P L D 2020 Peshawar 35 (PLP)

MUHAMMAD NAEEM ANWAR, J.

The petitioner, Asmat Ullah, who has filed this constitutional petition through Mr. Noor Alam Khan, Advocate, under Article 199 of the Constitution of the Islamic Republic of Pakistan,1973, has challenged the vires of the Khyber Pakhtunkhwa Control of Narcotic Substances Act, 2019, on the touchstone of Federal Legislative List being unconstitutional, illegal, without jurisdiction and arbitrary, thus, liable to be declared as ultra vires to the Constitution.

2. Concise facts of the case are that the Provincial Assembly of Khyber Pakhtunkhwa within the power as provided under sub-clause (b) of Article 142 of the Constitution of the Islamic Republic of Pakistan, 1973, promulgated "The Khyber Pakhtunkhwa, Control of Narcotic Substances Act, 2019" ( Act No. XXXI of 2019), hereinafter mentioned as "the Act", with the object, as per preamble of the Act , to eliminate the evils of narcotic substances, narcotic drugs and psychotropic substances for well being of the people of the Province of Khyber Pakhtunkhwa. The petitioner has now challenged the vires of "the Act" on the grounds that:- (i) That it was not within the domain of the Khyber Pakhtunkhwa Provincial Assembly to legislate when Federal Law i.e., Control of Narcotic Substances Act, 1997 was in field throughout Khyber Pakhtunkhwa, (ii) That it was violative of the fundamental rights as enshrined in Articles 10 and 10A of the Constitution, (iii) That the Provincial Assembly has transgressed from its limit within the meaning of Article 143 of the Constitution and (iv) That it was against the doctrine of occupied field in presence of Control of Narcotic Substances Act, 1997.

3. Arguments from both the sides heard and record perused.

4. The background of the case is that the Eighteenth Amendment to the Constitution of the Islamic Republic of Pakistan, 1973, has deleted the Concurrent Legislative List from the Fourth Schedule. With the abolition of Concurrent Legislative List, the Provincial Assemblies were given exclusive powers to enact laws in respect of any matter that does not appear on the Federal Legislative List. Moreover, Article 142 (b) of the Constitution has vested the Provinces with the concurrent jurisdiction to legislate with respect to criminal laws, criminal procedure law and evidence (Qanun-e-Shahadat). For convenience, Article 142 "Part-V"(Relation Between Federation and Provinces) is reproduced as under:- "142, Subject to the Constitution-- (a) Majlis-e-Shoora (Parliament) shall have exclusive power to make laws with respect to any matter in the Federal Legislative List; (b) Majlis-e-Shoora (Parliament) and Provincial Assembly shall have power to make laws with respect to criminal law, criminal procedure and evidence; (c) Subject to paragraph (b), a Provincial Assembly shall, and Majlis-e-Shoora (Parliament) shall not, have power to make laws with respect to any matter not enumerated in the Federal Legislative List; (d) Majlis-e-Shoora (Parliament) shall have exclusive power to make laws with respect to all matters pertaining to such areas in the Federation as are not included in any Province. Inconsistency between Federal and Provincial Law

143. If any provision of an Act of a provincial Assembly is repugnant to any provision of an Act of Majlis-e-Shoora (Parliament) which Majlis-e-Shoora (Parliament) is competent to enact, then the Act of Majlis-e-Shoora (Parliament), whether passed before or after the Act of the Provincial Assembly, shall prevail and the Act of the provincial Assembly shall, to the extent of the repugnancy, be void." Similarly, clause 8 of Article 270AA provided that:- "An omission of concurrent Legislative List, the process of devolution of matters mentioned in the said List to the Provinces shall be completed by thirtieth day of June, 2011."

5. In view of the above mandate, the Provincial Assembly of Khyber Pakhtunkhwa within the power as provided under sub-clause (b) of Article 142 has promulgated "the Act" having its preamble, which is reproduced as under:- "To provide for the control of narcotic substances, narcotic drugs and psychotropic substances in order to eliminate the evils of these substances, more effectively and more forcefully for socio economic well being of the people of the Province of the Khyber Pakhtunkhwa."

6. Learned counsel for the petitioner vociferourly opposed the act on the ground of being ultra vires as, according to him, the law on the same subject, i.e., Control of Narcotic Substances Act, 1997, is already in field and has been made applicable to the Khyber Pakhtunkhwa. The contention of the learned counsel was considered in juxtaposition with Articles 142 and 143 of the Constitution of Pakistan, wherein the power of Provincial Assembly for legislation were provided under sub-clause (b) and (c) of Article 142 of the Constitution. The preamble of the Act was read with Article 70(4) (Fourth Schedule Federal Legislative List Part-I) of the Constitution, where at serial No. 26 of the Federal Legislative List, it is provided "opium so far as regards sale for export". So, if any matter which is specifically not enumerated in the Federal Legislative List, the provincial Assembly shall have the power to make law in that respect. Since, apart from the opium, the Act contains section 2(f) cannabis, 2(h) coca bush, 2(i) coca derivative, 2(j) coca leaf, 2(v) manufactured drug, 2(w) medical hemp, 2(x) methametaphine, 2(aa) narcotic substance and 2(aj) psychotropic substance, which are not mentioned in the Federal Legislative List, as such, there was no impediment for Provincial Assembly to make legislation with respect to the above Act.

7. Next question for determination is as to whether Control of Narcotic Substances Act, 1997, being Federal Law is an impediment for Provincial Assembly to legislate on the same subject or whether there is any conflict in both the laws, we are of the considered view that after the 18th Amendments, under Article 142(c), the Provincial Assemblies were vested with the powers to legislate in any matter if not found in the Federal Legislative List. Over and above, the Provincial Assembly under Article 142(b) has the power to make the law with respect to criminal Law and Criminal Procedure, so, notwithstanding the Control of Narcotic Substances Act, 1997, in order to meet the socio economic well being of the people of the Province of Khyber Pakhtunkhwa, in the sphere as embodied in the preamble of the Act, the provincial Assembly was having the mandate to legislate the law on the subject. Similarly, there is also no inconsistency in between the two laws, however, under section 59 of the Act, the Control of Narcotic Substances Act, 1997, to the extent of cultivation, possession, selling, purchasing, delivering and transportation etc.

8. The arguments of learned counsel for the petitioner that the Act is violative of Articles 10 and 10A of the Constitution. Article 10 of the Constitution provides safeguard as to arrest and detention while Article 10A provides right to fair trial. Within the parameters of clauses (1) and (2) of Article 10, Sections 27 to 30 of the Act (Chapter IV Warrant of Search and Arrest and Investigation) provides a special mechanism, which give safeguard to the fundamental rights of every citizen so that an innocent may not be dragged into unwarranted situation. Section 32 of the Act was inserted to give punishment for vexatious entry, search, seizure or arrest, which is reproduced as such:- "

32. Punishment for vexatious entry, search, seizure or arrest.-An officer authorized under section 27 of this Act, who,- (a) Without reasonable grounds of suspicion, enters or searches or causes to be entered or searched any building, place, premises, dwelling house or conveyance; (b) Vexatious and unnecessarily seizes the property of any person on the pretence of seizing or searching for any narcotic substances or any other article or document relating to any offence under this Act: (c) enters into dwelling house without compliance of section 103 of the Code or does not give an opportunity to the women of such dwelling house to observe pardah, as provided in sub section (1) of section 27; (d) Vexatious and unnecessarily, searches or arrests any person; shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine which may extend to rupees one lac but shall not be less than rupees fifty thousand." While focusing on Article 10 of the Constitution, in case titled Amir and others PLD 2004 Quetta 16 it has been held that:- "

24. It may be noted that under Article 10 of the Constitution of Pakistan an accused person has a right to be defended by the counsel of his choice if he is arrested, brought or appeared before the Court. Similarly under section 340, Cr.P.C. an accused person has been given a right to be defended by a counsel of his choice is in consonance with the above mentioned Article of the Constitution. Nowhere in Constitution or in Cr.P.C. it has been provided that a fugitive from law can have recourse to law by challenging his conviction through a counsel of his choice; merely because section 11-A was added in Anti-Terrorism Act, 1997 after the pronouncement of judgment in Mehram Ali's case in order to bring the Act in conformity with Article 10 of the Constitution of Pakistan which provides that nothing contained in subsections (10) and (11) of section 19 shall be construed to deny the accused the right of consulting or to be defended by a legal practitioner of his own choice, but it does not mean that an accused person who decamps, has an indispensable right to be defended by a legal practitioner of his choice, without surrendering to the process of law. In our considered view in such a situation the fundamental rule of administration of justice viz. a person seeking aid of justice in a criminal case should submit to the due process of justice, will be applicable."

9. Article 10A of the Constitution gives right to fair trial, whereas in Khyber Pakhtunkhwa Control of Narcotic Substances Act, 2019 (Chapter III Special Courts) Sections 22 to 24 provides "Establishment of the Special Courts", "jurisdiction to try offences" and "appeal" within the meaning of right of fair trial. The Establishment of Special Court is with the intention to provide expeditious and speedy trial. Thus, the contention of the learned counsel that the Act is violative to Articles 10 and 10-A of the Constitution is misconceived.

10. Besides the above, it was also contended that the Act is against the doctrine of occupied field. This doctrine has been elaborated in case titled "Shams Textile Mills Ltd v. The Province of Punjab (1999 SCMR 1477)". The relevant Para of the judgment is reproduced as under:- "The doctrine of occupied field is a concomitant of the larger doctrine of pith and substance and incidental encroachment under the doctrine of pith and substance with all its concomitants, postulates for its applicability on a competition between Federal legislation and Provincial legislation and it would be erroneous to invoke the doctrine where there is no such competition, merely because a Provincial law conflicts with another law which has not been passed by the Federal Legislature but deals with a matter in the Federal List. Similar is the case where a Federal Statute provides that the Provincial Government may extend the operation of a law to any part of the Province and the legislation is brought into operation by the Provincial Government, the law does not lose its Federal character and does not become invalid when it comes into conflict with another Federal law. Article 143 does not apply to the resolution of inconsistency between two "existing laws" in that it applies only when there is a conflict between a Federal law passed under the Constitution and an existing law, whether Provincial or Federal. In such a case, if the Federal law is passed with respect to a matter in the Federal List or Concurrent List, it would be intra vires the Federal Legislature and as regards the question of its repugnancy to an "existing law", the Federal law would prevail on the principle of repeal by implication which rests on the principle that if the subject-matter of the latter legislation is identical with that of the earlier one, then, the earlier law stands repealed by the latter enactment." Since, after 18th amendment, in respect of the Act nothing is provided specifically in the List, thus, this is not the case of occupied field. The Provincial Assembly has enacted the law and to that extent the applicability of the Control of Narcotic Substances Act, 1997, has been repealed.

11. The argument of learned counsel that the Act is unconstitutional is concerned, to this effect guidance is sought from the case titled Lahore Development Authority v. Ms. Imrana Tiwana (2015 SCMR 1739), wherein it was formulated the following principles which must be applied and considered by the Court when striking down or declaring a legislative enactment as void or unconstitutional:- "(i) There was a presumption in favour of constitutionality and a law must not be declared unconstitutional unless the statute was placed next to the Constitution and no way could be found in reconciling the two; (ii) Where more than one interpretation was possible, one of which would make the law valid and the other void, the Court must prefer the interpretation which favoured validity; (iii) A statute must never be declared unconstitutional unless its invalidity was beyond reasonable doubt. A reasonable doubt must be resolved in favour of the statute being valid; (iv) Court should abstain from deciding a Constitutional question, if a case could be decided on other or narrower grounds; (v) Court should not decide a larger Constitutional question than was necessary for the determination of the case; (vi) Court should not declare a statute unconstitutional on the ground that it violated the spirit of the Constitution unless it also violated the letter of the Constitution; (vii) Court was not concerned with the wisdom or prudence of the legislation but only with its Constitutionality; (viii) Court should not strike down statutes on principles of republican or democratic government unless those principles were placed beyond legislative encroachment by the Constitution; and (ix) Mala fides should not be attributed to the Legislature."

12. We have gone through the Act and found that it was enacted within the sphere and powers of the Provincial Assembly, however, under section 21 of the Act all the offences under this Act are cognizable and non-bailable but nowhere the Act provides the provisions of release of an accused person on bail either before the commencement of trial or when trial delays for any reasons beyond the control of an accused. The law stresses the principle of presumption of innocence. The principle embodies freedom from arbitrary detention and provides a safeguard against punishment before conviction for the reason that ultimate conviction and incarceration of a guilty person can repair the wrong caused by as mistaken release of interim bail granted to him but there is no satisfactory compensation to an innocent at any stage of the case, albeit his acquittal in the long run.

13. In view of the above, the constitutional petition is dismissed, however, the respondents are directed to streamline the law in the light of last Para of this judgment to maintain strict discipline in the society. SA/17/P Petition dismissed.