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Petitioner: KHUDAI DAD alias MAMA and others VS Respondent: THE STATE and others
Court Name: Balochistan High Court Judge(s): Iftikhar Muhammad Chaudhry, Javaid Iqbal Title: KHUDAI DAD alias MAMA and others vs THE STATE and others Case No.:Criminal Appeals Nos.230, 245, 248, 253 to 255, 258, 260, 263, 264, 270 to
JUDGMENT
Reported As: PLD 1997 Quetta 69 Result: Appeal returned Judgment JUDGMENT ' IFTIKHAR MUHAMMAD CHAUDHARY, J.---As common question of law concerning Appellate Jurisdiction of this Court, under section 45 of the Control of Narcotic Substances Ordinance, 1995 hereinafter referred to as 'Ordinance' is involved in Criminal Appeals Nos.230, 245, 248, 253, 254, 255, 258, 260 263, 264, 270, 271, 272, 275, 284, 294, 297, 298 to 316 and 320 of 1996, therefore, we have proposed to dispose of them by this judgment. ' For sake of brevity, it is not necessary to note down facts of each case seprately, except details, which are relevant for disposal of appeals, are being shown in schedule, annexed herewith, which may be read and considered, as part of judgment. ' Appellants on having been found guilty under Article 3 or 4 of the Prohibition (Enforcement of Hadd) Order, 1979, hereinafter referred as 'Order of 1979' by the learned Sessions Judge, Ad Hoc, Additional Sessions Judges and judicial Magistrates, functioning at various places in the Province vide separate judgments pronounced from time to time, were awarded different sentences, exceeding two years, in all cases filed appeals under Article 27 of Order of 1979 before Hon'ble Federal Court. Mostly in all appeals, except Appeals Nos.230, 248, 253, 255, 272, 275, 276, 298, 304, 305, 306, 308 and 311 of 1996, the Hon'ble Chief Justice of Federal Shariat Court returned the appeals, on observing that since convictions/sentences were recorded against appellants, after 1st January, 1995, the day, with effect from which, Ordinance was promulgated, therefore, under section 45 of the Ordinance, High Court has the jurisdiction, as the Ordinance has an overriding effect on other laws for the time being enforced. Accordingly appellants either through their
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Advocates or Superintendents, Jails, have preferred instant appeals, to challenge convictions/sentences, before this Court. ' Before examining merits of each case separately, it was deemed proper to determine; whether this Court enjoys jurisdiction under section 45 of the Ordinance to dispose of appeals, when all appellants have been convicted under Article 3 or 4 of the Order of 1979 and the sentences have also not been awarded by the Special Courts established under section 43 of the Ordinance by the Federal Government? Therefore, we invited all learned counsel, appearing for parties as well as to learned Advocate-General, Balochistan, to address us on the point of jurisdiction. Learned Deputy Attorney-General, was also asked to appear and assist the Court during arguments. We noticed that there is a division among learned Advocates, because they had for and against view points, concerning jurisdiction of this Court. Thus, they were allowed to argue the case independently, to put forth their respective contentions. ' Raja M. Afsar, learned Advocate appearing in Appeal No,263 of 1996, Sardar Zar-e-Iman, counsel in Appeal No,230 of 1996, and Syed Ayaz Zahoor, Advocate in Appeals Nos.255 and 258 of 1996, argued that since neither a convictions/sentences have been awarded under any provision of the Ordinance, nor investigation and trials have been carried out, in accordance with its different provisions, therefore, this Court has no jurisdiction to dispose of the matters. Raja M. Afsar, learned Advocate, holding floor on behalf of his other companions, argued that a comparative study of both the laws i,e, Order of 1979 and the Ordinance, manifest that they are consistent in substance, so far provisions relating to Prevention of Prohibition of Narcotics, are concerned. However, in the Ordinance, additional provisions have been incorporated, concerning treatment and rehabilitation of addicts, National Funds for control of drug abuse, etc. He also emphasised that under section 67 of the Ordinance, Order of 1979, has not been repealed expressly, because except, the Opium Act. 1857, the Opium Act. 1878 and Dangerous Drugs Act. 1930, all other laws have been saved. Inasmuch as in terms of section 62, the Ordinance or the Rules framed thereunder, shall have no effect on the validity of any Federal or Provincial laws, for the time being enforced, if they have provided punishment, greater in degree than a corresponding restriction imposed by or corresponding punishment, provided for, by or under the Ordinance. The intention of law givers, as it is indicative from the preamble, was to consolidate certain laws relating to Narcotics, Drugs, Psychotropic substances and control the production, processing or trafficking of such drugs and substances. Therefore, to achieve these objects, certain laws on Narcotic drugs, enlisted under section 67 of the Ordinance, have been expressly repealed and there was no impediment for the law givers to repeal, Order of 1979, but it has not been done so intentionally, because as per its preamble, necessity to enact it was felt in order to modify the existing laws, relating to prohibition of intoxicants, so as to bring it in conformity with the Injunctions of Islam as set out in Holy Qur'an and Sunnah. As such, to enforce it effectively, in terms of its preamble, the Prohibition Act, 1977 and the Balochistan, the North-West Frontier Province, the Punjab and Sindh Prohibition Ordinance of 1978, respectively, were repealed. ' We enquired from learned counsel Raja M. Afsar, that if he considers that appeal against impugned order challenged before us in instant case, is competent before Hon'ble Federal Shariat Court, then why he had filed appeal instead of challenging the order of Federal Shariat Court before Hon'ble Supreme Court. His reply was that as appeal filed by convict before Federal Shariat Court, has been returned with observations that it is competent before this Court, therefore, in compliance of said order, he invoked the jurisdiction of this Court. ' Sardar Zar-e-Iman, learned counsel, contended that according to his opinion, the Ordinance promulgated initially on 5th January, 1995, is no more existing validly, because as per Article 89 of the Constitution of Islamic Republic of Pakistan, 1973, within a period of 120 days, it has not been made Act of Parliament, therefore, successive Ordinance being issued by the President of Pakistan,
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have got no legal value. As such, in absence of any statutory , provisions, this Court is not competent to hear the appeal. ' Syed Ayaz Zahoor, learned counsel, contended that according to section 47 of the Ordinance, no prosecutor has been appointed so far, nor the Special Courts were notified at the time when trial of cases were held, therefore, in absence of any order passed by a Special Court under section 43, appeal would not be competent under section 45 of the Ordinance. ' On the other hand, Mr. Aslam Chishti, learned senior counsel, appearing in Appeal No,275/1996, led to other learned advocates, appearing in different appeals, who were of the opinion that after promulgation of the Ordinance, this Court has the jurisdiction, as the Order of 1979, impliedly stands repealed. It was argued by the learned counsel that order of Hon'ble Federal Shariat Court, returning appeals for want of jurisdiction has binding effect on this Court, as it has been contemplated under Article 203-GG of the Constitution of Islamic Republic of Pakistan, 1973, therefore, whatever, observations have been made therein, those are required to be followed/implemented and this Court is not empowered to sit in judgment over said order. If any of appellant was aggrieved from the order of return of appeal by Federal Shariat Court, he should have challenged it before Hon'ble Shariat Appellate Bench of Supreme Court, in accordance with law and in not doing so, actually they had conceded to the order. He further argued that the object of promulgating the Ordinance was to consolidate laws, relating to drugs, narcotics and all other allied matters thereto. As the Ordinance is latter in time and it is also inconsistent to some of the provisions of Order of 1979, particularly on the point that it has got a vast base to control the processing, manufacturing and trafficking of narcotics, drugs, psychotropic substances and the production of drug substances etc., therefore, in its presence, the Order of 1979, shall be deemed to have been impliedly repealed. It was also urged by him that it was in the interest of nation that a comprehensive law should be promulgated to provide harsh sentences, in order to control the narcotic drugs affairs, in an effective manner. In support of his this argument, he compared different provisions of both the laws, on basis whereof, according to him, the Ordinance overrides to those provisions of Order of 1979, which relates to prohibition, except the provisions relating to offences of liquor, which have been dealt with, under Articles 6, 8, 9 and 11 of Order of 1979. It was also contended by him that as according to section 62 of the Ordinance, the sentences provided thereunder are of greater degree comparing to corresponding provisions of prohibition, therefore, even if looked from this angle, the Order of 1979, stands repealed to the extent of provisions which are corresponding to Ordinance. He also emphasised that notwithstanding the fact that Sessions Judge, Ad hoc, Additional Sessions Judges and Judicial Magistrates, have recorded convictions, appeals would be competent before this Court, because they are subordinate to this Court, therefore, an aggrieved person can approach to a higher arum in same hierarchy. ' Mr. Muhammad Riaz Ahmad, learned counsel, appearing in Criminal Appeal No,248 of 1996, supported to the arguments of Mr. Aslam Chishti, Advocate, and further added that order passed by Hon'ble Chief Justice of Federal Shariat Court, dated 22nd August, 1996, had a binding effect on this Court, because Article 203-GG of the Constitution of Islamic Republic of Pakistan, Jays down that subject to Articles 203-D and 203-F, any decision of the Court shall be binding on a High Court and on all Courts subordinate to it. According to him, since it has been observed by the Federal Shariat Court that Appeals are competent before this Court, therefore, these observations are not open to any exception. ' Mr. Inayatullah Kasi, learned advocate, in Criminal Appeal No,271/1996, argued that as per section 61 of the Ordinance, all offences relating to narcotic drugs, psychotropic substances, have been made triable under the provisions of Ordinance, therefore, appeals have been rightly returned by Hon'ble Federal Shariat Court, for presentation before this Court.
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' Chaudhry Ejaz Yousaf, learned, Advocate-General, argued that to settle the controversy, intention and scope of the Ordinance, and the forums competent to hold trials of offenders and her appeals against convictions, are required to be determined. He also addressed us on same lines as it was done by Mr. Aslam Chishti, Advocate. He was of the opinion that since the Ordinance has consolidation all laws on Narcotic Drugs, therefore, leaving the offences concerning drinking of intoxicant, all, other offences are triable by Courts established under section 43 of the Ordinance. But while concluding arguments he conceded that as convictions/sentences have been recorded by Courts, 'other than established under section 43 of the Ordinance, without jurisdiction, and therefore, to challenge such order, appellants ought to have approached Hon'ble Federal Shariat Court, because any sentence exceeding period of two years, passed by a Criminal Court under Article 3/4 of Order of 1979, is challengeable before that Court and if their appeals were not entertained, they should have challenged such order before Shariat Appellate Bench of Hon'ble Supreme Court. In this behalf he cited two judgments, reported in 1972 SCM R 173 and PLD 1973 SC 368. ' Raja Rab Nawaz, learned Deputy Attorney-General, stated that Federal Government enacted a consolidated law which contains in its fold, different provisions to control the processing, manufacturing and trafficking etc. Of the narcotic drugs and psychotropic substances. The Ordinance being later in time will have an overriding effect on Order of 1979. However, on going through different parts of the Ordinance, keeping in view the fact, that none of these cases have been disposed of by the Forums under the Ordinance, he conceded that convictions/sentences were liable to be challenged before Hon'ble Federal Shariat Court and if their appeals were not being entertained they should have challenged said order before Hon'ble Shariat Appellate Bench of Supreme Court, instead of approaching this Court. ' We have heard the parties' counsel at length and also gone through relevant provisions of both the laws, carefully. ' We may observe that neither it is our intention nor we are empowered to sit in judgment, over the order passed by Hon'ble Federal Shariat Court, returning appeals with observations that under section 45 of the Ordinance, the appeal lies before High Court, as the Ordinance, has overriding effect in view of its section 65, therefore, appellants may seek remedy before competent Forum. As after passing of said order, appellants have preferred these appeals, therefore, we have undertaken to determine the jurisdiction of this Court, keeping in view the relevant facts of each case, noted in the annexed schedule, because we are conscious of the fact that with consent of parties, jurisdiction to hear appeal under section 45 of the Ordinance, cannot be assumed, unless it has not been established that appeals have been filed against order of Special Court, established under section 43 of Ordinance, and sentences have also been recorded under any of the provision of Ordinance. It may also be observed that right of appeal, both in criminal and civil matters, is always creature of Statute and if the Statute in given circumstances of case does not confer such right, jurisdiction cannot be assumed. ' As it is indicative from perusal of annexed schedule, that there are two categories of cases; namely, one which have been decided either by Sessions Judge/Sessions Judge, Ad hoc and the second, which have been decided by Additional Sessions Judge, in their respective jurisdictions. Similarly different Law Enforcement Agencies i,e,, Police, F.I.A., Anti-Narcotic Task Force and Provincial Excise Department, registered cases against appellants, generally under Articles 3 or 4 of the Order of 1979, except in cases covered by Appeals Nos.272 and 275 of 1996, registered under section 6/9 of the Ordinance on 26th June, 1995. However, in none of the present case, charge was framed under any provision of the Ordinance. Record reveals that convicts were tried under Article 3 or 4 of the Order of 1979 and in similar manner different convictions were recorded against them separately by the Courts ceased with the matters, exceeding two years. It is also an admitted fact
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that throughout the Province of Balochistan, neither Additional Sessions Judges nor Sessions Judge, Ad hoc, have been declared Special Court within the meaning of section 43 of the Ordinance. As far as respective Sessions Judges of various Sessions Divisions are concerned they were appointed to be the Special Courts vide Notification No,F.19(1)/96-A (iii)(c), dated 5th August, 1996, by the Government of Pakistan, Law, Justice and Parliamentary Affairs, therefore, with this background, we would proceed to examine, notwithstanding the provisions of section 45 of the Ordinance; whether order passed by Hon'ble Federal Shariat Court, directing appellants to avail remedy before proper Forum, as appeals are competent before High Court, has got binding effect on this Court or otherwise? ' It may be seen that Article 203-GG of the Constitution is liable to be read alongwith Articles 203-D and 203-F, to determine the binding effect of the decisions of Federal Shariat Court, in exercise of its jurisdiction. As far as former Article is concerned, it confers powers and jurisdiction upon Federal Shariat Court to examine and decide question; whether or not, any law or provisions of law is repugnant to the Injunctions of Islam, as laid down in Holy Qur'an and Sunnah of Holy Prophet (p.b.u.h.)? Whereas later Article deals with regard to proceedings before Hon'ble Supreme Court against proceedings under Article 203-D. In this behalf with reference to question under consideration, for our purpose, Article 203-F(i)(ii) is only relevant. ' It is to be observed that under Chapter 3-A of the Constitution of Islamic Republic of Pakistan, Federal Shariat Court was created with two-fold jurisdiction, namely; to examine and decide the question, whether or not, any law or provision of law is repugnant to the Injunctions of Islam, as laid down in Holy Qur'an and Sunnah of the Holy Prophet (p.b.u.h.), under Article 203-D and appeal against such proceedings was provided under Articles 203-F(1) and (2) of the Constitution. Whereas beside these Constitutional powers, the Federal Shariat Court was also bestowed with jurisdiction to hear appeals against Judgments, passed by different Criminal Courts under Hudood laws i,e,, with reference to the subject under consideration, alongwith revisional jurisdiction, which has also been conferred upon it by Article 203-DD of the Constitution. It may be noted that against any judgment, final order or sentence of Federal Shariat Court, right of appeal has been allowed to an accused before the Hon'ble Supreme Court under Articles 203-F(2-A) and (2-B) of the Constitution. As for as Article 203-GG is concerned, on its plain reading it emerges that any decision of the Court after examining the case within t preview of Articles 203-D and 203-F of the Constitution, either by Federal Shariat Court itself or in appeal by Hon'ble Supreme Court, shall have binding effect on High Court and all Courts subordinate to it. As far as any other order/sentence passed in exercise of Appellate Jurisdiction of Federal Shariat Court is concerned that will have no binding effect on High Court or other subordinate Courts because nothing in this behalf has been mentioned under Article 203-GG of the Constitution. ' Mr. Aslam Chishti, learned counsel to substantiate his argument cited following case-laws:--- (1) PLD 1982 FSC 11: In this judgment powers of Hon'ble Federal Shariat Court under section 7/20 read with section 20 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, were examined, in exercise of revisional jurisdiction. (2) PLD 1992 FSC 286: In this case provisions of section 17(2)(vi) of the Cantonments Rent Restriction Act, 1963, were found not repugnant to the Injunctions of Islam, in exercise of jurisdiction under Article 203-D of the Constitution. (3) PLD 1995 Kar. 459. In this case as well, learned Single Bench of Karachi High Court, examined binding effect of judgments of Hon'ble Supreme Court in view of Articles 89, 201 and 203-GG of the Constitution and concluded that judgments delivered, orders passed or observations made by superior Courts are required to be taking into consideration, if those judgments, orders are authoritative and are persuasive in their nature.
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(4) 1995 CLC 51: In this case, one of us (Mr. Justice Iftikhar Muhammad Chaudhry) examined section 4 of the Muslim Family Ordinance, 1961, and came to conclusion that under Article 189 read with Article 203-GG of the Constitution, the decisions of Hon'ble Supreme Court or Shariat Appellate Bench of Supreme Court, shall be binding on all other Courts in Pakistan, if a question of law has been decided or the decision is based upon or enunciates a principle of law and in view of the judgment of Hon'ble Supreme Court, the Federal Shariat Court has also no jurisdiction to scrutinize section 4 of Muslim Family Laws Ordinance, 1961, because to protect the personal law, Constitutional safeguard has been provided. ' During hearing it was pointed out by Mr. Aslam Chishti, Advocate that last-mentioned judgment is under consideration before Hon'ble Supreme Court, as leave to appeal has been granted. With utmost respect, on perusal of all these judgments, no other conclusion can be formed, except that if an order has been passed in exercise of Constitutional jurisdiction, conferred upon Federal Shariat Court under Article 203-D subject to Article 203-F of the Constitution shall have binding effect under Article 203-GG, on High Court and its subordinate Courts, declaring any law, repugnant to the Injunctions of Islam, as laid down in Holy Qur'an and Sunnah of Holy Prophet (p.b.u.h.) and if any other order has been passed, which is not covered by above-noted articles, that will have no binding effect on High Court or its subordinate Courts. Since the order of returning appeals to appellants has not been passed under the provisions of Constitution, referred to hereinabove, therefore, it has no binding effect upon this Court. ' Now turning to next contentions of appellants' Advocates, who were of the opinion that Order of 1979, has been repealed impliedly by the Ordinance, therefore, all sort of offences relating to narcotic drugs, psychotropic substances shall be deemed to have been committed under sections 6,7, and 8 of the Ordinance, instead of Article 3/4 of the Order of 1979. In this behalf, it may be noted that section 67 of the Ordinance explicitly mentions that only three laws i,e, The Opium Act. 1857, the Opium Act. 1878 and Dangerous Drugs Act. 1930 are repealed. It is a cardinal principle of law that if a law has not been repealed expressly, no inference can be drawn that impliedly it has been repealed, unless it has not been shown that the former and latter laws are inconsistent and they cannot co-exist, as it has been held in para. 137 of the Crawford's Interpretation of Laws. With reference to the proposition under consideration, it would be appropriate to examine various parts of both the Statute to see, whether both the laws can live together or not. It is pertinent to note that Preamble of a Statute can always be looked to explore the intention of law givers. Therefore, in view of this principle of interpretation of Statute, on reading the preamble of Order of 1979, there is no doubt that intention of the law givers was to modify the existing laws, relating to prohibition of intoxicants so as to bring it in conformity with the Injunctions of Islam, as set out in Holy Qur'an and Sunnah. Whereas it was not the intention of competent Authority in promulgating the Ordinance, because its preamble shows that it was felt expedient to consolidate and amend the laws relating to narcotic drugs, sychotropic substances and control the production, processing and trafficking of such drugs and substances. Since earlier to its promulgation, repealed laws mentioned in section 67 of the Ordinance, were not sufficient to combat the menace of narcotic drugs, therefore, after repealing those laws, a consolidated law was promulgated. However, whatever the object may be, as far as the Order of 1979 is concerned that could have not been repealed, because of the fact, that its provisions were in accordance with Holy Qur'an and Sunnah of Holy Prophet (p.b.u.h.). It is also necessary to observe that according to Article 2A of Constitution with its Objectives Resolution, the laws should be enacted so the Muslims shall be enabled to order their lives in accordance with the teachings and requirements of Islam, as set out in Holy Qur'an and Sunnah. Besides it, Order of 1979, has also got Constitutional protection, as provided under Article 270-A of the Constitution. Thus, now it would be examined; whether provisions relating to prohibition, in both the laws, are consistent or otherwise? Undoubtedly the Ordinance provides wider definition of narcotic drugs
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whereas in the Order of 1979, instead of the expression narcotic drugs' word ' intoxicant' has been used, which means an Article specified in the Schedule and includes intoxicant liqour and other articles or any substance which the Provincial Governments may by notification in the official Gazette declare to be an intoxicant for the purpose of this Order. Further, perusal of both the laws indicates that they deal in respect of possession, manufacturing, trafficking, transportation, imports, exports of opium or coca leaf or opium or coca derivatives, heroin, coca, raw opium etc. On close scrutiny of Article 3/4 of the Order of 1979, and sections 6, 7, 8 and 9 of the Ordinance, both in substance are corresponding to each other, with only exception that subject to quantity of the weight of narcotic drugs which expression can also be used as…
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