ANWAR ZAHEER JAMALI, J.---This Criminal Transfer Application has been preferred by the applicant John Bernard Sender for seeking transfer of Special Case No,48 of 1999 from the Court of Sessions Judge (Special Judge), Malir to the Court of Special Judge Customs, Karachi. The aforesaid Special Case arises out of Crime No,2 of 1999, P.S. ANF-II, wherein applicant has been charged for offences under sections 6, 7, 8, 9 and 12 of Control of Narcotic Substances Act, 1997 (hereinafter referred to as the Act of 1997).
2. Briefly stated the relevant facts of the case are that the applicant, a foreign national, was a passenger intending to travel from Karachi to Johannesburg via Dubai on Emirates Airlines Flight No,E.K.603 on 4-2-1999. At the departure search counter of Quaid-e-Azam International Airport, Karachi, he was stopped due to suspicion and on his physical search made by A.S.-I. Latif Rehman he was found in possession of four plastic bags containing heroin powder weighing 1350 grams which was hidden under his trousers. Such F.I.R. Being Crime No,2 of 1999 was lodged at ANF II and after usual investigation of crime, accused has been challaned before the Sessions Judge (Special Judge), Malir.
3. For grant of prayer made in this Transfer Application, the applicant has placed reliance on a judgment in the case of Stephen Duglas Landane v. The Investigating Officer in C.P.No,D-1855 of 1999 passed by a Division Bench of this Court on 7-1-2000.
4. We have heard the applicant who has been produced today in Court by the Jail Authorities under the orders issued by this Court.
5. The only ground urged by the applicant for seeking transfer of his case from the Court of Sessions Judge (Special Judge), Malir to the Court of Special Judge Customs, Karachi, is that in identical circumstances in a case of similar nature, a Division Bench of this Court has already passed an order of this nature and following the rule of consistency, he is also entitled for the same relief of transfer of his case before the Special Judge Customs, Karachi.
6. We have carefully considered the contention of the applicant with reference to the judgment relied by him and perused the material available on record.
7. Before considering the question of grant or refusal of prayer made by the applicant in this Criminal Transfer Application and also examining the question of applicability of the judgment relied by the applicant, the moot point for consideration before us is as to whether in a case where the offence has been allegedly committed within the territorial limits of Quaid-e-Azam International Airport, Karachi and the accused has been charged for offences under the provisions of Act of 1997, which are exclusively punishable under the Act of 1997 the Special Court Customs under the Act IV of 1969 has any jurisdiction to proceed with such cases.
8. To examine this point properly some provisions of Act of 1997 are relevant. For the sake of convenience same are reproduced 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 transhipment 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 authorized 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: 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 time being in force, the custody of narcotic drugs, psychotropic substances, conrolled substances, any material utensils used for production or manufacture or such drugs or substances or any conveyance used in import, export, transport of transhipment 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." (Underlining is for emphasis).
9. A plain reading of above-referred provisions of law makes it abundantly clear that all such offences which are punishable under the Act of 1997, same are exclusively triable under the Act of 1997.
10. In addition to the above provisions of law sections 45 and 76 of the Act of 1997 are also relevant for the point under consideration, therefore same are also reproduced as under:-- "45. Jurisdiction to try offences.---The Special Court established under this Act shall have the exclusive jurisdiction to try an offence cognizable under this Act.
76. Act to override other laws.---The provisions of this Act shall have effect, notwithstanding anything contained in any other law for the time being in force. (Underlining is for emphasis).
11. From the reading of above-referred provisions of law the scheme and intention of law makers becomes even more clear as section 45 of the Act denotes that the Courts established under the said Act shall have exclusive jurisdictions in respect of all offences under this Act while section 76 signifies that the provisions of the Act of 1997 have overriding effect on all other laws in force on the subject.
12. Coming to the relevant facts of this case, it will be pertinent to note that in the instant case though the alleged offence has been committed by the applicant within the territorial limits of Quaid-e-Azam International Airport which falls within the territorial limits under the. Customs Act, 1969 but as the territorial limits of Act of 1997 extend to the whole of Pakistan, including the territorial limits of all Airports in Pakistan, cognizance in Crime No,2 of 1999 P.S. ANF II was rightly C taken under the provisions of Act of 1997 as by virtue of section 76 of the Act it has overriding effect on other laws for the time being in force. Thus, the case has also been rightly challaned before the Sessions Judge (Special Judge Narcotics), Malir having exclusive jurisdiction in the matter. In the background of above stated facts reverting to the question of relief sought by the applicant in the present Transfer Application, it may be advantageous to reproduce here section 49 of the Act of 1997 which deals with the powers of this Court for transfer of cases under the Act of 1997, same is reproduced as under:- "49. Transfer of cases.---(1) Where more Special Courts than one are established within the territorial jurisdiction of a High Court, the High Court may, by order in writing, transfer a case, at any stage, from one Special Court to another Special Court in accordance with section 526 of the Code as if the Sepcial Court were a Court of Session.
(2) On the establishment of Special Court under sections 45 and 46, all cases where the sentence of an offence is two years or less, shall stand transferred to the respective Special Court comprising a Judicial Magistrate of the First Class and all other cases to the respective Special Courts comprising of Sessions Judges or Additional Sessions Judges."
(3) Notwithstanding anything hereinbefore contained, a remand may be granted by the neatest Special Court comprising a Judicial Magistrate of the First Class."
13. A bare reading of this section would show that this Court is competent to exercise jurisdiction for transfer of cases from one Special Court to another Special Court under the Act of 1997 and not to a Court viz. Special Court Customs, which has no jurisdiction in such matters. As observed above, in the instant case cognizance of the offence was rightly taken under the Act of 1997 and case has also been rightly challaned before a Court having jurisdiction in the matter. For these reasons, we feel that the relief prayed by the applicant is not tenable.
14. Examining the applicability and relevancy of the judgment in the case of Stephen Duglas Landane v. The Investigating Officer (C.P.No,D-1855 of 1999) and also the case of Mrs. Rose Mari Morley v. Investigating Officer Customs (PLD 1999 Karachi 336) referred therein, it will be seen that in the former case relevant provisions of Act of 1997 (as reproduced above) were not brought to the notice of the Court and consequently same were not taken into consideration while in the case of Mrs.Rose Mari (supra) mainly the question of double jeopardy was examined with reference to section 403, Cr.P.0 and Article 13 of the Constitution, as the question of jurisdiction of the Special Court under the Act IV of 1969 and that of the Special Courts under the Act XXV of 1997 was not an issue adverted to by the Court. However, on assumption of facts that an offence is of such a nature that it is an offence punishable under the two different enactments viz. Act IV of 1969 as well as Act XXV of 1997 and with reference to the doctrine of double jeopardy when relevant provisions of the two statutes are examined. It will be seen that there are several judgments on the subject wherein such offences under similar circumstances have been considered as separate and distinct offences under the two enactments, which can be thus tried separately. Reference in this context may be made to the following cases:
(1) Jamshed Ali v. The State (1988 PCr.LJ 881).
(2) The State v. Anwar Khattak (PLD 1990 FSC 62).
(3) Muhammad Ashraf and others v. The State (1995 SCMR 626).
(4) Ismail A. Rehman v. Muhammad Sadiq and 3 others (PLD 1990 Karachi 286).
15. With reference to above-cited cases an elaborate discussion on this point also finds place in a recent case of Sakhi Dil Jan v. The State (PLD 2000 Quetta 26). However, as this point is not directly a point in issue before us in the present case, we deem proper to leave it open to be deliberated, examined and decided in some other proper proceedings when such questions may arise with reference to the doctrine of double jeopardy.
16. Considering the fact that in the case of Stephen Duglas Landane v. The Investigating Officer (C.P.No,D-1855 of 1999) an order for transfer of a case with identical facts and circumstances, from the Court of District and Sessions Judge (Special Court), Malir to the Special Court Customs, Karachi was made and after discussing the relevant provisions of law in the instant case, we are unable to persuade ourselves to concur with such view taken by another Division Bench of this Court. We, therefore, following the dictum laid down in the case of Multiline Associates v. Ardeshir Cowasjee and others (1995 SCMR 362), deem it proper that, in view of our above discussion and conclusion on the question of transfer of such cases vis-a-vis the question of lack of jurisdiction of Special Court Customs in such cases and our further view about the exclusive jurisdiction of Special Court under the Act 1997 to try all such offences, this matter may be placed before the Hon'ble Chief Justice for constitution of a larger Bench fo resolve these points.