MALIK MUHAMMAD QAYYUM, J.--- This judgment shall dispose of Criminal Miscellaneous Nos.3/Q of 2000, 249/Q of 1999, 4/Q of 2000, 7/Q of 2000, 8/Q of 2000, 9/Q of 2000, 11/Q of 2000, 12/Q of 2000, 13/Q of 2000, 21/Q of 2000, 22/Q of 2000, 23/Q of 2000, 29/Q of 2000, 32/Q of 2000 and 33/Q of 2000 in which common question of law arises for determination.
2. The point in issue in all these cases is as to whether a person who has been tried by the Special Judge, Customs and either acquitted or convicted for smuggling or being in possession of narcotics can be tried for the second time by the Special Judge under Control of Narcotics Substances Ordinance, 1996.
3. This question came up for consideration before us in Criminal Miscellaneous No,135/Q of 1999 wherein after exhaustive review of the case-law on the subject it was held that in view of Article 13 of the Constitution of Islamic Republic of Pakistan, 1973 as also section 26 of the General Clauses Act and section 403 of Code of Criminal Procedure the second trial was barred. It was also observed that in such cases the offence is one and the same which is smuggling and carrying of narcotics. In that case we had inter alia relied upon the judgment of Sindh High Court in Mark Mifsud Mrs. Rosemarie Morley v. Investigating Officer Customs Karachi and 2 others PLD 1999 Kar.
336, State v. Anwar Khattak and others PLD 1990 FSC 62 and Jonathan Newhouse v. The State and another 1994 PCr.LJ 1433 as also two judgments of the Indian Supreme Court reported as State of Bombay v. S.L. Apte (1968) 3 SCR 107 and Om Parkash Gupta v. State of U.P. AIR 1957 SC 458.
4. Mr. A. Karim Malik, learned counsel appearing on behalf of the respondents, however, stated that in some other cases a Division Bench of this Court has referred the matter to the Honourable Chief Justice for forming larger Bench. However, neither number of that case was given by the learned counsel nor was any order of the Division Bench produced before us. Be that as it may, we are bound by our own judgment and have to follow the same. It may also be pointed out that the learned counsel for the petitioners has submitted that against our judgment in Criminal Miscellaneous No,135/Q of 1999 the respondents have also gone to the Supreme Court. In this view of the matter the consideration of the same question by a larger Bench would be an exercise in futility.
In view of what has been stated above, we allow all these petitions and quash the cases pending against the petitioners in the Court of Special C Judge, Narcotics, Lahore/Sessions Judge, Lahore.