' NAZIR AHMAD BHATTI, C.J.--- Heroin weighing 5,200 grams was recovered from the possession of the appellant, Khuda Bakhsh, on 31-1-1992 within the limits of Turbot by officials of the Makran Scouts. The latter sent written complaint to the Pakistan Narcotics Control Board, Quetta, where case was registered on 14-2-1992. The appellant was sent up for trial before the Special Judge (Customs), Makran Division at Turbat. The latter framed charges against the appellant for two offences, one under section 156 of the Customs Act and the other under Article 4 of the Prohibition (Enforcement of Hadd) Order 1979. This was a joint charge. Thereafter, the learned Special Judge Customs held one trial and after the conclusion thereof convicted the appellant for both the offences for which he was charged.
2. The learned counsel for the appellant has brought to our notice that in so far as the conviction under Customs Act is concerned, the appellant has filed a separate appeal before the competent forum and he has challenged his conviction and sentence under Article 4 of the Prohibition Order in this Court.
3. The objection of the learned counsel for the appellant is that the learned Special Judge Customs could not try the appellant under Article 4 of the Prohibition Order, although he could try him as a Sessions Judge. The learned counsel contended that an illegality had been committed by the learned Special Judge Customs in holding joint trial for both the offences and the accused was thereby prejudiced. This contention of the learned counsel was not controverted by the learned State counsel.
4. We have also considered the matter very anxiously and have come to the conclusion that the joint trial for these two separate offences was illegal and without lawful authority and the appellant was prejudiced. Consequently, we accept the contention of the learned counsel for the appellant and set aside the A impugned judgment of the Special Judge Customs, Makran Division Turbot, in so far as it relates to Article 4 of the Prohibition Order. We direct the learned Sessions Judge to hold a de novo trial of the appellant by framing a fresh appropriate charge under the prohibition Order as a Sessions Judge. This judgment is without prejudice to the conviction of the appellant under the Customs Act.