NAJEEB ULLAH Vs SUPERINTENDENT CENTRAL JAIL, PESHAWAR, etc

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Peshawar high court
Peshawar high court

NAJEEB ULLAH–Petitioner

Vs

SUPERINTENDENT CENTRAL JAIL, PESHAWAR, and 2 others–Respondents

Crl. Misc. Petition No. 29-P of 2016, decided on 21.3.2016.

Present: Mrs. Irshad Qaisar, J.

Criminal Procedure Code, 1898 (V of 1898)–

—-S. 561-A–Control of Narcotic Substances Act, (XXV of 1997), Ss. 6, 7, 8, 9(c)–Customs Act, 1969, Ss. 2(S), 16 & 156(1), 8, 80, 89, 15, 157 & 178–Conviction and sentence–Correction in committal warrant–Question of–Determination–When accused has completed his sentence and inspite of lapse of about 08-years, challan has not been submitted before Custom Court whether he is not entitled to be released? If he has to wait for trial and decision of Custom Judge than in such circumstances, whether his case will not come within definition of double jeopardy and violative of Art. 13 of Constitution–Convicted has completed his sentence under Section 9-C, CNSA, therefore, there is no need for his trial under Sections 2(S) 16, 156, (1), 8, 80, 89, 15, 157, 178 of Customs Act, 1969, because as declared by Supreme Court trial under Sections 156(1)(8) of Special Judge Custom and proceeding under Act are without lawful authority and are of no legal effect–Petition was accepted.        [Pp. 838 & 840] A & B

Noor Alam Khan, Advocate for Petitioner.

Syed Muhammad Suleman, Senior Assistant Superintendent Central Jail for Respondent.

Date of hearing: 21.3.2016.

Judgment

Through the instant petition filed under Section 561-A, Cr.P.C. the petitioner seeks correction in committal warrant vide which petitioner was sent to Jail by the concerned Magistrate.

2.  Brief but relevant facts of the case arc that accused/petitioner has been arrested by the Custom Authorities of Police Station I & P Branch, Customs House, Peshawar in case FIR No. 30 dated 01.12.2006 under Sections 6, 7, 8, 9(c) C.N.S.A r/w Section 2(S), 16, 156(1)8, 80, 89, 15, 157, 178 of Customs Act, 1969. After his arrest he was produced before learned Sessions Judge/Judge Special Court, Nowshera for custody and accordingly physical custody was granted. He was also produced before concerned Magistrate on 01.12.2006 for recording his confessional statement, when he refused to record his confessional statement he was sent to judicial lockup vide impugned committal warrant containing different Sections of law i.e. under section under Sections 6, 7, 8, 9(c) C.N.S.A r/w Sections 2(s)16, 156(1), 8, 80, 89, 15, 157, 178 of Customs Act, 1969. After the completion of investigation, complete challan was submitted against the accused/petitioner before Judge Special Court, Nowshera. He was charge sheeted only under Section 9(c) Control of Narcotics Substances Act, 1997 and after the completion of trial accused/ petitioner was convicted and sentenced, under Section 9(c) CNSA, 1997, to undergo imprisonment for life and fine of Rs. 1,00,000/- or in default thereof he should suffer further six months S.I vide order dated 17.04.2008 passed by learned Additional Sessions Judge-II/JSC, Nowshera. Benefit of Section 382-B, Cr.P.C. was also extended to him.

3.  Against his conviction order accused/petitioner filed Cr. Appeal No. 175/2008 in this Court which was also dismissed vide order dated 16.09.2010. Accused/petitioner challenged the order of this Court through Criminal Appeal No. 205/2011 and vide order dated 25.01.2016 appeal was partially allowed. The conviction of the accused/petitioner under Section 9(c) Control of Narcotics Substances Act, 1997 was converted to one under Section 9(b) of the said Act and the sentence of the appellant was reduced to rigorous imprisonment for one year and eight months and a fine of Rs. 7,000/- or in default of payment thereof to undergo simple imprisonment for four months. The benefit of Section 382-B, Cr.P.C. was also extended to accused/ petitioner.

4.  Arguments heard and available record perused with the able assistance of learned counsel for the petitioner.

5.  Since the petitioner was also charged under Sections 2(S), 16, 156(1), 8, 80, 89, 157, 178 of Customs Act, 1969 and the detail of which are given in the warrant; therefore, inspite of the fact that he has completed his sentence as awarded under Section 9(c), Cr.P.C., but has not been released and was sent to jail under the penal Sections of Custom Act, 1969.

6.  Admittedly, the petitioner was convicted under Sections 9(c) Control of Narcotics Substances Act, 1997 vide order dated 17.04.2008 and at the time of passing of order it was specifically mentioned by the trial Court that since the Special Courts constituted under Control of Narcotics Substances Act, 1997 lack the jurisdiction to try offences under Customs Act; therefore, prosecution may approach the proper forum if so advised. Record is silent in respect of the fact that whether any challan has been submitted under penal Sections of Customs Act before the Custom Court for the trial of the accused inspite of the lapse of more than 8 years.

7.  Now the main question for determination is that when accused/petitioner has completed his sentence and inspite of lapse of about 08-years, challan has not been submitted before Custom Court whether he is not entitled to be released? If he has to wait for the trial and decision of the Custom Judge than in such circumstances, whether his case will not come within the definition of double jeopardy and violative of Article 13 of Constitution of Islamic Republic of Pakistan 1973?

8.  In this respect guidance is sought from the judgment of august Supreme Court i.e. “The State through Collector of Customs versus Nasim Amin Butt and others”(2001 SCMR 1083). In this case Supreme Court has discussed the case of accused who was involved in offence under Sections 6, 7, 8, 9-C, 14 & 15 Control of Narcotics Substances Act, 1997, as well as under penal Sections of Customs Act, 1969. While discussing both the above noted laws, the august Supreme Court has reached to the following conclusion;–

“we hereby declare that the trial of the respondents under Section 156(1), 8 of Customs Act in the Court of Special Judge, Customs and the proceedings taken under the said Act, conviction recorded against them thereunder and sentence awarded to them were without lawful authority and of no legal effect and are quashed.

9.  Since such legal question is also involved in the present case; therefore, before discussing the merit of the present case I want to reproduce some of the important paras of the above judgment for just decision of this case which are reproduced as under;–

“It is clear from Section 7 of this Act which is at par with Section 2(s) of the Customs Act, 1969 that the import into Pakistan, export from Pakistan, transport within Pakistan or tranship of any narcotic, etc., has been prohibited which is punishable under Section 9(c) of the Act. As has already been noted above; the respondents were tried under Section 156(1) (8) of the Customs Act; therefore, the charge against them was of smuggling of narcotics against the prohibition imposed by law, therefore, it can safely be held that the offence with which the respondents were charged and tried under the Customs Act was the same for which they were being tried under the Control of Narcotic Substances Act, 1997.

The next question which arises is as to which of the two Acts would be given preference. Apart from the fact that Act XXV of 1997 being latter law and the purpose for which the same was promulgated as expressed in its preamble was to consolidate and amend the laws relating to narcotic drugs, psychotropic substances and control the production, processing and trafficking of such drugs and substances. It has overriding effect as Section 76 thereof provides that the provisions of this Act shall have effect notwithstanding anything contained in any law for the time being in force. The matter has been put beyond any doubt by Section 72 of the Act which provides that all prohibitions and restrictions imposed by or sander this ACL on the import into, export from Pakistan and transhipment of narcotic drugs, psychotropic substances or controlled substances shall be deemed to be prohibitions and restrictions imposed by or under the Customs Act, 1969 and the provisions of this Act would apply accordingly, with a proviso that notwithstanding anything contained, in the Customs Act or any other law, the offences relating to narcotic drugs, psychotropic substances or controlled substances shall be tried under the provisions of this Act the proceedings of, which have been quashed through the impugned judgments.

As has already been observed under the proviso to Section 72 of Act XXV of 1997, all offences relating to narcotic drugs, psychotropic substances or controlled substances; etc., are to be tried under this Act notwithstanding anything contained in the Customs Act, 1969 or any other law, therefore, the Special Courts created under this Act had the exclusive jurisdiction to try these offences to the exclusion of any other Court under any law inclusive of the Customs Act, therefore, the

prosecution of the respondents under the Customs Act was without jurisdiction and the proceedings taken thereunder, conviction recorded and sentence awarded were also illegal having been taken, recorded and passed by a Court which was not vested with jurisdiction to proceed with the matter, as such, all these, proceedings from the very inception were Coram non judice, therefore, the quashment of the prosecution under Act XXV of 1997 in relation to conviction recorded and sentence passed by a Court under the Customs Act which was not vested with the jurisdiction to proceed in the matter Was not justified.

The combined effect of reading of the provisions of Sections 6, 7, 8, 72, 73 and 74 of Act XXV of 1997 and the Customs Act, 1969 is that an offence connected with narcotics could be tried only under the provisions of this Act in a Court established thereunder to the exclusion of the Courts established under any other law but the Court was empowered to invoke the provisions of other laws prescribing greater punishments or prohibitions on the date of commission of offence while awarding the sentence to the accused.”

10.  Since petitioner has completed his sentence under Section 9-C, Control of Narcotics Substances Act, 1997 vide FIR No. 30 dated 01.12.2006; under Sections 6, 7, 8, 9(c) Control of Narcotics Substances Act, 1997; therefore, there is no need for his trial under Sections 2(S) 16, 156(1), 8, 80, 89, 15, 157, 178 of Customs Act, 1969, because as declared by Supreme Court the trial under Sections 156(1)(8) of Special Judge Custom and proceeding under the said Act are without lawful authority and are of no legal effect. Thus this petition is accepted, he be released forthwith, if not required in any other FIR.

(R.A.)  Petition accepted

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