to transport etc., were bound under sections 176, 202 and more particularly section 217 of the P.P.C. Read with section 59 of the Cr.P.C., to have informed the concerned law enforcing agency to take cognisance of the same. The omission on the part of the Customs Authorities to do so is, therefore, in itself an offence and in case it is found that they did so knowingly and deliberately they may be punished under the above-noted provisions of law and may also be found interfering with the course of justice and may be abetting to save accused of the punishment provided under the provisions of P.O. 4 of 1979.
26. The result of the above discussion is that though we find no illegality in the proceedings of the Customs Court, in not applying Articles 3 and 4 of the P.O. 4 of 1979, yet we must observe that the omission on the part of the concerned Customs Officers to inform the concerned law-enforcing agency, so that it would take cognisance of the offences under Articles 3 and 4 of the P.O. 4 of 1979 and take the accused to face trial, is by itself an offence and may also call for disciplinary action, at this stage.
27. We may also suggest here that the Federal Government may issue general instructions for the information of all the Customs Officers so that whenever any person is found to possess or attempts to import, export, transport or commits any of the offences in respect of narcotics they must report the matter to Pakistan Narcotics Control Board or the concerned police so that separate proceedings are initiated under Articles 3 and 4 of the P.O. 4 of 1979.