2010 P Cr. L J 1082
[Quetta]
Before Ghulam Mustafa Mengal, J
FATEH MUHAMMAD ----Appellant
Versus
THE STATE ----Respondent
Criminal Customs Appeal No.6 of 2003, decided on 16th April, 2010.
Customs Act (IV of 1969) ---
----Ss. 156(89) & 185 -F---Penal Code (XLV of 1860), Ss.468 & 471 ---Criminal Procedure
Code (V of 1898), S.40 3---Constitution of Pakistan (1973), Art.13(a) ---Possessing smuggled
goods, forgery and using forged documents as genuine ---Double jeopardy ---Appreciation of
evidence ---Sentence, reduction in ---Appeal to Special Appellate Tribunal ---Appellant/accused
was c onvicted and sentenced and vehicle in question having also been confiscated, accused had
filed appeal ---Counsel for accused had contended that the challan of accused in the same F.I.R.
was the breach of Art.13(a) of the Constitution, as well as in contrave ntion of S.403, Cr.P.C. as
the trial of accused would amount to double jeopardy, which was not warranted by law ---
Accused was convicted and sentenced under S.156(89) of the Customs Act, 1969 and under
Ss.468 & 471, P.P.C. ---Said provisions of two different statutes/laws had revealed that the
offence of smuggling of goods was punishable under the Customs Act, 1969; whereas offences
of forgery and using forged documents as genuine was punishable under Ss.468 & 471, P.P.C. -
--Said offences were not the same, in circumstances ---Second trial would be only barred
when offence was the same and in case offences were different/distinct, then accused could be
tried by the two different courts under two different enactments on the basis of common set of
facts and trial would not be barred ---Contention of counsel for accused having no force was
repelled ---Accused was not tried for the same offence, but for the different and distinct offences
in different Courts; trial of accused, in circumstances was not barred under S.40 3, Cr.P.C. or
on the principle of double jeopardy ---Accused was arrested on 7 -4-2003 and since then he was
facing the hardship of trial ---Nothing was on record to indicate that accused was habitual
offender or was ever involved previously in the case of sm uggling ---Sentence of accused was
reduced to the period already undergone by him.
Obaidullah Qureshi for Appellant.
Mumtaz Yousaf, Standing Counsel for the State.
Date of hearing: 14th December, 2009.
JUDGMENT
GHULAM MUSTAFA MENGAL, J .--- This Customs Appeal under section 185(F) of
Customs Act, 1969 is directed against the judgment dated 4 -11-2003 passed by learned
Special Judge, Customs, Quetta, whereby appellant has been convicted under section
156(89) of the Customs Act, 1969 and sentence d to suffer R.I. for 2 years and fine of
Rs.50,000 or in default thereof to suffer R.I for 6 months, with benefit of section 382 -B,
Cr.P.C.
2. Briefly stated, facts of the case are that on 10 -2-2003, a case under sections 420 -468-
471, P.P.C. and under se ction 156(89) Customs Act, was registered in Police Station, City,
Quetta vide F.I.R. No.32 of 2003 on the report of Essa Khan Shahwani, I.P./C.I.A, Quetta,
wherein he alleged that on 1 -2-2003, he along with Muhammad Ali, S. -I. and other staff
were on rout ine checking at Meezan Chowk, Quetta. At 5 -30 p.m. the appellant in a
suspected vehicle bearing Registration No.BC -8712 -Karachi, Engine No.2590563, Chassis
No.LT -78-0011859 Model, 1998, grey colour came there. The vehicle along with its
Registration Book w as taken into custody vide Roznamcha No.14 under section 550,
Cr.P.C. Thereafter the documents of the vehicle were sent to the E.T.O, Motor
Registration, Karachi for verification, meanwhile complaint was sent to the competent
Court of law. On receipt of re port from E.T.O. Motor Registration Civic Centre, Karachi,
above said F.I.R. was registered against the appellant.
3. After completion of investigation, challan of the case was sent to the Court of Special
Judge, Customs, Quetta, where charge under secti on 156(1)(89) of Customs Act was framed
against the appellant to which the appellant did not plead guilty and claimed trial.
4. After framing the charge, prosecution examined P.W.1 Essa Jan, I.P, complainant, who
produced Mursala vide Exh.P/1 -A and photo copy of recover memo. vide Exh.P/1 -B.
P.W.2 Aurangzaib, Constable, produced recovery memo. Exh.P/2 -A. P.W.3 Qaiser Khan,
Appraiser Officer, Collectorate of Customs, produced valuation certificate of vehicle as
Exh.P/3 -A and P.W.4 Muhammad Ali, S. -I./ Inve stigating Officer, produced report
Exh.P/4 -A, which was received from E.T.O. Karachi as well as notice under section 171 of
Customs Act as Exh. P/4 -B.
5. The statement of the appellant was recorded under section 342, Cr.P.C., wherein he
denied having com mitted the offence. The appellant also appeared in prosecution as his
own witness under section 340(2), Cr.P.C., wherein he deposed that he had purchased the
vehicle in question from one Abdul Muhammad vide agreement Exh.D.I. The appellant
also produced D. W. 1 Muhammad Anwar and D.W.2 Muhammad Iqbal in his defence.
6. Learned trial Court after hearing learned counsel for the parties convicted and sentenced
the appellant as stated above and also confiscated the vehicle to the Government, hence the
present appeal.
7. I have heard Mr. Obaidullah Qureshi, learned counsel for the appellant and Ch. Mumtaz
Yousuf, Standing Counsel for the State.
8. Mr. Obaidullah Qureshi, learned counsel for the appellant has contended that the Challan
of appellant in same F. I.R. is in breach of Article 13(a) of the Constitution of the Islamic
Republic of Pakistan; as well as, in contravention of section 403, Cr.P.C.; as the trial of the
appellant amounts to double jeopardy, which is not warranted by law and that the appellant
cannot be vexed twice for the same offence, therefore, the impugned judgment is liable to
be set aside.
9. Learned Standing Counsel has contended that the appellant was convicted by the Special
Judge, Custom, Quetta for being found in possession of smug gled vehicle, which is
punishable under section 156(89) of the Custom Act, whereas the second Challan was
submitted under sections 420 -467-468 and 471, P.P.C. Since both the offences are not the
same, therefore, there is no breach of Article 13 (a) of the Constitution of Islamic Republic
of Pakistan or of section 403, Cr.P.C., as such, the principle of double jeopardy is not
applicable in the case of appellant.
10. I have also heard the learned counsel for the parties and gone through the facts of the
case and judgments passed by the Court below. It would be appropriate to reproduce the
relevant provisions of Customs Act, 1969 and related provisions of P.P.C. The punishment
for contravention of any provision of Custom Act, 1969 is provided under section 15 6 of
the Act. The appellant was convicted and sentenced under section 156(89) of the Customs
Act, 1969 and under sections 468 and 471, P.P.C. which read as under:
Section 156(89) :---(1) If any person without lawful excuse, the proof of which shall
be on such person, acquires possession of, or is in any way concerned in carrying,
removing, depositing, harbouring, keeping or concealing, or in any manner dealing
with smuggled goods or any goods with respect to which there may be reasonable
suspicion that the y are smuggled goods:
Provided that if the smuggled goods be gold bullion or silver bullion the onus of
proving the plea that such bullion was obtained by proceeding or other means
employed in Pakistan and not by smuggling shall be upon the person taking that plea.
(2) Such goods shall be liable to confiscation and any person concerned in the
offence shall be liable to a penalty not exceeding ten times the value of the goods;
and, where the value of such goods exceeds one hundred thousand rupees, he sha ll
further be liable, upon conviction by a Special Judge, to imprisonment for a term
not exceeding six years and to a fine not exceeding ten times the value of such
goods and if the Special Judge in his discretion so orders also to whipping.
468. Forgery for purpose of cheating .---Whoever, commits forgery, intending that
the document forged shall be used for the purpose of cheating, shall be punished
with imprisonment of either description for a term which may extend to seven years,
and shall also be liab le to fine.
471. Using as genuine a forged document .---Whoever fraudulently or dishonestly
uses as genuine any document which he knows or has reason to believe to be a
forged document, shall be punished in the same manner as if he had forged such
documen t.
11. The plain reading and comparative study of the above said provisions of two different
statutes/laws reveals that the offence of smuggling of goods is punishable under the
Customs Act, 1969; whereas offences of forgery and using forged documents as genuine
are punishable under sections 468 and 471, P.P.C. Thus the offences are not same.
12. It will also be appropriate to reproduce the relevant provisions of section 403, Cr.P.C.
and Article 13(a) of the Constitution, 1993 as quoted by the appellant s counsel: --
403. Persons once convicted or acquitted not to be tried for the same offence. ---
(1) A person who has once been tried by a Court of competent jurisdiction for an
offence and convicted or acquitted of such offence shall, while such convict ion 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 is different charge from the one
made against him might have been made under section 237.
(2) A person acquitte d or convicted for any offence may be afterwards tried for any
distinct offence for which is separate charge might have been made against him on
the former trial under section 235, subsection (1).
(3) A person convicted for any offence constituted by any act causing consequences
which together with such act, constituted a different offence from that of which he
was convicted, may be afterwards tried for such last -mentioned offence, if the
consequence had not happened, or were not known to the Court to hav e happened, at
the time when he was convicted.
(4) A person acquitted or convicted for any offence constituted by any acts may,
notwithstanding such acquittal or conviction, be subsequently charged with, and
tried for any other offence constituted by the same acts which he may have
committed of the Court by which he was first tried was not
competent to try the offence with which he is subsequently charged.
(5) Nothing in this section shall affect the provisions of section 26 of the General
Clauses Act, 1897, or section 188 of this Code.
Article 13(a) No person shall be prosecuted or punished for the same offence more
than once; or
13. A bare perusal of above provisions of laws reveals that second trial would be only
barred when offence is the same, in case, offences are different/distinct then the accused
can be tried by the two different Courts under two different enactments on the basis of
common set of facts and trial would not be barred. Thus the contention put forth by the
learned counsel for ap pellant has no force, as such, is repelled.
14. The upshot of the above discussion is that the appellant was not tried for the same
offence but under the different and distinct offences in different Courts, therefore, his trial
is not barred under sectio n 403, Cr.P.C. or on the principles of double jeopardy. Insofar as
the question of sentence is concerned, it requires consideration, appellant was arrested on
7-4-2003 and since then he is facing the hardships of trial. There is nothing on the file to
indicate that the appellant is habitual offender or was even involved previously in the case
of smuggling. Keeping this fact in view, the sentence of the appellant is reduced to the
period already undergone by him; however, the sentence of fine or in default t hereof and
confiscation of the vehicle is maintained.
15. Appeal is dismissed with the above modification in the quantum of sentence.
H.B.T./27/Q Sentence reduced.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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