2021 P T D 1078
[Balochistan High Court]
Before Abdullah Baloch, J
NABI BAKHSH and 3 others
Versus
The STATE and another
Criminal Miscellaneous Quashment No.63 of 2020, decided on 6th March, 2020.
Customs Act (IV of 1969) ---
----Ss.85, 89, 156 & 157--- Criminal Procedure Code (V of 1898), Ss.561- A & 403 ---
Constitution of Pakistan, Art.13--- General Clauses Act (X of 1897), S.26--- Smuggling ---
Quashing of FIR ---Protection against double punishment and self incrimination ---Person
once convicted or acquitted not to be tried for the same offence ---Provision as to offences
punishable under two or more enactments ---Scope ---Accused persons sought quashing of
second FIR on the ground that it amounted to double jeopardy---Validity ---Custom s officials
were initially busy in discharge of their official duties and were checking the vehicles when a
truck arrived at the check post, which was stopped for checking purposes but in the meantime the accused persons also arrived there in another vehicle, forbade the officials
from checking the truck, abused and beaten the officials as well as blocked the road by calling more than 100 persons ---However, search of the truck resulted into recovery of
foreign origin smuggled goods ---Customs authorities had rightly lodged the first FIR under
the Customs Act, 1969, for the recovery of foreign origin smuggled goods and the second FIR under the provisions of Pakistan Penal Code, 1860 for restraining the officials from performance of their official duties and gi ving beatings to them ---Section 403, Cr.P.C.,
Art.13 of the Constitution and S.26 of General Clauses Act, 1897, provided that no one could be vexed twice and prosecuted or punished for the same offence, but if one was guilty of offence under another enactm ent, though by the same chain of facts, he could be tried,
convicted and punished under that very offence committed by him ---Principle of double
jeopardy was not applicable to the facts of the case---Petition, being devoid of merits, was dismissed, in circ umstances.
PLD 2018 SC 322 and PLD 2019 Bal. 27 ref.
Muhammad Nadeem Anwar v. Securities and Exchange Commission of Pakistan
2014 SCMR 1376 rel.
Mazhar Ali Khan for Petitioners.
Nemo for Respondents.
Date of hearing: 2nd March, 2020.
JUDGMENT
ABDULL AH BALOCH, J. ---In this petition, the petitioners are seeking the
following relief:
"It is, therefore, respectfully prayed that keeping in view the above submissions, case
laws on the subject the proceedings against the FIR No.35/2018 dated 11.11.2018 lodged at 3 PM may kindly be quashed on the account of double jeopardy and on the law point of jurisdiction by keeping in view the provisions of the Special law envisaged in the Customs Act, 1969 and the Pakistan Penal Code, in the interest of law and justice."
2. Facts of the case are that the petitioners Nabi Bakhsh, Murad Bakhsh, Niaz
Muhammad and Ali Bakhsh are seeking the quashment of FIR No.35 of 2018 dated 11th November 2018 under Sections 337- A/353, 504/341, 186/506, 147/149, P.P.C. lodge d
against the petitioners by Farid Ahmed, Customs Inspector with the averments that on the day of occurrence he along with other Custom officials under the supervision of Inspector Jamil Kakar was deputed at Darakhshan Bolan Check Post near Ziaullah Petrol Pump, when
at about 02.30 p.m. a Truck bearing Registration No.TAG -718 arrived, which was got
stopped for checking, but in the meantime, the petitioners came over there in a Land Cruiser bearing Registration No.BF -3765 and desisted the officials from chec king the Truck, abused
the officials, attacked upon Inspector/Incharge Jamil Kakar, who sustained injuries and thus was shifted to hospital for medical treatment. In the meantime, about 100 persons in 20/25 vehicles also arrived there and with the assistan ce of petitioners blocked the road. Hence, on
the said date at about 3.00 p.m. the FIR was lodged, while earlier at about 12.30 p.m. the custom authorities recovered certain foreign origin goods from the truck i.e. Tyres, Betel Nuts, welding Rods, Cycle Spare Parts and Cigarettes. Hence, lodged FIR No.77 -
CUS/SEIZ/DARAKHSHAN/2018 under Sections 2(s) and 16 and 157 (2) of the Customs Act, 1969 read with subsection (1) of Section 3 of Imports and Exports (Control) Act, 1950, punishable under clauses 85 and 89 of Sections 156 (1) and 157 (2) of the Customs Act,
1969. The petitioners in the petition are seeking quashment of subsequent FIR No.35/2018 on the ground that the first FIR No. 77- Cus/Seiz./CP -DKH/2017 has already been lodged
under the penal clauses with regard to alleged offence in the Customs Act, 1969, hence the
subsequent FIR is liable to be quashed.
3. Learned counsel for petitioners contended that dual FIRs and dual trial of the
petitioners with regard to same offence would increase the agony and ha rdship of the
petitioners and even otherwise the same amounts to double jeopardy being in violation of Article 13 of the Constitution of Islamic Republic of Pakistan, 1973 as well as Section 26 of the General Clauses Act (X of 1897) and Section 403, Cr.P.C .; that the fate of the case is
apparent from the very inception, because under the law no one can be tried or punished twice for the same transaction or incident, thus further trial of the case would be nothing, but a futile exercise and wastage of precio us time of the learned trial Court, thus the subsequent
FIR No.35/2018 is liable to be quashed. He has also placed reliance on the cases reported as PLD 2018 SC 322 and PLD 2019 Balochistan 27.
4. Heard the learned counsel and perused the available record . The facts and
circumstances of the case show that initially the custom officials were busy in discharge of
their official duties and were checking the vehicles, when a truck arrived at the check post, which was stopped for checking purposes, but in the m eantime the petitioners also arrived
there in another vehicle, forbade the officials from checking the truck, abused and beaten the
officials as well as blocked the road by calling more than 100 persons. However, the search
of the truck was resulted into r ecovery of foreign origin smuggled goods. Hence, rightly the
custom authorities lodged the first FIR under the Customs Act for the recovery of foreign
origin smuggled goods and the second FIR was lodged under the provisions of Pakistan Penal Code for restr aining the officials from performance of their official duties and giving
beatings to them.
5. The minute perusal of both the FIRs would establish the fact hat the same were
lodged under different enactments of law having different procedure and forum for initiating
proceedings thereunder although both the sets of offences have been committed by the petitioners in one go that is to say that the accused- petitioners acted in such a manner which
constituted offences punishable under two separate and distinct e nactments i.e. one under the
Customs Act and the other under the Pakistan Penal Code. Both are different and distinct
pieces of legislation, therefore, acts and omissions of the petitioners committed by them
cannot be said to be same offences. Reliance in this regard is placed on the case of
Muhammad Nadeem Anwar v. Securities and Exchange Commission of Pakistan, 2014 SCMR 1376. The relevant portion reads as under:
"6. Bare reading of afore -quoted provision of law is clearly suggestive of the fact that
both are under different enactments of law having different procedure and forum for
initiating proceedings thereunder although both the sets of offences have been
committed by the accused in one go that is to say that the accused -petitioner acted in
such a ma nner which constituted offences punishable under two separate and distinct
laws i.e. one under the NAB Ordinance and the other under the Companies Ordinance. Both are different and distinct pieces of legislation, therefore, acts and omissions of the petiti oner committed by him cannot be said to be same offences. The
example for the same can be deduced from the fact that an accused goes to a place for commission of a particular offence that is to say he has made up a mind to take life of a person by using fi re arm and if his action of murdering of a person is at a public
place involving serious threat to the public at large or creating a sense of fear or insecurity in society, he will be charged with the offences punishable under two different and distinct en actments and if during his action he has also used fire arm
weapon which ultimately is recovered at his instance and the accused could not produce any valid permit for keeping the said weapon in his custody then he will also be proceeded against under Arms Ordinance which is a third offence committed by an
accused while taking the life of a person. Thus, he will be tried under section 302, P.P.C. (a piece of legislature under the criminal law), under section 7 of the Anti -
Terrorism Act, 1997 and under the A rms Ordinance, 1965. Although, offence under
section 302, P.P.C. is triable by a court having ordinary jurisdiction i.e. Sessions Judge or the Additional Sessions Judge, whereas offence under section 7 of the Anti -
Terrorism Act is triable by a Special Cour t constituted under the said Act but since
the Special Court constituted under Anti -Terrorism Act, 1997 has been conferred
power to try an offender under section 302, P.P.C. wherein his commission has also
constituted an offence under section 7 of the Anti -Terrorism Act, 1997 and the case
registered against him under Arms Ordinance is triable by a Magistrate 1st Class, therefore, it cannot be said for any purpose that since the accused has committed three offences in one go and they are same offences. Since the acts committed by the
petitioner do not fall at all within the definition of the same offence, therefore, the
principle of double jeopardy will not come into force. The Black's Law Dictionary
meaning of the words "same offence" clearly shows that a si milar offence, one of the
same character or nature."
6. So far as the violation of provisions of Section 403, Cr.P.C., read with Article 13 of
the Constitution of the Islamic Republic of Pakistan, 1973 and Section 26 of the General Clauses Act, 1897 are co ncerned, suffice to observe here that the bare reading of above
provisions of law has made it clear that no one should be vexed twice and prosecuted or punished for the same offence, but if he was guilty of offence under another enactment, though by the sa me chain of facts, he could be tried, convicted and punished under that very
offence committed by him. The perusal of both the FIRs lodged under different enactments reflect that the acts committed by petitioners do not fall within the definition of same offences, therefore, principle of double jeopardy would not come into force.
For the above reasons, the petition being devoid of merits is dismissed in limine.
SA/154/Bal. Petition dismissed.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,
let us know.