SABIHUDDIN AHMED, J.---The appellant was found to be in possession of 700 grams of heroin powder before boarding an International Flight at the Karachi Airport and was arrested by the Customs Authorities. An F.I.R. Was registered and after usual investigation he was challaned before the Special Judge (Customs and Taxation), Karachi under section 156(1)(8) of the Customs Act, 1969. He pleaded guilty and was sentenced to undergo two (2) years' imprisonment and pay fine of Rs,25,000 vide judgment dated 24-2-1997.
2. While the aforesaid conviction was in force and the appellant was undergoing sentence he was charge-sheeted before the Sessions Judge, Malir (acting as Special Judge) under sections 6 and 7 of Control of Narcotics Substances Act (CNS Act) for being in possession of 700 grams, of heroin powder on 12-2-1997 at the International Departure Hall, Karachi Airport. He pleaded guilty and was sentenced to undergo 4 years' R.I. And pay a fine of Rs,30,000 vide judgment dated 22-4-1999.
3. The appellant preferred an appeal from Jail calling in question his second conviction on the ground of being violative of the principle of double jeopardy, Article 13 of the Constitution as well as section 403, Cr.P.C. And section 26 of the General Clauses Act. He referred to a judgment of this Court in Mark Mifsud v. Investigation Officer (PLD 1999 Karachi 336) where a similar plea had been accepted by a Division Bench of this Court.
4. This appeal which was barred by 111 days came up before a Division Bench of this Court. Keeping in view the fact that the appellant had not the benefit of legal assistance, that delay was condoned liberally in criminal cases and a question of enforcement of fundamental rights was involved, the Division Bench condoned the delay. Mr. Habib Ahmed learned A.A.-G. Appearing on Court notice, however, brought to the attention of the Division Bench an earlier judgment of another Division Bench in the case of Xiomori Moria and another v. State (2000 PCr.L.J. 956) where a view different from the one in Mark Mifsud case , had been taken which unfortunately was not brought to the attention of the Bench decided Mark Mifsud case. Accordingly, the appeal was admitted and a reference was made to the Hon'ble Chief Justice fair placing the matter before a larger Bench whereupon this Bench has been constituted.
5. When this matter was called out for hearing unfortunately neither of the counsel requested to assist us as amicus curiae namely Mr. Habib Ahmed learned A.A.-G., learned Dy.A.-G., Mr. Azizullah Shaikh and Mr. A.Q. Halepota were present, apparently due to their engagement before other Bench. Nevertheless since we were informed that the two conflicting opinions expressed by Benches of this Court were causing confusion as to the correct state of law and at times undue advantage was being secured for evading liability under the C.N.S. Act we decided to examine the legal position on our own and reserve judgment. Subsequently, Mr. A.Q. Halepota, Advocate and Mr. Habib Ahmed, A.A.-G. Provided us with a list of precedents touching upon the controversy which will be discussed hereinafter. Since a number of questions of public importance requiring authoritative pronouncement by this Court appear to be involved we have formulated the following points for consideration:--
(i) Notwithstanding the specific provision of sections 72 and 74 of the C.N.S. Act, where a person tried or convicted under the Customs Act can be subjected to a further trial on the same set of facts under the C.N.S. Act.
(ii) What is the effect of sections 72 and 74 of the C.N.S. Act?
(iii) What order needs to be passed in the facts and circumstances of this case?
QUESTION NO.1:
6. On the first question as mentioned above, there appears to be a divergence of opinion amongst Division Benches of this Court as was pointed out by Mr. Habib Ahmed learned A.A.-G. In the case of Xiomoria Mona 4 kg. Of heroin powder was allegedly recovered from the possession of the applicant who was a Spanish national at about 4-00 a.m. On 21-8-1997 at the Quaid-e-Azam International Airport when she was apparently going to board an international flight. After usual investigation she was sent up for trial in the Court of Special Judge (Customs and Taxation), Karachi for attempting to smuggle heroin and was convicted and sentenced upon pleading guilty.
Apart from lodging an F.I.R. Under section 2(s) of the Customs Act another F.I.R. On the basis of the same facts was lodged under the C.N.S. Act and the applicant was thereafter sent up to stand trial before Special Judge/Sessions Judge, Malir. She applied for quashment of proceedings under the C.N.S. Act but this application was rejected by a Division Bench comprising Muhammad Roshan Essani and Abul Inam, JJ. In the aforesaid judgment authored by Muhammad Roshan Essani, J. a large number of cases have been examined and his lordship has drawn a distinction between an offence under section 156(1)(8) of the Customs Act and one under section 9(c) of the C.N.S. Act. It had been observed that while only smuggling or an attempt to smuggle goods in violation of restriction imposed by the Federal Government would be an offence under the Customs Act, possession simpliciter of narcotics would amount to a complete offence under the C.N.S. Act. It has also been held that the mere fact that some common factors have to be established for the purpose of seeking conviction for offences under different statute would not mean that only one offence is committed and, therefore, the provisions of Article 13 of the Constitution and section 403, Cr.P.C. Did not apply.
7. On the other hand, in Mark Mifsud's case another Division Bench headed by Nazim Hussain Siddiqui, C.J. (as his lordship then was) with whom Ghulam Rabbani, J. Concurred, after exhaustively discussing a number of cases cited before the Bench, reached the opposite conclusion. His lordship was of the view that the ingredients of the offences under the Customs Act and the C.N.S. Act in the case before him were exactly identical, and therefore, once the appellant had been tried and punished under the Customs Act he could not be subsequently tried on the same set offacts under another statute in view of the Constitutional bar under Article 13, which requires that a person cannot be prosecuted or punished for the same offence more than once.
8. We have carefully gone through the two judgments as well as the precedents cited therein. It seems that the principle of autrefois convict or autrefois acquit, as known to English jurisprudence or double jeopardy (as recognized by American law) had always been part of our criminal jurisprudence. Section 403 of the Criminal Procedure Code enacted more than 100 years ago reads as under:--
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 made 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) 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.
9. It may be observed that the main rule is laid down in subsection (1) and the remaining subsections only provide exceptions thereto. In other words, if two different offences are committed by the same person in a series of acts so connected as to form one transaction, a subsequent trial may not be barred under subsection (2). Similarly if certain consequences of the act committed by the accused constituted a different offence and such consequences were not known to the Court at the time of conviction the protection is lost in terms of subsection (3). Likewise a subsequent trial may not be barred when the Court first trying the accused was not competent to do so. However, subject to these specified exceptions a person once tried and convicted or acquitted cannot be subsequently tried not merely for the same offence but also for any other offence based on the same facts.
10. Moreover, section 26 of the General Clauses Act enacted around the same time stipulates that when an act or omission constituted an offence under two or more enactments the offender shall be liable to be prosecuted and punished under either or any of these enactments and shall not be punished twice for the same offence. It is evident that the Legislature was always conscious of the fact that the same act or omission could constitute independent offences under two different statutes and to protect citizens against the rigors of double jeopardy provided that a person could not be vexed twice for the same offence notwithstanding different legislative provisions.
11. In this context it may be pertinent to refer to the following observations of Nazim Hussain Siddiqui, C.J. (as his Lordship then was) in Mark Mifsud's case. The test for determining whether it was the same offence or two distinct offences was to closely examine the purpose or design, the method for committing the offence, the consequences, the ingredients of the offence and the object likely to be achieved. Keeping in view the above, as well as the principle 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.
12. Mr. A.Q. Halepota, learned amicus curiae, has brought to our attention a recent Division Bench judgment of the Lahore High Court in. Sabir v. The State (NLR 2000 Criminal 393), wherein the same view was taken by Malik Muhammad Qayyum, J. And proceedings against the applicant before Special Judge Anti-Narcotics, Lahore, were quashed on the ground that he had already been convicted for the same offence under section 156(1)(89) of the Customs Act.
13. Article 13(a) of the Constitution provides that no person shall be prosecuted or punished for the same offence more than once. At this stage we would like to observe that the distinction between the word "or" and the word "and" as used in Article 20(2) of the Indian Constitution does not appear to have been noticed in some reported cases wherein it has been held that only two convictions and not two prosecutions are barred by this Constitutional provision. This distinction, however, was clearly brought out in the Lahore High Court cases in Tasawar Hussain v. State (1986 PCr.LJ2218) and Sabir v. State (NLR 2000 Cr. 393) where it has been observed that while the Indian Constitution only protected the principle of autrefois convict both the principle of autrefois convict and autrefois acquit were protected by Article 13 of our Constitution. We are inclined to respectfully subscribe to the same view. Moreover, it needs to be appreciated, as discussed above that the principle of protection against double jeopardy has always been part of our criminal justice system though it was incorporated as Constitutional guarantee fundamental rights only in the 1973 Constitution. The rationale appears to be to place it at such a pedestal that even a Legislature may not deviate from it. It may be recalled that fundamental rights guaranteed in Chapter I, Part II of the Constitution also furnish a protection against legislative encroachment and Article 8 explicitly provides that a law inconsistent with such rights will be void to the extent of inconsistency. Against this background we find it extremely difficult to subscribe to the view taken by Muhammad Roshan Essani, J. In Xiomoria Moria's case to the effect that merely because the Legislature had chosen to make the same act or omission punishable as distinct offences under two different enactments the protection of Article 13(a) would cease to be available.
14. In the case before us it is not disputed that the appellant was convicted by the Special Judge C.N.S. Malir on the basis of the very same allegations upon which he had been convicted by the Special Judge, Customs and Taxation. With profound respects to our learned brother. Muhammad Roshan Issani, J., we have no doubt in our mind that he was convicted for the same offence though stipulated in two different statutes. We would have preferred to hold the second conviction barred by Article 13(a) of the Constitution. Section 403 of the Cr.P.C. And section 26 of the General Clauses Act, following reasoning contained in this Court's judgment in Mark Mifsud case (PLD 1999 Karachi 336) and of the Lahore High Court in Sabir Case, (NLR 2000 (Criminal) 393), nevertheless, we are inclined to think that it is not possible for us to do so in view of certain observations of the Hon'ble Supreme Court in Muhammad Ashraf and others v. The State (1995 SCMR 626) and of the Federal Shariat Court in The State v. Anwar Khatak (PLD 1990 FSC 42), as such judgments have binding effect under the mandate of the Constitution. We would, therefore, prefer to leave this question open for the time being, to be clarified by the Hon'ble Supreme Court in an appropriate case.
QUESTION NO.2:
15. Unfortunately it appears that some very important statutory provisions contained in the C.N.S. Act were not brought to the notice of the two Benches deciding the abovementioned cases of Xiomoria Moria and Mark Mifsud which could have set the controversy at rest and avoided examination of delicate questions leading to divergence of opinion. It may be pertinent to reproduce sections 72 and 74 of the C.N.S. Act which reads as under:--
72. Application of the Customs Act, 1969.---All prohibitions and restrictions imposed by or under this Ordinance on the import into, export from, Pakistan and transshipment of narcotic drugs, psychotropic substances or controlled substances shall be deemed to be prohibitions and restrictions imposed by or under the Customs Act, 1969 (IV of 1969), and the provisions of this Act shall apply accordingly: Provided that, notwithstanding anything contained in the Customs Act, 1969' (IV of 1969), or any other law for the time being in force, all offences relating to narcotic drugs, psychotropic substances or controlled substances shall be tried under the provisions of this Act: Provided further that where the Officers of Customs apprehend a person involved in any offence relating to narcotic drugs, psychotropic substances or controlled substances shall be empowered to carry out inquiry and investigation in the same manner as an officer authorised under this Act.
74. Application of other laws.---If an offence punishable under this Act, is also an offence in any other law for the time being in force, nothing in that law shall prevent the offender from being punished under this Act.
16. As is evident from the abovequoted section 72 a restriction on import or export of narcotics drugs etc. Imposed by this Act is to be deemed to be one imposed under the Customs Act and it would, therefore, follow that such import or export would amount to smuggling in terms of the Customs Act. Under the first proviso to the aforesaid section offences relating to narcotic drugs are required to be tried under the provisions of this Act notwithstanding anything contained in the Customs Act. The second proviso further clarifies that any inquiry or investigation carried out by an Officer of Custom apprehending a person involved in an offence relating to narcotic shall be deemed to be conducted under this Act. Section 74 stipulates that the punishment provided under this Act shall be imposed for an offence which might also constitute an offence under any law.
Front the abovementioned provisions it is quite clear that when a person is involved in smuggling of narcotic he can only be tried and punished under the C.N.S. Act. In our humble view the above specific provisions were designed to ensure that all persons involved in import, export or possession of narcotic should be tried under this Act notwithstanding anything contained in any other law. They were also intended to remove the possibility of a prosecution against double jeopardy in cases where prosecution under the Customs Act could take place. We are, therefore, clearly of the opinion that eversince the enactment of the C.N.S. Act or the promulgation of its predecessor Ordinance all offences had to be tried under the aforesaid Special Law. Consequently, a trial or a conviction before the Custom Court was coram non judice, and therefore, the protection of Article 13(a) of the Constitution or section 403 of the Cr.P.C. Would also not apply.
QUESTION NO.3:
17. In the instant case, however, we have noticed that the Control of Narcotic Substances Act, 1997 came into force on 11-7-1997, whereas the alleged offence was committed on 12-2-1997. The Act as such was not operative at the time of commission of the offence and Article 12(1)(a) of the Constitution expressly provides that no law shall authorise the punishment of a person for an Act or omission which was not punishable by law at that time. This aspect of the matter escaped the attention of the learned Special Judge. In all fairness to him, however, it may be observed that a Special Law dealing with Narcotics offences was for the first time promulgated in the form of Control of Narcotic Substances Ordinance, 1995 (Ordinance XLVII of 1995) on 18-4-1995. Eversince the provisions similar to those contained in the C.N.S. Act were sought to be kept on the statute through re-promulgation of various Ordinances, but we are doubtful as to the Constitutional validity of such course in view of the pronouncement of the Hon'ble Supreme Court in Collector of Customs v. New Electronics (Pvt.) Ltd. (PLD 1994 SC 363). In the circumstances we are constrained to set aside the appellant's conviction and sentence, both under the Customs Act and the C.N.S. Act. We have been informed that the appellant has already been repatriated to his own country after serving his sentence under the Customs Act and in the peculiar circumstances of the case no illegality can be attributed to such action. It is, however, clarified for future that all acts or omission which may constitute offences under the C.N.S. Act, as well as the Customs Act or any other law must be treated as those committed under the C.N.S. Act and be tried accordingly. We would like to emphasize that mere fact of import and export of Narcotics should not mislead the Investigating/Prosecuting Agencies to treat the matter as an offence under the Customs Act because sections 7 and 8 of the C.N.S. Act expressly describe that such offences to have been committed under the C.N.S. Act punishable under section 9 of the Act.
18. We must express our gratitude to M/s. A.Q. Halepota, Advocate and Mr. Habib Ahmad, Assistant Advocate-General for their valuable assistance.