P L D 2016 Balochistan 102
Before Jamal Khan Mandokhail and Shakeel Ahmed Baloch, JJ
ABDUL MAJEED ---Appellant
Versus
The STATE ---Respondent
Criminal Appeal No.227 of 2009, decided on 2nd March, 2016.
(a) Criminal Procedure Code (V of 1898) -
----S. 423 ---Appeal --Absence of appellant or his pleader -Effect ---Once an appeal was admitted
for regular hearing it must be decided on merits by assigning reasons rather than dismissing the
same for non -prosecution ---Appellate Court after calling the re cord of Trial Court and perusing
the same should decide appeal on merits ---If appellant or his pleader failed to appear or argue the
appeal it did not relieve the Appellate Court of its duty of disposing of an appeal on merits.
Muhammad Ashique Faqir v. State PLD 1970 SC 177 rel.
(b) Constitution of Pakistan ---
----Art. 13 ---Criminal Procedure Code (V of 1898), S. 403 ---General Clauses Act (X of 1897), S.
26---Penal Code (XLV of 1860), Ss. 109, 275, 276, 419, 420, 468 & 471 ---Drugs Act (XXXI of
1976) , Ss. 23 & 27 ---Abetment, sale of adulterated drugs, sale of drug as a different drug or
preparation, cheating by personation, cheating and dishonestly inducing delivery of property,
forgery for the purpose of cheating, using as genuine a forged document a nd recovery of
different types of spurious drugs ---One offence punishable under two or more enactments ---
Conviction under one enactment ---Bar of subsequent prosecution and punishment for the same
offence ---Scope ---Accused was convicted and sentenced under Ss. 109, 275, 276, 419, 420, 468
& 471, P. P. C by the Judicial Magistrate and thereafter he was further convicted and sentenced
under Ss. 23 & 27 of Drugs Act, 1976 on complaint ---Contention of accused was that
punishment awarded to him by the Drug Court would amount to a double jeopardy as on the
same facts Judicial Magistrate had already sentenced him ---Validity ---If a person was charged
and prosecuted under different enactments for the same offence and subsequently was convicted
or acquitted of the offe nce under one enactment by a competent court of law then Constitution
and law had prohibited subsequent prosecution and punishment of the accused for the same
offence ---Bar of subsequent prosecution was to avoid duplication of punishment for one and the
same offence ---Accused was liable to be prosecuted and punished for the offence in either of the
two enactments ---Once accused was convicted and sentenced by the Judicial Magistrate, there
was a bar to subsequent prosecution and punishment by the Drug Court ---Drug Court continued
the trial despite such bar which was not warranted ---Conviction awarded to the accused by the
Drug Court was against the provisions of Constitution and the law ---Impugned judgment passed
by the Drug Court was set aside and complaint was dismissed ---Appeal was allowed in
circumstances.
Nazir Ahmed v. Capital City Police Officer 2011 SCMR 484 rel.
(c) Words and phrases ---
----"Offence" ---Meaning.
Shabbir Shah, Standing Counsel.
Date of hearing: 25th November, 2015.
JUDGMENT
JAMAL KHAN MANDOKHAIL, J. ---Facts in brief are that an FIR No.08/2007 was
registered against the appellant under sections 23 and 27 of the Drugs Act read with sections
109, 275, 276, 419, 420, 468 and 471, P.P.C. with an allegation that the app ellant was found
dealing in fake, unregistered and spurious drugs. On 13th June 2007, the Investigating Officer
submitted a report under section 173 Cr.P.C. before the Court of the Judicial Magistrate -IV,
Quetta against the appellant only to the extent of sections 109, 275, 276, 419,420, 468 and 471
P.P.C., which proceeded with the trial. Similarly, on the same allegations, a criminal complaint
bearing No.04 of 2008 was also filed against the appellant by the Chief Drugs Inspector on 26th
April, 2008 before the Chairman, Drugs Court for Balochistan, which too proceeded the trial.
2. The Judicial Magistrate after conclusion of the trial, convicted and sentenced the
appellant under sections 109, 275, 276, 419,420, 468 and 471, P.P.C. by means of the judgment
dated 26th June 2008, against which no appeal was filed. Thereafter, the Drug Court by means of
the judgment dated 16th June 2009, allowed the complaint and also convicted and sentenced the
appellant under sections 23 and 27 of the Drugs Act, hence the ap pellant through the instant
appeal, challenged the judgment of the Drugs Court. This Court while admitting the appeal on
7th October 2009, opted to consider the judgment passed by the Drugs Court on the touchstone
of Article 13 of the Constitution, section 403, Cr.P.C. and section 26 of the General Clauses Act
1807. The appellant was released on bail, but subsequently he did not appear, hence he was
proceeded against by forfeiting his bond and non -bailable warrants for his arrest were issued.
3. The learn ed Standing Counsel stated that absconsion of the appellant amounts to wavier
of his right of appeal, as such, the appeal is liable to be dismissed for non -prosecution. He relied
upon the case of Sikandar v. the State reported in (2001 MLD 2000). He furthe r added that the
appellant was involved in two different offences, one under the Pakistan Penal Code, whilst the
other under the Drugs Act, as such, both the Courts had rightly proceeded with trial, therefore,
the appellant cannot take advantage of Article 13 of the Constitution, section 403 of the Cr.P.C.
and section 26 of the General Clauses Act. He contended that the prosecution has succeeded in
proving its case, on the basis of which, the Drugs Court, after proper appraisal of the evidence
and material, has rightly convicted and sentenced the appellant.
4. The appellant was unrepresented, however we have heard the learned Standing Counsel
and have perused the record. Section 421 Cr.P.C. provides a right of an appeal to a convict
against a judgment of a trial Court. The appellate Court on receiving a memo of an appeal, if
consider that there is no sufficient ground for interfering in the impugned judgment, it may
dismiss the same summarily. If the appellate Court finds that the evidence requires reapprai sal,
then it may admit the appeal by exercising powers under section 423, Cr.P.C., which is
reproduced as under:
423. Powers of Appellate Court in disposing of appeal. (1) The Appellate Court shall
then send for the record of the case, if such record is not already in Court. After perusing
such record, and hearing the appellant or his pleader, if he appears, and the Public
Prosecutor, if he appears, and, in case of an appeal under section 411A, subsection (2) or
section 417, the accused, if he appears, th e Court may if it considers that there is no
sufficient ground for interfering, dismiss the appeal or may:
(a) In an appeal from an order of acquittal, reverse such order and direct that further
inquiry be made, or that the accused be retried or [sent fo r trial to the Court of Session or
the High Court], as the case may be or find him guilty and pass sentence on him
according to law;
(b) In an appeal from a conviction, (1) reverse the finding and sentence, and acquit or
discharge the accused, or order h im to be retried by the Court of competent jurisdiction
subordinate to such Appellate Court or sent for trial, or (2), alter the finding, maintaining
the sentence, or, with or without altering the finding reduce the sentence, or, (3) with or
without such r eduction and with or without altering the finding, alter the nature of the
sentence but, subject to the provisions of the section 106, sub -section (3) not so as to
enhance the same;
(c) In an appeal from any other order alter or reverse such order;
(d) Make any amendment or any consequential or incidental order that may be just and
proper;
(2). [Omitted by Law Reforms Ordinance, 1972 Item 147 Cr.P.C.]"
The principle contained in the above provision of law casts a duty upon the appellate
Court that after calling the record of the trial Court and after perusing the same, it should decide
the appeal on merits. In this section, paragraph "and hearing the appellant or his pleader, if he
appears, and the public prosecutor, if he appears" provides an optio n to the appellant or his
pleader and to the prosecutor to argue the case, if they appear. Thus, after providing
opportunities of arguments to the appellant or his pleader or the prosecutor at the time of hearing
of an appeal, if any of them fails to appea r or fails to argue the appeal, it does not relieve the
appellate Court of its duty of disposing of an appeal on merits. It is a well settled principle of law
that once an appeal is admitted for regular hearing, it must be decided on merits by assigning
reasons rather than dismissing the same for non -prosecution. In this behalf, reliance has been
placed upon a case of Muhammad Ashique Faqir v. State reported in (PLD 1970 Supreme Court
177). Under such circumstances, the case law cited by the learned Standin g Counsel cannot be
relied upon, as such, we have no option, but to decide the appeal on merits.
5. The main contention of the appellant in his memo of appeal and the initial arguments
advanced by his counsel at the time of admission of the appeal was th at the punishment awarded
to him by the Drugs Court through the impugned judgment amounts to a Double Jeopardy, as on
the same facts, the Judicial Magistrate has already sentenced the appellant. Before going to
discuss the merits of the case, it would be a ppropriate to reproduce Article 13 of the Constitution,
section 403, Cr.P.C. and section 26 of the General Clauses Act:
"Article 13. Protection against double punishment and self incrimination. ---No
person ---
(a) Shall be prosecuted or punished for the same offence more than once; or
(b) Shall, when accused of an offence, be compelled to be a witness against himself ".
"403 Cr.P.C. Persons once convicted or acquitted not to be tried for the same
offence. (1) A person who has once been tried by a Cou rt of competent jurisdiction for an
offence and convicted or acquitted of such offence shall, while such, conviction or
acquittal remains in force, not to be liable to be tried again for the same offence, nor on
the same facts for any other offence for whi ch a difference charge from the one made
against him might have been made under section 36, or for which he might have been
convicted under section 237.
(2) A person acquitted or convicted for any offence may be afterwards tried for any
distinct offence for which a separate charge might have been made against him on the
former trial under section 235, subsection (1).
(3) A person convicted of any offence constituted by an act causing consequences which
together with such act, constituted a, different of fence 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 happened, or were not known to the Court to have
happened, at the time when he was convicted.
(4) A perso n acquitted or convicted of 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 if
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 provision of section 26 of the General Clauses
Act, 1897, or section 188 of this Code."
"26 (General Clauses Act). Provision as to offences punishable under two or more
enactments. 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 those enactments, b ut shall not be liable to be punished twice for same offence."
According to Article 13 of the Constitution, there is a bar on a subsequent prosecution
and punishment for the same offence. Similarly, under, section 403, Cr.P.C. no Courts shall try a
person already tried by a Court of a competent jurisdiction for the same offence, either convicted
or acquitted. Besides, under section 26 of the General Clauses Act, if an act or omission
constitutes an offence under two or more different 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 the same offences.
6. An act or omission that causes a person to be hurt, angry, upset or something that is
wrong, improper or in violation of any law, which is punishable under any enactment for the
time being enforced, is an "offence". Certain offences, consist upon series of acts in one and the
same transaction. Every separate movement of such act is to be co nsidered as a single act.
Sometimes one offence is punishable under two or more different enactments. If a person is
charged and prosecuted under different enactments for the same offence and subsequently,
convicted or acquitted of the offence under one en actment by a competent Court of law, the
Constitution and the law prohibits subsequent prosecution and punishment of the accused for the
same offence. Bar to subsequent prosecution is to avoid duplication of punishment for one and
the same offence. To get benefit of Article 13 of the Constitution, Section 403 Cr.P.C. and
Section 26 of the General Clauses Act, the Hon'able Supreme Court in the case of Nazir Ahmed
v. Capital City Police Officer, reported in (2011 SCMR 484) highlighted the essential conditions
to be satisfied are (1) that there must have been a trial of an accused for the offence charged
against him; (2) that the trial must have been by a Court of competent jurisdiction; (3) there must
have been a judgment or order of conviction or acquittal; ( 4) the parties in two trials must be the
same; (5) facts in issue in the earlier trial must be the same, with what is sought to be re -agitated
in the subsequent trial.
7. Now, considering the case of the appellant on the touchstone of the above provision of
law. The prosecution case is that the Federal Investigation Agency (FIA) on 26th May 2007,
through a fake purchaser, negotiated with the appellant to purchase the injections with the name
of Norgesic. During the transaction, the dummy purchaser signale d the FIA authorities, who
caught the appellant and recovered 1000 injections from him, which were taken into possession
through a recovery memo. The prosecution registered the above referred FIR against the
appellant and challan was submitted before the C ourt of Judicial Magistrate -IV, Quetta.
Subsequently, the compliant was also submitted before the Drugs Court Balochistan against the
appellant by the FIA. After completion of the trial, the Judicial Magistrate convicted and
sentenced the appellant, which decision remained unchallenged. Subsequently the Drugs Court
Balochistan also convicted and sentenced the appellant through the impugned judgment. The
allegation leveled against the appellant is that he had fake, unregistered and spurious drugs in his
possession. Such act is an offence, which is punishable under Section 275 of the P.P.C. and
under Section 27 of the Drugs Act. Facts in issue parties and witnesses in both the cases, tried by
the Judicial Magistrate and the Drugs Court were the same. This is o ne of a classical example of
an offence punishable under two enactments. Under such circumstances, the appellant was liable
to be prosecuted and punished for the offence in either of the two enactments. Once he is
convicted and sentenced by a Court of a co mpetent jurisdiction, i.e. Judicial Magistrate, then
there was a bar to subsequent prosecution and punish by the Drugs Court, but despite such bar,
the Drugs Court continued the trial, which was unwarranted, therefore, the conviction awarded to
the appella nt by the Drugs Court is against the provisions of Constitution and the law.
Thus, in view of above, the appeal is allowed. The impugned judgment dated l6th June
2009 passed by the Drugs Court Balochistan, Quetta is set aside, resultantly, the complaint is
dismissed. The appellant is since no more required in respect of appeal, therefore, warrants of
arrest issued against him shall stand discharged.
ZC/26/Bal Appeal allowed.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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