' RANA BHAGWANDAS, J.---Petitioner seeks leave to appeal against the judgment of Full Bench of the Sindh High Court dated 15-1-2001 in Criminal Appeal No,170 of 1999.
2. Respondent No,1, having been found to be in possession of 700 grams of heroin powder before boarding an International Flight at the Quaide-Azam International Airport, Karachi, was arrested by the Customs Authorities. After usual investigation and registration of a case, he was prosecuted before the Court of Special Judge (Customs and Taxation), Karachi under section 156(1)(8) of the Customs Act, 1969. Vide judgment dated 24-2-1997, he was convicted on his plea of guilt and sentenced to imprisonment for two years and to pay a fine of Rs,25,000.
3. While the respondent was undergoing his sentence, he was challaned before the Sessions Judge, Malir acting as Special Judge under sections 6 and 7 of the Control of Narcotic. Substances Act, 1997 (hereinafter referred as C.N.S. Act) for being in possession of 700 grams of heroin powder on 12-2-1997 in the International Departure Lounge, Karachi Airport. He pleaded guilty to the charge and was sentenced to undergo four years' rigorous imprisonment and to pay a fine of Rs,30,000 vide judgment dated 22-4-1999. Respondent preferred an appeal from jail impugning the vires of his second conviction on the same facts being in violation of the doctrine of double jeopardy within the contemplation of Article 13 of the Constitution as well as section 403 of Criminal Procedure Code and section 26 of the General Clauses Act. He relied upon a judgment of the Sindh High Court in Mark Mifsud v. Investigation Officer (PLD 1999 Karachi 336) where a similar plea was accepted by a Division Bench of the High Court. It may be pertinent to note that another Division Bench of the Sindh High Court in Xiomori Moria v. State (2000 PCr.LJ 956) expressed a different view from the one referred to above. When the present appeal was placed before a Division Bench of the High Court, it was admitted to regular hearing and for resolution of the controversy created by two different opinions, a larger Bench was constituted by learned Chief Justice. Learned High Court set down the following points for consideration in the appeal:--
(i) Notwithstanding the specific provisions of sections 72 and 74 of the C.N.S. Act, whether 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?
4. After being assisted by Mr. Habib Ahmad, learned Assistant Advocate-General, Sindh and Mr. Abdul Qadir Halepota, learned amicus curiae, High Court took account of Article 13(a) of the Constitution, section 403 of the Criminal Procedure Code, section 26 of the General Clauses Act as well as the observations of this Court in Muhammad Ashraf v. State (1995 SCMR 626) and State v.
Anwar Khattak (PLD 1990 FSC 42) and left the question No,(i) open for the time being to be clarified by this Court in an appropriate case. On point No,(ii), Full Bench concluded that ever since the enactment of C.N.S. Act or the promulgation of its predecessor Ordinances, all offences had to be tried under the aforesaid special law. High Court concluded that a trial or a conviction before the Customs Court was coram non judice and as such protection of Article 13(a) of the Constitution or section 403 of the Criminal Procedure Code would also not apply. In connection with point No,(iii), having been informed that the respondent had been repatriated to his own country after serving out his sentence, High Court felt that, in the peculiar circumstances of the case, no illegality could be attributed to such action. It was further clarified that all acts or omissions which may constitute offences under C.N.S. Act as well as the Customs Act or any law must be treated as those committed under the C.N.S. Act and be tried accordingly.
5. Although the petition for leave to appeal, on the face of record, appears to be barred by 273 days learned Advocate-on-Record has pointed out that in this case on notice had been issued to the Attorney-General or the Deputy Attorney General while interpreting the provisions of the special law contained in C.N.S. Act. He relied upon section 27 of the Code of Civil Procedure and urged that it has been the practice of this Court to act with leniency in condoning the delay in cases relating to criminal justice system, more particularly, where important questions of general public importance are involved. Obviously, no notice had been issued to the Federation of Pakistan or the Attorney-General or the Deputy Attorney-General and the question of law raised in the petition requires serious examination. We are, therefore, inclined to grant leave (subject to the decision on question of limitation) to consider, inter alia, whether the view taken by the High Court is in consonance with law and can be sustained in view of the judgment in Sabir Shah v. Shad Muhammad Khan (PLD 1995 SC 66)? It is ordered accordingly.