1. ' NAZIM HUSSAIN SIDDIQUI, C.J.---This judgment will dispose of Constitutional Petitions Nos.D-317, 318 and 319 of 1999. In these petitions, common questions of facts and law are involved. By consent, these petitions are being admitted for their disposal on merits.
2. ' Petitioners Mark Mifsud and Mrs. Rosemarie Morley, both British national having British Passport Nos.C-363556-E and 026310994 respectively were arrested on 23-7-1997 at about 7-00 p.m. At the International Departure Hall, Jinnah Terminal Complex, Quaid-e-Azam Airport, Karachi. They were convicted on 26-3-1998 under section 156(1)(8) of the Customs Act, 1969 by learned Special Judge Customs, Karachi and were sentenced to suffer R.I. For three years and to pay fine of Rs,75,000 each for being found separately in possession of 2.8 kg. Heroin powder. They preferred appeal against said verdict, but without any success. It is their case that they were about to be released in December, 1998, on having served out their sentences, but a week prior thereof fresh charge- sheets were submitted against them before learned District and Sessions Judge, Malir under section 9(c) of Control of Narcotic Substances Act, 1997, hereinafter referred to as Act of 1997 on the basis of same investigation, facts, evidence and recovery and those matters are still pending for decision before said Sessions Court.
3. ' Petitioner Mrs. Tatiana Sissei, who is USSR national, having Passport 43 No,3587096 was arrested on 16/17-3-1997 at about 6-00 a.m. At the International Departure Hall, Jinnah Terminal Complex, Quaid-e-Azam Airport, Karachi. She was convicted on 25-3-1998 under section 156(1)(8) of the Customs Act, 1969 by learned Special Judge, Customs, Karachi and was sentenced to suffer R.I. For 18 months and to pay fine of Rs,5,00,000 which in appeal was reduced by this Court to Rs,1,00,000 for being found in possession of 2.8 kg. Heroin powder. She preferred appeal against said judgment which was dismissed. It is alleged that she was due to be released in December, 1998 and a week earlier thereof a fresh charge-sheet was submitted against her before learned District and Sessions Judge, Malir, under section 9(c) of the Act of 1997 on the basis of same investigation, facts, evidence and recovery, which matter is still pending for decision before said Sessions Court.
4. ' Mr. Rana M. Shamim, learned counsel for petitioners, strenuously argued that the petitioners could not be punished twice for same offence and impugned charge-sheet; submitted against the abovenamed three petitioners before learned Sessions Judge, Malir were in violation of the spirit of Article 13 of the Constitution, section 403, Criminal Procedure Code and section 26 of the General Clauses Act, 1897. In support of the above contentions, he cited:--
(1) Niaz Ali v. The State PLD 1961 Lah. 269;
(2) Adam v. Collector of Customs, Karachi PLD 1969 SC 446;
(3) Abdul Razzak Malik v. The Water and Power Development Authority through its Chairman and 3 others PLD 1973 Lah. 188;
(4) Abdul Ghafoor v. The State 1978 PCr.LJ 262;
(5) Pir Bux v. The State 1979 PCr.LJ 24;
(6) Muhammad Ayoub v. The Chairman Electricity Board, WAPDA, Peshawar and another PLD 1987 SC 195;
(7) Muhammad Ashraf v. The State 1989 PCr.LJ 821 (Kar.);
(8) M. Siddique Mirza and another v. Assistant Director EE Cell (FIA) and 3 others 1990 MLD 1588 (Kar.);
(9) Zafar Aalam Babar and 2 others v. Syed Baqar Ali Shah Gillani and 2 others 1992 PCr.LJ 655 (Kar.);
(10) Sherin Bacha and others v. Namoos Iqbal and 3 others PLD 1993 SC 247;
(11) Malik Anjum Farooq Paracha and 7 others v. Mansoorul Haq Chohan and 4 others 1993 PCr.LJ 1056 (Lah.);
(12) Ghulam Mustafa and others v. The State 1994 MLD 1400 (Supreme Appellate Court);
(13) Muhammad Ashraf and others v. The State 1995 SCMR 626;
(14) Muhammad Ashiq v. The State PLD 1998 Lah. 307;
(15) Manzoor Hussain v. The State PLD 1998 Lah. 239;
(16) Achar and 6 others v. The State 1999 PCr.LJ 181.
5. ' In case of Niaz Ali, it was held that if the offence fell under two or more enactments, the trial or conviction in different enactments was valid, but separate consecutive sentences could not be passed. In case of Adam, it was observed by the Supreme Court that the doctrine of "double jeopardy" which is a term of American Law corresponding to the principle of autre fois acquit and autre fois convict of the English Law, as embodied in section 403 of the Criminal Procedure Code, prohibits a duplicate trial and a duplicate punishment for the same offence. In case of Abdul Razzak Malik, while dealing with maxim nemo debet lis vexari prouna et eadem (none shall be twice vexed for one and same cause) it was held that it equally applies to civil as well as criminal proceedings. In case of Abdul Ghafoor, it was observed that the principle of common law "nemo debet lis vaxari pro edum causa" (no person should be twice disturbed for the same cause), is a well recognized and is consistently followed by our Courts and that this principle has been raised to a Constitutional status by virtue of Article 13 of the Constitution of 1973. In the case of Pir Bux, also the principle of double jeopardy was discussed with reference to Article 13 of the Constitution. In case of Muhammad Ayub, the subject-matter under discussion was Article 13 of the Constitution, it was held that this Article provides protection against double punishment in respect of the same offence. In case of Muhammad Ashraf, it was held that Article 13 of the Constitution prohibits both double prosecution and double punishment. In case of Siddique Mirza, scope of section 403, P.P.C.
6. Was considered with an observation that the principle that no one shall be twice punished for the same offence was embodied in said section. In case of Zafar Alam Baber, also the scope of section 403, P.P.C. Was considered. Likewise in case of Sherin Bacha the scope of section 403, P.P.C. Was considered. The principle of double jeopardy was also considered in the case of Malik Anjum Farooq Paracha. In case of Ghulam Mustafa and others, Article 13 of the Constitution and scope of section 403, Cr.P.C. Came under discussion. In case of Muhammad Ashraf and others 1995 SCMR 626 while dealing with Article 13 of the Constitution at page 633 the following was observed:-- "It will be seen that the protection given by this Article is against prosecution and double punishment. By prosecution is meant a trial followed by judgment of acquittal or punishment. It includes the entire proceedings starting with taking cognizance of an offence by the Court, followed by examination of evidence, addressing of arguments and ending with the pronouncement of judgment. It seems to us that if as a result of prosecution for an offence the trial ends in acquittal, Article 13(a) is not attracted. Constitutional guarantee is available only if the accused is convicted and punished. Thus, if the first prosecution results in acquittal, so far as this Article is concerned, the second prosecution is not prohibited. It is, however, open to the Legislature to enlarge the scope of Constitutional guarantee and further extend the protection envisaged by Article 13(a). Such extension of rule of double jeopardy is to be found in section 403(1) of the Criminal Procedure Code."
7. ' In case of Muhammad Ashiq also the scope of Article 13 and section 403, Cr.P.C. Was examined.
8. Article 13 and section 403, Cr.P.C. Were also the subject-matter under consideration in case of Manzoor Hussain. The scope of double jeopardy was also examined in case of Achar.
9. ' It is universally accepted principle of law that a person shall not be vexed twice for one and the same cause. Above principle has been examined in aforesaid cited cases and was also followed.
10. Besides on this point at pages 219, 223 of Broom's Legal Maxims, the following has been stated:- "The question whether a defendant is being vexed again for the same cause of action depends, not upon technical consideration, but upon matter of substance. One test of identity is that the same evidence will support both actions.
11. ' It is the foundation of the special pleas of autre fois acquit and autre fois convict. When a criminal charge has been once adjudicated upon by Court of competent jurisdiction that adjudication is final, whether it takes the form of an acquittal or a conviction, and it may be pleaded in bar of a subsequent prosecution for the same offence, whether charged with or without matters of mere aggravation, and whether such matters relate to the intent with which the offence was committed or the consequences of the offence."
12. ' As against above, Mr. Naimur Rehman, Dy. A.-G., strongly opposes the pleas raised on behalf of petitioners and contends that petitioners being involved in traficking of narcotics are to be dealt with strictly and are not entitled to any concession. He has also argued that if an offence falls under two or more enactments trial or conviction under different enactments is legal, but separate consecutive sentences could not be passed. He referred to C.P. No,D-173 of 1998, which was disposed of by this Bench with an observation that this Court could not pre-empt an order likely to be passed by the trial Court. The facts of said petition, ex facie, were different. In said petition, the petitioner was also a foreigner and had not served out the sentence awarded to him in his first trial, as is the case of these petitioners.
13. ' In order to appreciate the contentions raised in this matter, it would be advantageous to reproduce below the aforesaid provisions of the Constitution, Criminal Procedure Code and General Clauses Act. They read as under:-- ' ARTICLE 13 OF THE CONSTITUTION ' No person--
(a) shall be prosecuted or punished for the same offence more than once; or (b)... ... . . .....
14. ' SECTION 403 OF CRIMINAL PROCEDURE CODE "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 different 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 sections 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 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."
15. ' SECTION 26 OF THE GENERAL CLAUSES ACT.
16. 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 these enactments, but shall not be liable to be punished twice for same offence."
17. ' The moot point involved in these petitions is whether the petitioners are being tried again for the same offence for which they have already been convicted and sentenced or for a different one.
18. The offence means, an act or omission prohibited by some law. The word "same" means identical, it also means "non-different". The plea of the respondent is that the offences under the Act of 1997 are different and are not linked with the offences committed under the Customs Act. Further, it is urged that being different offences they are to be tried separately and the trial under the Customs Act would not be a prelude to drop the proceedings under the Act of 1997. It is contended that the petitioners were also guilty of the offences mentioned in section 7 of the Act of 1997, which is as follows and the same is punishable under section 9(c) of the Act 1997:-- "Prohibition of import or export of narcotic drugs, etc.--(1) No one shall--
(a) import into Pakistan;
(b) export from Pakistan;
(c) transport within Pakistan; or ' (d) tranship, ' any narcotic drug, psychotropic substance or controlled substance, save in accordance with rules made under subsection (2) and in accordance with the conditions of any licence, permit or authorization for that purpose which may be required to be obtained under those rules.
(2) The Federal Government may make rules permitting and regulating the import into and export from Pakistan, transport within Pakistan and transhipment; of narcotic drugs, psychotropic substances or controlled substances, and such rules may prescribe the ports or places at which any kind of narcotic drug, psychotropic substance or controlled substance may be imported, exported, transported within Pakistan or transhipped, the form and conditions of licence, permit or authorities by which such licences, permits or authorization may be granted, the fees that may be charged therefor, any other matter required to have effective control of the Federal Government over such import, export, transportation and transhipment."
19. Under subsection (2) of section 235 of Criminal Procedure Code if the acts alleged constitute an offence falling within two or more separate definitions of any law in force for the time being, the person accused of such act may be charged with and tried at one trial for each of such offences.
20. ' All the principles laid down in section 403, Criminal Procedure Code are based on general policy.
21. The principles of this section as well as of Article 13 of the Constitution are attracted only when one proceedings have been concluded and the other started. It is noted that the protection contained in subsection (1) of section 403, Cr.P.C. Is available when it was doubtful as to what offence was committed and also for which the accused might have been convicted at the previous trial. Key words of subsection (1) of section 403 are that the person cannot be tried on the same facts, for' any other offence for which a different charge could be framed. It is established principle of law that out of the same state of facts a series of prosecution against a person is not to be allowed.
22. Under English law also there is a statutory recognition that where an act or omission constitutes an offence under two or more Acts, offender shall be liable to be punished under either or any of those Acts; but would not be, liable to be punished twice for the same offence through defined in different way.
23. ' The petitioners of this case were attempting to take out from Pakistan said heroin powder. In entirety their cases were covered by the Customs Act and for said offence they were tried and convicted. They were arrested at the Departure Hall of the Airport, therefore, they could not be tried for the same offence under the provisions of Act of 1997 or under various other drug-related laws for the simple reason that second case against them could not be registered on the strength of same investigations, facts, evidence and recovery in violation of the doctrine of double jeopardy, which prohibits a duplicate tfial and a duplicate punishment.
24. ' The test for determining that whether it was the same offence or two distinct offences is to closely examine the purpose or design, the method of committing the offence, the consequences, the ingredients of the offence, act or acts committed in the process and the object likely to be achieved. Keeping in view above, as well as principles of law, enunciated in this regard, the offence in question was one offence and the same could not be converted into two distinct offences though defined in different ways. The crucial point in both the cases was recovery of said heroin powder. It is not disputed by learned Dy. A.-G. That the sole object of the petitioners was to smuggle said heroin powder out of Pakistan. Therefore, the alleged offence was squarely covered by the Customs Act. The person, who commits an offence under the provisions of the Act of 1997 cannot be prosecuted under the Customs Act. Likewise, the offence of smuggling committed at the Airport could not be tried under the Act of 1997, Its is noted that there are some discrepancies in the drug-related laws, which need to be removed through legislation. Article 13 of the Constitution prohibits both prosecution and punishment for the same offence more than once. Already they were convicted and had undergone the sentences awarded to them in the previous trial. Said Article is a paramount law. In case of conflict between an ordinary Act of Legislature and the Constitution, it is the latter which must prevail.
25. ' Under the circumstances, we are of the view that in the cases now' pending against petitioners before learned. Sessions Judge, Malir neither they could be prosecuted on the same state of facts nor they could be sentenced exceeding the one they have already undergone. Therefore, the proceedings of said cases are quashed. The petitioners shall be set at liberty forthwith if not required in any other case.
26. ' On 13-5.1999 after hearing learned counsel for parties we had allowed these petitions in above terms and these are reasons for the same.