MR. JUSTICE IFTIKHAR MUHAMMAD CHAUDHRY.-(1). Petitioner Shadi Khan seeks leave to appeal against the judgment dated 16.7.2001 passed by High Court of Baluchistan, Quetta whereby appeal filed by him challenging conviction/sentence awarded to him alongwith co-accused (not before this Court) to "imprisonment for life with fine of Rs. 5,00,000 vide judgment dated 18th January, 2001 has been dismissed.
2. Precisely stating the facts of the case as have been disclosed by the prosecution during the trial of the case are that on 5th July, 1999, Customs Authorities posted at Punjgoor, during patrolling intercepted an unnumbered Toyota Pick-up on crossing of Pir Umar Jan. Statedly Abdul Wahid was driving the vehicle whereas petitioner Shadi Khan alongwith one another person namely Abdul Samad were occupying co-driver seats. On search of the vehicle seven gunny bags containing 184 small cotton bags of liquid opium weighing 2 Kgs. Each were recovered. Besides it one Kalashnikov, 280 live rounds of Kalashnikov, 4 empty magazines were also taken into possession from the vehicle. After apprehending the petitioner and two others initially a case under the provisions of the Customs Act, 1969 was registered against them besides registering a separate case under section 13(a) of the Arms Ordinance, 1965. It is stated that challan of the case against the petitioner and others under the Customs Act was submitted before the Special Judge, Customs and during the pendency of the trial after about five months, another challan under section 9(c) of the Control of Narcotic Substances Act, 1997 was also filed against all of them.
3. It may be noted that in the case pertaining to violation of the Customs Law, petitioner and two others were "found guilty for commission of the offence. They challenged their conviction/ sentence before the Customs Special Appellate Tribunal which has also been dismissed and as uptill now no petition has been filed before this Court, therefore, safely it can be said that to that extent, the case stands finalized.
As far as the trial under section 9(c) of the CNS Act, 1997 is concerned, it also proceeded against petitioner alongwith two others and finally they were found guilty for the commission of the offence as such sentenced to life imprisonment with fine of Rs. 5,00,000 or in default whereof to suffer S.I.
For one year. Benefit of section 382-B, Cr. P.C. Was also extended to them.
4. Petitioner Shadi Khan alongwith two other accused preferred appeal before the learned High Court of Baluchistan under section 48 of Control of Narcotic Substances Act, 1997 being Criminal Appeal No. 26 of 2001 and Jail Appeals Nos. 9 and 10/2001 respectively. A learned Division Bench of High Court of Baluchistan, dismissed their appeals vide impugned judgment announced on 16th July, 2001. As such instant petition has been filed only on behalf of petitioner Shadi Khan.
5. Learned counsel contended that trial of petitioner under section 9(c) of NCS Act was barred under section 403(1), Cr.P.C, and Article 13(a) of the Constitution of Islamic Republic of Pakistan because he has already been convicted for the same offence falling within the mischief of section 156(1)(8) of Customs Act, 1969 by means of the judgment of even date i.e. 18th January, 2001, therefore, in view of the law laid down by this Court in the case of The State through Collector of Customs v. Naseem Amin Butt and others (2001 SCM R 1083), conviction/ sentence against which instant petition has been filed is liable to be dismissed. On merits learned counsel contended that prosecution has failed to establish guilt against petitioner on account of non-producing of evidence that he had knowledge that Narcotics were being transported in the vehicle in which he was also travelling as a passenger. The prosecution also did not tender/produce expert report in accordance with law, therefore, in absence of evidence that as to whether the recovered articles fall within the definition of narcotic substances, conviction against petitioner deserve to be set aside.
6. We have heard the learned counsel for the petitioner and have also gone through the judgment of this Court relied upon by him. Prima facie we are of the opinion that' petitioners in both the cases i.e. Under section 156(1)(8) of the Customs Act, 1969 and section 9(c) of the NCS Act, 1997 was not tried for the same offence because both the offences are distinct and different from each other. A Division Bench of the Karachi High Court in the case of Hoot Khan v. Industrial Relations Commission (PLD 1977 Karachi 144) interpreted the provision of section 403, Cr. P.C. And held that if an accused is not charged for the same offences, then the trial would not be bad in the eye of law.
Relevant para from the judgment is 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.
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."
7. Similarly this Court in the case of Muhammad Ashraf and others v. The State (1995 SCM R 626) interpreted this very proposition in the following words:- "The rule that no one shall be vexed twice for the same offence has its roots in the ancient maxim "Nemo bis debet 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-Americans 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 subject 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 'autrefois 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 prosecution given by this Article is against prosecution and double punishment. By prosecution is meant a trial followed by judgment of acquittal or 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.
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, found 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:- "Where an act or omission constitutes an offence under two or more enactments, 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."
8. Likewise, the learned Federal Shariat Court in the case of the State v. Anwar Khattak and others (PLD 1990 FSC 62) interpreted the proposition under consideration as follows:- "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.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.
Thus, section 156(8) deals with all such things with regard to which there is 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.
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."
9. Because of earlier view of this Court in Muhammad Ashraf case (ibid) it is necessary to note that in the judgment of Naseem Amin Butt (ibid), a Bench of this Court comprising of three Hon'ble Judges decided that the Special Courts created under NCS Act, 1997 had the exclusive jurisdiction to try offences under the Act to the exclusion of any other Court under any law inclusive of the Customs Act, 1969. Relevant para, therefrom is reproduced hereinbelow:- "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 coram non judice, therefore, the quashment of the prosecution under Act XXV of 1997 in relation to provision 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."
10. It is to be noted that perhaps during the hearing of the case of The State through Collector of Customs v. Naseem Amin Butt and others (2001 SCM R 1083), the judgments in the cases of Hoot Khan (ibid), Muhammad Ashraf (ibid) and Anwar Khattak (ibid) were not cited. Therefore, we consider it appropriate to grant leave to appeal in this case to examine whether the offence under section 156(1)(8) of the Customs Act, 1969 and the offences under section 9(a)(b)(c) of the NCS Act, 1997 are same offences and if an accused is convicted/sentenced under any of the provisions out of both these laws, the trial/conviction/ sentence of the accused under the other law would be bar in view of the provisions of Article 13(a) of the Constitution of Islamic Republic of Pakistan and section 403, Cr. P.C.
11. Office may fix this case before a Bench comprising more than three Hon'ble Judges of this Court because judgment in the cases of Muhammad Ashraf (ibid) and Naseem Amin Butt (ibid) have been delivered by a Bench of three learned Judges of this Court.
12. Notice be also issued to Attorney-General for Pakistan within the provisions of Order XXVII-A, Rule 1, C.P.C, because in this case substantial question as to the interpretation of Article 13(a) of the Constitution of Islamic Republic of Pakistan is involved.