IFTIKHAR MUHAMMAD CHAUDHRY, J.--These civil petitions for leave to appeal are directed against the judgments dated 16-10-2000 in Writ Petitions Nos.20435, 19502, 20442 and 20434 of 2000 passed by the Lahore High Court, Lahore, whereby the petitions filed by the respondents No,1 have been allowed quashing the proceedings pertaining to cases under section 9 of the Control of Narcotic Substances Act, 1997 pending against them in the Court of Sessions Judge/Special Judge Narcotics, hence these petitions.
2. Precisely stating facts of the case are that the.Respondents were tried for the offences under section 9(c) of the Control of Narcotic Substances Ordinance, 1997 and sections 156(1)/$/14 of the Customs Act on the stated allegation that they were found in possession of contraband items i,e, narcotics. The trial culminated in the conviction of all the respondents as the prosecution established a case against them without any reasonable doubt. After completion of trial the respondents were sent up for trial before the Special Judge under the Control of Narcotic Substances Act, 1997 because contraband items recovered from their possession also constituted the offence falling within the mischief of section 9 of the Control of Narcotic Substances Act, 1997.
The respondents did not appear before the trial Court and filed writ petitions before the Lahore High Court for quashment of proceedings. The learned Division Bench of the Lahore High Court, vide impugned judgment quashed the proceedings holding that the offence falling within the mischief of the Customs Act are not distinguished from the offence falling within the mischief of the Control of Narcotic Substances Act. Concluding para. Therefrom is reproduced hereinbelow:-- "In view of what has been said above, we allow this petition and quash the case pending against the petitioner in the Court of Sessions Judge/Special Judge Narcotic, Sialkot." Against the above judgment instant petitions have been filed on behalf of Collector of Customs, Dry Port, Sambrial, Sialkot.
3. Learned counsel for the petitioner contended that the second trial of the respondent under the Control of Narcotic Substances Act, 1997 was not barred under Article 13 of the Constitution of the Islamic Republic of Pakistan, read with section 403, Cr.P.C. According to him both the offences under both the laws are distinct and different from each other.
4. We have heard learned counsel for the petitioner and have also gone through the impugned judgment passed by learned Lahore High Court, Lahore, a perusal whereof indicates that only question taken up for adjudication was as to whether a person who has been tried by the Special Judge Customs and as a result whereof either has been acquitted or convicted for the offence of smuggling or being in possession of smuggled items then can be tried for the second time under the provisions of Control of Narcotic Substances Act, 1997. Learned Judges in Chambers of High Court instead of dilating upon the above proposition of law disposed of the matter by making reference to an earlier judgment reported in the case of Sabir Aziz v. Sessions Judge, Lahore with powers of Special Judge Anti-Narcotic, Lahore and another (2000 PCr.LJ 204). Be that as it may, in the instant case it is to be noted that the respondents were arrested by the Custom Authorities for the stated allegation of keeping in their possession sumuggled items of drugs/narcotics being an offence falling within the mischief of sections 156(1), 8, 14 of the Customs Act and ultimately to face charges under these sections the respondents were challaned before Special Judge Customs. The status result of each case presently is as follows: S. No. Case NumberName of accused Remarks
1. C.P.3125-L of 2000Ali Raza (Raza Ali) son of Latif HussainAccused convicted/sentenced for 5 years with fine of Rs.1,00,000 and also given benefit of section 382-B, Cr.P.C. vide judgment dated 8-4- 2000. During pendency of the case under the Customs Act, second challan under section 9(c) of Control of Narcotic Substances Act, 1997 was, also filed but it cannot proceed as the respondent has been acquitted.
2. C.P.3131-L of 2000Imran Ahmadand others.The accused as a result of the trial under section 156(1)(8)(89) respondent Imran Ahmad was convicted whereas remaining two accused were discharged. During pendency of trial under the Customs Act second challan under section 9(c) of Control of Narcotic Substances Act, 1997was also filed but it could not proceed because proceedings have been quashed vide impugned judgment dated 16-10-2000
3. 3.Trial of the accused under sections 156(1)(8)(9)(14)(17) (77), 157 and 178 of the Customs Act is pending on the file of Special Judge Customs.
During pendency of earlier challan under the Customs Act the accused were also challaned under sections G, 7, 8, 9(c), 14 and 15 of theControl of Narcotic Substances Act, 1997 but trial in this case was not allowed petition in the Lahore High Court as a result whereof proceedings have been quashed.
4. C.P. 3133-L of 200.Rana Tanvir Ali alias Babbu son of Shabbir Ali Khan.Accused was challaned under sections 156(1)(8)(14)(7), 157 and 178 of Customs Act. Simultaneously challan under section 9(c) of Control of Narcotic Substances Act, 1997 but the latter challan was not allowed to proceed because the proceedings have been quashed vide impugned judgment dated 16-10-2000.
5. The above details indicate that except in two cases arising out of C.Ps. Nos.3125-L of 2000 and 3131-L of 2000 the accused facing trial have been convicted and sentenced whereas in the remaining cases their trial yet has not been concluded even under the Customs Act. Therefore, in this backdrop crucial question crop up whether trial of the respondents under section 9 of Control of Narcotic Substances Act, 1997 is prohibited in view of the bar contained under section 403(1), Cr.P.C., which speak that if a person who has once been tried by a Court of competent jurisdiction of 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. Admittedly to attract the provisions of section 156 of the Customs Act the Federal Government by means of a Notification declares that bringing in or taking out from Pakistan narcotic or drugs is prohibited. Whereas section 9 of the Control of Narcotic Substances Act, 1997 provides punishment for contravention of sections 6, 7 and 8 of the Act. In view of both these provisions it is to be seen that if an accused has violated both the provisions of law simultaneously, would he enjoy protection of section 403, Cr.P.C. On the principle that he has committed the same offence. In this behalf in number of reported judgments it has been held that violation of both these provisions of law are different and distinct from each other, therefore, separate trial of accused under both the provisions is not prohibited. Reference in this behalf may be made to the Jamshed Ali v. The State (1988 PCr.LJ 881), State v. Anwar Khattak and others (PLD 1990 FSC 62), Muhammad Ashraf and others v. The State (1995 SCM R 626) and Sakhi Dost Jan v. State (PLD 2000 Quetta 26) and the judgment relied upon by the learned counsel in the case of the State through Collector of Customs, Custom House, Lahore v. Nasim Ahmad Butt and others (2001 SCM R 1083). Relevant para from the last mentioned judgment is reproduced hereinbelow:-- "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."
6. In view of above discussion we are of the opinion that the learned Judges in Chambers of High Court contrary to the above view of this Court has quashed the proceedings. Therefore, leave to appeal is granted.
7. To ensure attendance of the respondents/accused their bailable warrants in the sum of Rs,50,000 each are directed to be issued by the office through the concerned Superintendent of Police returnable to the Registrar of this Court.