P L D 1988 Karachi 272 (PLP)

This is an application under section 561‑A, Cr.P.C. for quashment of the proceedings in the Session Case, bearing, No.144 of 1986, pending in the Court of IIIrd Additional Sessions Judge, (Hadood) Karachi. South, and for declaration that such proceedings ‑are without jurisdiction. The facts giving rise to this application briefly stated are as follows:

2. The applicant was arrested on 29‑4‑1985, by the police in case bearing F.I.R. No.129 of 1985, Police Station Mehmoodabad, Karachi, under Articles 3 and 4 of Prohibition (Enforcement of Hadd) Order, 1979 (hereinafter called the Order).

3. According to the allegation, the applicant was found to be in possession of one kilogram of‑ 'Charas'. The following charge has been framed in the case by the Additional Sessions Judge:‑ I, S. Hassan Shah Bukhari, IIIrd Additional Sessions Judge. Karachi South, do hereby charge you accused:‑ Wazir Khan son of Wali Khan as under:‑ That on or about the 29th day of April, 1985, at about 2200 hours, at Chanesar Goth, near Yousuf Hotel, Mehmoodabad, Karachi, the police of Police Station Mehmoodabad, while on patrolling duty, recovered from your possession one kilogram Charas in presence of Mashirs, and that you thereby committed an offence punishable under section 3/4 of Prohibition (Enforcement of Hadd) Order, 1979, and within the cognizance of this Court. And, I hereby direct that you be tried on the aforesaid charge by this Court."

4. It is submitted by the learned counsel for the applicant that the case falls only under Article 4 and not under Article 3 of the Order. It is further submitted that the Court of Additional Sessions Judge has no jurisdiction to entertain the case as the alleged offence under Article 4 of Prohibition (Enforcement of Hadd) Order, 1979, is trouble by a Magistrate. It may be convenient for reference if Articles 3 and 4 of the Order are immediately reproduced herein below:‑ 3.(1)Prohibition of Manufacture etc: of Intoxicants. ‑‑Subject to the provision of clause (2) whoever (a) imports, exports, transports, manufactures or processes any intoxicant; or (.b) bottles any intoxicant; or (c) sells or serves any intoxicant; or (d) allows any of the acts aforesaid upon premises owned by him or in his immediate possession; shall be punishable with imprisonment of either description for a term which may extend to five years and with whipping not exceeding thirty stripes, and shall also be liable to fine. (2) Whoever (i)imports, exports, transports, manufactures, or traffics in, opium or coca leaf or opium or coca derivatives; or (ii) finances the import export, transport, man facture. or trafficking of, opium or coca leaf or opium of coca derivatives; shall be punishable with imprisonment for' life or with imprisonment which is not less than two years and with whipping not exceeding thirty stripes, and shall also be liable to fine.

4. Owing or Possessing Intoxicant. ‑‑Whoever owns, possesses or keeps in his custody an intoxicant shall be punished with imprisonment of either description for a term which may extend to two years, or with whipping not exceeding thirty stripes, and shall also be liable to fine: Provided that nothing contained in this Article shall apply to a non‑Muslim foreigner or to a non‑Muslim citizen of Pakistan who keeps in his custody at or about the time of a ceremony prescribed by his religion a reasonable quantity of intoxicating liquor for the purpose of using it as a part of such ceremony: Provided further that, if the intoxicant in respect of which the offence is committed is heroin, cocaine, raw opium or coca leaf, and the quantity exceeds ten grams in the case of heroin or cocaine or one kilogram in the case of raw opium or coca leaf, the offender shall be punishable with imprisonment for life or imprisonment which is not less than two years and with whipping not exceeding thirty stripes, and shall also be liable to fine.

5. From the perusal of the above Articles as well as the charge reproduced above, it is clear that prima facie the offence falls under Article 4 of the Order, because the accused was allegedly found to be in possession of one kilogram 'Charas".

6. Learned counsel for the applicant relies on Faizullah v. The State 1983 S C M R 640, wherein it was held that where the accused was found in possession of 1,700 grams of 'Charas', which he had kept in a room of his house the offence fell under Article 4 of the Order.

7. In the case of Noor Muhammad v. The State P L D 1986 Karachi 157(l), one plastic bag containing 'Charas' weighing 1,660 grams was recovered from the accused and in that case I held that the offence prima facie fell under Article 4 and not under Article 3 of the Order.

8. Now, considering the question of jurisdiction it may be stated that under Article 27 of the Order, the provisions of the Criminal Procedure Code, 1898 (Act V of 1898) have been made applicable to the cases under the Order, unless otherwise expressly provided in the Order. An offence under Article 4 of the Order is punishable with imprisonment of either description for a term which may extend to two years, or with whipping not exceeding thirty stripes, and fine.

9. In accordance with the provisions of section 29, Cr.P.C. read with 8th column of the II schedule to the Code of Criminal Procedure, where an offence if punishable with imprisonment for one year and upwards but less than three years or with whipping not exceeding 40 stripes with or without imprisonment, the offence is trouble by a Magistrate of the first or second class. Under section 32(l)(a) of Cr.P.C., the Court of Magistrates of the First Class is empowered to pass sentence of imprisonment for a term not exceeding three years including such solitary confinement as is authorized by law; fine not exceeding Rs.15,000 and whipping. It therefore, follows that the offence is trouble by a Magistrate of First Class.

10. Mr. Makhdoom Abdul Wali, Advocate had appeared on be hall of the State on previous dates and requested for time to produce notification issued by the Government notifying that all Hadood cases are trouble by a Sessions or Additional Sessions Judge, but he failed to produce any such notification. Today, he is not present. I sent ,muddin, for the Advocate General. Mr. Syed Sarfraz Ahmed, Assistant Advocate General is present and candidly states that he is not aware of any such notification directing the trial of all Hadood cases by a Sessions Court irrespective of the provisions of Section 27 Cr.P.C., nor is there any law under which such a notification could be issued. He however, submits that the case is not fit for quashment but it could be transferred to proper Court.

11. The stand of the Assistant Advocate General is right; I would therefore, hold that the offence is trouble by a Magistrate class and accordingly direct the case shall be transferred to the Court of concerned Magistrate for deciding it according to law M.Y.H. /W‑17/K Case transferred