OMARI KHOJA vs THE STATE and 2 others
This matter involves a series of criminal petitions challenging the legality of successive trials for the same offense. The core legal question presented was whether an individual, having been tried, acquitted, or convicted by a Special Judge (Customs) for smuggling or possession of narcotics, could subsequently be prosecuted for the same conduct under the Control of Narcotics Substances Ordinance, 1996. The Court held that such a second trial is legally barred. Relying on constitutional protections against double jeopardy and statutory safeguards, the Court determined that the offense of smuggling and carrying narcotics constitutes a single, indivisible act. Consequently, the Court allowed the petitions and quashed the pending proceedings against the petitioners in the Court of Special Judge, Narcotics, Lahore. The key principle laid down is that the constitutional guarantee against double jeopardy, as enshrined in Article 13 of the Constitution, read with Section 26 of the General Clauses Act and Section 403 of the Code of Criminal Procedure, prohibits the prosecution of an accused for the same offense twice, regardless of the specific forum or statute under which the subsequent trial is initiated.
- Can a person be tried for the same offense of smuggling or possession of narcotics under the Control of Narcotics Substances Ordinance, 1996, after having been previously tried by a Special Judge (Customs) for the same conduct?
- Does the constitutional protection against double jeopardy bar a second trial for the same offense under different statutes?
- Is a second trial for the same offense of smuggling and carrying narcotics prohibited under the Code of Criminal Procedure 1898 and the General Clauses Act 1897?
- Article 13, Constitution of Islamic Republic of Pakistan 1973
- Section 26, General Clauses Act 1897
- Section 403, Code of Criminal Procedure 1898
- Control of Narcotics Substances Ordinance 1996
MALIK MUHAMMAD QAYYUM, J.--- This judgment shall dispose of Criminal Miscellaneous Nos.3/Q of 2000, 249/Q of 1999, 4/Q of 2000, 7/Q of 2000, 8/Q of 2000, 9/Q of 2000, 11/Q of 2000, 12/Q of 2000, 13/Q of 2000, 21/Q of 2000, 22/Q of 2000, 23/Q of 2000, 29/Q of 2000, 32/Q of 2000 and 33/Q of 2000 in which common question of law arises for determination.
2. The point in issue in all these cases is as to whether a person who has been tried by the Special Judge, Customs and either acquitted or convicted for smuggling or being in possession of narcotics can be tried for the second time by the Special Judge under Control of Narcotics Substances Ordinance, 1996.
3. This question came up for consideration before us in Criminal Miscellaneous No,135/Q of 1999 wherein after exhaustive review of the case-law on the subject it was held that in view of Article 13 of the Constitution of Islamic Republic of Pakistan, 1973 as also section 26 of the General Clauses Act and section 403 of Code of Criminal Procedure the second trial was barred. It was also observed that in such cases the offence is one and the same which is smuggling and carrying of narcotics. In that case we had inter alia relied upon the judgment of Sindh High Court in Mark Mifsud Mrs. Rosemarie Morley v. Investigating Officer Customs Karachi and 2 others PLD 1999 Kar.
336, State v. Anwar Khattak and others PLD 1990 FSC 62 and Jonathan Newhouse v. The State and another 1994 PCr.LJ 1433 as also two judgments of the Indian Supreme Court reported as State of Bombay v. S.L. Apte (1968) 3 SCR 107 and Om Parkash Gupta v. State of U.P. AIR 1957 SC 458.
4. Mr. A. Karim Malik, learned counsel appearing on behalf of the respondents, however, stated that in some other cases a Division Bench of this Court has referred the matter to the Honourable Chief Justice for forming larger Bench. However, neither number of that case was given by the learned counsel nor was any order of the Division Bench produced before us. Be that as it may, we are bound by our own judgment and have to follow the same. It may also be pointed out that the learned counsel for the petitioners has submitted that against our judgment in Criminal Miscellaneous No,135/Q of 1999 the respondents have also gone to the Supreme Court. In this view of the matter the consideration of the same question by a larger Bench would be an exercise in futility.
In view of what has been stated above, we allow all these petitions and quash the cases pending against the petitioners in the Court of Special C Judge, Narcotics, Lahore/Sessions Judge, Lahore.
Cited by 1 case
- AMANUL MULK And Another vs THE STATE 2003 YLR 1507(2)