2003 PLP 1507(2) (YLR)

EJAZ AFZAL KHAN, J.‑‑‑The petitioners who were proceeded against on the indictment of smuggling huge quantity of heroin in a case registered against them under sections 156(1)(89)‑2(s) of the Customs Act, 1969, vide F.I.R. No.56 dated 10‑8‑1997, Police Station I & P, Peshawar, by the learned Special Judge, Court, Customs, Taxation and Anti‑Smuggling, N.-W.F.P., Peshawar, were convicted and sentenced to 5 years' R.I. with a fine of Rs.3,00,000 each, in default of payment of fine to undergo 1‑1/2 years' S.I., vide judgment dated 2‑6‑1998.

2. When despite serving out the aforesaid sentence, they were not released and instead were summoned by the learned Judge Special Court for trial under section 9, CNSA (hereinafter called the Act) for the same offence, the petitioners Moved an application under section 265‑K, Cr.P.C. for their acquittal mainly on the ground that they could not have been tried for the same offence twice, which was, however, dismissed by the learned Judge Special Court vide his order dated 16‑9‑2002, hence this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1999 read with section 561‑A, Cr.P.C.

3. The learned counsel appearing on behalf of the petitioners contended that the petitioners once prosecuted and punished for smuggling of incriminating material under the Customs Act by the learned Judge Special Court Customs, could not have been proceeded against for the same offence as his second trial is hit by section 403, Cr.P.C., section 26 of the General Clauses Act and Article 13(a) of the Constitution of Islamic Republic of Pakistan, 1973. The learned counsel to support his contentions placed reliance on the cases of Sabir Aziz v. Sessions Judge, Lahore (2000 PCr.LJ 204); Umri Khoja v. The State and 2 others (2000 PCr.LJ 1002); State v. Hadi Bakhsh (1981 SCMR 1008) and that of Sherin Bacha v. Namoos Iqbal and 3 others (PLD 1993 SC 247).

4. On other hand, Miss Mussarat Hilali, Additional Advocate‑General and Mr. Salahuddin, Deputy Attorney‑General, appearing on behalf of the State contended that the offence committed under the Customs Act, 1969 and the one committed under the Act are two different and distinct offences as such the learned Judge Special Court has rightly dismissed the application of the petitioners under section 265‑K, Cr.P.C.

5. We have gone through the record and carefully considered the submissions of the learned counsel for the parties.

6. The argument that the petitioners once prosecuted before and punished by the learned Judge Special Court Customs for importing into and transporting narcotics within Pakistan could not have been prosecuted again for the same offence under the Act, is absolutely misconceived, because in order to attract the application of section 403, Cr.P.C. and Article 13(a) of the Constitution which are grounded on the common law maxim, 'nemo debet bis vexari' envisaging that a man shall not be brought into danger for one and the same offence more than once, it is essential that offender must have been prosecuted in accordance with law by a Court of competent jurisdiction. Similarly the principle contained in section 26 of the General Clauses Act comes into play when an act or omission constitutes an offence under two or more enactments. But since an offence of importing into, exporting from or transporting narcotics within Pakistan notwithstanding the provisions of the Customs Act or any other law for the time being in force is an offence only under the Act in view of its provisions contained in sections 7, 8 and 9, it is exclusively triable by a Court established thereunder in view of the provisions contained in sections 45, 46 and 72 of the said Act which are reproduced for the facility of reference and thus run as under:‑‑

7. Prohibition of import or export of narcotic drug, etc.‑‑‑(1) No one shall‑‑ (a) import into Pakistan; (b) export from Pakistan; (c) transport within Pakistan; or (d) tranship, any narcotic drug, psychotropic substance or controlled substance, save in accordance with rules made under subsection (2) and in accordance with the conditions of any licence, permit or authorization for that purpose which may be required to be abetment under those rules. (2) The Federal Government may make rules permitting and regulating the import into and export from Pakistan, transport within Pakistan and transshipment of narcotic drugs, psychotropic substance or controlled substances, and such rules may prescribe the ports or places at which any kind of narcotic drug, psychotropic substance or controlled substance may be imported, exported, transported within Pakistan or transhipped, the form and conditions of licence, permit or authorities by which such licences, permits or authorization may be granted, the fees that may be charged therefore, any other matter required to have effective control of the Federal Government, over such import, export, transportation and transhipment. Prohibition on trafficking or financing the trafficking of narcotic drugs, etc.‑‑‑No one shall‑‑ (a) organize, manage, traffic in, or finance the import, transport, manufacturing or trafficking of, narcotic drugs, psychotropic substances or controlled substances; (b) use violence or arms for committing or attempt to commit an offence punishable under this Act.

9. Punishment for contravention of sections 6, 7 and 8.‑‑‑Whoever contravenes the provisions of sections 6, 7 or 8 shall be punishable with‑‑ (a) imprisonment which may extend to two years or with fine or with both, if the quantity of the narcotic drug, psyclhotropic substance or controlled substance is one hundred grams or less; (b) imprisonment which may extend to seven years and shall also be liable to fine, if the quantity of the narcotic drug, psychotropic substances or controlled substance exceeds one hundred grams but does not exceed one kilogram; (c) death or imprisonment of life or imprisonment for a term which may extend to fourteen years and shall also be liable to fine which may be up to one million rupees. If the quantity of narcotic drug, psychotropic substance or controlled substance exceeds the limits specified in clause (b): Provided that if the quantity exceeds ten kilograms the punishment shall not be less than imprisonment for life.

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.

46. Establishment of Special Courts.‑‑ The Federal Government and if so directed by the Federal Government, the Provincial Government shall, by notification in the official Gazette, establish as many Special Courts as it considers necessary and appoint a Judge for each of such Courts and where it establishes more than one Special Courts, it shall specify in the notification the place of sitting of each Special Court and the territorial limits within which it shall exercise jurisdiction under this Act. (2) There shall be two classes of Special Courts to try offences under this Act namely:‑‑ (i) Special Courts having the power to try all offences; and (ii) Special Courts having the power to try offences punishable with imprisonment for two years or less. (3) No person shall be appointed a Judge of a Special Court referred to‑‑ (i) in subsection (2)(i) unless he is or has been a Sessions Judge or an Additional Sessions Judge; and (ii) in subsection (2)(ii) unless he is a Judicial Magistrate of the First Class. (4) A person shall be appointed as Judge of a Special Court after consultation with the Chief Justice of the High Court of the Province in which the Special Court is established. (5) The Federal Government or the Provincial Government may, in consultation with the Chief Justice of the High Court, confer the powers of Special Court referred to‑‑ (i) in subsection (2)(i), on any Sessions Judge or Additional Sessions Judge; and (ii) in subsection (2)(ii) on any Judicial Magistrate of the First Class.

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 Officer of Customs apprehend a person involved in any offence relating to narcotic drugs, psychotropic substances or controlled substance shall be empowered to carry out inquiry and investigation in the same manner as an officer authorized under this Act.

7. From the above quoted provisions it is quite clear that the learned Judge Special Court Customs was not competent to proceed against and punish the petitioners as even the offence of importing into, exporting from, transportation within Pakistan or transhipment of any narcotic drugs, psychotropic substances or controlled substances has been made punishable under the Act, and as such is exclusively triable under section 45 by a Court established under section 46 of the Act, moreso when the proviso to section 72 of the Act clearly provides that all the offences relating to narcotics drugs etc. notwithstanding the provisions of the Customs Act,‑shall be tried under the provisions of the Act. The cases of Sabir Aziz v. Sessions Judge, Lahore and Umri Khoja v. The State (supra) relied upon by the learned counsel for the petitioners will be of no help to him because of their being per incurium for having been rendered in disregard of the express provisions of the Act as quoted above, therefore, have neither binding nor even persuasive value. Needless to say that where meaning and terms of a Statute are clear even a long and uniform course of interpretation may be overruled if that is not in line with the Statute itself. The cases of State v. Hadi Bakhsh and Sherin Bacha v. Namoos Iqbal and 3 others (supra) will also do little to advance the case of the petitioners convassed at the bar as in those cases the earlier verdicts were given by the Courts of competent jurisdiction which is not the case here as in view of the provisions referred to above the Special Court Customs was not at all competent to try the instant case. To bar second trial on the basis of the p principle of double jeopardy as contained to section 403, Cr.P.C. or Article 13(a) of the Constitution, the Court trying the accused for the first time must be a Court of competent jurisdiction. In the case of State v. Naseem Amin Butt (2001 SCMR 1083) it was held that the accumulative effect of reading the provisions contained in sections 6, 7, 8, 9, 72, 73 and 74 of the Act, and the Customs Act is that an offence connected with the narcotics could be tried only under the provisions of this Act in a Court established thereunder to the exclusion of the Court established under any other law.

8. We, therefore, have no hesitation to hold that the trial of the petitioners under section 9 of the Act, by a Court having exclusive jurisdiction under section 45 and established under section 46 of the Act, is not hit by the principle of double jeopardy. However, his conviction and sentence awarded by the learned Judge Special Court Customs being coram non judice cannot be allowed to be maintained. We, therefore by exercising our power under section 561‑A, Cr.P.C. quash the sentence and, conviction awarded by the learned Judge Special Court. Since the petitioners have undergone a sentence of more than 5 years, we also for the ends of justice hold that the learned Judge Special Court, (sic) his view ' a case for conviction is made out and consider the sentence so served out by the petitioner. This petition is thus disposed of in the above terms and these are the detailed reasons for our short order dated 27‑2‑2003. N.H.Q./734/P Order accordingly.