Wednesday, November 23, 2011

Judgments for Section 26 of the General Clauses Act 1897

I.                  Supreme Court of Pakistan
1.      Muhammad Noor v. Member Board of Revenue; PLD 1985 SC 335
In this case the petitioner had been tried and convicted under Section 302 of the PPC for murder. The Deputy Commissioner presiding over the Criminal Tribunal constituted under Criminal Law (Special Provisions) Ordinance II had sentenced him to 14 years rigorous imprisonment. The petitioner appealed this before the Commissioner Makran Division who was also hearing the confirmation reference for the aforesaid conviction. Commissioner accepted the reference and dismissed the said appeal. The petitioner then filed a revision petition before Member Board of Revenue, which was also dismissed at which time Mr. Noor moved the High Court through a Constitutional Petition taking the ground that his case was triable under Sections 15 and 17(4) of the Offence against Property (Enforcement of Hadd) Ordinance 1979 as Harabba and not under the aforesaid Criminal Law Ordinance II. It is pertinent to mention here that the police had submitted another challan under the aforesaid Property (Enforcement of Hadd) Ordinance and Section 393 of the PPC. Held that Section 403 of the Criminal Procedure Code 1898 (“Cr.PC”) and Section 26 of the GCA provide that “if an act or omission constitutes offence/offences under two or more enactments, then the offender though can be prosecuted under either or any of those enactments, but cannot be punished twice for the same offence.“ (See third last paragraph on Page 340).

II.               High Courts
2.      Amanul Mulk v. The State; 2003 YLR 1507(2)
The petitioners were proceeded against for smuggling and carrying huge quantities of heroin. A case registered against them under Section 156 (1) (89) of the Customs Act 1969 and they were sentenced to five years rigorous imprisonment and fines of a substantial amount. After serving out the said sentence they were proceeded against for the same offence under Section 9 of the Control of Narcotics Substances Act 1997 in a special court created by the same statute. Held: The principle contained in Section 26 of the GCA comes into play when an act or omission constitutes an offence under two or more enactments. The court concluded that trial under Section 9 of the aforesaid CNSA 1997 under a special court was not hit by the principle of double jeopardy.  However the sentence and the conviction by Judge Special Court was quashed as being coram non judice. It was further held that “we also for the ends of justice hold that the learned Judge Special Court, (sic) his view a case for conviction is made out and consider the sentence so served out by the petitioner.”
3.      Yaru v. The State; 2003 P Cr. L J 1960
The petitioner was charged under Sections 392, 397 and 34 of the PPC as well as Section 7 (a) and (b) of the Anti Terrorism Act 1997 (“ATA”) which deal with robbery, vehicle snatching and use of deadly arms while carrying out the acts. The vehicle was snatched on pistol point by putting the complainant under fear of instant death or instant hurt and therefore the ingredients of robbery as defined under Section 390 of the PPC were attracted, which is punishable under Section 392 of the PPC i.e., imprisonment which should not be less than 3 years and more than 10 years and fine and if the robbery is committed on highway then the imprisonment may extend to 14 years. In case, while committing robbery the offender uses any deadly weapon then the imprisonment should not be less than seven years as provided under Section 397 of the PPC. The offence of vehicle snatching as defined under Section 7(a) of the ATA is punishable under Section 7(b) of the ATA and sentence provided under this section may extend to seven years and fine. Held that in the above situation section 26 of the General Clauses Act would also come into operation which provides that where an act or omission constitutes an offence under two or more enactments then the offender shall be liable to be prosecuted and punished under either or any of those enactments but shall not be liable to be punished twice for the same offence.
4.      Muhammad Nawaz Sharif v. State;  PLD 2002 Kar 152
This judgment pertains to the question of the legality of the orders of Mian Muhammad Nawaz Sharif, then Prime Minister of Pakistan, to divert a Pakistan International Airline plane carrying the Chief of Army Staff, General Pervez Musharraf.  It was the prosecution’s case that the deposed Prime Minister had carried out the offence of hijacking and an act of terrorism by giving such orders.  In the context of Section 26 of the GCA, Mr. Nawaz Sharif’s counsel contended that a trial on two charges – one under 402-B of the PPC and the other under Section 7 of the ATA constituted double jeopardy and was in violation of Section 26 GCA aforesaid. Held that the case was triable under both provisions. (See Para 163 on Page 266 of the judgment).
5.      Ameer Gul v. The State; 1992 MLD 936
The issue before the court revolved around Article 33 of the Prohibition (Enforcement of Hadd) Order, 1979, Opium Act, 1878 and Sindh Akbari Act, 1878. The court held that Article 33 of the aforesaid did not repeal Opium Act 1878 or Sindh Akbari Act, 1878, though these became dormant. The applicant was prosecuted under Articles 3 and 4 of the Prohibition (Enforcement of Hadd) Order, 1979 for possessing the powder of heroin. Held that the applicant could have been prosecuted simultaneously for the offence under Section 9 of the Opium Act, 1878 and Section 43 of the Sindh Akbari Act, 1878 for being found in possession of contraband charas and opium but he was not. Ultimately the applicant was prosecuted and convicted under the aforesaid Prohibition Order before a magistrate for contraband charas and opium, which could not have been done as the definition of intoxicant included charas and opium and where heroin, charas and opium were part of the same transaction. This case stands out as an example of where
6.      Muhammad Sadiq Javeed v. The State; PLD 1969 Peshawar 12
The petitioner was a cashier in the office of the director of basic democracies who was tried and sentenced to nine years R.I. and Rs. 70,000 in default whereof he was to undergo another two and a half years of rigorous imprisonment. He was tried under Section 409 of the PPC and Section 5(2) of the Prevention of Corruption Act, 1947 (“PCA  1947”) but the aforementioned sentence was given under Section 409. Held that double punishment prohibited but not trial and conviction under two enactments relating to the same offence.
7.       Niaz Ali v. The State; PLD 1961 (W.P.) Lahore 269
The petitioner, a patwari, appealed against his conviction under Section 161 of the PPC and Section 5 of the Prevention of Corruption Act, 1947 (“PCA 1947”) by Special Judge, Anti Corruption, Multan who had sentenced him to six months rigorous punishment for each offence and in addition to that a fine of Rs. 50 on each count or two months punishment for each count on default thereof. Held Section 26 of the General Clauses Act provides a bar to double punishment for the same offence, although a person is liable to be prosecuted and tried under two or more enactments.  In other words there is no bar to a trial or a conviction for the same act which is an offence under different enactments but there is a bar to a punishment being awarded twice for the same offence.”
8.      Ali Abbas v. The State; PLD 1959 (W.P.) Karachi 56
The facts are that the petitioner was sentenced to one year’s rigorous imprisonment and a fine or in default to one year’s further rigorous imprisonment under Section 409 of the PPC and a fine of the same amount as above or, in default thereto, one year’s further rigorous imprisonment. under Section 5(2) of the PCA 1947. Held:  “It is not permissible to punish the accused twice for the same offence. Subsection (4) of Section 5 preserves only proceedings instituted in respect of the same conduct which is an offence under another law, but does not preserve double punishment. On the point of punishment subsection (4) of Section 5 is silent and in the absence of provision preserving punishment as well the provisions of Section 26 of the General Clauses act will apply to which all enactments are subject. “(See Page 60).
9.      The State v. N H Puri; PLD 1959 (W.P.) Karachi 392  
This case pertained to a complaint by tenants of the respondent that he in his capacity as landlord was interfering with the supply of water which was an offence under Section 430 of the PPC as well as Section 11 of the Karachi Rent Restriction Act, 1953 (“KRRA”). The question considered by the court was whether Section 11 of the KRRA repeated aforesaid Section 430 of the PPC. Held that “However the mere fact that an act or a series of acts which is declared to be an offence under a statute is an offence already by another statute does not imply that the first statute is repealed to the extent to which the second statute applies. This is quite clear from section 26 of the General Clauses Act according to which for an act or omission which is an offence under more than one provision of law the offender cannot be punished under more than one provision although he can be prosecuted for all.“ (See Page 394).

III.           Federal Shariat Court
10.  Muhammad Imran v. The State;  2006 P Cr. L J 954
The petitioner prayed that his imprisonment period totaling 43 years and three months in different cases be made concurrent.  Here the issue also considered the fact that he was punished under Section 13 of the West Pakistan Arms Ordinance 1965 and Sections 15, 17(2) and (3) of the Offences against Property (Enforcement of Hadd) Ordinance 1979, both of which were attracted to his case.  Held For an act or omission constituting offence under two or more enactments, offender would be liable to be prosecuted and punished under any of those enactments as provided by Section 26 of the GCA but he could not be punished twice.
11.  The State v. Anwar Khattak; PLD 1990 FSC 62
The respondent was found in possession of a huge quantity of narcotics. He was challaned under Sections 2(s), 16 and 156(8) of Customs Act, 1969. The Federal Shariat Court took notice of the fact that Prohibition (Enforcement of Hadd) Ordinance 1979 was not applied in the F.I.R nor was he challaned under Articles 3 and 4 of the aforesaid Prohibition Ordinance. Held: With reference to the application of Section 26 of the GCA, that the two laws in respect of smuggling or import and export of narcotics create distinct offences and an acquittal or conviction in one would not be a bar to try and punish under the other.

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