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Criminal Miscellaneous No. 387 of 1976, heard on 10th December, 1979.
---‑S. 403‑Bar created under S. 403, Cdr. P. C. ‑‑Held : Operates only against convictions in respect of same offence‑Both prosecutions before Special Judge (Customs & Taxation) and Foreign Exchange Tribunal in respect of same set of facts, same set of evidence and same property involved and accused being dragged before two tribunals for one offence‑Prosecution directed to proceed with only one case at their choice and to stay, proceedings in other ca till decision of first case‑Criminal Procedure Code (V of Y898), S.561‑A.
---‑S. 561‑A read with Customs Act (IV of 1969), S: 185 (f) Quashment of proceedings‑Despite bar in. S. 185 (D of Customs Act‑High Court, held, still empowered under S. 561‑A, Cr. P. C. to quash proceedings, pending before Special Judge (Customs & Taxation).‑[Jurisdiction].
Mohd. Hayat Junejo for Applicant.
Usman Ghani Rashid, A. ‑G. for the State.
Dates of hearing : 9th and 10th December, 1979.
In this applications the applicant has challenged the filing of two proceedings against him under the Customs Act and Foreign Exchange Regulation Act. The applicant was accused of having possessed foreign currency which was found in the layer of sweetmeat in a tin which was contained in a suit case which belonged to the applicant, but the applicant's contention was that the said tin had been entrusted ‑to him‑_by one Abdul Ghaffar for the purpose of delivery to his son at Dubai.
Mr. Hayat Junejo; learned counsel for the applicant has not pressed his prayer for the quashmbnt of the two cases but only wants that case pending before the Special Judge (Customs & Taxation), Karachi be stayed till the decision of the case under the Foreign Exchange Regulation Act, by the Sessions and Foreign Exchange Tribunal, Karachi. The sub mission is based on the fact that both the prosecutions are in respect of the same set, of facts and same set of evidence and same property is involved and the accused is being unnecessarily dragged before the two tribunals for one offence. There is considerable force in the submission of Mr..' Hayat Junejo. The applicant should not be dragged before two Courts; for the one offence, at the same time. But Mr. Usman Ghani Rashid, learned Advocate‑General submits that option of choice of proceeding in a particular case could not be left with the applicant and it should be choice of the prosecution. I am in agreement with him in this particular aspect and I therefore asked him to state as to which parti cular case prosecution wants to prosecute in the first instance. Mr. Usman Ghani Rashid also wanted me to note that he asserts that both the prosecutions can continue at one and the same time. According to the letter of law the position adopted by the Advocate‑General may be correct as the bar under section 403, Cr. P. C. is against two convictions in. respect of the same offence and I am therefore not quashing any of the proceedings but I consider that it would in the ends of the justice if the prosecution is directed to proceed with the prosecution of only one case at a time at their choice and to stay the proceedings in the other case till the decision of the first case which they choose to try.
Mr. Usman Ghani, learned Advocate‑General had objected to the jurisdiction of the High Court under section 561‑A of Cr. P. C. in respect of matters pending before the Special Judge (Custom & Taxation), Karachi in view of the provision of section 185 (f) of the Customs Act. But Mr. Hayat Junejo has shown me a judgment of Mr. Justice Mushtak Ali Qazi in Cr.‑Misc. Application No. 386/1974 dated 24th September, 1978 where he has held that High Court has still power under section 561‑A of Cf. P. C. to quash the proceedings before the Special Judge (Customs & Taxa tion), Karachi in spite of provision of section 185 of Customs Act. With respect I follow this decision and I have therefore made above order. This Misc. Application is thus disposed of in terms of the above order.
Order accordingly
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