1994 P Cr (PLP)

AKHTAR ALI G. KAZI, J.

This petition has been filed on behalf of Jonathan Newhouse son of Edgar Newhouse, a U.S. National at present confined in Central Prison, Karachi, under Article 199 read with Article 13 of the Constitution of Islamic Republic of Pakistan read with section 403 of the Criminal Procedure Code.

2. The petitioner is a foreign U.S. National and was arrested on 15-2-1992 at Passenger Pier, Karachi. He was found in possession of 15 kilos of Charas. The F.I.R. of the case was flied by one Muhammad Riaz, Preventive Officer, Customs House, Karachi, for offence under section 2(s) of the Customs Act, 1969 punishable under clause (8) of section 155(1). After usual investigation the petitioner was challaned before the Special Judge, Customs Karachi, for offence under section 2(s) of the Customs Act, 1969 punishable under clause (8) of section 156(1) of the Customs Act. The case proceeded against the petitioner before the Court of Special Judge (Customs and Taxation), Karachi. The petitioner pleaded guilty voluntarily. The learned trial Judge accordingly convicted the petitioner on his plea of guilt as, according to the learned trial Judge, the plea of the guilt of the accused was without any inducement threat or promise. The petitioner was convicted under section 156(1)(8) of the Customs Act and was sentenced to suffer R.I. for 4 years and fine of Rs.2,00,000 and in default of payment thereof to suffer further R.I. for six months.

3. The petitioner preferred appeal in the High Court of Sindh which was, however, dismissed by judgment, dated 8-11-1992. The case papers of this case were also sent to Pakistan Narcotic Control Board (P.N.C.B.) for further legal action, as such, F.I.O. Arshad Islam Sheikh, P.N.C.B: II registered case against the petitioner for offence under section 3/4 of the P.O., 1979 and after usual investigation the petitioner was challaned in the Court of A.C.M., Karachi being Crime No.6 of 1992, dated 18-4-1992 by Bisharat Hussain Soomro, Group Leader, P.N.C.B. The accused (petitioner) is now facing trial in that Court.

4. The learned counsel appearing for the petitioner, Mr. Rustam, J.E. Kaikabad, has mainly contended that as the petitioner has been convicted by the Special Judge (Customs and Taxation), Karachi on the basis of the same facts for the same offence and therefore, the trial of the petitioner before the Additional City Magistrate, Karachi for offences under section 3/4 of the P.O. 4 of 1979 is against law and is barred under Article 13 of the Constitution of Pakistan he has further contended that the prosecution of the petitioner and trial of the petitioner is also barred under section 403 of Cr.P.C. as according to him the petitioner has already been prosecuted, tried and convicted for the same offence on the same facts. He has further contended that in view of the above facts, the proceedings against the petitioner are unlawful and without jurisdiction and not maintainable under the law.

5. We have heard the learned counsel for the petitioner at great length and also learned AA: G., Mr. K.M. Nadeem, on behalf of the State. We have also gone through the entire material which has been placed before us. The learned AA.-G., Mr. K.M. Nadeem, has drawn our attention to two reported cases i.e. 1988 P Cr. L J 881 and P L D 1990 FSC

62. In 1988 P Cr. L J 881 his Lordship Mr. Justice Saeeduzzaman Siddiqui, Judge of the High Court of Sindh (as then he was) has held that both the Legislation namely P.O. 4 (Enforcement of Hadd) of 1979 and the Customs Act, 1979 occupy different fields and their objectives and purposes are also different. It has been further observed by his Lordship in the same judgment that the object and the purpose of the Customs Act, 1969 is to prevent and punish all acts of smuggling as defined under section 2 of the Narcotics and Psyehotropic substance by a person, while P.O. 4 of the 1979 generally deals and provides for punishment of those persons, who in any manner deal with export, import, transportation, manufacturing, possession, selling; bottling serving of any kind of intoxicant. Besides, even the procedure of punishment and the forum of trial and prosecution of the accused are different under these laws. It has been further observed by his Lordship that mere possession of narcotics substance or its transportation, sale, serving or dealing in any manner with it was not punishable under the provisions of the Customs Act. It is only after a notification was issued by the Federal Government that bringing in or taking out of Pakistan of narcotic or psychotropic substance has been prohibited and such act or attempt or abetment thereof has become punishable under the Customs Act as compared to this the provisions of P.O. 4 (Enforcement of Hadd) of 1979 makes general provisions prohibiting any import, export transportation, manufacturing, processing, bottling, selling and dealing in any manner with any kind of intoxicant and makes all such acts punishable under the law.

6. It was contended by the petitioner in that matter that cognizance was taken by the Special Judge, Customs under section 156(1)(8) of the Customs Act, and charge was framed against the accused, as heroin was recovered from his brief case by the Customs Staff at Karachi International Airport, it was urged that after promulgation of Prohibition (Enforcement of Hadd) Order, 1979, the provision of the Customs Act relating to the trial of the accused for offence which is triable under P.O. No.IV of 1979 stood replaced/repealed to the extent it is covered by the latter enactment as the provisions of P.O. No.IV of 1979 has been given over riding effect over all other existing law. However, it was observed by his Lordship, that the purpose and objective of two Legislations are quite different, as such there was no conflict between the provisions of the Customs Act and that of P.O. 4 of 1979 (Enforcement of Hadd) and both legislations can operate consistently in their respective fields. The mere fact that under the provisions of P.O. 4 of 1979 an act of import and export of narcotic could also be punished is not sufficient to hold that there is conflict between the provisions of Customs Act and P.O. 4 (Enforcement of Hadd) of 1979. In the other case reported in P L D 1990 FSC 62, their Lordships have also adopted the same view after considering the abovementioned case in their judgment. It has been further observed by their Lordships in the above-reported case that the provisions of section 156(8) of the Customs Act, 1969 and Articles 3 and 4 of P.O. 4 of 1979 deal with different situation and create distinct offences. After discussing various provisions of the Pakistan Customs Act and P.O. 4 of 1979 their Lordships observed that the offence under the Customs Act, 1969 lies in bringing into or taking out of Pakistan in breach of any prohibition or restriction any article or substance as mentioned in sub-clause (i) and (ii) or in a manner which violates sub-clause (iii). The penalties and punishments for the offence are provided in section 156(8). The prohibition or restriction is laid down by a notification of the Government issued under section

16. Most of the goods mentioned in sub-clause (i)(s) of section 2 may be possessed, transported, manufactured, processed, bottled, sold or even imported and exported from one Province to another without committing any offence or incurring any penalty. It is only at the border of Pakistan that taking out or bringing in would be an offence and that too if there is a notification laying down a prohibition or restriction. So the goods by themselves are not contraband. The offence is violation of the Notification issued by the Executive Authority. However, as for the narcotics are concerned, the Articles 3 and 4 of P.O. 4 of 1979 make it an offence to do any of those acts at any place even within Pakistan. Thus prima facie be nature and extent of two offences are quite different. The Customs Authorities are only concerned with smuggling of goods as mentioned in clause (s) of section 2 and as notified only when they are brought in or taken out of Pakistan in violation of the prohibition or restriction as mentioned therein. So essential ingredient of the offence of smuggling under the Customs Act is that an act must be in violation of that prohibition or restriction for the time being in force. While in Articles 3 and 4 the offence about import, export, transport, manufacture, sale and possession, keeping in custody etc. is absolute. It has been further observed by their Lordships that both the ingredients and punishments under section 2 enactments are distinct and separate. It has been further held by their Lordships that even the offences under the Customs Act and Articles 3 and 4 of P.O. 4 of 1979 are thus two separate and distinct offences. Section 156(8) of the Customs Act deals with regard to which there is a prohibition or restriction of bringing into or taking out of Pakistan. The power to impose restriction or prohibition is given to the Federal Government in section 16 of the Customs Act. However, P.O. 4 of 1979 makes every process or any dealing with intoxicant an offence. Again it is one of the Hudood Law. The Customs Act on the other hand is an administrative law based on the residuary power of legislation entrusted to human beings, as such a manmade law cannot supersede a law based on Divine Hadd. It has also been observed in this judgment by their Lordships that the Customs Officers who apprehend the accused possessing, transporting, or attempting to transport etc. were bound under sections 176, 202 and more particularly 217 of P.P.C. to have informed the concerned law enforcing agency to take cognizance of the same. The omission on the part of the Customs Authorities to do so is, therefore, in itself an offence and in any case it is found that they did so knowingly and deliberately they may be punished under the above-noted provision of law and may also be found interfering with the course of punishment provided under the provisions of P.O. 4 of 1979. It was further observed that the omission on the part of the concerned Customs Authorities to inform the concerned law enforcing agency so that it would take cognizance of the offences under Articles 3 and 4 of P.O. 4 of 1979 and take the accused to face the trial is by itself an offence and may also call for disciplinary action at this stage.

7. Contentions raised by the petitioner in this petition are that the petitioner was convicted by the Special Judge, Customs for offence under section 156(1)(8) of the Customs Act and was sentenced to undergo R.I. for 4 years and fine of Rs.2,00,000 and in default of the fine further R.I. for 6 months. Therefore, the trial of the petitioner before the Additional City Magistrate for the same offence on the same facts under the provisions of sections 3 and 4 of Prohibition (Enforcement of Hadd) Order, 1979 is against provisions of law, as the petitioner has already been convicted, therefore, his trial is barred under Article 13 of the Constitution and under the provisions of I section 403, Cr.P.C. We have heard the learned counsel for the petitioner and the learned A.A.-G. on pre-admission notice. However, keeping in view the principles as laid down in 1988 P Cr. L J 881 and P L D 1990 FSC page 62 and placing reliance on these judgments, we are of the view that offences under the Customs Act and under Articles 3 and 4 of the Hudood Act are separate and distinct offences, as such provisions of Article 13 of the Constitution of Pakistan and provisions of section 403, Cr.P.C. are not applicable to the facts of the present case. In fact, copy of the F.I.R., which has been produced alongwith the petition as Annexure "G, 2-A" clearly mentions that Pakistan Narcotic Control Board Task Force received the case papers of the accused (petitioner) in F.I.R. No.D.R.182 of 1992 for offence under section 156(1)(8) of the Customs Act for further legal action under the directions of the Federal Shariat Court and as such the case was investigated and the petitioner has not been challaned in the Court of A.C.M., West Karachi being Crime No.6 of 1992 for offence under Article 3/4 (Prevention of Hadd),1979. In view of the above facts and the legal points involved in the matter, we are of the view that no case was made out of admission of this petition for regular hearing, as such this petition was dismissed on 11-10-1993 and these are the reasons for the same. N.H.Q./J-171/K????????? Petition dismissed.