' Briefly stated, the petitioner No,1 before boarding Flight No,SU.540 of Russian Airline was asked by Complainant Abdul Razzak Babar, Preventive Officer Customs, whether any illegal item was in his baggage or on his person. After getting his reply in negative the said Preventive Officer, checked the baggage and secured 230 grams heroin powder which was secured in presence of witnesses and the petitioner was also taken into custody. After completion of initial formalities the case was handed over to Mr. Bashir Ahmed Bhutto, Investigating Officer, (Preventive Collectorate) Customs House, Karachi, who challaned the petitioner No,1 in the Court of learned Special Judge, Customs and Taxation), Karachi. At the conclusion of the trial the petitioner was convicted and sentenced to suffer R.I. For four months and fine of Rs,50,000 or in default thereof to undergo further R.I. For three months.
2. It is alleged that although the petitioner has served out the sentence, the learned Sessions Judge/Special Judge, Malir, summoned him for trial under section 9(b) of Control of Narcotic Substances Act, 1997, where the petitioner allegedly pleaded guilty and he was sentenced to undergo R.I. For two years and to pay fine of Rs,30,000 or in default to suffer R.I. For three more months. It is for this reason, that the petitioner has filed this petition to question the validity of the judgment of the learned Sessions Judge/Special Judge, Malir and prayed for the following relief:--
(a) The respondent No,3, Superintendent of Central Prison, Karachi be ordered to release the petitioner No,1 and set at liberty forthwith, if he has already served out the sentence in Case No,139 of 1998, arising out of F.I.R. No,DEC-077/98-JTC, dated 10-9-1998.
(b) To set aside the sentence in Special Case No,186 of 1998, dated 8-9-1998 passed by learned Special Judge Malir in F.I.R. No,DEC-077(b)/98-JTC.
(c)
(d)
' We heard the learned counsel for the petitioner and the learned Dy.A-G. And also gone through the record. Learned counsel of the petitioner mainly contended that the order passed by the learned Sessions Judge/Special Judge, Malir is illegal, ultra vires of the Constitutional provisions as the petitioner has already been punished by the learned Special Judge (Customs). Karachi for the offence of smuggling of heroin, and therefore, he is entitled to the Constitutional protection against double punishment.
4. The learned Dy.A-G. Has frankly conceded that the order passed by the learned Special Judge, Malir is hit by Article 13 of the Constitution. This Article reads as under:--
(13) Protection against double punishment and self-incrimination. No person---
(a) shall be prosecuted or punished for the same offence; or
(b) shall, when accused of an offence, be compelled to be a witness against himself."
' Both the learned counsel have relied upon an unreported judgment of this Court in C.P. Nos.D-317, 318 and 319 of 1999, decided on 2-6-1999, where in the similar circumstances the petitions were allowed and proceedings were quashed. It would be relevant to reproduce the following operative part of the above order of the learned Division Bench, headed by the Hon'ble Chief Justice:- "The test of 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 act committed in the process and the object likely to be achieved.
Keeping in view above; as well as principle 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 persons, who commit 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. It 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.
' Under the circumstances, we are of the view that in the cases now pending against petitioners before learned Sessions Judges Malir, neither they could be prosecuted on the same state of facts nor 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 if not required in any other case."
5. It is well-established law that no one should be punished twice for the same act. According to Mr. Naimur Rehman Dy.A-G. The Investigating Officers/Prosecutor were directed not to violate the provisions of Article 13 of the Constitution but violation of this Article is still going on unchecked. We are constrained to strongly depricate this practice. It is high time that all concerned including the Investigating Officers and the Prosecutors should follow the constitutional provisions in letter and spirit.
So far the instant case is concerned, this petition is allowed as prayed. The respondent No,3, Superintendent Central Prison is directed to release the petitioner No,1 forthwith, if he not required in any other case.
' A copy of this order be sent to the Secretary, Ministry of Law, Justice, Human Rights, Parliamentary Affairs as well as Attorney-General of Pakistan for information and necessary action as deemed appropriate.