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Petitioner: MAZHAR AHMED VS Respondent: THE STATE
Court Name: Sindh High Court Judge(s): Rehmat Hussain Jaffery, Wahid Bux Brohi Title: MAZHAR AHMED vs THE STATE Case No.: Criminal Bail Application No,D-655 of 2004 Date of Judgment:2004-11-12 Reported As: 2005 P C R L J 846 Result: Bail refused
JUDGMENT
JUDGMENT 'RAHMAT HUSSAIN JAFFERI, J.--- This order will dispose of bail application filed by applicant Mazhar Ahmed involved in Special Case No,221 of 2004 pending in the Special Court II (C.N.S.) Karachi. 2. Brief facts giving rise to the bail application are that accused Azhar Ahmed, Khan, during interrogation in Crime No,42 of 2003 disclosed to S.-I. Jahangir Khan that Narcotics were lying with his companions Abdul Rehman Khan and Mazhar Ahmed Khan at Landhi. On the said information the complainant S.-I. Jahangir Khan along with his subordinate staff and accused Azhar Ahmed Khan proceeded to 4-B, 34/9 Street No,1, Landhi. When they reached there, they saw a motorcycle in front of them on which two persons were sitting for whom the accused Azhar Ahmed Khan informed the police that they were his companions Abdul Rehman Khan and Mazhar Ahmed Khan. On the said information, the S.I.P. Got the motorcycle stopped. On inquiries, the person driving the motorcycle disclosed his name as Mazhar Ahmed Khan (the applicant). The police conducted his personal search and found two cloth bags tied around his waist under the shirt, which were secured. The bags were opened which contained opium. One bag contained 1 Kg. Of opium and another bag contained half Kg. Of opium (total weight 1-1/2 Kgs). From each bag, Investigating Officer drew 10 grams of opium as sample for Chemical Analyzer Report. The other person disclosed his name as Abdul Rehman Khan. He was having a shopping bag in his hand, which was also secured. The complainant opened the bag, which contained 2.300 Kgs. Of opium. A sample of 10 grams was drawn from the said opium. Such Mashirnama was prepared in presence of two police constables who were with the complainant. The accused and the property were brought to the police station where the F.I.R. No,43 of 2003 was lodged on 3-11-2003 at 11-00 p.m. A bail
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application was moved before the trial Court but the same was dismissed hence to present bail application. 3. The learned Advocate for the applicant has argued that entire family of the applicant has been involved in this case; that the prosecution story is highly improbable; that the applicant could have run away by throwing the bundle at the place of incident; that the case has been filed due to personal enmity with the applicant and his brother co-accused Abdul Rahman; that the case of the applicant requires further inquiry. He has also argued that since last one year the case has not proceeded, even the charge has not been framed; that it is the right of the applicant that the case should be decided within shortest possible time; that there is no chance of the case being completed very shortly because the pendency of large number of cases before the trial Court, therefore, the applicant cannot be kept in custody for an indefinite period. In this background, he has stated that the applicant may be granted bail or arrangements may be made for the early disposal of the case. 4. On the other hand learned Special Prosecutor, A.N.F. Has stated that the case has been proved from the evidence of witnesses; that one and half kilograms of opium were secured from the possession of the applicant, therefore, his case falls under section 51 of the Act, 1997; that no proof has been filed about the enmity between the applicant and the Investigation Agencies. As regards the delay in disposal of the case, he has stated that previously there was only one Court for the entire Karachi but subsequently another Court was created to cope up with the work as large number of cases were pending before the said Court; that out of these two Courts one Court has fallen vacant because of the retirement of the Presiding Officer of the said Court, therefore, the entire work load has been placed on the board of one Court as such the delay in the disposal of the case is inevitable; that the applicant is not entitled to the concession of bail. 5. We have given due consideration to the arguments, gone through the material available on the record and find that the applicant was apprehended while going on a motorcycle, on the pointation of accused Azhar Ahmed Khan who was involved in Crime No,42 of 2003. From the personal search of the applicant, the Investigating Officer secured two bags, containing one and half Kgs. Of opium tied around his waist in presence of witnesses. All the witnesses have supported the prosecution case. A sample, drawn from the property was sent to Chemical Analyzer for report whose report is in positive. The applicant has not produced any proof of enmity between him and the Investigation Officer. Thus, there are reasonable grounds for believing that the applicant is involved in the case, as such the case falls within the prohibitory clause of section 51 of Act, 1997, therefore, on merits the applicant is not entitled to the concession of bail. 6. As regards the delay in disposal of the case, we find that this is not the only case where such complaint has been made but since this Bench has been created for deciding narcotics cases we are receiving complaints that the cases were not being proceeded with expeditiously and in some cases it was informed that the accused persons were in jail since last six or seven years without any progress of their cases. The learned Special Prosecutor A.N.F. Has frankly conceded that there are only two Courts in Karachi to deal with all the cases, therefore, pendency of cases has increased and it is not possible for the two Courts to cope up with the work. The advocates for the accused who were appearing in other matters informed the similar position. In order to solve the above problem on 8-9-2004 following order was passed:--- "During the arguments it was emphasized that the applicant, who has been arrested on 3-11-2003 has remained in jail without trial and even charge has not yet been framed. We do understand the difficulty of solitary Special Court presently functioning at Karachi as the other Court is lying vacant. A question was put to learned Special Prosecutor, A.N.F. About the jurisdiction of the Special Courts, presided over by the learned Sessions Judges of Karachi and exercising some powers under the C.N.S. Act, 1997, he sought time to elaborate the legal aspects. Time is allowed to him. Additionally,
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we would prefer to issue notice to learned Additional Advocate-General and also Senior Deputy Attorney-General to address the Court on this point. To come up on 16-9-2004." 7. In pursuance of the above order, notices were issued to all concerned. Mr. Azizullah Shaikh, Senior Advocate and Mr. Shoukat H. Zubedi, Deputy Prosecutor-General, NAB were asked to assist the Court on the above point. 8. Mr. Azizullah Shaikh learned Senior Advocate has stated that on 26-8-1997 the Federal Government had issued a notification creating Special Courts in each District of the Province of Sindh which were presided over by the learned Sessions Judges of each District; that the said Courts started functioning but subsequently, a Court was created at Karachi to exercise jurisdiction in Karachi Division; that another Court was created at Karachi to share the burden of earlier created Court; that the notification dated 26-8-1997 has not yet been superseded by any other notification therefore, the Courts created thereunder are still in existence as such the cases pending before the two Courts created at Karachi can be transferred to those Courts to ease the burden of large number of cases pending on the files of the said two Courts, which they cannot manage. Mr. Shoukat H. Zubedi learned D.P.G. NAB has also advanced his arguments on the lines of the arguments of Mr. Shaikh. The learned Standing Counsel and Additional Advocate-General have stated that the notification dated 26-8-1997 is still intact and the Courts created thereunder are still functioning except the Courts at Karachi, South, West, East, Central and Malir; that without supersession of notification dated 26-8-1997 the Courts at Karachi are still validly constituted and they can try the cases in accordance with law within their territorial jurisdiction; that the cases pending before the Karachi South, East, West, Central and Malir Courts were transferred to a single Court presided over by Mr. Ali Nawaz Pirzada, therefore, the large number of cases are pending before the said Court; subsequently, another Court was created by the Federal Government; that some cases have been transferred to the said Court but still the pending cases cannot be handled properly by these two Courts; that the cases can be transferred to other Courts of Karachi South, East, West, Central and Malir so that the accused may get early trial of their cases. The learned Special Prosecutor A.N.F. Has placed all the material and notifications issued by the Federal Government in this respect and has stated that the Special Courts Nos.I and II were created to deal with all the cases of Karachi, therefore, the cases were transferred to the said Courts; that large number of cases are pending before the said Courts therefore, they cannot cope up with the said work hence the delay in disposal of the cases is inevitable. 9. We have given due consideration to the arguments, gone through the material available on the record, various notifications and find that on 11th July, 1997, the Control of Narcotic Substances Act, 1997 (hereinafter referred to as "the Act, 1997") was promulgated. Section 46 of the Act, 1997 deals with the establishment of Special Courts which reads as under:-- "Establishment of Special Courts.--- (1) The Federal Government and, if so directed by the Federal Government, the Provincial Government shall by notification in the official Gazette, establish as many Special Courts as it considers necessary and appoint a Judge for each of such Courts and where it establishes more than one Special Court, it shall specify in the notification the place of sitting of each Special Court and the territorial limits within which it shall exercise jurisdiction under this Act. (2) There shall be two classes of Special Courts to try offences under this Act, namely:-- (i) Special Courts having the power to try all offences; and (ii) Special Courts having the power to try offences punishable with imprisonment for two years or less. (3) No person shall be appointed a Judge of a Special Court referred to:-- (i) in subsection (2)(i) unless he is or has been a Sessions Judge or an Additional Sessions Judge; and
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(ii) in subsection (2)(ii) unless he is a Judicial Magistrate of the First Class. (4) A person shall be appointed as Judge of a Special Court after consultation with the Chief Justice of the High Court of the Province in which the Special Court is established. (5) The Federal Government or the Provincial Government may, in consultation with the Chief Justice of the High Court, confer the powers of a Special Court referred to:-- (i) in subsection (2)(i), on any Sessions Judge or Additional Sessions Judge; and (ii) in subsection (2)(ii), on any Judicial Magistrate of the First Class." 10. Under section 46(1), the Federal Government or the Provincial Government on the direction of the Federal Government, can by a notification in the official Gazette establish as many Special Courts as it considers necessary and appoint a Judge for each such Courts and where it establishes more than one Special Court, it shall specify in the notification the place of sitting of each Special Court and the territorial limits within which it shall exercise jurisdiction under the Act, 1997. 11. In pursuance of the said section after about one month of the promulgation of the Act, 1997, on 26-8-1997 the Federal Government issued a notification creating Special Courts in each District of the Province of Sindh by showing their Presiding Officers, Headquarters and territorial limits. The said notification reads as under:- " Attention to D.D.(Law) AMP Karachi Government of Pakistan Ministry of Law, Justice, Human Rights and Parliamentary Affairs ' Islamabad, the 26th August, 1997 Notification ' No,F.15(I)/96-AIII(B).--- In exercise of the powers conferred by subsection (1) of section 46 of the Control of Narcotic Substances Act, 1997 (XXV of 1997), and in supersession of all the notifications issued by this Ministry or the Province of Sindh, the Federal Government, in consultation with the Chief Justice of the Sindh High Court, is, pleased to appoint the following District and Sessions Judges to be the Special Courts with their headquarters specified in column (3) of the table below to exercise the jurisdiction under the said Act within the territorial limits specified in column (4) of that table:- S. No, Name of the Court Headquarters Territorial Limits (1) (2) (3) (4) 1 Sessions Judge Karachi, SouthKarachi District Karachi South
2 Sessions Judge, Karachi, WestKarachi District Karachi West
3 Sessions Judge, Karachi EastKarachi District Karachi East
4 Sessions Judge, Karachi, CentralKarachi District Karachi Central 5 Sessions Judge, MalirMalir District Malir 6 Sessions Judge, HyderabadHyderabad District Hyderabad
7 Sessions Judge, Thatta.Thatta District Thatta
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8 Sessions Judge, BadinBadin District Badin 9 Sessions Judge, SangharSanghar District Sanghar
10 Sessions Judge, MirpurkhasMirpurkhas District Mirpurkhas
11 Sessions Judge, UmerkotUmerkot District Umerkot
12 Sessions Judge, TharparkarMithi District Tharparkar
13 Sessions Judge, DaduDadu District Dadu 14 Sessions Judge, SukkurSukkur District Sukkur
15 Sessions Judge, GhotkiGhotki District Ghotki
16 Sessions Judge ShikarpurShikarpur District Shikarpur
17 Sessions Judge, JacobabadJacobabad District Jacobabad
18 Sessions Judge, KhairpurKhairpur District Khairpur
19 Sessions Judge, LarkanaLarkana District Larkana
20 Sessions Judge, NawabshahNawabshah District Nawabshah
21 Sessions Feroz Judge, Naushero Naushero FerozDistrict Naushero Feroz
' (Abdul Qadir) Section Officer ' The Manager, Printing Corporation of Pakistan Press, Islamabad for favor of publication in the Gazette of Pakistan, Extraordinary, Part-IV." 12. After the establishment of the above mentioned Courts, they started functioning in the Province of Sindh by trying the cases and hearing the appeals. The said notification has not yet been superseded by any other notification as admitted by all the counsel. Thus, until the suppression of the above mentioned notification the Special Courts created therein will continue to function in accordance with law and have jurisdiction to try the cases and hear the appeals as provided under the Act, 1997. 13. On 5th July, 2000 the Government of Pakistan, Ministry of Law, Justice and Human Rights issued another notification appointing four more Judges in the country. Out of them, one Judge was appointed for Karachi. The said notification reads as under:-- "To be published in the next issue of the Gazette of Pakistan Part-II Government of Pakistan Ministry of Law, Justice and Human Rights Islamabad the 5th July, 2000. Notification ' No,F.21(5)/2000-A.IV.--- In exercise of the powers conferred by subsection (1) of section 46 of the Control of Narcotic Substances Act, 1997 (XXV of 1997), the Federal Government is pleased to appoint with immediate effect and until further orders, the following Judges to be Judges of the
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Special Courts (Control of Narcotic Substances) with their headquarters specified in column (4) of the table below to exercise the jurisdiction under the said Act within the territorial limits specified in column (5) of the table:-- S. No, Name of the CourtName of the JudgeHeadquarter Territorial Limits
1 Special Court (CNS), Rawalpindi/ IslamabadMr. Saghir Ahmed Qadri AD & SJ, Faisalabad on promotion as D&SJ)Rawalpindi District of Rawalpindi, Attock and Islamabad
2 Special Court (C.N.S.), LahoreSayed Kazim Raza Shamsi AD&SJ, Wazirabad, (On promotion as D&SJ)Lahore District Lahore
3 Special Court (C.N.S.) KarachiMr. Ali Nawaz Pirzada, D&SJ, SukkurKarachi Karachi Division
4 Special Court (C.N.S.) PeshawarMr. Muhammad Ashraf Khan, D &SJ, TankPeshawar Peshawar and Kohat District (Ghulam Rasool)" 14. In the above referred notification it will be noticed that the Judges were appointed without creating the Courts as shown in the second column of the notification, as required under section 46(1) of the Act, 1997. Finding this apparent mistake in the notification, the Federal Government issued another notification; dated 17th July, 2000 creating a Special Court at Karachi and fixed Karachi Division as its territorial limits. The said notification reads as under:-- "To be published in the next issue of the Gazette of Pakistan Part-II Government of Pakistan Ministry of Law, Justice and Human Rights Islamabad the 17th July, 2000. Notification ' No,F.21(5)/2000-A.IV.--- In exercise of powers conferred by section 46(1) of the Control of Narcotic Substances Act, 1997 (Act No,XXV of 1997), the Federal Government is pleased to establish a Special Court at Karachi to exercise jurisdiction under section 46(2)(1) of the said Act within the territorial limits of Karachi Division. (Ghulam Rasul), Joint Secretary (Administration) ' The Manager, Printing Corporation of Pakistan Press, Shahrah Suharwardy, Islamabad." 15. In pursuance of the above mentioned notification the Honourable Chief Justice transferred all the cases of narcotics pending in the Courts of Special Judges/Sessions Judges, Karachi-South, East, West, Central and Malir to the Special Court Control of Narcotic Substances Karachi Division presided over by Mr. Ali Nawaz Pirzada created under the notification dated 5th July, 2000 and 17th July, 2000. 16. It further appears that the Federal Government wanted to establish a Special Court for Karachi Division to try cases pertaining to Anti-Narcotic Force only. Therefore, on 16th October, 2000 in
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supersession of notification dated 17-7-2000, created a new Court to try cases investigated by Anti-narcotics force and fixed Karachi Division as its territorial limits. Through this notification, Special Court created under notification 17-7-2000 for Karachi Division was abolished. Such notification was issued which reads as under:-- "Government of Pakistan Ministry of Law, Justice and Human Rights. Islamabad the 16th October, 2000 Notification ' No,F.21(5)/2000-A.IV.--- (1) In exercise of powers conferred by section 46(1) of the Control of Narcotic Substances Act, 1997 (Act No,XXV of 1997), the Federal Government is pleaded to establish a Special Court at Karachi to exercise jurisdiction under section 46(2)(1) of the said Act in respect of Anti-Narcotics Force cases within the territorial limits of Karachi Division. 2. It supersedes this Ministry's Notification of even number dated 17th July, 2000. (Abdul Qadir) Section Officer ' The Manager, Printing Corporation of Pakistan Press, Shahrah Suharwardy, Islamabad. ' for favor of publication in the Gazette of Pakistan Extraordinary Part-III." 17. On 18-10-2000, the Special Court created under notification dated 16-10-2000 for Karachi Division was abolished, through a notification under which four new Courts were created for the country. One Court was established for Karachi Division for the cases investigated by Anti-Narcotic Force only and Mr. Ali Nawaz Pirzada was appointed its Presiding Officer. The said notification reads as under:-- "Government of Pakistan Ministry of Law, Justice and Human Rights Islamabad the 18th October, 2000 Notification ' No,F.21(5)/2000-A.IV.--- In exercise of powers conferred by section 46(1) of the Control of Narcotic Substances Act, 1997 (Act No,XXV of 1997), the Federal Government is pleased to establish the Special Courts specified in column (2) and to appoint w,e,f, 5-7-2000, the following Judges as per column 3 to be the Judges of the Special Courts (C.N.S.) with their Headquarters specified in column (4) of the table below to exercise the jurisdiction under the said Act in respect of Anti- Narcotics Force cases within the territorial limits specified in column (5) of the table until further orders:-- S. No, Name of the CourtName of the JudgeHeadquarter Territorial Limits
1 Special Court (C.N.S.) Rawalpindi/ IslamabadMr. Saghir Ahmed Qadri, AD&SJ, Faisalabad (On promotion as D&SJ)Rawalpindi District of Rawalpindi, Attock and Islamabad Capital Territory
2 Special Court (C.N.S.), LahoreSayed Kazim Raza Shamsi, AD&SJ, Wazirabad (On promotion as D&SJ)Lahore Police Station A.N.F., Lahore
3 Special Court (C.N.S.), KarachiMr. All Nawaz Pirzada, D&SJ, SukkurKarachi Karachi Division
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4 Special Court (C.N.S.), PeshawarMr. Muhammad Ashraf Khan, D&SJ, TankPeshawar Peshawar and Kohat District 2. It supersedes this Ministry's Notification of even number dated 16th October, 2000. (Abdul Qadir), Section Officer. ' The Manager, Printing Corporation of Pakistan Press, Shahrah Suharwardy, Islamabad. ' for favor of publication in the Gazette of Pakistan Extraordinary Part-III. 18. It will be noticed that in the above notification the Federal Government restricted the jurisdiction of the Courts to the cases that were investigated by Anti-Narcotics Force only. It is well-settled that a Court can be created under any enactment for trial of all cases investigated by all the investigation agencies if various investigation agencies have jurisdiction to do so but the Court cannot be created for a particular investigation agency excluding other agencies. Even otherwise under section 46(1) of the Act, 1997, Federal Government or the Provincial Government on the direction of the Federal Government have been authorized to create a Court and appoint a Judge through notification showing his place of sitting, territorial limits in which he exercises his jurisdiction. Thus, a Court can be created for trial of all cases for the offences committed under the Act within the specified territory whosoever investigated the case. The Act, 1997, does not give powers to the Federal Government to restrict the powers of the Court in respect of particular investigation agency only excluding his jurisdiction of trial of cases investigated by other investigation agencies. Under the Act, 1997, the Federal Government has been given powers to simply define the territorial limits of the Court and nothing beyond that in that regard. Finding this apparent defect in the notification. On 12th March, 2001, the Federal Government modified the notification dated 16-10-2000 extending the jurisdiction of the Courts created thereunder for all the cases investigated by all the investigation agencies instead of the cases investigated by Anti- Narcotic Force only. It will be noticed that the Federal Government instead of modifying the existing notification dated 18-10-2000 modified the already repealed (non-existent) notification dated 16- 10-2000. The said notification was repealed vide notification dated 18-10-2000. The notification dated 12-3-2001 reads as under:-- "Government of Pakistan Ministry of Law, Justice and Human Rights Islamabad the 12th March, 2001. Notification ' No .F . 21 (5)/2000-A . IV --- In partial notification of this Division's Notification even number dated the 16th day of October, 2000, the words "under section 46(2)(i) of the said Act in respect of Anti- Narcotic Force cases" appearing in paragraph 1 of the said notification be substituted with the following words "in respect of all the cases under the said Act". (Idrees Mahsud) Section Officer ' The Manager, Printing Corporation of Pakistan Press, Shahrah Suharwardy, Islamabad. ' for favor of publication in the Gazette of Pakistan Extraordinary Part-III. 19. On 2-4-2003, the Federal Government created another Court at Karachi, having territorial limits of Karachi Division. It is pointed out that in the year 2001 Karachi Division was abolished under the Sindh ' Local Government Ordinance, 2001. However, the notification was issued for the area, which was not in existence. The said notification reads as under:-- "To be published in the next issue of the Gazette of Pakistan Part-III Government of Pakistan Ministry of Law, Justice and Human Rights Islamabad the 2nd April, 2003 Notification
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' No,F.21(5)/2000-AIV(N).--- In exercise of powers conferred by section 46(1) of the Control of Narcotic Substances Act, 1997 (Act No,XXV of 1997), the Federal Government is pleased to establish another Special Court (Control of Narcotics Substances) at Karachi w,e,f, 1-5-2003 to exercise jurisdiction under section 46(2)(i) of the said Act within the territorial limits of Karachi Division. ' (Muhammad Ayaz Khan)…
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