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Criminal Miscellaneous Application No. 799 of 1978, decided on 23rd August 1978.
S. 43(3) and Customs Act (IV of 1969)‑Double jeopardy‑Principle of‑Offences under two enactments distinct and made up of different ingredients‑Bar under S. 6, General Clauses Act (X of 1897), S. 403, Criminal Procedure Code (V of 1898), and Art. 13, Constitution of Pakistan (1973)‑Held, not attracted to trial of such offences.‑[Double jeopardy].
A I R 1961 S C 578 ref.
Sohail Muzzaffar Hassan for Applicants.
A. S. Sheikh, A. A.‑G. for the State.
By Sind Adaptation of Laws Order, 1975, Part II, the Sind Abkari Act V of 1878, has been made applicable to 'Sind' instead of specified territories. "Sind" was substituted for Bombay Presidency in 1941. Province of Sind consisting of Sind Districts except Karachi was substituted by W. P. Ordinance XXVIII of 1958. But there were subsequent amendments of section 3, clause 21. The clause was omitted and 'Sind' under the General Clauses Act included Karachi also. The Sind Abkari Act is therefore applicable in Karachi. This is clear from West Pakistan Laws Adaptation Order, 1964. (P L D 1964 W. P. Statutes 294) Sind Abkari Act, clause (c) which says "In section 3 omit clauses (4‑a) and (21). Under clause 60(a) of Part III of Sind Adaptation of Laws Order, 1975. section 2, Sind shall mean territories comprised in the Province of Sind on or after 1st July 1970 i. e. on dissolution of One Unit "Sind" included "Karachi" also. (P L D 1975 Sind Statutes 148).
Even otherwise Sind Abkari Act continues to apply to Karachi. Clause 6 of Pakistan Establishment of Federal Capital Order, 1948, provided that all laws applicable to Karachi before it became Centrally Administered Area would continue to apply.
So this objection is of no avail to the petitioner.
Regarding the objection as to "Double Jeopardy", that a case under Customs Act having been registered for smuggling of foreign whisky, the other case under section 43(3), Abkari Act could not be sent up also on the same facts, it may be stated that the offence under the Customs Act is not the same as offence under Abkari Act, one deals with import without licence, the other is with regard to possession of intoxicants. These are distinct A offences made up of different ingredients as answered in A I R 1961 S C 578. Therefore the bar under section 26 of General Clauses Act, S. 403, Cr. P. C.I and Article 13 of the Constitution would not appear to be attracted.
In any case it is a question which could be left for decision to the trial Court dealing with the offence under section 43(3), Abkari Act, as the 'trial' is not barred and the consideration would relate to 'punishment', only.
In the result this petition for quashment is dismissed in limine.
S. Q Petition dismissed.
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