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Petitioner: ISMAIL A. REHMAN VS Respondent: MUHAMMAD SADIQ and 3 others
Court Name: Sindh High Court Judge(s): Syed Haider Ali Pirzada, Salahuddin Mirza Title: ISMAIL A. REHMAN vs MUHAMMAD SADIQ and 3 others Case No.: Constitutional Petitions Nos.D-21 and D-117 of 1988 Date of Judgment:1990-02-11 Reported As: PLD 1990 Karachi 286 Result: Order accordingly
JUDGMENT
JUDGMENT ' HAIDER ALI PIRZADA, J.--Since in these two petitions common points of law are involved, we intend to dispose of the same by this common judgment. C.P. No, D-21 of 1988. ' The facts leading to the filing of this petition are that petitioner is the owner/proprietor of Memon Shipping Agency which has been carrying on the business of customs clearing agents. The case of the petitioner as set out in the petition is that respondent No,3 filed a F.I.R. In the Court of Special Judge (Customs and Taxation), Karachi, against the petitioner and seven other persons as well as against the unnamed concerned staff of Karachi Customs for an offence under section 32 of the Customs Act, 1969, punishable under section 156(1)(82). The prosecution case as set out in the F.I.R. Is that the Central Board of Revenue desired that the Directorate General of Intelligence and Investigation (Customs and Taxation), Islamabad, should investigate into an alleged complaint of fraudulent payment of export rebate claims alleged to have been manipulated by some unscrupulous persons/parties in collusion with some of the staff of the Preventive Collectorate of Karachi Customs House. The further case as set out in the F.I.R. Is that the preliminary inquiry revealed that five persons named as accused in the F.I.R. Had conspired jointly to manipulate receipt of export rebate claim against the alleged fraudulent exports. The further case as set out in the F.I.R. Is that in pursuance thereof, the said persons employed some firms, including that of the petitioner, in achieving their alleged mala fide actions and to facilitate their intended alleged fraudulent export of readymade garments. It was further alleged in the F.I.R. That 40 consignments were booked through the petitioner's concern as well as through one Munir Mushtaq.
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' The case of the petitioner as set out in the petition is that on 29-12-1987 respondent No,1 filed three F.I.Rs, bearing Nos. 30, 31 and 32 of 1987 (Annexures 'B', 'C' & 'D' annexed to the petition) in the Court of Special Judge (Customs and Taxation), Karachi, for offences under section 156(1)(14) of the Customs Act, 1969, and Section 5(2) of Act No,II of 1947. In F.I.R. No,30 of 1987 one Maghanmal and the petitioner as well as unnamed officers/officials of the Appraising, Preventive and Rebate Section of Customs Department, Karachi were named as accused. In case No,31 of 1987 also Maghanmal'and the petitioner as well as the unnamed officers/officials of the Customs Appraising, Preventive and Rebate Section, Customs Department, Karachi, were named as accused while in case No,32 of 1987 one M. Yahya A. Aziz and the petitioner as well as unnamed officers/officials of the Customs Appraising, Preventive and Rebate Section, Karachi, were named as accused persons. It is the further case of the petitioner that on 2-1-1988 respondent No,1 also filed in the Court of Special Judge (Central), Karachi three F.I.Rs, also bearing Nos. 30/87, 31/87 and 32/87 which F.I.Rs, were the copies of the F.I.Rs, which were already filed by respondent No,1 in the Court of Special Judge (Customs and Taxation), Karachi on 29-12-1987. The certified copies of the said F.I.Rs, filed in the Court of Special Judge (Central), Karachi, have also been annexed to the petition as Annexures `E', 'F', and `G'. It is the further case of the petitioner that during the investigation by respondent No,3, the petitioner had given a statement to respondent No,3 in which he refuted the allegations made against the petitioner. ' It is the further case of the petitioner that respondent No,3 had already initiated action under the Customs Act before respondent No,1 appeared on the scene. It is the further case of the petitioner that the prosecution case is based on assumptions, conjectures, presumptions and documents which have been manipulated and fabricated so as to involve the petitioner in the case. It is the further case of the petitioner that the three F.I.Rs: Annexures 'B', 'C' and 'D' filed on 29-12-1987 by respondent No,1 in the Court of Special Judge (Customs and Taxation), Karachi, as well as the three F.I.Rs, Annexures `E', 'F' and `G' filed by respondent No,1 in the Court of Special Judge (Central), Karachi on 2-1-1988 are the same and are based on the same set of facts, evidence and property and are against the same accused. It is the case of the petitioner that the investigation/prosecution in question by respondent No,1 as well as by respondent No,3 which is in respect of the same offence and based on the same set of acts, evidence and property are clearly in violation of section 26 of the General Clauses Act, 1897. It is the further case of the petitioner that the investigation/prosecution in question by respondent No,1 as well as by respondent No,4 is in clear violation of the fundamental rights of the petitioner as guaranteed under Article 13 of the Constitution of Pakistan and are thus ab initio void, without lawful authority and of no legal effect. It is the further case of the petitioner that the double prosecution being conducted by respondent No,1 as well as by respondent No,3 is clearly mala fide, vexatious and constitutes harassment and is in contravention of the petitioner's legal rights vested in him. C.P. No, D-117 of 1988 ' The facts leading to the filing of the above petition are that petitioners No,1 to 4 are Senior Preventive Officers serving with the Pakistan Customs at Karachi and the petitioners Nos. 5 to 7 are Assistant Collectors, Preventive, Appraisement and Rebate, Pakistan Customs, Karachi in Grade-17 with an unblemished professional record to their credit. Similarly the petitioners No,1 to 4 have also at no point of time in their profession/career ever earned any adverse comments in their professional conduct. ' It is the case of the petitioners that on 26-12-1987 the Intelligence Officer, Directorate General of Intelligence and Investigation (Customs and Excise), Karachi registered F.I.R. On the same date i,e, 26-12-1987 in the Court of the Special Judge (Customs), Karachi entitled as "unnamed concerned staff of Karachi Customs House" for an offence under section 32 of the Customs Act, 1969, punishable under section 156(1)(14) and also punishable under section 156(1)(82) in which F.I.R. It was alleged that the Central Board of Revenue had on 25-11-1987 desired that the Directorate
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General of Intelligence and Investigation, Islamabad, should investigate into an alleged complaint of fraudulent payment of export rebate claims alleged to have been manipulated by some unscrupulous parties in collusion with some staff of the Preventive CoRectorate of Customs, Karachi. It was further alleged in the said F.I.Rs, that the preliminary inquiry revealed that 5 persons named as accused in the F.I.R. Had conspired jointly to manipulate receipts of export rebate claims against the alleged fraudulent exports. It was further alleged in the said F.I.Rs, that in pursuance thereof the said persons employed some firms in achieving their alleged mala fide actions and to facilitate their intended fraudulent export of Ready-made Garments. It was further alleged in the said F.I.Rs, that 40 consignments in question were booked through the exporter namely one MunkMushtaq. A copy of the F.I.R. Is annexed to the petition and marked as annexure 'A'. ' It is further case of the petitioner that on 29-12-1987 respondent No,1 filed three F.I.Rs, bearing Nos. 30, 31 and 32 of 1987 in the Court of Special Judge (Customs), Karachi for offences under section 156(1)(14) of Customs Act, 1969, read with section 5(2) of Act II of 1947. In case No,30 of 1987 one Maghanmal and one Ismail A. Rehman as well as unnamed officers/officials of the Customs Appraising, Preventive and Rebate Section, Karachi, were named as accused, while in Case No,31 of 1987 Maghanmal and Ismail A. Rehman as well as un-named officers/officials of Customs Appraising, Preventive and Rebate Section, Karachi, were named as accused persons. The said three F I Rs, related to the shipment of 40 consignments in respect of which the Intelligence Officer, Directorate of Intelligence, had already filed the F.I.R. In the Court of Special Judge (Customs), Karachi. Copies of the said - three P.I.Rs, have been filed alongwith the petition as Annexures 'B', 'C' and To' respectively. ' It is the further case of the petitioners that on 2-1-1988 respondent No,.1 also filed in the Court of Special Judge (Central), Karachi, three F.I.Rs, bearing Nos. 30/1987, 31/1987 and 32/1987, which F.I.Rs, were the copies of the F.I.Rs, which were already filed by respondent No,1 in the Court of Special Judge (Customs), Karachi on 29-12-1987. Copies of the said three F.I.Rs, have been annexed to the petition as Annexures `E', 'F.' and `G'. It is the further case of the petitioners that the F.I.Rs, `B", 'C' and 'D' filed on 29-12-1987 by respondent No,1 in the Court of Special Judge (Customs) as well as the three F.I.Rs, marked as `E', 'F' and `G' filed by respondent Nd.1 in the Couri of Special Judge (Central) Karachi on 2-1-1988 are the same and are based on the same set of facts, evidence and property and are against the same accused persons. It is the further case of the petitioners that the F.I.R. (Annexure 'A') filed by the Directorate of Intelligenceand Investigation (Customs and Excise) on 26- 12-1987 in the Court of Special Judge (Customs), Karachi, is also based on the same facts, evidence and the property as in the F.I.R. Filed subsequently by respondent No,1 in the two Courts i,e, Special Judge (Customs and Taxation) and Special Judge (Central), Karachi. ' It is the further case of the petitioners that the investigation/prosecution by respondent No,1 and Directorate of Intelligence (Customs and Excise) is in clear violation of the fundamental rights of the petitioners as guaranteed under Article 13 of the Constitution of Islamic Republic of Pakistan and is thus ab initio void, without lawful authority and of no legal effect. ' Respondent No,1 filed counter-affidavit in C.P. No,D-21 of 1988 wherein he denied that the petitioner was being prosecuted by different agencies in different Courts for the same offence and alleged that the petitioner was being prosecuted by the two agencies for separate substantive. Offences under different enactments and, therefore, there was no violation of Article 13 of the Constitution of Pakistan or of General Clauses Act, 1897 and pleaded that the petition was not maintainable. ' Messrs Sharaf Faridi and Raja Qureshi, learned counsel for the petitioners in both the petitions, raised the following contentions:-- (1) There are two different forums before whom the petitioners are being prosecuted on the same set of facts, evidence and property. (2) Such prosecution negates Fundamental Right No,13.
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(3) It also militates against judicial concept of evidence of conflicting judgments. (4) The double trial negates the well established principles of evidence on issue of estoppel. (5) The provisions of section 156(82) of the Customs Act, 1969 impliedly repealed provisions of Section 5(1)(d) of the Anti-Corruption Act. ' On the other hand Mr. Abdul Waheed Siddiqui, learned counsel for the respondents while fairly conceding that the facts are the same and the incident is also same nonetheless submits that in the instant case provisions of section 156 of Customs Act and section 5(2) of Anti-Corruption Act are both attracted and as such the prosecution is not hit by double jeopardy provision. ' Mr. A.A. Mohammadally, learned Additional Advocate-General, Sindh, submitted that the prosecution is not bad as suggested by the learned counsel for the petitioners. He supported the views of Mr. Abdul Waheed Siddiqui. ' In order to appreciate the contentions of the learned counsel for the parties, it is advantageous to reproduce (1) Article 13 of the Constitution of the Islamic Republic of Pakistan, (2) Article 20(2) of Indian Constitution, (3) the Fifth Amendment to the Constitution of U.S.A. And (4) section 403 of the Code of Criminal Procedure, 1898, which read as under:-- Article 13 "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." Article 20(2), "No person shall be prosecuted and punished for the same offence more than once." Fifth Amendment to the Constitution of the U.SA "No person shall be............... Subject for the same offence to be twice put in jeopardy of life or limb." Section 403. Cr P.0 (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 conviction 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 a different charge from the one made against him might have been made under section 236, or for which he might have been convicted under section 237. (2) A person acquitted or convicted of any offence may be afterwards tried for any distinct offence for which 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 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 consequences had not happened, or were not known to the Court to have happened, at the time when he was convicted. (4) A person 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 provisions of section 26 of the General Clauses Act, 1897, or section 188 of this Code." The question that arises for our determination is as to whether the proceedings pending before the Court of Special Judge (Customs and Taxation) Karachi and those pending before Special Judge*Anti-Corruption (Central) are one and the same and in respect of one and the same offence and are hit by Article 13 of the Constitution of Islamic Republic of Pakistan or under General Clauses Act?
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' There is no doubt that the act which constitutes an offence under section 32 of Customs Act is punishable under section 156(1)(14) as well as under section 156(1)(82) of the Customs Act and it is an offence under section 156(1)(82) of the Customs Act as well as under section 5(2) of Act No,II of 1947. ' Clause 14 of section 156 provides that if any person commits an offence under section 32, such person shall be liable to a penalty not exceeding rupees twenty-five thousand or three times the value of the goods in respect of which such offence is committed, whichever be greater; and such goods shall also be liable to confiscation; and upon conviction by a Magistrate, such person shall further be liable to imprisonment for a term not exceeding three years, or to fine or to both. ' Clause 182 provides that if any officer of Customs, or other person duly employed for the prevention of smuggling practices, or attempts to practice, any fraud for the purpose of injuring the Customs Revenue, or abets or connives at any such fraud, or any attempt to practice any such fraud, such officer or person shall, on conviction before a Special Judge be liable to imprisonment for a term not exceeding three years, or to fine, or to both. ' Subsection (2) of section 5 of Prevention of Corruption Act, 1947 (Act No,II of 194 /), provides that any public servant who commits or attempts to commit criminal misconduct shall be punishable with imprisonment for a term which may extend to seven years or with fine or with both. ' The word "offence" has not been defined in the Constitution. Section 3(37) of the Gener-al Clauses Act defines an offence to mean any act or omission made punishable by any law for the time being in force. Section 2(o) of the Code of Criminal Procedure also defines "offence" to mean any act or omission made punishable by any law for the time being in force; it also includes any act in respect of which a complaint may be made under section 20 of the Cattle Trespass Act, 1871. Thus there is no doubt that both under the provisions of section 156(14)(82) Customs Act, 1969 and section 5(2) of the Prevention of Corruption Act, 1947, the acts of the petitioners are punishable and constitute an offence. ' However, in order to attract the operation of Article 13 of the Constitution, the petitioners must have been prosecuted or punished for the same offence when proceedings are taken before the Court of Special Judge (Central), Karachi. The Fundamental Right which is guaranteed in Article 13 enunciates the principle of prosecution or punishment for the same offence more than once. `Prosecution' or 'prosecute' in the special sense of law means, according to Webster's Dictionary: " (a) to follow, pursue, to follow to the end, to seek to obtain, to enforce, or the like, by legal process, to prosecute a right or a claim in a Court of law; (b) to pursue to institute legal proceedings for redress or punishment; to proceed against judicially; esp., to accuse of some crime or breach of law, or to pursue for redress or punishment of a crime or violation of law, in due legal form before a j gal tribunal; the carrying on of a judicial proceeding on behalf of a complaining party, the institution and continuance of a criminal suit involving the process of exhibiting formal charges against an offender before a legal tribunal and pursuing them to find judgment on behalf of the State or Government". ' According to Wharton's Law Lexicon by A.S. Oppe, 14th edition (1976 Reprint) page 810, 'prosecution' means "a proceeding either by way of indictment or information, in the Criminal Courts, in order to put an offender upon his trial". ' The word 'prosecution' occurring in Article 13 would mean an initiation or starting of proceedings of criminal nature before a Court of Law or a Judicial Tribunal in accordance with the procedure prescribed in the Statute which creates the offences and regulates the procedure. ' The word 'punish' occurring in Article 13 would mean "to cause the offender to suffer for the offence" or "to inflict penalty on the offender" or "to inflict penalty for the offence". The word 'punish' denotes or signifies some offence committed by the person who is punished.
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' The fifth amendment of the American Constitution enunciated this principle in the following manner:-- ' nor shall any person be subject for the same offence to be twice put in jeopardy of life and limb; nor shall be compelled in any criminal case, to be witness against himself............................................. tI ' WILLS in his Constitutional Law, at page 528, observes that the phrase "jeopardy of life or limb" indicates that the immunity is restricted to crimes of the highest grade, and this is the way Balckstone states the rule. Yet, by a gradual process of liberal construction, the Courts have extended the scope of the clause to make it applicable to all indictable offences, including misdemeanour. Under the United States rule, to be put in jeopardy there must be a valid indictment or information duly presented to a Court of competent jurisdiction, there must be an arraignment and plea, and a lawful jury must be impanelled and sworn. It is not necessary to have a verdict. The protection is not against second punishment but against the peril in which he is placed by the jeopardy mentioned. ' In Millard F. Ball John C. Ball and Robert E. Bountwell v. United States (163 U.S. 3003), it was held that prohibition is not against being twice punished but being twice put in jeopardy; and the accused, whether convicted or acquitted, is equally put in jeopardy at the first trial. ' In Thomas E. Kepner v. United States (195 U.S. 114) it was held as follows:-- ". . . . We have not been able to find a single American case where a retrial has been ordered or sanctioned by an appellate Court at the instance of the prosecution, after the defendant had been once put upon his trial for an alleged felony, upon a valid indictment before a competent Court and jury, and acquitted by the verdict of such jury; but we find a vast number of adjudications of the highest judicial tribunals of the different States and many of the Federal Courts to the effect that no such retrial is authorized by the common law, and is directly interdicted by the Constitution of the United States, and also of most of the several States." ' In Homer E. Grafton v. United States (206 U.S. 1084) the principal contention of the accused was that his acquittal by the Court-martial forbade his being again tried in the Civil Court for the same offence. It was held:-- "It must, then, be taken on the present record that an affirmance of the judgment of the Civil Court will subject the accused to punishment for the same acts, constituting the same offence as that of which he had been previously acquitted by a military Court having complete jurisdiciton to try and punish him for such offense." ' In United States v. Vito Lanza, Dick Barto, Premo Mazzoncini, and Euguini Mazzoncini (260 U.S. 314), the defendants insist that two punishments for the same act, one under the National Prohibition Act and the other under a State Law, constitute double jeopardy under the Fifth Amendment; and in support of this position, it was argued that both laws derive their force from the same authority, the 2d section of the Amendment, and therefore, that, in principle it is as if both punishments were in prosecutions by the United States in its Courts. Chief Justice Taft delivered the opinion of the Court and held: "It follows that an act denounced as a crime by both national and State sovereignties is an offence against the peace and dignity of both, and may be punished by each. The 5th Amendment, like all the other guarantees in the first eight amendments, applies only to proceedings by the Federal Government (Barron v. Baltimore, 7 Pet. 243, 8 L.Ed.672), and the double jeopardy therein forbidden is a second prosecution under authority of the Federal Government after a first trial for the same offence under the same authority. Here the same act was an offence against the state of Washington, because a violation of its law, and also an offence againt the United States under the National Prohibition Act. The defendants thus committed two different offences by the same act, and a conviction by the Court of Washington of the offense against that state is not a conviction of the different offence against the United States, and so is not double jeopardy."
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' In Harry Blockburger v. United States of America (284 U.S. 298 76 L. Ed. 306), the contention on behalf of the petitioner was that the two sales having been made to the same purchaser and following each other with no substantial interval of time between the delivery of the drug in the first transaction and the payment for the second quantity sold, constitute a single continuing offence. It was held that the contention was devoid of force ' In Wemyss v. Hopkins (L R 10 Q B 378) it was held that the first conviction was a bar to the second. In the course of the discussion, it was observed by Blackburn, J.: "I think the fact that the appellant had been convicted by justices under one Act of Parliament for what amounted to an assault is a bar to a conviction under another Act of Parliament for the same assault. The defence does not arise on a plea of autrefois convict, but on the well-established rule at common law, that where a person has been convicted and punished for an offence by a Court of competent jurisdiction, transit in rem judicatam, that is, the conviction shall be a bar to all further proceedings for the same offence, and he shall not be punished again for the same matter; otherwise there might be two different punishments for the same offence. The only point raised is whether a defence in the nature of a plea of autrefois convict would extend to a conviction before two justices whose jurisdiction is created by statute. I think the fact that the jurisdiction of the justices is created by statute makes no difference. Where the conviction is by a Court of competent jurisdiction, it matters not…
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