1. IFTIKHAR MUHAMMAD CHAUDHARY, C.J.---This Constitutional petition has been filed on behalf of Sakhi Dost Jan son of Haji Qadir Bakhsh to claim following relief:-- "It is, therefore, most humbly prayed that trial of petitioner before the learned Sessions Judges Noushki may kindly be declared as illegal, unlawful and of no consequence and same be quashed. Any other relief deemed apt by this Honourable Court may also be granted to the petitioner." Precisely stating facts giving rise to instant petition are that in the year of 1990 petitioner was involved alongwith others in following criminal cases:-- S.No. F.I.R. No. with brief description Offence charged against petitioner and others
1. 46(s)90, dated 10-10-1990 on the complaint of Colonel Commandant (Saleem Akhtar)
2. HQ Kharan Rifles. Under Article 3/4/26 of Prohibition Order , 1979
2. F.I.R. No,Nil dated 10-10-1990 on the Complaint of seizing party Commander Colonel M. Shaukat Kharan Rifles, Noukundi(i) Under section 16 Customs Act, 1969 read with section 2(s) read with section 2(s) punishment 156(1)(8)(89) ibid. (ii) Under section 3/4/26 of the Prohibition (Import Control of Hadd), 1979. (iii) Under sections 147, 148, 149, 353, 333, 307, 302 delivering public service P .P.C. In the end thereby committing with attempted murder and murder of F .C. Person. Separate challans of both the cases were put up before the Sessions Judge and Special Judge under the Customs Act, 1969 at Quetta. Later on case pertaining to Article 3/4, Prohibition (Enforcement of Hadd) Order, 1979 read with section 8/14 of the Dangerous Drugs Act was transferred on the file of Special Court for Speedy Trial Balochistan, headed by one of us (Mr. Justice Iftikhar Muhammad Chaudhary). As petitioner and others did not plead guilty of the charge, therefore, evidence was recorded but judgment could not be announced, because of filing of Constitutional petition by the persons facing trial proceedings were restricted to the extent of not to announce final judgment. However, in the meanwhile Constitutional provision in pursuance whereof the Speedy Courts were created lapsed, therefore, case of the petitioner was sent to Sessions Judge, Quetta. As far as second case under the Customs Act is concerned it was finally disposed of by the Special Judge vide judgment dated 20-11-1994 whereby petitioner alongwith others including absconders was acquitted of the charge. It may be noted that learned Special Judge Customs in his judgment dilated upon the following points for decision of the case:
(1) Whether the prosecution has established a case against the accused persons under section 156(1)(8)(89) of the Customs Act beyond any reasonable doubt?
(2) Whether the presumption can be drawn as per provisions of section 178 of the Customs Act?
(3) Whether presumption can be drawn that the accused had retained the seized goods knowing or having reasons to believe the same to be smuggled and of foreign origin? It is to be observed that the judgment passed by the Customs Judge has not been challenged by the State in the appellate forum. Thus it has achieved finality so far it relates to his involvement in offences of the Customs Act, 1969 is concerned. Whereas the case pertaining to offence of enforcement of Hadd Order, 1979 is concerned that has not been finally decided and reportedly is pending on the file of Sessions Judge, Chaghi at Noushki, therefore, to declare the trial of the petitioner pending before said Court as illegal, unlawful etc. Present petition has been filed. M/s. Dr. Khalid Ranjha Advocate and Mr. Amanullah Kanrani, Advocate appeared on behalf of petitioner, whereas Mr. Tariq Mehmood, Advocate represented the State through Anti-Narcotics Force. Learned counsel for petitioner argued that the trial of petitioner before Sessions Judge is in violation of Article 13(1) of the Constitution of Islamic Republic of Pakistan read with section 403, Cr.P.C. And Section 26 of General Clauses Act because he has been acquitted by the Special Judge under the Customs Act, 1969 on the basis of same set of evidence, therefore, he cannot be prosecuted and sentenced in presence of same evidence constituting same offence. Reliance was placed by him on PLD, 1998 Lah. 239; PLD 1998 Lah. 307; PLD 1998 Kar. 159; 1997 PCr.LJ 1771; PLD 1993 SC 247; PLD 1983 Lah. 71; PLD 1982 FSC 265; 1981 SCMR 1008. Learned counsel for the State contended that Article 13(1) guarantees protection against double punishment and self-incrimination to prohibit prosecution and punishment for the same offence more than once, therefore, firstly as far as acquittal in a case involving distinct offence will not provide protection to the accused unless it is not shown that he has been prosecuted and punished for the same offence. To determine whether offence charged against petitioner and others falling within the definition of same offence it would be imperative to examine essential ingredients of both the laws in respect whereof he was challaned and out of which in one of the cases under section 156(1)(8)(89) of the Customs Act, 1969 he has been acquitted and is facing prosecution in the offence under Article 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979.
3. According to the learned counsel the ingredients of both the offences are distinct and different from each other, therefore, prosecution of the petitioner in the later case will not be barred and the Sessions Judge, Naushki is proceeding against him with lawful authority. Reliance was placed by him on PLD 1961 Lab. 269; PLD 1977 Kar. 144; 1985 PCr.LJ 499; 1987 MLD 1948; 1988 PCr.LJ 881; PLD 1990 FSC 62; 1995 SCMR 626 and 1998 PCr.LJ 1352. We have heard parties, counsel at length and have gone through relevant provisions of law carefully. In our opinion it would be appropriate to reproduce hereinbelow Article 13 of the Constitution of Islamic Republic of Pakistan and section 403, Cr.P.C.: ARTICLE 13 OF THE CONSTITUTION: Protection against double punishment and self-incrimination.--No person--
(a) shall be prosecuted or punished for the same offence more than once; or
(b) shall, when accused of an offence, be compelled to be a witness against himself.
4. SECTION 403, CR.P.C.: Person once convicted or acquitted not to be tried for 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 and 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 236, 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 section 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 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 provisions of section 26 of the General Clauses Act, 1897 or section 188 of this Code." A careful perusal of both the laws reproduced hereinabove make it abundantly clear that the accused cannot be tried for the same offence in respect whereof he has already been prosecuted and punished. In Article 13 word "and" is conjunctive, therefore, its plain interpretation would be that even if an accused has been acquitted he cannot claim protection of this Article on the strength of arguments that for the same circumstances and set of evidence he has been acquitted of the charge. At this juncture it is necessary to understand the meaning of the word "same offence". This expression has been defined in the case of PLD 1977 Karachi 144 Hoot Khan v. Industrial Relations Commission reproduced hereinbelow:-- "The provisions of section 403, Cr.P.C. On the basis of which the above decision was given, however, are substantially different from the provisions contained in Article 13(a) of the Constitution.
5. Subsection (1) of section 403, Cr.P.C. Not only bars subsequent trial of a person who has once been tried by a Court, of competent jurisdiction for an offence and convicted or acquitted for the same offence, but further bars his trial on the same facts for any other offence for which a different charge from the one made against him might have been framed under section 236 or for which he might have been convicted under section 237. It will thus be seen that an extended meaning has been given to 'same offence' by including within its fold other offence for which, on the same facts, a charge under section 236 might have been framed or a conviction may have been recorded under section 237. The bar in the Constitution, however, is against prosecution or punishment for the same offence for which a person has been previously tried or convicted. No extended meaning of same offence, as in section 403, Cr.P.C. Thus can be given to this expression as used in the Constitution. The test for the same offence is whether the former offence and the offence subsequently charged have the same ingredients in the sense that the facts constituting the one are sufficient to justify the conviction of the other, not that the facts relied on by the prosecution are the same at the two trials. Furthermore, the previous prosecution must be before a Court which had jurisdiction to try both the first offence alleged as well as the offence for which the accused is being subsequently prosecuted. There cannot be a valid prosecution before, a Court if the Court had no jurisdiction to try the offence for which the accused is being subsequently tried." In the above judgment honourable Judge of Karachi High Court as then he was, provided litmous test to determine where accused for the second time has been charged for the same offence or not according to which to adjudge whether cases pending against accused fall under the definition of same offence it is necessary to examine ingredients of both the offences charged against the accused. With reference to the facts constituting the crime whether facts of one of the cases are sufficient to justify conviction of the other or not. Applying this test on the instant case we feel no difficulty in concluding that the Special Judge Customs has taken into consideration three points which have been reproduced hereinabove and discussed the facts of the case with reference to the offence of smuggling which is punishable under section 156(1)(8)(89) read with section 178 of the Customs Act. As far as act of smuggling is concerned it has been defined under section 2(s) of the Customs Act which means to bring into or take out of Pakistan in breach of any prohibition or restriction for the time being in force or evading payment of customs duties or taxes leviable thereon. Initially smuggling of the drugs was not an offence punishable under the Customs Act, subsequently in exercise of powers under section 16 restriction on its import and export was imposed, as such by issuing an SRO drugs were included to be a banned item, therefore, if a person in contravention to these provisions imports or exports any drug into Pakistan his action shall be liable to be punishable under section 156(1)(8)(89) of the Customs Act. As far as section 178 of the Customs Act is concerned it deals with the punishment of persons accompanying a person possessing goods liable to confiscation. The ingredients of the provisions of law have to be considered in view of the evidence available on the file of the Special Judge Customs. It may be noted that learned Special Judge Customs had not based its judgment on the evidence which was recorded by the Special Court for speedy trial and decided the case on recording of the evidence of the prosecution witnesses independently.
6. At this juncture it would also not be out of place to mention here that on account of non- availability of the evidence recorded in both the cases it is not possible to know as to whether in proceedings of both the cases the same witnesses appeared and they furnished identical evidence or different evidence was given by them. As far as Article 3 of Prohibition (Enforcement of Hadd) Order, 1979 is concerned it places restriction on imports, exports, transports, manufacturing or process any intoxicant or bottles or sells or serves any intoxicant or allows any of the acts aforesaid upon premises owned by him or in immediate possession and on establishing the offence, accused shall be punishable with imprisonment of either description by a term which may extend to five years and with whipping not exceeding 30 stripes and shall also be liable to fine. So far Article 4 is concerned it provides punishment for owning, possessing or keeping in his custody any intoxicant with imprisonment of either description for a term which may extend to two years or with whipping not exceeding 30 stripes and shall also be liable to fine; whereas as per proviso appended therewith if the intoxicant in respect of which the offence is committed is heroin, cocane, opium or coca leaf the offender shall be punishable with imprisonment for life or with imprisonment which is not less than two years and with whipping not exceeding 30 stripes and shall also be liable to fine.
7. A cursory perusal/comparison of the offences falling within the mischief of Customs Act and Prohibition (Enforcement of Hadd) Order, 1979 clearly spells out different ingredients in both of them. In this behalf in the judgment of Jamshed Ali v. The State 1998 PCr.LJ 881, authored by honourable Mr. Justice Saiduzzaman Siddique as then he was Judge of Karachi High Court examined purpose and object of the offences falling under the Customs Act and Prohibition (Enforcement of Hadd)
8. Order, 1979 and held that there is no conflict in both the offences. Relevant para. Therefrom is reproduced hereinbelow: "Smuggling as defined under Customs Act means, to bring in or take out of Pakistan any goods in breach of prohibition or restriction for the time being in force by any route other than that which is declared under section 9 of the Act, or evading payment of Customs duty or taxes leviable on any goods notified by the Federal Government in the official Gazette, clearance of which at a customs station is sought or affected through concealment, fraud or misdeclaration. The punishment for the above offences are prescribed under section 156 of the Act. It will thus be seen that mere possession of a narcotic substance or its transportation, sale, serving or dealing in any manner with it is not punishable under the provisions of the Customs Act. It is only when by virtue of the notification issued by the Federal Government the bringing in and taking out of Pakistan, of a narcotic or psychotropic substance is prohibited that such acts or any attempt or abatement thereof becomes punishable under the Customs Act. As compared to this, the provisions of P.O.
9. No,4 of 1979 makes a general provision prohibiting import, export, transportation, manufacturing, processing, bottling, selling and or dealing in any manner with any kind of intoxicants and makes all such acts punishable under the law. Upon comparison of the provisions of the two statutes there can be no doubt that the provisions contained in P.0.4 of 1979 are of general nature and are very wide in its scope and impact as compared to the provisions of Customs Act. In this respect the Customs Act, 1969 is to be treated as a special Act while P.0.4 of 1979 as a general Act. Under the provisions of Customs Act only under special circumstances when bringing in and taking out of Pakistan of narcotics and psychotropic substance is prohibited under a notification issued by the Federal Government only then such bringing in and taking out or an attempt or abatement thereof is punishable under the Customs Act, while under P.0.4 of 1979 possession of every kind, of intoxicants, its transportation, manufacturing, processing bottling, selling and serving is made punishable. The purposes and objects of the two legislations are, therefore, quite different. The promulgation of P.0.4 of 1979 has neither altered the offence of smuggling nor its punishment. Mere fact that under the provisions of P.0.4 of 1979 the act of import and export of a narcotic could also be punished is not sufficient to hold that there is conflict between the provisions of the Customs Act and P.0.4 of 1979 and the two cannot stand together consistently. I am, therefore, of the view that there is no conflict between the provisions of the Customs Act and that of P.0.4 of 1979 and both the legislations can operate constantly in their respective fields. I accordingly hold that P.0.4 of 1979 did not repeal any of the provisions of Customs Act. As a result of above discussion Special Criminal Revision 9 of 1986 is dismissed. In view of the decision of law point, the Special Criminal Bail No,95 of 1987 may be fixed for consideration on merits." Similarly Full Bench of honourable Federal Shariat Court in the case of State v. Anwar Khattak and others PLD 1990 FSC 62 thoroughly examined the provisions of the Article 13 and section 26 of General Clauses Act as well as section 403, Cr.P.C. While comparing offence falling under the Customs Act and the Prohibition (Enforcement of Hadd) Order, 1979 and held that both the offences are separate and distinct. Relevant para. For the sake of guidance therefrom is also reproduced hereinbelow:- "In the light of the above discussion we are of the view that whereas the offence under section 2 read' with sections 16 and 156(8) arises on the violation of restriction or prohibition issued at the option of the Federal Government, the Articles 3 and 4 not only make 'import and export' an offence but even possession, transport, manufacture, processing and sale etc. Also. Again the maximum sentence of imprisonment provided under section 156(8) is 10 years while it is imprisonment for life under Articles 3 and 4 of P.0.4 of 1979. Further appeal against a conviction under Articles 3 and 4 lies before the Federal Shariat Court whereas the High Court is the appellate authority in respect of offences under the Customs Act. Finally the Customs Court has the exclusive jurisdiction under the Customs Act whereas the Sessions Court and the Courts subordinate to it have the exclusive jurisdiction under Articles 3 and 4. There are thus two separate and distinct offences. Thus, section 156(8) deals with all such things with regard to which there is a, prohibition or restriction of bringing into or taking out of Pakistan. The power to impose restriction or prohibition is given to the Federal Government in section 16 of the Customs Act. As said above the P.0.4 of 1979 makes every process or any dealing with the intoxicants an offence. Again it is one of the Hudood laws. The Customs Act on the other hand is an administrative law based on the residuary power of legislation entrusted to human beings. Admittedly, a man-made law cannot supersede a law based on divine Hadd. The result is that the two laws deal with different situations and create distinct offences and there is no conflict, repugnancy or resulting implied repeal. Again, the Customs Court has got exclusive jurisdiction under the Customs Act in respect of smuggling and it has not been given any power to try or decide the cases falling under other provisions of law or the P.P.C." Although learned counsel for parties cited number of judgments on the point but in view of the above categorical declaration by a Full Bench of honourable Federal Shariat Court in our opinion no further room is left o discuss as to whether offences falling under the Customs Act or Prohibition (Enforcement of Hadd) Order, 1979 are same offences or distinct offences. However, with benefit latest judgment of honourable Supreme Court reported in 1995 SCMR 626 can be referred and for the sake of guidance its relevant paras. Are reproduced hereinbelow:-- "It is obvious that Muhammad Ashraf appellant was arraigned twice before the Sessions Court. In the case commenced on the strength of F.I.R. Lodged at the instance of Muhammad Saleem he was convicted and sentenced to death, but his other trial concluded in the pronouncement of judgment of acquittal. By reason of his dual trial, Mr. K.M.A. Samdani, Advocate has argued that the said appellant was vexed twice for one and the same offence which is violative of Constitutional guarantee provided by Article 13(a) of the Constitution and also in contravention of section 403( 1 ) of the Criminal Procedure Code. He contended that Article 13(a) extends protection to an individual against the prosecution for the same offence and the possible conviction more than once. He submitted that double trial on the same accusation is against the Constitutional guarantee. Thus, it was urged that the trial of Muhammad Ashraf stood vitiated and his conviction and sentence were wholly illegal. However, on merits the learned counsel did not have much to stress and confined this submissions to the repetition of the argument that Muhammad Saleem P.W. Was not present when the occurrence took place. The contention is that had he been present, he would not have survived at the hands of the assailants, who as reflected by their conduct, were bent upon doing away with all the male members of the complainant's family with whom they came across on the fateful night. The rule that no one shall be vexed twice for the same offence has its roots in the ancient maxim "Nemo bis debet puniri pro uno delicto" which means that no one should be subjected to peril twice for the same offence. It is a fundamental rule of criminal law that no one should be exposed to hazards of punishment and convicted twice for one and the same offence. This doctrine is enshrined deeply in the legal system of the countries following Anglo-American Jurisprudence, it is incorporated in one form or another in the statutory law, or as a Constitutional guarantee in the Constitutions of the some of the countries. The rule is ingrained in the Fifth Constitutional Amendment to the American Constitution, which ordains that 'no person shall be subjected for the same offence to be twice put in jeopardy for life or limb'. In Halsbury's Laws of England (2nd Edn.), Vol. 9 pages 152, 153, para.212 it is stated as under: The plea of 'autrefois convict' or 'autre fois acquit' avers that the defendant has been previously convicted or acquitted on a charge for the same offence as that in respect of which he is arraigned. The question for the jury on the issue is whether the defendant has previously been in jeopardy in respect of the charge on which he is arraigned, for the rule of law is that a person must not be put in peril twice for the same offence. The test is whether the former offence and the offence, now charged have the same ingredients in the sense that the facts constituting the one are sufficient to justify a conviction of the other, not that the facts relied on by the Crown are the same in the two trials. A plea of 'autrefois acquit' is not proved unless it is shown that the verdict of acquittal of the previous charge necessarily involves an acquittal of the latter.' In our Constitution this rule is enacted in Article 13(a) which provides that: No person shall be prosecuted or punished for the same offence more than once. 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 of punishment. It includes the entire proceeds 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.
10. 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, which is reproduced below: A person who has once been tried by Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while conviction or acquittal remains in force not 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 236 or for which he might have been convicted under section 237.' It is to be noticed that the Constitutional guarantee is confined only to duplicate punishment and is silent in so far as acquittal is concerned. Section 403(1) however, prohibits the second trial for an offence during the course of existence of conviction or acquittal of a person as the case may be, in consequence of final adjudication of such an offence by a Court of competent jurisdiction. Thus the rule against autrefois acquit finds place in section 403(1) and the counterpart of this rule "autrefois convict" has received recognition in the Constitutional guarantee embodied in Article 13(a). In the light of these Constitutional and statutory provisions it needs to be examined as to whether the conviction of Muhammad Ashraf appellant and the death sentence awarded to him suffer from any illegality. As already observed that one trial ended in conviction and punishment and in the second case he was acquitted. When the two judgments are placed in juxtaposition it becomes evident that the judgment of conviction in point of time was rendered first and shall hold the field. The appellant's subsequent acquittal cannot reflect upon his conviction and sentence awarded to him on the basis of the trial, founded on the F.I.R. Lodged by Muhammad Saleem. Here a reference may also be made to section 26 of the General Clauses Act, which is reproduced below: Whether an act or mission constitutes an offence under two or moreenactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments but shall not be liable to be punished twice for the same offence. It will thus appear that under section 26 of the General Clauses Act there is no bar on the simultaneous prosecution; what is prohibited is duplicate punishment and not the trial. In view of the foregoing analysis of the Constitutional and statutory provisions the judgment impugned, before us is neither violative of the fundamental right nor in contravention of section 403(1), Cr.P.C.'."
11. It may be seen that honourable Supreme Court in the above judgment has held that a duplicate punishment is prohibited and not the trial. Thus following the guidelines provided by honourable Supreme Court we are inclined to hold that under the circumstances the trial of petitioner under Article 3/4 of the Prohibition (Enforcement of Hadd) Order read with section 8/14 of the Dangerous Drugs Act is not violative of the provisions of Article 13 of the Constitution of Islamic Republic of Pakistan read with statutory laws under section 403, Cr.P.C. And section 26 of the General Clauses Act. We may point out here that learned counsel for the petitioner and for respondent has also referred number of judgments in support of their contentions, but in our humble opinion in presence of law laid down by honourable Supreme Court in the above judgments there is no scope to refer or discuss them in detail.
12. Mr. Amanullah Kanrani learned counsel appearing for petitioner stated that he has also been instructed by senior counsel to argue on his behalf that because Prohibition (Enforcement of Hadd)
13. Order, 1979 has not been extended to tribal areas according to Article 247 of the Constitution of Islamic Republic of Pakistan, therefore, from this point of view as well the trial of petitioner under Article 3/4 of the Ordinance, 1979 is without lawful authority. Mr. Tariq Mehmood learned counsel for the State argued that this question is not open to discussion because it has already been settled down in. Terms of the judgment reported in PLD 1986 Peshawar 166, 1993 SCMR 1523. We have gone through both the judgments, therefore, we are inclined to agree with the learned counsel for the respondent. However, relevant para. From the judgment of State and another v. Sajjad Hussain and others 1993 SCMR 1523, is reproduced hereinbelow: "As the P.O. No,4 of 1979 is not an Act of Majlis-e-Shoora but is a Constitutional Order made by the President and the Chief Martial Law Administrator and is expressly said to extend to whole of Pakistan within which is included the Federally Administered Tribal-Areas, this Order No,4 of 1979 would extend to Federally Administered Tribal Areas. This is further borne out by the fact that it was taken to be so extended to the Federally Administered Tribal Areas by the Presidential Order No,5 of 1984. It was enforced on 8-10-1984 and was deemed to have taken effect on the 25th of June, 1980.
14. By its Article 2 it provided as hereunder:--
2. Jurisdiction of Federal Shariat Court not to extend to the Federally Administered Tribal Areas.--(1)
15. The jurisdiction of the Federal Shariat Court shall not extend, and shall be deemed never to have extended to the Federally Administered Tribal Areas;
(2) Notwithstanding the judgment of any Court, including the Federal Shariat Court, all laws in force in the Federally Administered Tribal Area shall be deemed to be and always to have been, valid and shall not be called in question before any Court on any ground whatsoever." In view of the above conclusions by honourable Supreme Corut we are not inclined to entertain the arguments put forth by learned counsel for petitioner. Thus the same is accordingly repelled. It is next argued by learned counsel for petitioner Mr. Amanullah Kanrani that after repeal of the law under which Special Courts for speedy trial were constituted when the case was sent to Sessions Judge for trial it was incumbent upon the Presiding Officer to have held de novo trial of petitioner in the interest of justice. Mr. Tariq Mehmood learned counsel for the respondent stated that after remand of the case by the Special Court to the Sessions Judge, Quetta petitioner submitted an application before the learned Sessions Judge for de novo trial, but the request so made by him/them was rejected on second May, 1994 and against said order revision was filed before this Court which was dismissed on 3-8-1994 holding that application for de novo trial has been rightly rejected by the trial Court, thereafter petitioner filed a petition for special leave to appeal before honourable Supreme Court of Pakistan and these appeals were decided on 10-6-1998 whereby it was observed by honourable Supreme Court that the proper remedy for the applicant was to approach the Federal Shariat Court consequently petition was filed before Federal Shariat Court which has been dismissed on 2- 7-1999. This very point is under consideration before the Supreme Appellate Court as the petitioner has filed a petition against the order of Federal Shariat Court. Thus he suggested that under the circumstances it would not be proper for this Court to attend this question which is the subject- matter of petition before honourable Supreme Court. We are quite in agreement with the learned counsel, therefore, we are not inclined to dilate upon this aspect of the case because matter is sub judice before a superior Court.
16. No other point was argued.
17. Thus for the foregoing reasons we see no force in the petition, as such the same is dismissed in limine.