' MALIK MUHAMMAD QAYYUM, J.---This petition under section 561-A of the Criminal Procedure Code, 1898 arises in the following circumstances:-
(i) That on 3-8-1996 the petitioner was apprehended by the .Pakistan Customs while travelling in a car from which 25 Kgs. Heroin and 414 Kgs. Charas were recovered. A case was registered against the petitioner vide F.I.R. No, 40 of 1996 on 3-8-1996 with I&P Cell Customs House, Lahore under section 156(1)(89) read with sections 157 and 178 of the Customs 'Act and sections 6, 7, 8, 9-C, 14 and 15 of Control of Narcotic Substances Ordinance, 1996. On completion of investigation one challan for offences punishable under section 156(1)(891 read with sections 157 and 178 of the Customs Act was presented in the Court of Special Judge, Customs and Anti-Smuggling, Lahore while the other challan for the offences under sections 6, 7, 8, 9C, 14 and 15 of the Control of Narcotic Substances Ordinance, 1996 was submitted in the Court of Sessions Judge, Lahore with powers of Special Judge, Anti-Narcotics Lahore. The petitioner was tried by the Special Judge, Customs in case F.I.R. No,40 of 1996 and was sentenced to 5 years and 6 months rigorous imprisonment and to pay a fine of Rs,1 lac. In default thereof he was to undergo further R.I. For six months on 18-3-1999.
(ii) That the petitioner was, however, summoned by the learned Sessions Judge/Special Judge, Anti-Narcotics, Lahore for the trial for offences punishable under sections 8 and 9-C of Control of Narcotic Substances Ordinance, 1996. The petitioner objected to the assumption of jurisdiction by the Sessions Judge, Lahore by filing a Constitutional petition on the ground that he has already been convicted by the Special Judge (Custom) and has undergone the period of his sentence and as such he could not be tried again for the same offence. A learned Division Bench of this Court on 7-6-1999 directed the petitioner to raise this objection before the Sessions Judge by moving an application which was ordered to be decided before proceeding with the matter.
(iii) That pursuant to the aforesaid order, the petitioner moved an application on 15-6-1999 before learned Sessions Judge, Lahore which he, however, dismissed on 25-6-1999. Unfortunately no finding was recorded by the learned Sessions Judge on the all-important question as to whether the petitioner can be again for the offence of smuggling in view of section 26 of the General Clauses Act, 1897. Section 403 of Code of Criminal Procedure and Article 13 of the Constitution of Islamic Republic of Pakistan, 1973. The petitioner has by filing this petition challenged the assumption of the jurisdiction by the , learned Sessions Judge with powers of Special Judge, Anti- Narcotics, Lahore.
2. In support of this petition it has been contended by the learned counsel for the petitioner that the petitioner was being tried for the same offence namely smuggling of narcotics twice and has been put in double jeopardy. According to the learned counsel as the petitioner has been convicted by the Special Judge (Customs) Lahore his subsequent prosecution under the Control of Narcotic Substances Ordinance, 1996 was unwarranted in law and was barred by section 26 of the General Clauses Act, section 403 of Criminal Procedure Code and Article 13 of the Constitution of Islamic Republic of Pakistan, 1973. In support of this contention the learned counsel has relied upon the two single bench judgments of this Court.
3. The petition has been opposed by the learned Deputy Attorney-General as also by the learned counsel for Customs Department. Both of them have argued that the offences for which the petitioner was convicted by the Special Judge (Customs) are different from the offences for which the petitioner is now being tried by the Special Court under Control of Narcotic Substances Ordinance. It was emphasized that as the petitioner had violated the two laws and it was open to the State to try the petitioner under both laws before the competent Courts.
4. The fundamental question which falls for determination in the present case is as to whether the petitioner is being tried for the second time for the same offence or that the offence for which he is being, prosecuted before the Special Judge under Control of Narcotic Substances Ordinance was different from the offences committed under Customs Act, 1969,
5. The word "Offence" has not been defined either in the Customs Act or the Control of Narcotic Substances Ordinance, 1996. However, definition of the word "Offence" appears in section 3(37) of the General Clauses Act which is as follows:-- " 'Offence' shall mean any act or omission made punishable by any law for the time being in force."
6. Having heard the learned counsel for the parties, it becomes crystal clear that the petitioner is being tried for the same offence twice. Admittedly the act by which the petitioner had violated the two laws viz. The Customs Act, 1969 and the Control of Narcotic Substances Ordinance, 1996 was the same. The petitioner cannot, therefore, be tried twice for the same act even though he by same action has violated two laws. The second trial is forbidden by Article 13 of the Constitution of Islamic Republic of Pakistan, 1973 as also section 26 of General Clauses Act and section 403 of Code of Criminal Procedure. The main test in such cases is as to whether same evidence would sustain the convictions under both laws. The words same offence would mean an offence whose ingredients are the same. Reference may be made to two judgments from the Indian Supreme Court namely State of Bombay v. S.L. Pate (1968) 3 SCR 107 and Om Parkash Gupta v. State of U.P. AIR 1957 SC 458.
It is clear that it was for smuggling of narcotics for which the petitioner was tried and convicted by the Special Judge Customs and if his trial takes place under the Control of Narcotic Substances Ordinance, 1996 the same evidence would have to be led before the Special Judge (Anti- Narcotics) and ingredients of both offences are the same.
7. This question was examined by two single Benches of this Court who came to the conclusion that after the trial of a person under the Customs Act, 1969 he cannot be tried under the Anti-Narcotics Laws. The first judgment was delivered by our learned brother Dr. Munir Ahmad Mughal, J. In Criminal Miscellaneous No,216/Q of , 1998 and the other judgment is by our learned brother Jawwad S. Khawaja, J. In Writ Petition No,14430 of 1999. Learned counsel for Customs Department, however, stated that the Supreme Court of Pakistan granted leave to appeal against one of the above- referred two judgments. That may be so, but the Honorable Supreme Court of Pakistan has not suspended the operation of the judgment.
8. However, a more detailed discussion on the subject is available in a recent judgment of a Division Bench of the Sindh High Court reported as Mark Mifsud Mrs.Rosemarie Marley v.
Investigating Officer Customs, Karachi and 2 others HD 1999 Kar. 336 in which after considering exhaustively the law of the subject it was observed as follows:-- "The test for determining whether it was the same offence or two distinct offences was 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, 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 was not disputed that the sole object of the accused persons 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 Control of Narcotic Substances Act, 1997, could not be prosecuted under the Customs Act. Likewise, the offence of smuggling committed at the Airport could not be tried under the Act of 1997. There are some discrepancies in the drug-related laws, which need to be removed through legislation. Article 13 of the Constitution prohibited both prosecution and punishment for the same offence more than once. Already accused persons were convicted and had undergone the sentences awarded to them in the previous trial. Said Article was a paramount law. In case of conflict between an ordinary Act of Legislature and the Constitution, it was the latter which must prevail.
' Under the circumstances, cases pending against accused persons under Control of Narcotic Substances Act, 1997 before Sessions Judge could not 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 were quashed."
' Reference may also be made to the judgment in the State v. Anwar Khamosh and others PLD 1990 FSC 62 and Jonathan Newhouse v. The State and another 1994 PCr.L.J 1433.
9. It may be of benefit to note that the above cited provisions of law appear to have been based on legal maxim ''Nemo Debet Dis Vexari Pro Una Et Radem" (it is a rule of law that no person shall be twice vexed for one and the same cause). In Broom's Legal maxims 10th Edition at page 219 it is stated that:-- "The question whether a defendant is being very again for the same cause of action depends, not upon technical consideration, but upon matter of substance. One test of identify is that the same evidence will support both actions. "
It may also be stated that provision of Article 13 of the Constitution is not unique in the sense that similar provisions exist in other countries also such as Article 20 of the Indian Constitution, the 5th Amendment to the Constitution of United States of America which says:-- "Nor shall any person be subject to the same offence to be twice put to jeopardy of life and limb."
' In England same rule applies that a man may not be put twice in peril for the same offence, (please see R. v. Barron (1914) 2 K.B.
570. Article 14.7 of U.N. Convention on Civil and Political Rights, 1996 says "No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with law and the penal provisions of each country".
It follows, from the above that the second trial of the petitioner before the Special Judge (Anti- Narcotics) is contrary to the Constitutional protection granted by Article 13 of the Constitution as also section 26 of the General Clauses Act and section 403 of Code of criminal Procedure and is thus, a nullity in the eyes of law.
10. Before parting with this case it is of interest to mention that there was no provision 'like Article 13 of the Constitution either in the Constitution of Islamic Republic of Pakistan, 1962 or in the 1956 Constitution. This Article in clause (a) raises to Constitutional status the principle outre fois convict and autre fois acquit which were earlier embodied in section 403 of Code of Criminal Procedure and Article 15 of Qanune-Shahadat Order, 1984. It is also relevant to state that the scope of Article 13(a) to the Constitution is much wider than the protection granted by Article 20(2) of the Indian Constitution. While Article 13 forbids not only double punishment but also prosecution for the second time while in the Indian Constitution the protection is available only if person had been prosecuted and punished for the same offence earlier. Under the Indian Constitution if the earlier prosecution has resulted in acquittal there is no Constitutional bar to the fresh prosecution.
' In view of what has been stated above, this Criminal Miscellaneous petition is allowed and the case registered against the petitioner vide F.I.R. No,40 of 1996 which is pending adjudication before the learned Sessions Judge, Lahore as Special Judge, Anti-Narcotics is hereby quashed. The petitioner shall be set at liberty if he has undergone the sentences awarded to him by Special Judge(Customs and Anti- Smuggling), Lahore and is not required in any other case.