MUNIR A. SHEIKH, J.~ By. This common judgment, we intend to decide Civil Appeals Nos. 1361 to 1381, Crl. Appeals Nos. 348, 349 and 158 to 170 of 2000 as questions of law and facts are common in all of them.
2. These appeals by leave of the Court are directed against the judgments passed by the Lahore High Court through which the proceedings before the learned Sessions Judge/Special Judge, Narcotics Lahore of Trial of the respondents for an offence under sections 6, 7, 8, 9C, 14 and 15 of the Control of Narcotic Substances Act, 1997 have been quashed on the ground that the same were violative of Article 13 of the Constitution of Islamic Republic of Pakistan, 1973, for they (respondents) having already been tried and convicted under section 156(1)(18) of the Customs Act could not once again be tried and punished under the provisions of Act, 1997.
3. The facts of the case shortly stated are that a case was registered against the respondents for an offence under sections 2(5), 16, 139, 156(1)(8), (70), 157 and 178 of the Customs Act, 1969-read with sections 6, 7, 8, 9C 14 and 15 of the Control of Narcotic Substances Act, 1997 through FIR No. 49 of 1998. They were tried in the Court of Special Judge, Customs, Lahore under section 156(1)(8) of the Customs Act in which they pleaded guilty and were, therefore, Convicted and sentenced accordingly. The respondents were also tried in the Court of Sessions Judge/Special Judge for an offence under section 6, 7, 8, 9C, 14 and 15 of the Control of Narcotic Substances Act, 1997 against which an objection was raised that they having already been convicted and sentenced under the Customs Act could not once again be tried and convicted under the provisions of Act, 1997, as such, the second trial under the latter law was violative of Article 13 of the Constitution which plea succeeded and their trial under Act, XXV of 1997 was quashed through the impugned judgments against which these appeals by leave of the Court are directed.
4. Leave was granted to consider whether the offences for which the respondents were being tried u/Ss. 6, 7, 8, 9C, 14 and 15 of Act, 1997 is the same for which they had earlier been tried u/S. 156(1)(8) of the Customs Act, as such, was violative of Article 13 of the Constitution.
5. In order to determine this question, it would be necessary to examine and analyze the relevant provisions of the Customs Act, 1969 and compare the same with the provisions of Control of Narcotic Substances Act, 1997.
6. Before embarking upon this exercise, it may be kept in mind that the mere fact that the respondents were tried and punished under sections 156(1){8) of the Customs Act, therefore, as far as prosecution is concerned, its case was that the act of the respondents constituted an offence of smuggling of narcotics about which there is no ambiguity, therefore, the comparison of the provisions of the two Statutes is to be made keeping in view this admitted position which will make the job easier to come to a definite conclusion, In section 2, Clause-(s) of the Customs Act, 1969, smuggling has been defined as under:-- "Smuggle" 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."
Under Clause (s) (i) of Section 2 ibid, the import into Pakistan, export from Pakistan, transport within Pakistan and tranship of the following things has been expressly prohibited:-- "gold bullion, silver bullion, platinum, palladium, radium, precious stones, antiques, currency, narcotics and narcotic and psychotropic substances".
Sub-Clause (ii) of this Clause also empowers the Federal Government to declare through notification other goods the import or export of which can also be prohibited. Through SRO No. 491(1)/85, the Government of Pakistan also declared narcotics and psychotropic substances to be the goods to which Clause (s) of section 2 of the Act would be applicable as the goods the import of export of which was prohibited under the said Act.
7. Section 9 of the Control of Narcotics Substances Act, 1997 provides punishment for contravention of the provisions of sections 6, 7 and 8 which are hereby reproduced below in extenso for ready reference:-- "(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 Ordinance 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 drugs, psychotropic substance or controlled substance, save in accordance with rules made under subsection (2) and with the conditions of any licence, permits or authorisation for that . Purpose which my be required to be obtained under those rules.
(2) The Federal Government may make rules permitting and regulating the import into and export from Pakistan, transport within Pakistan and transshipment of narcotic drugs, psychotropic substances or controlled substances and such rules may prescribe the ports or places at which any kind of narcotic drug, psychotropic substance or controlled substance may be imported, exported, transported within Pakistan or transhipped, the form and conditions of licence, permit or authorities by which such licences, permits or authorisation may be granted, the fees that may be charged therefore, any other matter required to have effective control of the Federal Government over such import, export, transportation and transshipment.
(8) Prohibition on trafficking or financing the trafficking of narcotic drugs etc.-- No one shall:-
(a) organize, manage, traffic in, or finance the import, transport, manufacturing or trafficking of, narcotic drugs, psychotropic substances or controlled, substances; or
(b) use violence or arms for committing or attempt to commit an offence punishable under this Act.
It is clear from Section 7 of this Act which is at par with section 2(s) of the Customs Act, 1969 that the import into Pakistan, export from Pakistan, transport within Pakistan or tranship- of any narcotic, etc., has been prohibited which is punishable under section 9C of the Act. As has already been noted above, the respondent were tried u/S. 156(1)(8) of the Customs Act, therefore, the charge against them was of smuggling of narcotics against the prohibition imposed by law, therefore, it can safely be held that the offence with which the respondents were charged and tried under the Customs Act was the same for which they were being tried under the Control of narcotic Substances Act, 1997.
8. The next question which arises is as to which of the two Acts would be given preference. Apart from the fact that Act XXV of 1997 being latter law and the purpose for which the same was promulgated as expressed in its preamble was to consolidate and amend the laws relating to narcotic drugs, psychotropic substances, and control the production, processing and trafficking of such drugs and substances, It has overriding effect as section 76 thereof provides that the provisions of this Act shall have effect notwithstanding anything contained in any law for the time being in force. The matter has been put beyond any doubt by section 72 of the Act which provides that all prohibitions and restrictions imposed by or under this Act 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 and the provisions of this Act would apply accordingly, with a proviso that notwithstanding anything contained in the Customs Act or any other law, the offences relating to narcotic drugs, psychotropic substances or controlled substances shall be tried under the provisions of this Act the proceedings of which have been quashed through the impugned judgments.
9. After having held that the prosecution under the Control of Narcotic Substances Act, 1997 of the respondents related to the same offence for which they had already been tried and punished under the Customs Act, normally it would" be sufficient for us to hold that the impugned judgments of quashment of the prosecution under Act XXV 1997 were validly made but this cannot legally be done in view of the law as it stands now.
10. As has already been observed under the proviso to section 72 of Act XXV of 1997, all offences relating to narcotic drugs, psychotropic substances or controlled substances, etc., are to be tried under this Act notwithstanding anything contained in the Customs Act, 1969 or any other law, therefore, the Special Courts created under this Act had the exclusive jurisdiction to try these offences to the exclusion of any other Court under any law inclusive of the Customs Act, therefore, the prosecution of the respondents under the Customs Act was without jurisdiction and the proceedings taken thereunder, conviction recorded and sentence awarded were also illegal having been taken, recorded and passed by a Court which was not vested with jurisdiction to proceed with the matter, as such, all these proceedings from the very inception were Corum- non- judice, therefore, the quashment of the prosecution under Act, XXV of 1997 in relation to conviction recorded and sentence passed by a Court under the Customs Act which was not vested with the jurisdiction to proceed in the matter was not justified.
11. The respondents in spite of notices in appeals did not opt to appear and defend the appeals, therefore, they have been proceeded against ex parte. Learned counsel for the appellants when was questioned about this aspect of the case submitted that the proceedings under the Customs Act, conviction recorded and sentence awarded thereunder to the respondents may be quashed in order to do complete justice by invoking Article 187 of the Constitution and their prosecution may be allowed to proceed under Act XXV of 1997 after setting aside the impugned judgments of the High Court.
12. Before doing that, it is necessary to take not of the other provisions of Act, XXV of 1997 such as sections 73 and 74 7Z>/cf in order to examine whether these provisions did have the effect of saving the Trial of the respondents for the offence by a Court other than a Court established under this Act.
13. Sections 73 and 74 of Act, 1997 are reproduced below for facility of reference:- "73. Saving of Provincial and special laws.- (1)
Nothing contained in this Act or in the rules made thereunder shall affect the validity of any federal or provincial law for the time being in force, or of any rule made thereunder which imposes any restriction or provides for a punishment not imposed by or provided for under this Act or imposes a restriction or provides for a punishment greater in degree than a corresponding restriction imposed by or a corresponding punishment provided for by or under this Act for the cultivation of cannabis plant or consumption of, or traffic in, any narcotic drug or psychotropic substance within Pakistan or other similar matters."
74. Application of other laws,--If any 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: Provided that nothing contained in section 523 of the Code of Criminal Procedure, 1898 (ACT V of 1898), or any other provision of the said Code or any other law for the time being in force, the custody of narcotic drugs, psychotropic substances, controlled substances, any material utensils used for production or export, transport or transshipment thereof or for commission of an offence under this Act shall not be given on custody to the accused or any of his associate or relative or any private individual till the conclusion of the case."
14. The first part of section 73 saves the provincial and special laws from the mischief of the provisions of Act XXV of 1997 only if the said laws impose any restriction or provides for a punishment not imposed by or provided for under this Act, whereas the latter part provides that if any provincial or special law provides punishment greater in degree than a corresponding punishment provided for by or under this Act for the cultivation of cannabis plant or consumption of, or traffic in, any narcotic drug or psychotropic substance within Pakistan or other similar matters, the same shall not be affected. Section 74 provides that if the same act was an offence punishable under any other law for the time being in force which is also an offence triable and punishable under this Act, the same would not prevent the offenders from being punished under this Act, Both these sections of Act XXV of 1997 do not in any manner provide that an offence connected with narcotics could be tried by any Court under those laws, It is clear from the express terms of these two sections of Act XXV of 1997 that they do not in any manner provide for trial of the offences relating to narcotics by any Court other than the Courts established under Act XXV of 1997 or that they have the effect of diluting the legal effect of proviso to section 72 ibid which reads as under:- "Provided that, notwithstanding any thing 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."
The combined effect of reading of the provisions of sections 6, 7, 8, 72, 73 and 74 'of Act XXV of 1997 and the Customs Act, 1969 is that an offence connected with narcotics could be tried only under the provisions of this Act in a Court established thereunder to the exclusion of the Courts established under any other law but the Court was empowered to invoke the provisions of other laws prescribing greater punishments or prohibitions on the date of commission of offence while awarding the sentence to the accused.
15. For the foregoing reasons, we hereby declare that the trial of the respondents under section 156(1)(8) of the Customs Act in the Court of Special Judge, Customs and the proceedings taken under the said Act, conviction recorded against them thereunder and sentence awarded to them was without lawful authority and of no legal effect and are quashed.
16. As a consequence of this, we hold that the Trial of the respondents under Act XXV of 1997 is valid, therefore, these appeals are accepted, impugned judgments are hereby set aside and the Special Judge, Lahore is directed to proceed with the trial in accordance with law on its own merits.
17. Before parting with this judgment, we may observe that the confession, if any, made during the Trial under the Customs Act by he respondents shall also not be of any legal effect and the trial shall be conducted independently in accordance with law and benefit shall be given to them if convicted of the sentence of imprisonment already undergone by them in consequence of the trial under the Customs Act.
18. There will, however, be no order as to costs.