AMEER GUL Versus STATE
This application filed under section 561‑A, Cr.P.C. raises an interesting question with regard to the interpretation of section 26 of the General Clauses Act, 1897, corresponding to section 25 of the West Pakistan General Clauses Act 1956, when read alongwith section 403 of the Code of Criminal Procedure, 1898 and Article 13 of the Constitution of Islamic Republic of Pakistan, 1973.
2. On 18‑12‑1990 Hashim Khan, S.H.O. Mithadar P.S. received a secret information to the effect that one person was selling intoxicant at City Railway Colony, Karachi. Acting on this information the S.H.O. apprehended the present applicant and recovered powder of heroin weighing 25 grams, contraband charas, weighing 50 grams and contraband opium, weighing 15 grams from his possession. Such inventory was prepared in presence of mashirs Sharif and Atta Rasool H.C. On return to police station the S.H.O. lodged two reports against the applicant, one in respect of powder of herein under Article 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979 (Crime No.458 of 1990), and the other in respect of contraband charas and opium under Article 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979 (Crime No.459 of 1990). After usual investigation the applicant was challaned in both the cases. The case pertaining to Crime No.458 of 1990, Mithadar P.S. under Article 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979 is pending in the Court of Ist Additional Sessions Judge, (South) Karachi, and the other in respect of Crime No.459 of 1990, Mithadar P.S. under Article 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979, is pending in the Court of A.C.M. No.XIII (South) Karachi. The applicant made an application under section 265‑IC, Cr.P.C. before the learned Additional Sessions Judge, (South) Karachi, seeking his acquittal, but without success. It is in these circumstances that the applicant has invoked the inherent jurisdiction of this Court with a prayer that both the cases arising out of Crime No.458 of 1990 and Crime No.459 of 1990 pending against him before the aforesaid Courts may be quashed.
3. I have heard Mr. Abdul Rasheed Kalwar, learned counsel for applicant and Mr. Jalaluddin Baluch, learned counsel for State. I had also the benefit of careful arguments from Mr. A.Q. Halepota Advocate, who has assisted this Court as amicus curiae.
4. In order to resolve the question raised on behalf of the applicant il would be desirable if the entire field as emerging from the relevant laws, viz. the Opium Act, 1878, The Sindh Abkari Act, 1878, The Dangerous Drugs Act. 1930 and the Prohibition (Enforcement of Hadd) Order, 1979, is taken into consideration. Section 3 of the Opium Act, 1878, defines opium in the following words:‑‑‑
"Opium" means‑‑‑
(i) the capsules of the poppy (Papaver Somniferum L.); (Whether in their original form or cut, crushed, or powdered and whether or not juice has been extracted therefrom).
(ii) the spontaneously coagulated juice of such capsules which has not been submitted to any manipulations other than those necessary for packing and transport; and
(iii) any mixture, with or without neutral materials, or any of the above forms of opium, but does not include any preparation containing not more than 0.2 per cent of morphine, or a manufactured drug as defined in section 2 of the Dangerous Drugs Act, 1930 (II of 1930);)."
5. Section 9 of the Opium Act, 1878, prescribes penalties for the contravention of the Act and the rules made thereunder in the following terms:‑‑‑
"9. Penalty for illegal cultivation of poppy, et .‑‑‑Any person who, in contravention of this Act, or of rules made and notified under section 5 or section 8; ‑‑
(a) possesses opium, or
(b) transports opium, or
(c) imports or exports opium, or
(d) sells opium, or
(e) omits to warehouse opium, or removes or does any act in respect of warehoused opium, and any person who otherwise contravens any such rule,
(shall, on conviction before a Magistrate, be punished for. each such offence with imprisonment for a term which may extend to three years with or without fine). and, where a fine is imposed, the convicting Magistrate shall direct the offender to be imprisoned in default of payment of the fine for a term which may extend to six months, and such imprisonment shall be in excess of any other imprisonment to which he may have been sentenced."
6. The definitions of "toddy", "liquor", "country liquor", foreign liquor, "intoxicating drug", "hemp" and "intoxicant" are provided in section 3 of the Sindh Abkari Act, 1878. Section 43 of the Sindh Abkari Act, 1878, prescribes the penalties to the following effect:‑‑
"43. For illegal import etc .‑‑‑(1) Whoever in contravention of this Act or of any rule or order made under this Act or of any licence, permit or pass obtained under this Act.
(a) exports or transports any intoxicant or hemp, or
(b) cultivates or collects hemp, or
(c) taps any toddy‑producing tree, or
(d) draws toddy from any tree, or
(e) bottles any foreign liquor, or
(f) imports, possesses or sells any intoxicant or hemp which is not contraband shall, on conviction, be punished with imprisonment for a term which may extend to three years or with fine which may extend to five thousand rupees or with both)."
(2) Whoever in contravention of this Act or of any rule or order made under this Act or of any licence, permit or pass obtained under this Act‑‑‑
(a) manufactures any intoxicant, or
(b) constructs or works any distillery or brewery; or
(c) uses, keeps or has in his possession any materials: still, utensil, implement or apparatus whatsoever for the purpose of manufacturing any intoxicant other than toddy, shall, on conviction, be punished with rigorous imprisonment for a term which may extend to five years and fine which may extend to seven thousand rupees.
(3) Whoever imports, possesses or sells any contraband intoxicant or hemp knowing the same to be contraband shall, on conviction, be punished with rigorous imprisonment for a term not exceeding five years and .fine which may extend to seven thousand rupees.
Explanation :‑‑‑"Contraband intoxicant or hemp" means‑‑
(a) when used with reference to import of such articles, any intoxicant or hemp manufactured in contravention of this Act or the rules made thereunder or on which the prescribed duty has not been paid;
(b) when used with reference to possession or sale of such article; any intoxicant or hemp which i4 imported, transported or manufactured in contravention of this Act or the rules made thereunder or on which the prescribed duty has not been paid."
7. Section 2 of the "Dangerous Drugs Act," 1930, defines "coca leaf "coca derivative", "hemp", "opium', and "opium derivative".
8. On 10‑2‑1979 the President of Pakistan promulgated the following Ordinances/Order, thereby amending the existing laws relating to certain offences affecting movable property of the people and moral and social order of the society, so as to bring it in conformity with Holy Quran and Sunnah:‑‑‑
(i) The Offences Against Property (Enforcement of Hudood) Ordinance, 1979.
(ii) The Offence of Zina (Enforcement of Hudood) Ordinance, 1979.
(iii) The Offence of Qazf (Enforcement of Hudood) Ordinance, 1979.
(iv) The Prohibition (Enforcement of Hadd) Order, 1979.
The common feature of these laws is that all offences falling under them are tried by Magistrate/Sessions Judge according to the procedure as laid down in the Code of Criminal Procedure, 1898, as amended.
9. It may be noted that unlike the first three laws which were enforced through Ordinances, the Prohibition (Enforcement of Hadd) Order; 1979, was promulgated through a Presidential Order as the subject which it covered was apparently a Provincial matter. The "Ford "intoxicant" as defined by Article 2(g) of the Prohibition (Enforcement of 13add) Order, 1979, is as follows:‑‑‑
" "Intoxicant" means an article specified in the schedule and includes intoxicating liquor and other article or any substance which the Provincial Government may, by notification in the official Gazette declare to be an intoxicant for the purposes of this Order."
10. Article 33 of the Prohibitio0 (Enforcement of Hadd) Order, 1979, did not repeal the Opium Act, 1878, and the Sindh Abkari Act, 1878, but due to overlapping nature of the offences the Opium Act, 1878, and the Sindh Abkari' Act, 1878, remained a dormant piece of legislation. It may be added that under Article 29 of the Prohibition (Enforcement of Hadd) Order, 1979, this Order shall have effect notwithstanding anything contained in any other law for the time being in force.
11. Section 26 of the General Clauses Act, 1897 (corresponding to section 25 of the West Pakistan General Clauses Act, 1956), however, provides in clear terms that where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of these enactments, but shall not be liable to be punished twice for same offence. This section applies only when an act or omission constitutes an offence punishable by two or more different enactments. There is wealth of case‑law commencing from the year 1931 down to the year 1969 an support of section 26 of the General Clauses Act, 1897. The first of these cases is the case of Emperor v. Bhogilal Chimanlal Nanavati, reported in AIR 1931 Bombay 409. In this case the accused had been found in possession of contraband salt while on their way to "Gujrat Prantik Samiti", an association declared unlawful and were thereon convicted under the Bombay Salt Act, 1890, as well as under the Criminal Law Amendment Act, 1908. This question was examined by a Division Bench in relation to section 26 of the General Clauses Act, 1897, and it was held that according to section 26 of the General Clauses Act, 1897, the conviction should have been under either of the Acts and not under both. This view was followed in cases of Emperor v. Joti Prasad Gupta, reported in AIR 1932 Allahabad 18, Bhagwagir Mukundgir and another v. State reported in AIR 1950 Madhya Bharat 58, Badri Prasad v. State reported in AIR 1953 Calcutta 28, K. Jayarama Iyer v. The State of Hyderabad, reported in AIR 1954 Hyderabad 56, Rasool v. State of Mysore, reported in 1959 Mysore 136, The State v. N.H. Puri and others reported in PLD 1959 Kar. 392, Niaz Ali v. The State reported in PLD 1961 Lahore 269, Gulabsingh v. Rtate reported in AIR 1962 Bombay 263, and Muhammad Sadiq Javed v. The State reported in PLD 1969 Peshawar 12.
12. However, the above principle will not be applicable where the offences are distinct. The cases of Reoti v. Emperor, reported in AIR 1933 Allahabad 461, Muniswamappa and another v. Government of Mysore, reported in AIR 1951 Mysore 25, Om Prakash v. The State reported in AIR 1955 Allahabad 275. State of Madhya Pradesh v. Veereshwar Rao Agnihotri, reported in AIR 1957 SC 592, State of Madhya Pradesh v. Ranjit Kumar Chatarjee and others reported in AIR 1959 Madhya Pradesh 284 and The State v. Anwar Khattak and others reported in PLD 1990 FSC 62 support this view. In the first cited authority it was observed that where a person is found in possession of a stolen' revolver, there was no legal bar for two trials, one under the Arms Act, and the other under section 411, P.P.C. and the accused could be punished on both the charges. In the last cited authority the Federal Shariat Court made a distinction between an offence under section 156(1)(8) of the Customs Act, 1969, when committed in relation to narcotics and it was observed that both are distinct offences triable by different forums and the prosecution in one case does not bar the prosecution of accused in other case.
13. The case of Muhammad Noor alias Norak v. Member, Board of Revenue, Balochistan and others reported in PLD 1985 SC 335, is the nearest parallel to the present case, wherein it was observed:‑‑‑ .
"It appears that the prosecution was not sanguine that it could, in view of the above strict provisions for proof of theft, prove a case of Haraabah under the Hudood Ordinance and has, therefore, rot taken any step for proceeding with the challan submitted under section 17 of Ordinance VI of 1979 before the Additional Sessions Judge. In the meanwhile, the petitioner has been tried under section 302, P.P.C. under the provisions of the Criminal Law (Special Provisions) Ordinance 11 of 1968; convicted and sentenced. This conviction and sentence is not perse void and coram non judice. It is only where some order is passed under the provisions of Ordinance VI of 1979 then notwithstanding anything contained in any other law for the time being in force, the said order would prevail and supersede the order passed under the other law. In this case there are no two inconsistent orders passed under different laws. Hence section 3 of the Ordinance VI of 1979 is not attracted and the occasion of considering its effect on an order passed under any other law does not arise. The apprehension that in case the conviction of the petitioner under the Penal Code is not quashed he is liable to be punished twice for the same act, is, in our opinion, somewhat premature. In any case, in Syed Alamdar Hussain Shah v. Abdul Baseer Qureshi and others PLD 1978 SC 121, where the question of protection against double punishment as provided under Article 13 of the 1973 Constitution was being considered, some observations were made which are also relevant in the present context. It was, inter alia, observed:‑‑‑
"Under the provision of section 403, Cr.P.C. a person who has once been tried by a competent Court for an offence and convicted or acquitted of such offence, shall while such conviction or acquittal remains in force, not be liable to be tried again for the same offence nor on the same facts for any other offence for which a different charge from the one made against him might have been made under section 236 or for which he might have been convicted under section 237, P.P.C."
The same principle is laid down in section 26 of the General Clauses Act which provides that if an act or omission constitutes offence/offences under two or more enactments, then the offender though can be prosecuted under either or any of those enactments, but cannot be punished twice for the same offence.
We think that if the offence of murder committed by the petitioner was punishable both under the provisions of Ordinance VI of 1979 and also under section 302, P.P.C. the prosecution should have proceeded against him under the provisions of Ordinance VI of 1979, but having elected to try him under section 302, P.P.C. it cannot now fall back on the provisions of the Hudood Ordinance for seeking conviction of offence of murder on the same facts, under the said Ordinance."
14. However, the question raised on behalf of applicant is not free from difficulty. The applicant was prosecuted under Article 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979, for possessing the powder of heroin, which case is pending in the Court of Ist Additional Sessions Judge (South), Karachi. He could have been prosecuted for the offence under section 9 of the Opium Act, 1878, and section 43 of the Sindh Abkari Act, 1878, for being found in possession of contraband charas and opium, although could not have been punished. This was, however, not done and instead he was prosecuted under Article 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979, before a Magistrate. This could not have been done as the definition of. "intoxicant" included charas and opium and since the alleged recoveries of powder of heroin, charas and opium were made in the same transaction at one and the same time the applicant should have been prosecuted before the Court of Session in only one case. The prosecution of the applicant before A.C.M. Court No.13, (South) Karachi, is, therefore, violative of Article 13 of the Constitution of Islamic Republic of Pakistan, 1973 and the case pending before him (Crime No.459 of 1990) is liable to be quashed and the proceedings are accordingly quashed. The case against the applicant before Ist Additional Sessions Judge, (South) Karachi will, however, proceed and if need be charge maybe amended.
15. In the result the application filed under section 561‑A, Cr.P.C. is allowed partly.
N.H.Q./A‑1166/K Proceedings partly quashed.