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Criminal Petition No. K‑2 of 1980, decided on 23rd January, 1980.

(On appeal from the order dated 10‑12‑1979 of the High Court of Sind at Karachi in Criminal Miscellaneous Application No. 387 of 1976).

‑‑ S. 561‑A read with Customs Act (IV of 1969), S. 156(8) and Foreign Exchange Regulation Act (VII of 1947), S. 23‑Application for stay of proceedings in one of two cases‑High Court ordering prosecution to proceed with only one case at a time and leaving such choice to prosecution‑No justification found for interference with order of High Court‑Petition for leave to appeal dismissed.

Mohammad Hayat Junejo. Senior Advocate Supreme Court and Noor Ahmad Noori, Advocate‑on‑Record for Petitioner.

Nemo for the State.

Date of hearing : 23rd January, 1980.

.‑Leave to appeal is sought from an order dated 10th December, 1979, passed by a learned Single Judge of the High Court of Sind, whereby the petitioner's application under sec tion 561‑A, Cr. P. C. was disposed of with certain observations and directions.

The prosecution case is that the petitioner was found in possession of currency ; which in the facts and circumstances constituted offence under the Customs Act as also under the Foreign Exchange Regulation Act. His explanation was that the sweetmeat box containing the currency belonged to one Ghaffar who had entrusted the same to the petitioner for delivering it to his son at Dubai. Two separate challans were submitted against the petitioner ; one before a learned Special Judge (Customs and Taxation) for offence under section 156(8) of the Customs Act and the other before a learned Sessions Judge acting as Foreign Exchange Regulation Tribunal, for an offence under section 23 of the Foreign Exchange Regulation Act.

Although Abdul Ghaffar was also mentioned as an absconding accused in the F. I. R., it is petitioner's case that no effort has so far been made to arrest and/or to prosecute him. The petitioner felt that unless Abdul Ghaffar is also arrested and prosecuted with him during the same pro ceedings, his own defence plea noted above would be prejudiced. He accordingly made this grievance through an application under sec tion 561‑A, Cr. P. C. filed in the High Court.

It is noted in the impugned order that the learned counsel for the petitioner had not "pressed his prayer for quashment of the two cases". He only wanted that "the 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 Judge/Foreign Exchange Tribunal".

After hearing the learned counsel for the petitioner and the learned Advocate‑General on various questions including the scope of the jurisdiction of the High Court under section 561‑A, Cr. P. C. in the matter like the present one, the learned Judge in Chambers did not agree with the learned counsel for the petitioner that a particular case be stayed. However, it was observed that "it would be in the ends of 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".

Learned counsel for the petitioner states that although it would not be permissible to punish the accused twice for different offences, which are constituted by the same facts, it would not be possible for him to press that the prosecution for the two offences is also not lawful. He. therefore, reiterated the prayer that in view of the circumstances of the case, both the prosecutions should not proceed at one time‑petitioner's defence would be prejudiced. When pointed out that such a relief has already been granted to the petitioner by the High Court, learned counsel complained that the impugned order is not being understood and applied in this sense. It is not necessary for us to go into the merits of the case. The relevant portion of the impugned order quoted above is clear enough to show that the learned Single Judge in the High Court had ordered that prosecution should proceed with only one case at a time, although the choice as to which that one case should be, was left to the prosecution. This is also clear from the concluding operative part of the impugned order; whereby after overruling a technical objection raised by the learned Advocate‑General, it was observed that the appli cation was being disposed of "in terms of the above order". The ex pression above order' refers to that portion of the order which has been quoted earlier. With these observations we do not find any justification for interference. This petition accordingly is dismissed.

Petition dismissed.

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