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Petitioner: KHAIR-UL-REHMAN and others VS Respondent: THE STATE and others
Court Name: Lahore High Court Judge(s): Asif Saeed Khan Khosa, Sardar Muhammad Aslam, Ali Nawaz Chohan Title: KHAIR-UL-REHMAN and others vs THE STATE and others Case No.:Criminal Miscellaneous Nos. 1673-B, 8974-B, 6512-B & 1 (in Criminal Appeals Nos.1521 and 800 of 2004) of
JUDGMENT
Reported As: PLD 2005 Lahore 440 Result: Reference answered Judgment JUDGMENT ASIF SAEED KHAN KHOSA, J.---While dealing with Criminal Miscellaneous No,1673-B of 2004, Criminal Miscellaneous No,697-B of 2005, Criminal Miscellaneous No,8974-B of 2004, Criminal Miscellaneous No,6512-B of 2004, Criminal Miscellaneous No,640-B of 2005, Criminal Miscellaneous No,1 of 2004 in Criminal Appeal No,1521 of 2004, Criminal Miscellaneous No,1 of 2004 in Criminal Appeal No,800 of 2004, Criminal Appeal No,1527 of 2001 and Criminal Appeal No,1528 of 2001 which involve alleged recovery of narcotic substances from the petitioners/appellants therein a Division Bench of this Court comprising of my learned brothers Ali Nawaz Chowhan and Rustam Ali Malik, JJ. Passed the following order on 17-2-2005: "We have heard the arguments in the following cases:-- In these cases a common question is involved whether the poppy-straw recovered from the petitioners required a test at the Office of the Chemical Examiner for ascertaining the quantity of narcotics substance/morphine as a prelude to a report under section 173, Cr.P.C. 2. The argument vehemently advanced by the petitioners side is that some portions of the poppy straw have to be excluded as these are not narcotics substance at all. That regarding punishments there is also a need for interpretation of the law. 3. We would have given our findings but we have been informed that in Farhad Ali v. State 2003 MLD 1475 a view has already been taken by a learned Division Bench of this Court comprising of our learned brothers Khawaja Muhammad Sharif and Asif Saeed Khan Khosa, JJ. 4. This matter being of great public importance and for avoiding possibility of any contradictory views by two Division Benches of this Court we are of the view that the matter may be placed before the Hon'ble the Chief Justice for constituting a larger Bench for reviewing these cases and for an authoritative judgment on the subject for future guidance and in the public interest." On the basis of that request made by the Division Bench the Hon'ble Chief justice was pleased to constitute the present Full Bench so that an authoritative pronouncement may be rendered on the referred issues. 2. I have found that in most of the above mentioned cases under consideration before the referring Division Bench the substance allegedly recovered from the petitioners/appellants therein was Toast which was being treated by the Division Bench as 'poppy straw'. The discussion that follows would show that Port and poppy straw may not necessarily and always be one and the same thing. I have, therefore, split the question referred to us in the following parts so that each aspect of the referred question can be considered and decided separately and appropriately:- (i) What exactly is that which is called Toast'? (ii) Whether Poast is a narcotic substance within the purview of the Control of Narcotic Substances Act, 1997 or not? (iii) Whether ascertainment by a Chemical Examiner regarding the actual quantity of morphine in the recovered substance is necessary in a case of recovery of Poast? 3. We have heard the learned counsel for the parties at some length over a period of four days and I have gone through the material referred to by them with due consideration and scrutiny. 4. Mr. Gauhar Razzaq Awan, Advocate for the petitioner in Criminal Miscellaneous No,1673-B of 2004 has pointed out that by virtue of section 6 of the Control of Narcotic Substances Act, 1997 the prohibitions contained in the said Act pertain to three different kinds of narcotic substances, i,e, 'narcotic drug', `psychotropic substance and `controlled substance and the said three categories of narcotic substances have separately been defined in sections 2(s), 2(za) and 2(k) of that Act respectively. According to him only the definition of 'narcotic drugis relevant to the issues involved in this reference. He has maintained that the definition of 'narcotic drugcontained in section 2(s) of the Act includes opium and poppy straw but if the said definition is read with the provisions of
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sections 2(t)(i), 2(w) and 2(v) of the Act then only those poppy plants appear to be relevant which are of the species Papaver Somniferum L and not of all the other different species of poppy plant. He has argued that application of the provisions of the Act to all species of poppy plant is illegal and the same is proving to be oppressive. 5. Mr. Burhan Moazzam Malik Advocate for the petitioner in Criminal Miscellaneous No,6512-B of 2004 has referred to the definitions of 'opium contained in section 3(i) of the Opium Act, 1878, section 2(e) of the Dangerous Drugs Act, 1930, Schedule appended with the Prohibition (Enforcement of Hadd) Order, 1979, section 2(r) of the Control of Narcotic Substances Ordinance, 1995 and section 2(t) of the Control of Narcotic Substances Act, 1997 in order to highlight that in all the earlier definitions of 'opiumonly those poppy plants were relevant "from which narcotics can be extracted" but in the definition of 'opium contained in the Act of 1997 the words from which narcotics can be extracted" were omitted by the legislature which creates an impression that now all species of poppy plant may attract the definition of 'opium'. He has, however, hastened to add that if section 2(t) of the Act is read with section 2(w) and section 2(v) of the Act then it once again emerges that only those species of poppy plant are relevant to the definition of `opium which can be used for extracting narcotics therefrom and not all species of poppy plant. Mr. Malik has maintained that a combined reading of the provisions of section 2(t)(i), (ii) and (iii) with those of section 2(w) and section 2(v) shows that in order to qualify as 'opiumthe parts of the plant, its juices and its mixtures must originate from a plant of the species Papaver Somniferum L. He has also referred to sections 4 and 5 of the Act in order to highlight that the plants which can be called 'narcotic plantshave been clearly specified in the said sections and they include only cannabis plant, coca bush and opium poppy. According to him section 2(v) defines 'opium poppyas "the plant of the species Papaver Somnieferum L" and, thus, no other plant as such can be termed as narcotic plant and possession of such other plant or any part thereof cannot attract the prohibitions contained in the Act. Mr. Malik has further maintained that if cultivation of all other species of poppy plant is not prohibited by section 4 of the Act and if such cultivation is not punishable under section 5 of the Act then it would be anomalous to hold that possession of such other species of poppy plant or parts thereof is by itself culpable. According to him it would be ridiculous to maintain that a person cannot be stopped from cultivating such other species of poppy plant but he or anybody else in possession of the crop of such plant can be sentenced to death under section 9(c) of the Act. It has, therefore, been submitted by him that in the interest of harmonious interpretation of different provisions of the Act so as to obviate any chance of a conflict between the same section 2(t) should be read as referring only to those species of poppy plant which are mentioned in section 2(w) read with section 2(v) and sections 4 and 5 of the Act. He has referred to the case of Inayat-ur-Rehman v. The State (1998 MLD 323) decided by the Hon'ble Federal Shariat Court in terms of the old definition of 'opiumand to the case of Farhad Ali v. The State (2003 MLD 1475) decided by a Division Bench of this Court wherein Poast has been accepted as a narcotic substance. In support of his arguments Mr.Malik has also referred to the relevant extracts from the following authoritative works: The New Oxford Encyclopedic Dictionary published by the Oxford University Press. Parikh's Text Book of Medical Jurisprudence and Toxicology authored by Dr. C.K. Parikh and published by CBS Publishers & Distributors in 1996. Modi's Text-Book of Medical Jurisprudence and Toxicology, Pakistani Edition published by Shan Book Corporation, Lahore, Pakistan. Lyon's Medical Jurisprudence of India published by Law Publishers (India) Pvt., Allahabad, India in 1988. A Modern Herbal authored by Mrs. C.F. Leyel and published by Tiger Books International, London, U.K. In 1992. Medicinal and Poisonous Plants of Pakistan authored by Syed Riaz Baquar and published by Printas, Karachi, Pakistan in 1989. Herbs & Other Medicinal Plants published by Galley Press, and Medical Jurisprudence and Toxicology authored by H.W.V Cox and published by The Law Book Company (P) Ltd.,Allahabad, India in 1995. 6. Miss Nighat Saeed Mughal, Advocate for the petitioner in Criminal Miscellaneous No,697-B of 2005, Mr. Bashir Ahmad Qureshi, Advocate for the petitioner in Criminal Miscellaneous No,8974-B of 2004, Mr. Aftab Ahmad Bajwa, Advocate for the petitioner in Criminal Miscellaneous No,640-B of 2005 and for the petitioner-appellant in Criminal Miscellaneous No,1 of 2004 in Criminal Appeal No,1521 of 2004 and Mr. Mudassar Abbas Maghiana, Advocate for the petitioner appellant in Criminal Miscellaneous No,1 of 2004 in Criminal Appeal No,800 of 2004 have adopted the above mentioned arguments advanced by Mr. Burhan Moazzam Malik, Advocate. Mr. Bajwa has also referred to different provisions of the Single Convention on Narcotic Drugs, New York (1961) and the Control of Narcotic Substances (Regulation of Drugs of Abuse, Controlled Chemicals, Equipment and Materials) Rules, 2001 framed under the Control of Narcotic Substances Act, 1997. 7. Sardar Muhammad Latif Khan Khosa, Advocate for the appellant in Criminal Appeal No,1527 of 2001 and Criminal Appeal No,1528 of 2001 has submitted that the definition of 'poppy strawcontained in section 2(w) read with section 2(v) of the Control of Narcotic Substances Act, 1997 is limited only to poppy plant of the species Papaver Somniferum L and, thus, the same cannot be extended or applied to poppy plants of the other species or their parts. He has vehemently argued that the definition of 'opiumcontained in section 2(t), particularly in section 2(t)(i) of the said Act, is susceptible to misuse and the same is in fact being gravely misused by the Anti-Narcotics Force and the same, therefore, needs to be interpreted by us in such a manner that it minimizes the sufferings of the citizens. He has gone on to maintain that restrictions placed by the said definition of `opiumcurtail or abridge the citizens Fundamental and Constitutional Rights guaranteed by the Constitution of the Islamic Republic of Pakistan, 1973 through its Articles 2-A, 4, 9, 14 and 18 and, thus, by virtue of the provisions of Article 8 of the Constitution the same are ipso facto void. In this regard he has placed reliance upon the cases of Miss Benazir Bhutto v. Federation of Pakistan and another (PLD 1988 SC 416), Ms. Shehla Zia and others v. WAPDA (PLD 1994 SC 693) and Government of N.-W.F.P. v. Muhammad Irshad and 3 others (PLD 1995 SC 281). He has also referred to some extracts from the following books: Ibtadai Muashariat authored by Dr. Abdul Hameed Malik and published by Standard Book House, Urdu Bazar, Lahore, Pakistan, Medicinal and Poisonous Plants of Pakistan authored by Syed Riaz Baquar and published by Printas, Karachi, Pakistan in 1989, Economic Botany: A Textbook of Useful Plants and Plant Products authored by Albert F. Hill and published by Tata McGraw-Hill Publishing Company, Ltd., New Delhi, India,
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Feeds and Feeding: A Handbook for the Student and Stockman authored by Frank B. Morrison and published by The Morrison Publishing Company, Clinton, Iowa, U.S.A in 1959, The Medicinal and Poisonous Plants of India authored by Rev. Fr. Jean Ferdinand Caius and published by Scientific Publishers, Jodhpur, India in 1986, A Textbook of Pharmacology authored by George Edward Trease and published by Bailliere, Tindall and Cox, London, U.K in 1949, Textbook of Pharmacognosy authored by T.E Wallis and published by CBS Publishers & Distributors, Delhi, India, Pharmacognosy authored by Varro E. Tyler, Lynn R. Brady and James E. Robbers and published by Lea & Febiger, Philadelphia, U.S.A. In 1976, Commentaries on Narcotic Drugs and Psychotropic Substances Act, 1985 authored by Kaushalendra Kumar and published by Eastern Book Company, Lucknow, India, and Trease and Evans, Pharmacognosy authored by William Charles Evans and published by W.B Saunders Company Ltd., London, U.K. 8. As against that Malik Wagar Salim, Deputy Attorney-General for Pakistan has argued that the entire Papaver family of plants (poppy plants) has consciously been included by the legislature in the definition of 'opiumcontained in section 2(t) of the Control of Narcotic Substances Act, 1997 and, thus, every part (Except seeds) of every species of poppy plant is covered by the definition of 'opium'. He has pointed out that section 76 of the Control of Narcotic Substances Act, 1997 gives the provisions of the said Act an overriding effect overall other laws for the time being in force and, therefore, the earlier definitions of 'opiumcontained in some earlier laws are not relevant for the present purposes. He has referred to the case of Solvex (Pakistan) Ltd. v. Market Committee, Multan and 2 others (1999 CLC 49) to maintain that a definition contained in one enactment cannot be applied to another enactment. He has argued that the intention of the legislature has to be given effect to by this Court and in case of any discord between different provisions an interpretation is to be advanced which harmonizes the seemingly conflicting provisions. He has referred to the cases of Mian Ahmed Saeed and others v. Election Tribunal for Kasur at Okara and others (2003 SCMR 1611) and Yousaf Muneer Shaikh and others v. Election Commission of Pakistan and others (2005 CLC 123) in this respect. He has urged that while interpreting a statute the language of the statute is to be accepted and applied in terms of the literal meanings of the words employed by the legislature and this has been so held in the case of Pakistan Textile Mill-Owners Association, Karachi and 2 others v. Administrator of Karachi and 2 others (PLD 1963 SC 137) and Malhar v. Government of Sindh and others (2005 CLC 285). He has submitted that a Court of law cannot add to or subtract from a law enacted by the legislature and cannot embark upon rewriting a law according to its own notions or perceptions. In this context he has relied upon the cases of Trustees of the Port of Karachi v. Muhammad Saleem (1994 SCMR 2213) and Padmasundara Rao and others v. State of. T.N and others (AIR 2002 SC 1334). According to him a Court is not to be concerned with the consequences of an interpretation to be rendered by it as the matter of consequences lies within the domain of public policy. He has referred to the case of Director Industries, Government of N.-W.F.P., Peshawar v. Messrs Nowshera Engineering Company Limited and 4 others (2002 SCMR 1747) in this regard. He has vehemently argued that according to the law laid down in the cases of Collector of Central Excise and Sales Tax v. Rupali Polyester Limited and others (2002 SCMR 738) and Mrs. Benazir Bhutto and another v. Federation of Pakistan and another (PLD 1989 SC 66) a Court is only to find out the intention of the legislature and when such intention has been found and identified by it then it has no other option but to give effect to the same. According to him a law may contain separate provisions creating separate offences entailing different punishments and each of such provisions is to be given separate effect to by a Court as was held in the case of Northern Bottling Co. (Pvt.) Limited, Peshawar v. Federation of Pakistan and 2 others (2004 PTD 2267). According to the learned Deputy Attorney-General the vires of a law can be examined with reference to the municipal law and not with reference to an International Convention or Protocol and for this he has referred to the case of Federation of Pakistan and others v. Shaukat Ali Mian and others (PLD 1999 SC 1026). He has lastly maintained that the question of ascertaining percentages of morphine in a recovered substance is relevant only to mixtures or preparations mentioned in section 2(t)(iii) and section 3 of the Control of Narcotic Substances Act, 1997 and such a question has no relevance to recovery of Poast or Doda which is recovered in its natural or crushed form. 9. Mr. Muhammad Sharif, Advocate, Special Prosecutor for the Anti-Narcotics Force and Mr. Muhammad Hanif Khatana, Additional Advocate-General, Punjab have adopted the arguments advanced by Malik Waqar Salim, Deputy Attorney-General for Pakistan. Mr. Sharif has also referred to the following material: Kitabistan's Standard Dictionary published by Kitabistan Publishing Company, Lahore, Pakistan, Terminology and Information on Drugs published by the United Nations International Drug Control Programme, United Nations Single Convention on Narcotic Drugs, 1961, The United Nations and Drug Control, The United Nations and Drug Abuse Control, Drugs of Abuse published by the United States Department of Justice, Drug Enforcement Administration, Cocaine, Opium, Marijuana published by the Untied States Department of Justice, Drug Enforcement Administration, A Textbook of Pharmacognosy authored by Youngken, Pharmacognosy authored by Varro E. Tyler, Lynn R. Brady and James E. Robbers and published by Lea & Febiger, Philadelphia, S . A in 1981, Pharmacognosy authored by George Edward Trease and William Charles Evans and published by Bailliere Tindall, London, U.K., UNODC Bulletin on Narcotics, INCB Report, 1997 published by the United Nations Information Service, Hungarian Extraction of Alkaloids from Poppy Straw, Poppy Straw and International Narcotics Control, and UNODC Draft Single Convention: Control of Poppy Straw 10. After hearing the learned counsel for the parties and going through all the material referred to by each of them I have found that the following provisions of the Control of Narcotic Substances Act, 1997 are relevant for the purpose of proper understanding and appreciation of the respective submissions made by the learned counsel for the parties: "2. Definitions:--
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(s) "narcotic drug" means coca leaf, cannabis, heroin, opium, poppy straw and all manufactured drugs; (t) "opium" means--- (i) Poppy straw that is to say all parts of poppy plant (Papaver Semniferum or any other species of Papaver after mowing, not being seeds; (ii) the spontaneously coagulated juice of capsules of poppy which has not been submitted to any manipulations other than those necessary for packing and transport; and (iii) any mixture with or without natural materials of any of the above forms of opium, but does not include any preparation containing not more than 0.2 per cent of morphine; (v) "opium poppy" means the plant of the species Papaver Somniferum L; (w) "poppy straw" means all parts except the seeds of the opium poppy after mowing; 3. Calculation of percentages in liquid preparation.---The Federal Government may make rules prescribing the methods by which percentages in the case of liquid preparations shall be calculated for the purposes of clauses (g), (h) (t) and (u) of section 2:-- 4. Prohibition of cultivation of narcotic plants.---No person shall cultivate any cannabis plant, coca bush or opium poppy, or gather any portion of a cannabis plant, coca bush or opium poppy: Provided that the Federal Government or a Provincial Government authorized by the Federal Government may, subject to such conditions as it may prescribe, permit under a licence cultivation or gathering of any such narcotic plant or any portion thereof exclusively for medical, scientific or industrial purposes. 5. Punishment for contravention of section 4.--- Whoever contravenes the provisions of section 4 shall be punishable with imprisonment which may extend to seven years or with fine of with both. 6. Prohibition of possession of narcotic drugs, etc.--- No one shall produce, manufacture, extract, prepare, possess, offer for sale, sell, purchase, distribute, deliver on any terms whatsoever, transport, dispatch any narcotic drug, psychotropic substance or controlled substance except for medical, scientific or industrial purposes in the manner and subject to such conditions as may be specified by or under this Act or any other law for the time being in force. 7. Prohibition of import or export of narcotic drugs, etc.--- 8. Prohibition of trafficking or financing the trafficking of narcotic drugs, etc.--- 9. Punishments for contravention of sections 6, 7 and .8.---------- " 11. Now I proceed to record my conclusions vis-a-vis the question framed above and reasons for the arriving at such conclusions. 12.Question No. (i):What exactly is that which is called `Poast "? It has been agreed before us by the learned counsel for all the parties and it is also borne out from the authoritative works referred to above that in the local parlance Poast is the name given to that part of a poppy plant which has the shape of ,a basket, sack or pouch and it contains the seeds of such plant. This natural pouch or bulb made of the skin of the plant is meant by the nature to hold and protect the seeds of the plant contained therein. In some parts of this country, this natural pouch of the poppy plant is also known as Doda. The Control of Narcotic Substances Act, 1997 calls this part of a poppy plant as `capsule of poppy and this finds a specific mention in section 2(t)(ii) of the said Act. The authoritative works mentioned above as well as the learned counsel for all the parties before us are also in agreement that if an unripe capsule of a poppy plant is given an incision then a fluid oozes out of the same containing meconic acid and a number of alkaloids including narcotise and morphine which fluid thickens within a short time and becomes brown in colour and such substance is pure opium. It is also agreed at all hands that even ripe and dry capsules of poppy contain morphine and other alkaloids, i,e, opium, although less in quantity, which can be used for sedative and narcotic action. Most of the authoritative works produced by the learned counsel for the parties also confirm that alkaloids can be extracted even from a mature and dry plant of poppy or poppy straw whether it is in its natural shape or is in a crushed form, However, the seeds contained in a capsule of poppy are free from morphine. After its mowing every part of a poppy plant, including its capsule/Poast/Doda but excluding the seeds, is generally called poppy straw and , thus, every Poast/Doda is a part of a poppy straw but all poppy straw may not necessarily be Poast/Doda because poppy straw can be any other part of the mowed poppy plant as well excluding the seeds. 13. Question No. (ii): Whether Poast is a narcotic substance within the purview of the Control of Narcotic Substances Act, 1997 or not ? Under section 6 of the Control of Narcotic Substances Act, 1997 possession, etc. Of any narcotic drug is culpable. Section 7 of the said Act prohibits import or export, etc. Of any narcotic drug and section 8 proscribes trafficking and financing, etc. Of any narcotic drug. Section 2(s) of the Control of Narcotic Substances Act, 1997 defines `narcotic drugand according to the said definition narcotic drug includes 'opiumand 'poppy straw'. Section 2(t) of the Control of Narcotic Substances Act, 1997 defines 'opiumand according to section 2(t)(i) 'opiummeans "poppy straw" that is to say all parts of poppy plant (Papaver Somniferum or any other species of Papaver) after mowing, not being seeds". It has not been disputed before us that Poast or Doda is a part of a poppy plant and, thus, there is no difficulty in concluding that in view of the provisions of section 2(t)(i) of the Control of Narcotic Substances Act, 1997 Poast or Doda, being a part of a poppy plant, falls within the definition of 'opiumand, therefore, the same has to be treated and accepted as 'narcotic drugfor the purposes of section 2(s) of that Act. It may be true that section 2(t)(i) also speaks of poppy straw and according to the definition of 'poppy strawcontained in section 2(w) read with section 2(v) only poppy plant of the species Papaver Somniferum L is relevant to the definition of poppy straw but at the same time it is equally true that section 2(t)(i) expressly travels beyond the definition of poppy straw contained in section 2(w) read with section 2(v) and consciously extends the definition of 'opiumto all parts of a poppy plant whether such…
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