The petitioner have prayed for grant of following relief in this Constitution petition:-- Therefore it is humbly prayed that proceedings being held before the respondent No.1 may please be declared as illegal: without jurisdiction based on mala fide and coram non judice and be declared as illegal. It is further prayed that the proceedings before the respondent No.1 may please be stayed in the meanwhile:'
2. The controlling facts of the petition are admitted. These are that the petitioners are in service of `Pakistan Rangers-Force' constituted under Pakistan Rangers Ordinance, 1959 (Ordinance XIV of 1959). The petitioners were sent to face the trial in a case under section 14(m) of the Ordinance before the Commandant Desert Rangers/Magistrate 1st Class. The petitioners were accused of having connived at with smugglers and prevented seizure of Indian Liquor allegedly smuggled into Pakistan by one smuggler Bega. The petitioners appeared before the aforesaid Court and were charged in following terms:-- "That being members of the. Force, on 2nd April, 1991 at Islamgarh (Rahimyar Khan Wing) you all in connivance with each other, joined hands with smugglers and prevented seizure of Indian Liquor, illegally smuggled into Pakistan by one Bega; by police and instead got is recovered, transported in hand and handed over its major portion to the smugglers by employing troops of 23 Wing Desert Rangers Rahimyar Khan, thereby abetted smuggling and thus committed an offence which though not specified in the Ordinance is prejudicial to good order and discipline and is punishable under section 14(m) of Pakistan Rangers Ordinance, 1959 (XIV of 1959) which is within my cognizance."
3. The petitioners submitted an application under section 249-A of the Cr.P.C. For their acquittal on the ground that the allegations with which they were charged were offence under section 156 of the Customs Act, 1969 (Act IV of 1969), and this offence was exclusively triable before the Special Court. This application was, rejected vide order, dated 9-7-1991. Hence this Constitution petition.
4. Malik Muhammad Farrukh Mahmood, Advocate, appearing on behalf of the- petitioners led the arguments; the impugned order and proceedings pending before the Commandant Rangers/Magistrate 1Class were assailed on following grounds:-- Firstly: It was contended that the allegations pertaining to abetment of smuggling were made punishable under section 156 of the Customs Act. The same was made punishable under section 14(m) of Pakistan Rangers Ordinance, 1959. According to the learned counsel this was not permissible in view of Article 13 of the Constitution of Islamic Republic of Pakistan, 1973. This article provided that no person shall be prosecuted or punished for the same offence more than one.
According to him the petitioners could not be tried for the same offence before the two Courts.
Reliance was placed on Muhammad Ibrahim Siddiqui v. Thal Industries Corporation Ltd and another PLD 1974 SC 198; Mst. Ramzan Bibi and another v. Hakim Muzaffar Hussain PLD 1967 Lah.
186 and Mukhtar Ahmad v. The State PLD 1965 (W.P.) Lah. 200 and Secondly: It was contended that even otherwise clause (m) of section 14 of the Ordinance was not applicable to the case of the petitioners. According to the learned `counsel section 14(m) was applicable when the petitioners were on active duty and had committed certain misconduct .Which amounted to commission of offence under the Army Act. The emphasis was placed on the definition of `active duty' contained in section 2 of the Ordinance. It was argued that the active duty under the operational control of Army had nexus with clause (h) of section 2 of the Ordinance.
According to this clause this duty had reference to period of emergency declared by Federal Government.
On the contrary, the learned counsel appearing on behalf of the respondents stated that the contentions of the learned counsel for the petitioners were totally devoid of force. According to him neither the case of the petitioners was of double jeopardy nor it was the case of `active duty' under the operational control of the Army. The petitioners case fell within the meaning of clause (m) of section 14 of the Ordinance and the Commandant Rangers in the exercise of his power as Magistrate 1st Class was quite competent to try the case against the petitioners.
6. I have heard the learned counsel for the parties at considerable length. In order to appreciate the contentions of the parties, it would be useful to have a survey of Pakistan Rangers Ordinance, 1959, which was promulgated on 7 October, 1958, in order to constitute a force called Pakistan Rangers for the protection and maintenance of order in border areas. Under section 3 a force common to the Provinces of Punjab and Sindh was constituted. Under section 6 of this Ordinance the functions are prescribed of this Force. Under this section this Force was assigned the task of protection of persons and property in border areas; the apprehension of persons unlawfully entering into or going out of Pakistan territory, organization of village defence in the Border areas; prevention of smuggling; collection of intelligence in the Border areas and co-- ordination of the activities of police and other civil agencies in the prevention and detection of smuggling. Under section 7 the Force is to assist the police in the prevention and detection of crime in the border areas; and re-enforce the police for maintenance of law and order whenever it is necessary. Under section 9 the Federal Government was empowered to declare a state of emergency on entire Border of the Province or a part thereof and thereby place under the operational control of Army all or any of the units or members of this Force. This was subject to condition that this Force shall continue to remain subject to the provisions of this Ordinance. Sections 13 and 14 prescribed offences, acts and omissions which were made punishable. A look at section 13 indicates that any member of the Force who commits or omits to do the acts as mentioned in clauses (a), (b), (c),st th (d); (e), (f) and (g) is liable to be punished with a rigorous imprisonment for a term which may extend to fourteen years in respect of offences described in clauses (a) to (1) and to seven years in respect of offences described in clause (g).
7. Next comes section 14, it provides that any member of the force who commits or omits to do acts as described in clauses (a), (b), (c), (d), (c), (f), (g), (h), (i), (j), (k), ,(1), (m) and (n) shall be liable to be punished with an imprisonment for a term which may extend to one year or with fine which may extend to three months pay or with both
8. From the examination end analysis of sections 13 and 14 it becomes evident that this force was constituted for multifarious duties and subject to a high discipline under the law. Sections 13 and 14 have provided punishment for its delinquent members. Section 13 in my view is applicable to the period when it is functioning under the operational control of the Army and a period of emergency while section 14, applies in normal. The difference between section 13 and section 14 is clear from the magnitude of penalty provided in both the sections. I, therefore, find sufficient force in the contentions of the learned counsel for the respondents; that the offence committed by the petitioners falls within section 14(m) and the Commandant Desert Rangers/Magistrate 1 Class has jurisdiction to try these offences. The contentions of the petitioners appear to be untenable and are accordingly overruled. As regards the second contention, that the trial is hit by Article 13 of the Constitution of Islamic Republic of Pakistan, 1973, I find little merit in it. Article 13 provides that no person shall be prosecuted or punished for the same offence more than one; that it does not prohibit the legislature from making the law with respect to certain circumstances which have been made punishable in one law.
9. In the light of foregoing analysis, I do not find any merit in this petition which is dismissed in limine.
N.H.Q./M-245/L