P L D 1980 Quetta 71 (PLP)

Munawar Ahmad and Raja Rab Nawaz for Petitioner. Mohammad Yousuf Chaudhry A. A.-G. for Respondents Nos. 1 to

2. Muftakidruddin, Dy. A.-G. for Respondent No.

3. Dates of hearing: 11th and 12th May, 1980. M. A. RASHID, J.-A raid was arranged on the Saqi Khana of the petitioner, situated in the town of Chaman, on 17th November, 1979. It is alleged that 100 grams of charas were recovered from the possession of the petitioner, whereupon a case was registered against him under section 3 of the Prohibition (Enforcement of Hadd) Order, 1979 (hereinafter called the Order): A bail application was moved on behalf of the petitioner before Assistant Commissioner, Chaman who referred the matter to the Local S. M. L. A. for necessary directions. The said S. M. L. A. directed the case to "be transferred to civil Court". Thereupon the learned Assistant Commissioner admitted the petitioner to bail. Later however a charge-sheet, issued by the D. M. L. A., and purporting to be for offences under M. L. 0. 10 (Zone 'D') read with section 8/13 of the Dangerous Drugs Act, 1930, was served upon him. He was tried by the Summary Military Court, Pishin on such counts and, on 25th December, 1979 was convicted by the said Court. He was sentenced to one year R. 1. with a fine of Rs. 15,

000. Such conviction is challenged in the present petition.

2. In the memo. of petition the vires of Article 212-A was also challenged. But at the time of hearing Raja Rab Nawaz, the learned counsel for the petitioner, stated that he would withdraw such objections because one of the grounds of attack against such conviction is that the Summary Military Court acted beyond the jurisdiction conferred upon it by M. L. O. 4. 1n such circumstances, it is contended, that the validity or otherwise of Article 212-A has no relevance to .the present petition. In view of such submissions the Deputy Attorney-General withdrew his objection that determination of validity of Article 212-A should precede the hearing of this petition.

3. One of the contentions raised is that according to section 173, Cr. P. C. an Investigating Officer is legally bound to present his challans before the Magistrate having jurisdiction in the case and therefore the submission of challans to the Military Court by the S. H. O., Chaman is without lawful authority and that consequently the cognizance, if any, by such Military Court is without lawful authority. It is further contended that the challans should have been presented to the Assistant Commissioner and Magistrate First Class, Chaman who should have taken cognizance of the Matter and that the Military Court could try the case only if it was transferred to it in terms of para. 3 of the M. L. O.

4. The learned Assistant Advocate-General concedes this legal position, but contends that it would be available only if an offence under the ordinary laws is alleged to have been committed and that in cases where an offence under a Martial Law Order or a Martial Law Regulation is alleged to have committed as only a Military Court has the jurisdiction to try such offences, therefore such challan can be submitted only to a Military Court in terms of sub-pare. (2) of para. 2 of M. L. O.

4. The petitioner, as observed earlier, was tried and convicted under M. L. O. 10 (Zone 'D') and section 8/14 of the Dangerous Drugs Act. The learned Assistant Advocate-General contends that as the challan, as was finally put up before the Military Court, also included an offence under M. L. 0. 10 therefore such submission of challan to the Military Court was proper.

4. M. L. O. 10 provides punishment for indulgence in "manufacture, illegal sale, import, export, transportation" processing of any intoxicating liquor or an other intoxicating material. This M. L. O. does not provid any punishment for possession of such articles. In the present case the allegation is that of possession and not of manufacture, sale etc. So on the face of record, as contained in the challan an offence under M. L. O. 10 (Zone 'D') was not made out. In the first place the addition in the challan , of offence under this law was not called for. Secondly if ever an offence , under M. L. O. 10 was shown in the challan to have been committed it was the duty of the Court, taking cognizance of the offence, to see if the facts alleged in the challan make out any such offence, if no such offence is shown to have been committed, as in the present case, it was the duty of such Court to return the challans for presentation before the Court of competent jurisdiction.

5. More serious objection to the assumption of jurisdiction by the Summary Military Court, Pishin is based on the provisions of the Order. The Order is not listed in the list of laws, offence under which are triable by Military Courts in terms of M. L. O. 4, as amended by M. L. O.

72. The Order in its section 29 declares that it shall have effect notwithstanding anything contained in any other law for the time being in force. Thus the provisions of the Order have an overriding effect over all other laws on the subject. For this reason, it is contended, the relevant provisions of the Dangerous Drugs Act, 1930 are overridden by the provisions of the Order. Mr. Yousuf. the learned Assistant Advocate-General, on the other hand, contends, that the Order is a general law having general application whereas the Dangerous Drugs Act is a special law and therefore, in view of the principle 'generalia specialibus non derogant' the provisions of the Order will give way to the relevant provisions of the Dangerous Drugs Act. In this behalf he refers to Commissioner of Income-tax v. Attock Oil Company P L D 1975 Lah. 1181, Muhammad Ahmad v. 77w State P L D 1974 Kar. 459, and Vahka Textile Mills v. Chairman, Ist Sind Labour Court, Karachi P L D 1978 Kar. 952.

6. The Dangerous Drugs Act, though it deals with special subject of Drugs, makes general provisions on such special subject. This Act provides for prohibition and control of dangerous drugs by the Central Government. It also provides for control of such Government over the .manufacture of certain drugs and their import into and export from Pakistan. (Sections 6 and 7). Control over internal traffic of such Drugs, within a Province, is conferred on the Provincial Governments (section 8). Chapter III of the Dangerous Drugs Act prescribes penalties, Chapter IV deals with the procedure regarding issue of warrants, entry, search, seizure and arrest and the jurisdiction to try such offences. Miscellaneous provisions are made in the last chapter of the Act. Thus the Dangerous Drugs Act is a law of general import, although on the special subject of drugs. On the other hand the Order provides only for the Enforcement of Hudood as regards prohibition) against intoxicants. The Order does not make any provision as to the manner and control of manufacture, import export etc. of an intoxicant. These matters are outside the scope of the Order. The Order therefore is a special law on the special subject of prohibition of intoxicant. In Commissioner of Labour v. Mysore Iron and Steel Works A I R 1952 Mys. 21, it is observed that classification of a general statute and a special statute is to be made with reference to the context in each case and the subject-shatter dealt with b each statute; and that most Acts can be classed as general Acts from on point of view and Special Acts from another. In the present case therefor it would be proper to hold that the Dangerous Drugs Act is a law of general import as compared to the Order although the Act deals with the special subject of Dangerous Drugs.

7. In that view of the matter, and because the Order is a latter law, having overriding provisions over all the other laws on the subject, it would prevail over the relevant provisions of the Dangerous Drugs Act. In fact it has the effect of impliedly repealing, such provisions of Dangerous Drugs Act. Reference in this behalf is made to Tantmayya v. Tyadapusapati A I R 1930 Mad.

963. Trial of the petitioner, in such circumstances, could not take place under the Dangerous Drugs Act. As no offence under M. L. O. 10 was mad out therefore his trial and conviction for an offence under that M. L. O. is patently without lawful authority. The petitioner could only be tried under the Order. As such the assumption of jurisdiction by the Summary Military Court to try him was without lawful authority.

8. The overriding nature of the Order is also canvassed from angle. It is contended that the Constitution of the Islamic Republic of Pakistan another contains directive regarding enforcement of Islamic Laws. The preamble to the said Constitution and its Articles 31 and 227(1) contain such directives. 'The promulgation of the Prohibition (Enforcement of Hadd) Order, 1979 is a step towards that direction. Therefore, it is contended, that even if relevant provisions of the Dangerous Drugs Act are held to be in the field, the law which is conducive to the application of the laws of Islam would be preferred and that such law, in the present case, is the Order, Reliance in this behalf is placed on famida Begum v. Murad Begum P L D 1975 S C

624. The submission is unexceptionable. As the petitioner could only be tried for an offence under the Prohibition (Enforcement of Hadd) Order, 1979, which offence cannot be tried by Military Court, therefore the trial of the petitioner by Summary Military Court was without lawful authority and is of no legal effect. We would therefore set aside the conviction of the petitioner handed down by sue Court. He should be released forthwith if not required in any other case. Petition accepted.