P L D 2000 Karachi 181 (PLP)

GHULAM RABBANI, J.

This Constitutional petition has been filed on behalf of the aforesaid three petitioners who are facing trial in the Court of Special Judge Customs and Taxation,' Karachi as well as in the Court of Special Judge, Malir constituted under the Control of Norcotic Substances Act for having been found in possession and for smuggling of 10 K.G. of heroin powder.

2. This Constitutional petition has already been admitted vide orders dated 14-12-1999. .

3. The brief facts leading to filing of this Constitutional petition-are that the aforesaid petitioners after having been challaned under sections 2(s), 16, 178 and 156(1)(8)(82)(89) of Customs Act before Special Judge (Customs arid Taxation), Karachi, were also challenged in the Court of Special Judge, Malir for an offence punishable under .section 9(c) of the Control of Narcotic Substances Act, 1997 in the same crime No.B-855 of 1999. The petitioners moved an application under section 265-K, Cr.P.C. before the last-mentioned trial Court, which has been dismissed under the impugned order dated 6-f2-1999. Consequently, this Constitutional petition has been filed. 1t is, inter alia, prayed that the proceedings in Case No. 114 of 1999 under section 9-C, Control of Narcotics Act. pending in the Court of 1st Additional Sessions Judge, Malir, Karachi be quashed.

4. It is the case of petitioners that according to_ the provisions of Article 13 of the Constitution of Islamic .Republic of Pakistan, section 403 of Code of Criminal Procedure and section 26 of the General Clauses. Act, the petitioner could not be tried twice for the same offence once they had been tried in a Court of competent jurisdiction. Mr. Ilamdin Khattak, Advocate appearing on behalf of the petitioners referred us to the case of Mark. Mifsud Mrs. Rosemarie Morley and 2 others reported in PLD 1999 Kar. 336 in support of his above contention that after being challaned in the Court of Special Judge, Customs and Taxation, Karachi the petitioners could not have been legally charged for the same offence in the Court of Special Judge, Malir, constituted under the Control of Narcotic Substances Act. Mr. Ilamdin Khattak, has also placed reliance on the aforesaid case for his submission that in view of the provisions of Article 13 of the Constitution of Pakistan, section 403 of Cr.P.C. and section 26 of the General Clause's Act, the case which was subsequently challaned on the basis of one and the same offence was liable to be declared as illegal and ultra vires. Learned Dy.' A.-G. has, however, submitted that he does not oppose the impugned order.

5. We have considered the arguments advanced by learned counsel for the petitioners, learned Dy. A.-G. and perused the material on record as well as the case-law relied upon by him.

6. The pertinent question which requires determination is that before an aggrieved person can claim the benefit of the pronouncement made in the case of Mark Mifsud .Mrs. Rosemarie Morley and another v. Investigating Officer, Customs, Karachi and 2 others it is necessary that the aggrieved person must have been convicted or acquitted by the Court of competent jurisdiction in respect of a particular offence or without his conviction or acquittal he 'can seek the benefit of the pronouncement made in the aforementioned case and cannot be tried for the same offence by another Court on the same set of allegations and evidence constituting an offence under some other provisions of law.

7. In the present case, the petitioners alongwith other 4 accused were reported against before Special Judge Customs. and Taxation, Karachi vide interim challan dated 9-7-1999 by the Investigating Officer, Anwer Javed of Directorate-General of Intelligence and Investigation (Customs and Excise), Karachi and subsequently, charge-sheet dated 11-9-1999 was submitted by the same Investigating Officer before the same Court. It is, however, significant to note that the same Investigating Officer, in the meantime, submitted before the Sessions Judge Malik, Karachi another charge-sheet (challan) dated 9-10-1999 in respect of the same crime against 7 accused persons including the petitioners on the basis of same material and subsequently made a statement dated 20-11-1999 before the Trial Court viz. 1st Additional Sessions Judge, Malir, Karachi, (to whom, the case is said to have been made over) that the Directorate-General of Intelligence and Investigation, Customs and Excise Investigation, Karachi was of the view to proceed with the case before the Special Judge, Customs and Taxation, Karachi in compliance of judgment of the Honourable High Court of Sindh, Karachi. On the other hand, the Special Judge, Customs and Taxation, Karachi, took up the matter inasmuch as that he granted bail to the petitioners as well as to co-accused Asif Hussain as is evident from his order dated 18-8-1999 in Case No.76 of 1999 under section 156(1)(8) of Customs Act, 1969. It, therefore, is apparent that the earlier case filed before Special Judge, Customs and Taxation, Karachi against the petitioners and other co- accused is pending adjudication and during the pendency of this case, second challan has been submitted for another trial of accused to be tried by the 1st Additional Sessions Judge, Malir, Karachi in Special Case No. 114 of 1999. In the case pending before the 1st Additional Sessions Judge the petitioners moved an application under section 265-K, Cr.P.C. seeking their acquittal basically relying on the judgment reported in PLD 1999 Karachi at page

336. The trial Court has dismissed the said application by the impugned orders observing that the authority referred to by learned counsel was not applicable to the facts and circumstances of the case as no person stood convicted or acquitted by any Court as such, the question of double jeopardy did not arise. We regret to say that We cannot persuade ourselves to subscribe to the views of the Trial Court for the following reasons.

8. It is universally an accepted principle of law that a person shall not be vexed twice for one and the same cause and so has been held in case of A Mark Misfud Mrs. Rosemarie Morley v. Investigating Officer, Customs (supra). It will be appropriate to reproduce the relevant portion from the said judgment as under:-- "The petitioners of this case were attempting to take out from Pakistan said heroin powder. In entirely their cases were covered by the Customs Act and for said offence they were tried and convicted. They were arrested at the departure hall of the airport, therefore, they could not be tried for the same offence under the provisions of Act of 1997 or under various other drug related laws for the simple reason that second case against them could not be registered on the strength of same investigations, facts, evidence and recovery in violation of the doctrine of double Jeopardy, which prohibits a duplicate trial and a duplicate punishment. The test for determining that whether it was the same offence or two distinct offences is to closely examine the purpose or design, the method of committing the offence, the consequences, the ingredients of the offence, act or acts committed in the process and the object likely to be achieved. Keeping in view above, as well as principles of law, enunciated in this regard, the offence in question was one offence and the same could not be converted into two distinct offences, though defined in different ways. The crucial point in both the cases was recovery of said heroin powder. It is not disputed by the learned Dy. A.-G. that the sole object of the petitioners was to smuggle said heroin powder out of Pakistan. Therefore, the alleged offence was squarely covered by the Customs Act. The person, who commits an offence under the provisions of the Act of 1997, cannot be prosecuted under the Customs Act. Likewise, the offence of smuggling committed at the Airport could not be tried under the Act of 1997." Note.--Underlining is ours.

9. In the instant case also the object, patently, appears to smuggle the heroin powder which was recovered from co-accused Muhammad Sadiq in Departure Hall of Quad-e-Azam International Airport, Karachi and all other co-accused seem to have assisted him in this noxious exercise. Evidently, the prosecution has also preferred to prosecute the accused before the Special Judge, Customs and Taxation, Karachi in the wake of judgment of this Court, vide their' statement dated 20-11-1999 referred to above. Manifestly, it is obvious that as a consequence of trial in the said "Court, the accused shall either be convicted or acquitted on the basis of facts, evidence and alleged recovery in the case. In these circumstances, another trial in presence of same facts and on same set of evidence by the 1st Additional Sessions Judge, Malir Karachi, would patently result in a duplicate punishment or at least a duplicate trial in violation of the doctrine of double jeopardy. We are therefore, of the view that an aggrieved persons can seek the benefit of the pronouncement made in the case of Mark Misfud Mrs. Rosemarie Morley and another v. Investigating Officer, Customs and 2 others reported in PLD 1999 Karachi 336, without first having been convicted or acquitted for the same offence by a Court of competent jurisdiction.

10. Under these circumstances, we allow this Constitutional petition and quash the proceedings in Special Case No. 114 of 1999 under section 6 9-C of Control of Narcotic Substances Act now pending trial before the 1st' Additional Sessions Judge, Malir Karachi. This order will, however, not affect the trial of petitioner and other co-accused by Special Judge, Customs and Taxation, Karachi in respect of the same crime. Q.M.H./M.A.K./R-4/K Order accordingly.