P L D 1989 Karachi 231 (PLP)

These are two Criminal Transfer Applications. Learned counsel for the applicant as well as learned A.A.‑G. are agreeable that both the cases relate to same facts and law. I, therefore, proceed to decide both the applications together. These applications are under section 526 Cr.P.C. for transfer of the Sessions case Nos.132/86 and 133/86 pending in the Court of learned Additional Sessions Judge, (Hudood) Sukkur. The facts giving rise to these applications, briefly stated, are as under:‑ The applicant was arrested by S.H.O. 'C' Section Sukkur, while patrolling, on receipt of spy information. An F.I.R. was lodged on the same day at 8‑30 a.m. by the said S.H.O. As per F.I.R. lodged against the applicant Charas in the quantity of 5 Kgs. and 50 grams and opium in the quantity of 3 Kgs. and 300 grams was recovered from the possession of the applicant. After investigation the case was challaned under Articles 3 and 4 of Prohibition (Enforcement of Hadd) Order, 1979 read with section 43 of the Abkari Act. The challan was submitted in the Court of S.D.M. Sukkur who sent the case to the Court of Sessions Judge (Hudood) Sukkur where the charge has been framed against the applicant under Articles 3 and 4 of the Prohibition (Enforcement of Hadd) Order, 1979 read with section 43 of the Abkari Act. Mr. Ghulam Muhammad Khan Durrani, learned counsel for the applicant submits that the offence is triable only by a First Class Magistrate and not by the Court of Sessions. Reliance is placed by the counsel on a Government of Sind, Home Department's Notification No.VII (85)/SOJ/83, dated 2nd August, 1984 which reads as under:‑‑ "NOTIFICATION FOR THE SIND GOVERNMENT GAZETTE, PART I GOVERNMENT OF SIND HOME DEPARTMENT Karachi, dated 2nd August, 1984. NOTIFICATION No.VII(85)/SOJ/83. ‑1n partial modification of even number dated 30‑3‑1983, the cases relating to the offences under Dangerous Drugs Act, 1930 and Opium Act. 1978 registered at Pakistan Narcotics Central Police Station, Karachi and at other Police Stations all over the Province of Sind shall be tried by the Courts of Suh‑Divisional Magistrates in their respective jurisdictions. M.M.USMANI Secretary to Government of Sind, Home Department As would appear from the above notification it relates‑ to the offences under Dangerous Drugs Act, 1930 rind Opium Act, 1978 registered at Pakistan Narcotics Central Police Station, Karachi and other Police Stations all over the Province of Sind and provides that such cases shall be tried by the Courts of S.D.Ms. in their respective jurisdiction. On the other hand Mr. Zawar Hussain Jafferi, learned A.A.‑G. refers to Code of Criminal Procedure (Amendment) Ordinance, 1979 (Ord. X of 1979). By section 2 of the said Amending Ordinance, Second Schedule of Act V of 1898 has been amended. For the heading "Offences Against other Laws" and the entries therein the following heading and entries have been substituted, namely: 1 2 3 4 5 6 .7 If punishable May Warrant Non Not Court of with death, arrest bailable. Compound Session. imprisonment without able. for life, im‑ warrant. prisonment exceeding 7 years, amput ation of hand or foot or both hand and foot or with whipping exceeding 80 stripes with or without any other o f the said punishment. If punishable Do Do Except in Do ..... Court of with imprison cases under Session ment for 3 years the Arms or Magis- and upwards but Act, 1878, ‑trate of not exceeding 7 , section 19, the first years or with which shall class. whipping not be bailable. exceeding 80 tripes with or without imprison‑ meat. if punishable Shall Summons Bailable Do Magistrate with imprison‑ not of the first went for 1 year arrest or second and upwards but without class. less than 3 years warrant, or with whipping not exceeding 40 stripes with or without imprison ment. If punishable Do Do Do Do Any with imprison‑ Magis ment for less trate. than 1 year or with whipping not exceeding 10 stripes with or without imprisonment, or with fine only. Learned A . A .‑G. further refers to President's Order No.12 of 1983 titled as Prohibition (Enforcement of Hadd) (Amendment) Order 1983 whereby Articles 3 and 4 of President's Order No.4 in the Prohibition (Enforcement of Hadd) Order, 1979 have been amended. It seems advantageous to reproduce Articles 3 and 4 as amended:‑‑ 3.(1) Prohibition of manufacture, etc. of intoxicants.‑‑ Subject to the provisions 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, manufacture or trafficking of, opium or coca leaf or 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. Owning or possessing intoxicant.‑‑whoever owns, possesses or keeps in his custody any 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 call also be liable to fine: Provided that nothing contained in this Article shall apply to a non‑Muslim foreigner or non‑Muslim citizen of Pakistan who keeps in his custody at or about the time of 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 case of raw opium or coca leaf, the offender 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." It appears that by the above Amending Ordinance the punishment has been enhanced in relation to the offences falling under Articles 3 and 4 and for that purpose the quantities of the intoxicants have `been taken into consideration. Learned counsel for the applicant, however, submits that the case falls under section 8 of the Dangerous Drugs Act, 1930 and the applicant, if at all found guilty, will be punished under section 14 of the said Act. It seems proper to reproduce both the sections relied on by the counsel. "

8. Control of Provincial Government over internal traffic it manufactured rugs an coca‑leaf.‑‑(l) No one s a ‑‑ (a) import or export inter‑provincially, transport, possess, or sell any manufactured drug other than prepared opium, or coca leaf, or (b) manufacture medicinal opium or any preparation containing morphine, diacetylmorphine or cocaine. save in accordance with rules made under subsection (2) and with the conditions of any licence for that purpose which he may be required to obtain under those rules. (2) The Provincial Government may make rules permitting and regulating‑‑ (a) the inter‑provincial import and export into‑ and from the territories under its administration. The transport, possession and sale of manufactured drugs, other than pre pared opium, or coca leaf; and (b) the manufacture of medicinal opium or of any preparation containing morphine, diacetylmorphine or cocaine from materials which the maker is lawfully entitled to possess. Such rules may prescribe the form and conditions of licences for such import, export, transport, possession, sale and manufacture, the authorities by which such licences may be ;granted and the fees that may be charged therefor, and any other matters requisite to render effective the 'control of the Provincial Government over such import,, export, transport, possession,, sale and manufacture (3) Save in so far as may be expressly provided in rules made under subsection (2), nothing in this section shall apply to manufactured drugs which are the property and in the possession of Government. Provided that such drugs shall not be so sold or otherwise delivered to any person who, under the rules made by the Provincial Government under this section, is not entitled to their possession.

14. Punishment for contravention of section 8.‑‑Whoever, in contravention of section 8 or any rule made under that section. or any condition of a licence issued thereunder: (a) imports or exports inter‑provincially, `transports, possesses or sells any manufactured drugs or coca leaf, or (b) manufactures medicinal opium or any. preparation containing morphine, diacetylmorphine or cocain, shall be punished with imprisonment which may extend to two years, or with fine, or with both." As would appear from sections 8 and 14, read together, the provision of section 8(1) provides for the offence of import or export inter‑provincially, transport, possession or sale of any manufactured drug, other than prepared opium or coca leaf, or manufactured medicinal opium or any preparation containing morphine, diacetylmorphine or cocaine. Further reading section 8 of the said Act with Articles 3 and 4, it is evident that the scope of the offence under Articles 3 and 4 of the Prohibition Order is much wider than section 8 of the Dangerous Drugs Act. In fact prepared opium and coca leaf have been specifically excluded which had been made subject‑matter of the offence under Articles 3 and

4. Moreover, Article 29 of the Prohibition Order specifically provides that "This Order shall have effect notwithstanding anything contained in any other law for the time being in force". It seems for offences in relation to a certain quantity of the intoxicant of which offences are alleged to have been committed by the accused, different scales of punishment have been prescribed so as to give the jurisdiction in the heirarchy of the criminal Courts in the country. It, therefore, follows that if the offence falling under Articles 3 and 4 of the Prohibition Order is punishable with imprisonment for less than one year or with whipping not exceeding 10 stripes, with or without imprisonment or with fine only, it is triable by any Magistrate and if the offence is punishable with imprisonment for one year and upwards but less than three years or with whipping not exceeding 40 stripes with or without imprisonment it is triable by Magistrate of the first or second class. If the offence is punishable with imprisonment for three years and upwards but not exceeding 7 years or with whipping not exceeding 80 stripes with or without imprisonment, it is triable by the Court of Sessions or Magistrate of the First Class. But if the offence is punishable with imprisonment for life, imprisonment exceeding 7 years or with whipping exceeding 80 stripes with or without any other of the said punishments the offence is triable by Court of Sessions only. The charge has been framed by the learned Additional Sessions Judge (Hudood) Sukkur under Articles 3 and 4 (read with section 43 of the Abkari Act). In the present case the maximum punishment is prescribed for life imprisonment and minimum for two years with whipping under each Article. Counsel for the applicant has placed his reliance on Wazir Khan v. The State PLD 1988 Karachi

272. This case is materially distinguishable inasmuch as in the aforesaid case one kilogram of Charas was secured and not the opium at all and thus the offence was held punishable with two years imprisonment. For the above discussion I am of the view that this transfer application is entirely misconceived and the case is triable by the Additional Sessions ‑ Judge (Hudood) Sukkur. The applications are rejected. H. B. T./J‑63/K Applications rejected.