MUHAMMAD ROSHAN ESSANI, J.--- By this order we intend to dispose of Criminal Miscellaneous Application No. 139 of 1998 and Criminal Miscellaneous Application No. 140 of 1998 as in both these - applications common questions of law are involved and facts are also identical.
2. Through application under section 561-A, Cr.P.C. (Criminal Miscellaneous Application No. 139 of 1998) applicants Xiomoria Maria De Armas and Joaquina Asuncion Larrode Garcia have sought quashment of proceedings in- Special Case No.204 of 1997 in Crime No.DEC-095/1997, JTC under section 9 of Control of Narcotics Substances Ordinance, 1995, pending in the Court of learned Special Judge, Narcotics, Malir, Karachi.
3. The brief facts of the prosecution case are that on the night of 20th and 21st August, 1997 at about 4-00 a.m. both the applicants, who are Spanish National, were apprehended at the Quaid- e-Az :m International Airport, Karachi and from their baggage four Kgs. (gross) heroin powder was recovered.
4. The applicants, after usual investigation, were sent up for trial before the Court of Special Judge (Customs and Taxation), Karachi, to stand trial for attempting to smuggle heroin under section 156(1)(8) of Customs Act, 1969.
5. The applicants pleaded guilty to the charge before the trial Court and they were accordingly convicted and sentenced by judgment, dated 16-2-1998 for attempting to smuggle heroin.
6. Applicants filed appeal vide Special Criminal Appeal No.9 of 1998 before the Special Appellate Court, Sindh/High Court of Sindh, Karachi. They prayed therein for the reduction in sentence. The appellate Court maintained the substantive sentence but reduced the fine.
7. The brief facts of Criminal Miscellaneous Application No.140 of 1998 are that on the night of 16th/17th March, 1997 applicant Mrs. Tatiana Sessie, who is a Russian National, was apprehended at the Quaid-e-Azam Terminal, Karachi. She had an infant namely Thaiya with her and from her baggage 2.80 Kgs. (gross) off-white heroin powder, concealed in the bottom of hand bag, was recovered.
8. The applicant Mrs. Tatiana Sessie, after usual investigation, was sent up for trial before the Court of Special Judge (Customs and Taxation), Karachi, to stand trial for attempting to smuggle heroin under section 156(1)(8) of the Customs Act, 1969. '
9. The applicant pleaded guilty to the charge before the trial Court and she was accordingly convicted and sentenced for attempting to smuggle by judgment, dated 25-3-1997. .
10. Applicant filed appeal (Special Criminal Appeal No.20 of 1997). before the Special Appellate Court, Sindh/High Court of Sindh, Karachi. Appellate Court maintained the substantive sentence but reduced the fine.
11. The State had lodged two F.I.Rs. in both the cases. One under section 2(s) punishable under section 156(1)(8) of the Customs Act, 1969 for attempting to smuggle heroin. and the other under section 9-C of Control of Narcotics Substance Act, 1997 for being found in possession of heroin.
12. On, the basis of the second F.I.R: applicants were sent up to stand trial in the Court of learned Special Judge for the trial of Narcotic Cases, Malir, Karachi.
13. The applicants moved application under section 265-K, Cr.P.C. before the learned trial Court and the same was rejected by impugned order, dated 14-4-1998.
14. On 1-6-1998, pre-admission notice was issued to the counsel for Provincial Government as well as to the Federal Government.
15. Rana M. Shamim, learned counsel for the applicants, in both the applications, has contended that the challan of applicants in second F.I.R. was violative of Article 13(a) of the Constitution of the Islamic Republic of Pakistan and is also in contravention of section 403, Cr.P.C. that the trial of the applicants amounts to double jeopardy, which is not warranted by law; that the principle of "autre fois acquit" and "autre fois convict" applies to the case of applicants and they .cannot be vexed twice for the same offence, therefore, proceedings are liable to be quashed.
16. The learned counsel has placed reliance on Abdul Razzaq Malik v. WAPDA PLD 1973 Lah. 188, Peer Bux v. The State 1979 PCr.LJ 24, Muhammad Ashraf v. The State 1989 PCr.LJ 821, Sheerin Bacha and others v. Namoos Iqbal and others PLD 1993 SC 247 and Muhammad Ashraf and others v. The State 1995 SCMR 626.
17. Mr. Habib Ahmed, learned A.A.-G. has contended that they applicants were convicted by the Special Judge (Customs and Taxation) for "attempting to smuggle" heroin whereas the second challan was preferred for being found in "Possession" of heroin, which is punishable under section 9(c) of Control of Narcotic Substance Ordinance, 1995; that both the offences are not same, therefore, no violation of Article 13(a) of the Constitution of Islamic Republic of Pakistan or of section 403, Cr.P.C. is made out; that the principle of "double jeopardy" or "autre fois acquit" and autre fois convict" is not applicable to the case of applicants, therefore, application under section 561-A, Cr.P.C. is not maintainable. He has placed reliance on The State v. Anwar Khatak and others PLD 1990 FSC 62 and Karimi Rahmatullah v. The State 1994 PCr.LJ 428.
18. Syed Tariq Ali, Standing Counsel for the Federal Government, has adopted the arguments advanced by the learned A.A.-G.
19: We have given our anxious thought to the contentions and perused the material placed on record as well as the case-law cited at the Bar.
20. In order to appreciate the arguments of the learned counsel for the parties and to arrive at a just decision of the matter in our humble view it is essential to reproduce the relevant' provisions of Customs Act, 1969 and provisions of Control of Narcotic Substances Act, 1997 as well as related provisions of Prohibition (Enforcement of Hadd) Order, 1979.
21. The definition of word "smuggle" is given in section 2(s) of the Customs Act, 1969, as under:-- "Smuggling" 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,-- (i)any goods by any route other than a route declared under section 9 or through any place other than a customs station or: (ii)any goods notified by the hederal Government in the official gazette clearance of which at a customs-station is sought or effected through concealment, fraud or misdeclaration; and includes an attempt, abetment or connivance of so bringing in or taking out of such goods and all cognate words shall be construed accordingly;
22. The punishment for contravention of any provision of Customs Act, 1969 or of any Rules, framed thereunder, is provided under section 156 of the Act. For different contraventions, different categories of punishment are provided, which ranges from subsection (1) to subsection (98) of section 156 of the Customs Act, 1969. The present applicants were sent up under section 156(1) and
(8) of the Customs Act, 1969, which reads as under:-- "156. Punishment for offences.--- (1) Whoever commits any offence described in column 1 of the Table below shall, in addition to and not in derogation of any punishment to which he may be liable under any other law, be liable to the punishment mentioned against the offence in column 2 thereof: subsection (8)
If any goods be smuggled into or out of Pakistan.such goods shall be liable to confiscation and any person concerned in the offense shall be liable to penalty not exceeding ten times the value of the goods; and upon conviction by a (Special judge) he shall further be liable to imprisonment for a term not exceeding (ten years) and to fine not exceeding ten times the (Special Judge) in his discretion so orders, also to whipping a (and if the goods involved are heroin, cocaine, raw opium or coca leaf, conviction may extend to life imprisonment or to imprisonment which is not less than two years and to fine without limit; (Provided that, in the case of such goods essential to the life of the community as may be notified by the Federal Government in the official Gazette, the sentence of imprisonment shall not be less than five years and the person convicted shall also be awarded sentence of whipping and the whole or any part of his property shall also be liable to confiscation in accordance with the provisions, of the Prevention of Smuggling Act, 1977). .
23. Now we will refer to sections 6 and 7 of the Control of Narcotic Substance Act, 1997, punishable under section 9 of the said Act, under. which applicants are presently facing trial.
24. Both. the sections for convenience sake are reproduced in extenso hereinbelow:-- "6.Prohibition of possession of narcotic drugs etc.--- No one shall produce, manufacture, extract, prepare, possess, offer for sale, sell, purchase, distribute, deliver on any terms whatsoever, transport, despatch, any narcotic drug, psychotropic substance or controlled substance, except for medical, scientific or industrial purposes in the manner and subject to such conditions as may be specified by or under this Act or any other law for the time being in force.
7.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. "
25.Section 9 of Narcotic Substance Act, 1997 need not to be reproduced, as under section 9 only punishment for contravention of sections 6, 7 and 8 is provided.
26. The related provisions i.e. Articles 3 and 4 of the Prohibition (Enforcement of Hadd) Order, 1979, which are analogous to the provisions of Control of Narcotics Substance Act, 1997, reproduced hereinabove are reproduced below for the sake of ready reference:-- "3.Prohibition of manufacture, etc. of intoxicants.--- (1) Subject to the provisions of clauses (2), whoever)
(a)imports, exports, transports, manufactures or processes any (b)bottles any intoxicant; or (c)sells or serves any intoxicant; or (d)allows any of the acts aforesaid upon premises owned by him or in his immediate possession; shall be punishable with imprisonment of either description for a term which may extend to five years and with whipping not exceeding thirty stripes, and shall also be liable be fine.
(2)Whoever-- (i)imports, exports, transports, manufactures or traffics in, opium or coca leaf or opium or coca derivatives; or (ii)finances the import, export, transport, manufacture or trafficking of opium or coca leaf or opium or coca derivates; shall be punishable with imprisonment for life or with imprisonment which is not less than two years and with whipping not exceeding thirty stripes, and shall also be liable to fine.
4.Owing or possessing intoxicant.--- Whoever owns, possesses or keeps in his custody any intoxicant shall be punished with imprisonment of either description for a term which may extend to two years, or with whipping not exceeding thirty stripes, and shall also be liable to fine: Provided that nothing contained in this Article shall apply to a non---Muslim foreigner or to a non- Muslim citizen of Pakistan who keeps in his custody at or about the time of ceremony prescribed by his religion a reasonable quantity of intoxicating liquor for the purposes of using it as a part of such ceremony.
Provided further that, if the intoxicant in respect of which the offence is committed is heroin, cocaine, raw opium or coca leaf, and the quantity exceeds ten grams in the case of heroin or cocaine or one kilogram in the case of raw 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 thirty stripes, and shall also be liable to fine).
27. The plain reading and comparative study of the aforesaid provisions of three different statutes reveal that the offence of smuggling is punishable under Customs Act, 1969, whereas possessing the narcotic drug (heroin) is punishable under Control of Narcotic Substances Act, 1979. Thus, the offences are not same but are distinct offences.
28.Learned counsel for the applicants has quoted Article 13{a) of the Constitution, 1973, and provisions of section 403, Cr.P.C. in support of his contentions.
29. It will be appropriate to reproduce the relevant provisions herein below: Article 13. No person--- (a)shall be prosecuted or punished for the same offence more than once; or.
(b)
Section 403, Cr.P.C.
"403. 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 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 trade against him might have been made under section 237: (2)A person acquitted or convicted of 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 consequence had not happened, or were not known to the Court to have happened, at the time when he was convicted.
(4)
(5)
(Underlinings are our) .
30.A bare perusal of above provisions show that second trial would) only be barred when offence is same but if offence is distinct accused can be tried before two different Courts under two different enactments on the basis of common set of facts and trial would not be barred. Thus, the contention that the case of the applicants/accused is covered by the maxim/principles of "autrefois acquit" and "autrefois convict" or "double jeopardy" has no substance.
31. The citations relied upon 6y the learned counsel for the applicants are of no avail and help to him and are distinguishable both on the facts as well as law and are not applicable to the facts of the present case.
32. The Single Bench of Lahore High Court in a service matter of Abdul Razzaq Malik v. WAPDA PLD 1973 Lah.. 188 has observed that maxim "nemo debet lis vexari prouna et eadem" (none shall be twice vexed for one and same cause) was equally applicable to civil as well as criminal proceedings and employee once charge-sheeted and punished by competent authority cannot be charge-sheeted and punished again in respect of same charge.
There is no cavil about the maxim but .in the case in hand the applicants/accused are facing trial under distinct offence and different charge.
33. In the case of Sheerin Bacha and others v. Namoos lqbal` and others PLD 1993 SC 247, parties, who were closely related to each other, had a land dispute, which was settled in 1956 but possession was delivered to respondents - on 30-10-1986. Respondents lodged complaint under section 447, P.P.C. on 17-11-1986 stating therein that despite the delivery of possession on 30-10- 1986 appellants committed offence of tresspass on 15-11-1986 on the same property. After enquiry complaint was found false and was filed but complaint was again revived for purpose of review and fresh trial commenced. Appellants challenged the review but their plea was rejected by the Court. The appellants then filed a revision which was allowed by Government with observation that the possession had already been delivered and reopening of the case would be futile. Respondents challenged the order before High Court and High Court ordered for retrial of case under section 447, P.P.C. Honourable Supreme Court held that appellants having been tried in the police case for the same offence for tresspass together with theft and were acquitted by the Court. The said acquittal remained unchallenged against them and judgment of trial Court attained finality, therefore, same accused, it was held, cannot be retried for the same offence.
34. In the case of Peer Bux v. The State 1979 PCr.LJ 24, the applicant was sent up under section 5 of West Pakistan Control of Goondas Ordinance, 1969. During the pendency of those proceedings on the same set of evidence, applicant was sent up under Sindh Crimes Control Act, 1975, which is a repelling Act of West Pakistan Control of Goondas Ordinance, 1969. Hence, the proceedings under Crimes Control Act, 1975 . were quashed as under section 27 of the Sindh Crimes Act, 1975, the pending proceedings under the West ;Pakistan Control of Goondas Ordinance, 1969, were saved.
35. Tire brief facts in the case of Muhammad Ashraf v. The State 1989 PCr.LJ 821 are that on 3-11- 1984, S.H.O. Jamshed Quarters, Police Station, made a report under section 14 of Sindh Crimes Control Act, 1975,_against the applicant before S.D.M./Tribunal for taking security for good behaviour from him. During the pendency of those proceedings a similar report under section 14 of Sindh Crime Control Act; 1975, was made by one Ghulam Hyder Abro, S. I. T. Jamshed Quarters, Karachi, before the same Tribunal for taking same action against the applicant, therefore, proceedings were quashed.
36. In a single Bench decision of this Court Archuleia Tanya Pauline and 2 others v. The State PLJ 1996 Cr. Cases (Karachi) 597, the US Nationals were convicted and sentenced under section 156(1)
(8) of Customs Act, 1969, for smuggling of Narcotic Drug (heroin) by the trial Court. They preferred appeals but the same were dismissed. However, it was observed in the judgment that the foreign nationals may be charge sheeted only in offence of smuggling but the locals be challaned in more than one case. This very decision clearly show' that challan in second case is not barred. Apart from that the case of the State v. Anwar Khatak and others PLD 1990 FSC 62, which we will discuss hereafter was not placed before the Court. If it was placed, possibly observations would have been otherwise.
37. In the case of The State v. Anwar Khatak and others (supra) the very point involved in the present applications also came under consideration among other points before Honourable Federal Shariat Court. The Honourable Federal Shariat Court, after thrashing the case-law, and considering the relevant provisions of different statutes, observed at page 69 as under: ---14. Most of the goods mentioned in sub-clause (i) of clause (s) of 'section 2 may be possessed, transported, manufactured, processed, bottled, sold or even imported and exported from one Province to another without committing any offence or incurring any penalty. It is only at the border of Pakistan that taking out or bringing in would be an offence and that too if there is a notification laying down a prohibition or restriction. So, the goods by themselves are not contraband. The offence in violation of the notification issued by the executive authority. However, as far the narcotics are concerned the Articles 3 and 4 of the P.O. 4 of 1979 make it an offence to do any of those acts at any place even within Pakistan. Thus, prima facie the nature and extent of the two offences are quite different.
It was further observed in the above noted case at page 72 as follows: "22. In the light of the above discussion we ate of the view that whereas the offence under section 2(s) 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.O. 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..
23.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.O. 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.
24.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."
38. In yet another case of Karimi Rahmatullah v. The State 1994 PCr.LJ 428 it was observed. by this Court that the trial of the accused under section 156(1)(8) of Customs Act and under Article 3/4 of Prohibition (Enforcement of Hadd) Ordinance, 1979 by .way of two challans in two different Courts on the basis of common set of facts is not barred.
39. The upshot of the above discussion is that the applicants were not sent up to stand trial under the, same offence but under distinct and different offences in different Courts, therefore, their trial is not. barred under Article. 13(a) of the Constitution, section 403, Cr.P.C. or on the principles of "double jeopardy", "autrefois acquit" or autrefois convict" and "nemo debet bis vexari pro una et eadem causa". Merely they are sent up on common set, of facts is no ground for the quashment of proceedings pending against them in the Court of Special Judge for the trial of cases under Control of Narcotic Substances Act, 1997.
40. Consequently, Criminal Miscellaneous Application No. 139 of 1998 and Criminal Miscellaneous Application No. 140 of 1998, both under section 561-A, Cr.P.C. are dismissed alongwith the listed applications.