P L D 2002 Karachi 453 (PLP)

Date of hearing: 13th April, 2001. GHULAM NABI SOOMRO, J.‑‑‑This is an application for bail of the applicant Abdul Rasheed presently facing trial before the learned Special Court (C.N.S.) for Karachi Division at Karachi. The prosecution case is that‑ on 12‑6‑1997 at 8‑20‑p.m. the applicant was found possessing some 5 kgs. of Charas by the complainant, Excise Inspector, Sadqain Naqvi. The applicant was initially challaned under Articles 3/4 of the Prohibition Order (4 of 1979) before the Court of IIIrd Judicial Magistrate, Karachi West, who admitted the applicant to bail by his order dated 20‑6‑1997. However, upon a reference of the Judicial Magistrate and the directions given by the Sessions Judge, challan was returned to police for proper presentation before the learned Sessions/Special Judge (Narcotics). Thus, the police submitted a challan on 17‑11‑1999 by adding sections 6 and 9 of Control of Narcotic Substances Act, 1997 hereinafter to be referred to as the Act. The learned Sessions/Special Judge (Narcotics), Karachi West, upon receipt of the case, however, issued a notice to the applicant as to why his bail should not be cancelled. In the meanwhile, however, the case of the applicant was transferred on the point of jurisdiction to the Single Special Court (C.N.S.) for Karachi Division at Karachi. The applicant, somehow, due to a misunderstanding in noting the date of hearing, as stated, remained absent on 8‑11‑2000 and his application for condonation of absence submitted on 8‑12‑2000 was cancelled and he was remanded to custody. He, therefore, applied for his bail before the trial Court but same was rejected vide order dated 21‑12‑2000 inter alia, on the grounds that there was a bar under section 51 of the Act, on grant of bail to the accused, involved in more than 1000 grams narcotics cases and that the Judicial Magistrate was not competent to grant bail to the applicant. Hence this bail application before this Court. Since there arose some law points relating to the jurisdiction of the trial Court, we therefore, appointed Mr.Shaukat Hussain Zubedi, learned Advocate Supreme Court as amicus curiea to address the Court on the aforesaid points. Mr. Mehmood A. Qureshi learned counsel for the applicant submitted that the case against the applicant was registered at Excise Police Station in the District Karachi, West where Excise Inspector Sadqain lodged his report on behalf of the State as F.I.R. No. 17 of 1997. He contended that the Judicial Magistrate had jurisdiction to grant bail to the applicant. The applicant right from the date of his release on bail by the Magistrate attended the Court and never misused the concession of bail. It was further argued that the offence was committed prior to the promulgation of the Act and that the Act was not retrospective to nature hence the learned trial Court had no jurisdiction to try the case or cancel the applicant's bail. On merits of the case, it was argued that the applicant was falsely implicated the area was densely populated no independent public witnesses were joined and the private witness M.Asif is a stock witness of police. It was also agitated that the applicant was not provided proper opportunity of hearing before cancelling his bail. Further, the applicant right from the date of his release on bail by the Magistrate attended the Court and never misused the concession of bail. Reliance was laced upon 1999 PCr.LJ

63. On the other hand Mr.Soaib M. Ashraf, learned Special Prosecutor and Mr.Habib Ahmed learned A.A.‑G. appearing for the State submitted that the case was triable by the Special Court for Karachi Division in view of section 74 of the Act. Mr. Shaukat Hussain Zubedi learned amicus curiea placed before us the Gazette of Pakistan, dated October 20, 2000 and drew our attention to the Notification No.F.21 (5) 2000‑A.IV (D) of the 16th October 2000, whereby the Federal Government established a Special Court at Karachi to exercise jurisdiction under section 46 (2) (i) of the Act, in respect of Anti‑Narcotics Force cases within the, territorial limits of Karachi Division, superseding its earlier Notification, dated 17th July. 2000. He further drew our attention to another Notification No.F.21 (5) 2000‑A.IV dated 18th October, 2000 of the same Gazette at the same page 710, whereby Mr.Ali Nawaz Pirzada was appointed the Judge of the said Special Court with his headquarters at Karachi Out attention was further drawn to yet an earlier Notification No.F.19 (1)/95‑A III (B), dated 23rd April, 1995 issued under subsection (2) of section 43 of Control of Narcotic Substances Ordinance, 1995 (XLVII of 1995), whereby the Sessions Judges of their districts were appointed/empowered to exercise jurisdiction as Special Courts under the said Ordinance within the territorial jurisdiction of their districts in the Province of Sindh. Our attention was lastly drawn to a recent Notification, dated 12th March, 2001, No.F.21(5)/2000‑A.IV‑(D) which modifies the earlier notification of the even number whereby the words "under section 46(2)(i) of the said Act in respect of Anti‑Narcotics Force Cases" appearing in paragraph 1 of the said notification have been substituted with the words "in respect of all the cases under the said Act". The learned amicus curiea having referred to the aforesaid notifications and relying upon PLD 1996 Lahore 304 submitted that the Act, 1997 has no retrospective effect and further submitted 'that the learned Special Court for Karachi Division at Karachi presided by Mr.Ali Nawaz Pirzada is competent to exercise jurisdiction in respect of all the cases under the said Act of 1997 only. He therefore, opined that the learned Special Court for Karachi Division was not competent to exercise jurisdiction or try offences other than those falling under the Act, 1997. He, therefore, emphasized that the learned Special Court was not competent to deal with the cases not covered by the Act. He thus submitted that the applicant's case not being covered by the Act, 1997 was not triable by the Special Court for Karachi Division, whereas the other cases shall be tried by the Special Courts constituted vide earlier Notification of 23rd April, 2001 empowering all the Sessions Judges, to try such cases within their Districts. It may be noted that previous to the promulgation of the Act, 1997 a number of Ordinances in relation to the Control of Narcotic Substances effective from 5th January, 1995 were promulgated, and re‑promulgated from time to time till enforcement of the Act, 1997. From plain reading of the aforesaid notifications, it would appear that a Special Court for Control of Narcotic Substances for Karachi Division only, has been established to deal with the cases falling under the Act, 1997 The Court is headed by Mr.Ali Nawaz Pirzada. It is further evident that this Court shall have jurisdiction over such cases, which fall within the Act, only. The Act 1997 was promulgated on 11th July, 1997, as Act No.XXV of 1997. Admittedly, the alleged offence was committed prior to the commencement of the Act, 1997. Section 74 of Act, 1997, however, only makes an offence falling under any other law in force also punishable under the Act. It is important to note that all the Ordinances relating to Narcotics issued from 5th January, 1995 till promulgation of the Act stand lapsed/repealed and are not the laws in force for the time being. The Courts constituted, under the Notification of 23rd April, 1995 and subsequent Notifications of 26th March, 1996 and 5th August, 1996 are still functioning in other parts of the Province except Karachi Division. We would therefore, hold, that the Single Special Court for Karachi Division presided by Mr.Ali Nawaz Pirzada has jurisdiction in respect of all the cases under the said Act, 1997 only. The instant case being not one either under the Customs Act or under any law for the' time being in force would come out of the jurisdiction of the trial Court. The impugned order dated 21‑12‑2000 of cancellation of bail being without jurisdiction cannot sustain. We, therefore, admit the applicant to bail. He will remain on same surety but will execute a fresh P.R. bond in the sum of Rs.50,000 only and need not furnish fresh surety. We further hold that the instant case and the cases, which were committed under the Ordinances in relation to the Control of Narcotic Substances, shall stand transferred to the respective Sessions/Special Courts of the District. Criminal Bail No: 7 of 2001 was decided by short order dated 13‑4‑2001. Above are the reasons for the same. S.A.K./A‑335/K Bail granted.