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P L D 2001 KARACHI 283

HUSSAIN ABDULLAH SALUM
V/S
THE STATE

Per Sabihuddin Ahmed, J.

(a) Constitution of Pakistan (1973), Articles 12 & 13
r/w Control of Narcotic Substances Act (XXV of 1997)—Ss. 6, 7, 9, 72 & 74 and Customs Act (IV of 1969)—S. 156(1)(8)

The appellant was found to be in possession of 700 grams of heroin powder before boarding an International Flight at the Karachi Airport and was arrested by the Customs Authorities. An F.I.R. was registered and after usual investigation he was challaned before the Special Judge (Customs and Taxation), Karachi under section 156(1)(8) of the Customs Act, 1969. He pleaded guilty and was sentenced to undergo two (2) years’ imprisonment and pay fine of Rs. 25,000 vide judgment dated 24-1-1997.

While the aforesaid conviction was inforce and the appellant was undergoing sentence he was charge-sheeted before the Sessions Judge, Malir (acting as Special Judge) under sections 6 and 7 of Control of Narcotics Substances Act (CNS Act) for being in possession of 700 grams of heroin powder on 12-2-1997 at the International Departure Hall, Karachi Airport. He pleaded guilty and was sentenced to undergo 4 years’ R.I. and pay a fine of Rs. 30,000 vide judgment dated 22-4-1999.

The appellant preferred an appeal from jail calling in question his second conviction on the ground of being violative of the principle of double jeopardy, Article 13 of the Constitution as well as section 403, Cr.P.C. and section 26 of the General Clauses Act. He referred to a judgment of this Court in Mark Mifsud v. Investigation Officer (PLD 1999 Karachi 336) where a similar plea had been accepted by a Division Bench of this Court.

This appeal which was barred by 111 days came up before a Division Bench of this Court. Keeping in view the fact that the appellant had not the benefit of legal assistance, that delay was condoned liberally in criminal cases and a question of enforcement of fundamental rights was involved, the Division Bench condoned the delay. Mr. Habib Ahmed learned A.A.-G. appearing on Court notice, however, brought to the attention of the Division Bench an earlier judgment of another Division Bench in the case of Xiomori Moria and another v. State (2000 P.Cr.L.J. 956) where a view different from the one in Mark Mifsud case had been taken which unfortunately was not brought to the attention of the Bench decided Mark Mifsud case. Accordingly, the appeal was admitted and a reference was made to the Hon’ble Chief Justice for placing the matter before a larger Bench whereupon this Bench has been constituted.

We are, Control of Narcotic Substances Act 1997, clearly of the opinion that eversince the enactment of the C.N.S. Act or the promulgation of its predecessor Ordinance all offences had to be tried under the aforesaid Special Law. Consequently, a trial or a conviction before the Custom Court was coram non judice, and therefore, the protection of Article 13(a) of the Constitution or section 403 of the Cr.P.C. would also not apply.

In the instant case, however, we have noticed that the Control of Narcotic Substances Act, 1997 came into force on 11-7-1997, whereas the alleged offence was committed on 12-2-1997. The Act as such was not operative at the time of commission of the offence and Article 12(1)(a) of the Constitution expressly provides that no law shall authorise the punishment of a person for an Act or omission which was not punishable by law at that time. This aspect of the matter escaped the attention of the learned Special Judge. In all fairness to him, however, it may be observed that a Special Law dealing with Narcotics offences was for the first time promulgated in the form of Control of Narcotic Substances Ordinance, 1995 (Ordinance XLVII of 1995) on 18-4-1995. Ever since the provisions similar to those contained in the C.N.S. Act were sought to be kept on the statute through re-promulgation of various Ordinances, but we are doubtful as to the Constitutional validity of such course in view of the pronouncement of the Hon’ble Supreme Court in Collector of Customs v. New Electronics (Pvt.) Ltd. (PLD 1994 SC 363). In the circumstances we are constrained to set aside the appellant’s conviction and sentence, both under the Customs Act and the C.N.S. Act. We have been informed that the appellant has already been repatriated to his own country after serving his sentence under the Customs Act and in the peculiar circumstances of the case no illegality can be attributed to such action. It is, however, clarified for future that all acts or omission which may constitute offences under the C.N.S. Act, as well as the Customs Act or any other law must be treated as those committed under the C.N.S. Act and be tried accordingly. We would like to emphasise that mere fact of import and export of Narcotics should not mislead the Investigating/Prosecuting Agencies to treat the matter as an offence under the Customs Act because sections 7 and 8 of the C.N.S. Act expressly describe that such offences to have been committed under the C.N.S. Act punishable under section 9 of the Act. [pp. 284, 285 & 291] A, B, C & D

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