1988 PLP r (PCRLJ)

Sh. Zaheer Ahmad Qureshi for A.‑G. (In Revision No. 9 of 1986). Imam Ali Kazi Deputy Attorney‑General for the State. Date of hearing: 17th May, 13th December, 20th February, 1987 and 10th January, 1988. A common question of law is raised by the applicants in the abovenoted two cases and I accordingly propose to dispose of them by a common order. However, before considering the law point agitated by the applicants, I feel it necessary to state here in brief the case of prosecution against these applicants. The applicant in Special Criminal Revision No. 9 of 1986 was intercepted at the Karachi International Airport before his departure on 17‑4‑1986 by Turkish Airliner Flight No.829 and 1 Kg. Heroin soaked in the lining of the top of his brief case was allegedly recovered by the Custom staff. He was accordingly arrested and is facing trial before Special Judge (Customs) Karachi, under section 156(1)(8) of the Customs Act., Charge has been framed by the Special Court against him on 18‑10‑‑986 and in his above application he has prayed for quashment of the charge. The applicant in Special Criminal Bail No. 95 of 1987 was also arrested by the Customs Authorities on 13‑7‑1987 at Karachi International Airport before his departure by K.L.M. Flight No. K.L.801 and allegedly 1750 grams of Heroin powder was recovered from him. His bail application has been rejected by the Special Court and he has applied for enlargement on bail. The learned counsel for the applicants jointly urged that the Special Court (Customs) which has taken cognizance in their cases has no jurisdiction to entertain or try their cases as after promulgation of Prohibition (Enforcement of Hudood) Order 1979 (P.O.No.4 of 1979), the offence against the applicants, if any, is triable exclusively in accordance with the provision of P.O.No.4 of 1979 before a tribunal mentioned therein. It is contended by them jointly that after promulgation of P.O. No.4 of 1979, the provisions in the Customs Act, 1969, relating to the trial of an offence which is also triable under P.O.No.4 of 1979 shall stand replaced/ repealed to the extent it is covered by the later enactment as provisions of P.O.No.4 of 1979 has been given overriding effect over other existing laws. It is also urged by the learned counsel for the applicants that the punishment prescribed, procedure to be followed and the forum provided for trial of offences under P.O. No.4 of 1979 are substantially different from that which is applicable under the Customs Act, 1969, which clearly shows a contrary intention on the part of Legislature and the Court should give effect to the same by holding that the provisions of Customs Act, 1969 in so far they are contrary to the provisions of P.O. No.4 of 1979 stands repealed. It is very strongly urged by the applicants that the Legislature by providing in section 29 of P.O. No.4 of 1979 that the provisions of this order shall have effect notwithstanding anything contained in any other law for the time being enforced, made their intention absolutely clear if there was any ambiguity with regard to that, that all other laws which came in conflict with the provision of P.O.No.4 of 1979, in any manner shall stand repealed to the extend of inconsistency. As the above question of law raised by the applicants are of general importance and decisions' thereon is likely to effect substantially large number of cases pending before the Special Court, I also heard the learned Attorney‑General on Court notice in these cases, besides hearing the learned counsel for the State. The learned Attorney‑General made the following submissions in the case. (i) That P.O.No.4 of 1979 is a General law while Customs Act, 1969 is a special law and as such the promulgation of P.0.4 of 1979 by itself cannot have the effect of repealing any provision of Customs Act unless it is expressly so provided in the later general Act. (ii) That the scope and object of the two enactments namely P.0.4 of 1979 and Customs Act of 1969 being totally different as would appear from their respective preambles, the one cannot have the effect of repealing the other even if the later enacted legislation provided that its provision will have effect notwithstanding the provision of other laws for the time being enforced, and lastly, (iii) That in cases of repeal by implication of a former Act by a later Act, it must be shown that the two legislation occupied the same field and their objects and purposes are also same. To demonstrate that both the legislation, namely, P.0.4 of 1979 and Customs Act, 196,9, occupied different fields and their objects and purposes were also different the learned Attorney‑General referred to various provisions relating to procedure, punishment and forum provided under each act. It is specifically pointed out by the learned Attorney‑General that while under Customs Act, 1969 the burden of proof is shifted to an accused person, there is no such provision in P.0.4 of 1979 and the provision of Cr.P.C. being applicable to proceedings under P.O. No.4 of 1979 the burden of proof in such proceedings continue to be on the prosecution as usual. It is also urged by the learned Attorney‑General that object and purpose of Custom Act, 1969 in the present context is to prevent and punish for acts of smuggling as defined in " section 2(s) of the Act, of Narcotics and Psychotropic material and also to deal with possession of such smuggled substances by a person, while P.O.No.4 of 1979 generally deals with and provide for punishment of those persons who in any manner deals with the export, import, transportation, manufacture, possession, sale, bottling and serving of any kind of intoxicants. The learned Attorney‑General in support of his contentions referred to the cases of State v. Hamtho 1971 S C M R 686; Sarhad Industries Employees Association v. Secretary to Government P L D 1985 Pesh. 32; Mst . Fatima v . Hanfa 1986 C L C 1613; I. G. of Police v. Mushtaq Ahmad Warraich P L D 1985 S C 159 and R v. Horsham Justices, Ex parte Farquharson (1982)2 All E R

269. After hearing the learned counsel for the applicants, the State and the learned Attorney‑General at length I am of the view that provisions of P. O. 4 of 1979 did not have the effect of repealing any of the provisions of Customs Act, 1969. The repeal of an enactment may‑ be expressed or implied. The usual mode of repeal is, that either in a section or in the schedule of the Repealing Act, the enactments repealed are specified. P.0.4 of 1979 which was promulgated with the object of modifying the existing law relating to prohibition of intoxicants so as to bring it in conformity with injunctions of Islam as contained in Holy Quran and Sunnah, specifically repealed by its section 33, the Prohibition Act 1977, Baluchistan Prohibition Ordinance, 1978, N.‑W.F.P. Prohibition Ordinance, 1978, Punjab Prohibition Ordinance 1978 and the Sind Prohibition Ordinance 1978. No other enactment is mentioned in this section 4s having been repealed by P.0.4 of 197 . It is well‑settled principle that where repeal is not express, there is a presumption against the implied repeal founded on the doctrine that the legislature were aware of the existing law on the subject while enacting a statute and, therefore, if the repeat of any of the existing laws was intended the legislature would have provided so. It is accordingly necessary in such a case that those who assert implied repeal must show that the two enactments cannot stand together consistently and unless the two enactments are so plainly repugnant to each other that effect cannot be given to both at the same time, a repeal will not be implied. This presumption is much more stronger in a case when the earlier act which is said to have been repealed by implication by a later Act is a special Act while the later Act is general in its nature. A general statute is presumed to have only general cases in view and not particular cases which have been already otherwise provided by special or Local Act. The following passage from Maxwell on Interpretation of Statutes (Fourth Edition) appearing at pages 176‑177 may be reproduced here to illustrate the extent of application of principle Generalia Specialibus Non Derogant: ‑‑ "A general later law does not abrogate an earlier special one by mere implication(s). Generalla specialibus non derogant (t), or, in other words, 'where there are general words in a later Act which are capable of reasonable and sensible application without extending them to subjects specially dealt with by earlier legislation, you are not to hold that earlier and special legislation indirectly repealed, ‑altered or derogated from merely by force of such general words, without any indication of a particular intention to do so' (u). In such cases it is presumed to have only general cases in view, and not particular cases which have been already otherwise provided for by the special Act. Having already given its attention to the particular subject and provided for it, the legislature is reasonably presumed not to intend to alter that special provision by a subsequent 'gittoral enactment unless that intention be manifested in explicit language (v), or there be something which shows that the ''attention of the legislature had been turned to the special Act "and that the general one was intended to embrace the special cases provided for by the previous one (x), or there be' something in the nature of the general one making it unlikely that an exception was intended as regards the special Act. In the absence of these conditions, the general statute is read as silently excluding from its operation the cases which have been provided for by the special one." The above principles of interpretation has been restated by the Supreme Court in the case of I.G. Police Punjab v. Mushtaq Ahmed Warraich as follows at pages 173‑174: ‑‑ "The principle of interpretation stems from the legal maxim generalia specialibus non‑derogant. Maxwell in his book on the interpretation of Statutes, Eleventh Edition, at page 168, says: It is but a particular application of general presumption against an intention to alter the law beyond the immediate scope of the statute (Supra, p.78) to say that the general Act is to be construed as not repealing a particular one, that is, one directed towards a special object or a special class of objects. A general later law does not abrogate an earlier special one by mere implication. Generalia specialibus non‑derogant, or in other words, 'where there are general words in a later. Act capable of reasonable and sensible application without extending them to subjects specially dealt with by earlier legislation, you are not to‑ hold that earlier and special legislation indirectly repealed, altered, or derogated from merely by force of such general words, without any, indication of a particular intention to do so'. In such cases it is presumed to have only general cases in view, and not particular cases which have been already otherwise provided for by the special Act." Similarly Crawford in his treatise on Statutory Construction, 1940 Ed. at page 429, observes: "It is not uncommon to find one statute treating a subject in general terms and another treating only a part of the same subject‑matter in a more minute manner. Where this situation exists, the two statutes should be read together and harmonized. This is especially true where the two statutes are in pari materia. In the event of repugnancy, the special statute should prevail, in the absence of a contrary legislative intent, since the specific statute more clearly evidences the legislative intent than the general statute does. And this rule that a statute relating to a specific subject is not necessarily dependent on the time of the enactment of such statutes, although it may be a vital and important consideration." Craies also in his book "On Statute Law", Sixth Ed. p.376, states thus: "The general rule, that prior statutes are held to be repealed by implication by subsequent statutes if the two are repugnant, is said not to apply if the prior enactment is a special and the subsequent enactment is general, the rule of law being, as stated by Lord Salborne in Soward v. Wera Cruz, that where there are general words in a later Act capable of reasonable and sensible application without extending them to subjects specially dealt with by earlier legislation, you are not to hold that earlier and special legislation indirectly repealed, altered, or derogated from merely by force of such general words, without any indication of a particular intention to do so, 'There is a well‑known rule which has application to this case, which is that a subsequent general Act does not affect a prior special Act by implication. That this is the law cannot be doubted and the cases on the subject will be found collected in the third edition of Maxwell on the Interpretation of Statutes.' The general maxim is, generalia specialibus non‑derogant i.e., general provisions will not abrogate special provisions. When the legislature has given its attention to a separate subject and made provision for it, the presumption is that a subsequent general enactment is not intended to interfere with the special provision unless it manifests that intention very clearly. Each enactment must be construed in that respect according to its own subject‑matter and its own terms. In this view of the matter, the principle laid down in these treatises as to the application of the special law is in no doubt, that is, as all of them are unanimous to state that there is no implied repeal of the earlier special Act by the later general Act without particular intention of implied repeal merely by use of general words. As held earlier there is not an express repeal of the Police Act and the rules by the Provincial Assembly while enacting Civil Servants Act, 1974, nor there is any constitutional exclusion of the Police Act and the rules from their application to the officers of the subordinate ranks of the police force. The substance of the provisions of the Civil Servants Act which are of general application also do not give any indication to the contrary by the force of the general words used." In the light of above stated rules of interpretation I will now endeavour to find out if there was a case of repeal by implication of the provision of Customs Act relating to prosecution of persons accused of smuggling of Narcotics on account of promulgation of P.0.4 of 1979. It is not disputed that Customs Act, 1969 was already in field B for several years when P.O. 4 of 1979 was promulgated. It is also clear from Article 33 of P.O. 4 of 1979 that it expressly repealed several earlier enactments on the subject. It is, therefore, quite reasonable to presume in this case that the legislature only intended to repeal those legislations by P.O. 4 of 1979, which are expressly mentioned in Article 33 of the Order. The case as argued by the learned counsel for the applicants, however, is that on account of language of Article 29 of P.O. 4 of 1979 the two legislations namely P.O. 4 of 1979 and Customs Act, 1969 cannot stand together. Firstly, it may be pointed out that the Customs Act, 1969 deals with the smuggling of goods and evasion of Customs duty. Smuggling as defined under Customs Act means, to bring in or take out of Pakistan any goods in breach of prohibition or restriction for the ‑time being in force by any route other than that which is declared under section 9 of the Act; or evading payment of Customs duty or taxes leviable, on any goods notified by the Federal Government in the official gazette, clearance of which at a custom station is sought or affected through concealment, fraud or misdeclaration. The punishments for the above offences are prescribed under section 156 of the Act. It will thus be seen that mere possession of a narcotic substance or its transportation, sale, serving or dealing in any manner with it, is not punishable under the provisions of the Customs Act. It is only when by virtue of the notification issued by the Federal Government the bringing in and taking out of Pakistan, of a narcotic or psychotropic substance is prohibited that such acts or any attempt or abatement thereof becomes punishable under the Customs Act. As compared to this, the' provision of P.O. No. 4 of 1979, makes a general provision prohibiting import, export, transportation, manufacturing, processing, bottling, selling and or dealing in any manner with any kind of intoxicants and makes all such acts punishable under that law. Upon comparison of the provisions of the two statutes there can be no doubt that the provisions contained in P.O. 4 of 1979 are of general nature and arP very wide in its scope and impact as compared to the provisions of the Customs Act. In this respect the Customs Act, 1969 is to be treated as a special Act while P.O. 4 of 1979 as a general Act. Under the provisions of Customs Act only under special circumstances when bringing in and taking out of Pakistan of narcotics and psychotropic substance is prohibited under a notification issued by the Federal Government only then such bringing in and taking out or an attempt or abatement thereof is punishable under the Custom Act, while under P.0.4 of 1979 possession of every kind, of intoxicants, its transportation, manufacturing, processing, bottling', selling and serving is made punishable. The purposes and objects of the two legislations are, therefore, quite different. The promulgation of P.0.4 of 1979 has neither altered the offence of smuggling nor its punishment. Mere fact that under the provisions of P.O.4 of 1979 the act of import and export of a narcotic could also be punished is not sufficient to hold that there is conflict between the provisions of the Customs Act and P.0.4 of 1979 and the two cannot stand together consistently. I am, therefore, of the view that there is no conflict between the provisions of the Customs Act and that of P.0.4 of 1979 and both the legislations can operate consistently in their respective fields. I accordingly hold that P.O.4 of 1979 did not repeal any of the provisions of Customs Act. As a result of above discussion Special Criminal Revision 9 of 1986 is dismissed. In view of the decision of law point, the Special Criminal Bail No. 95 of 1987 may be fixed for consideration on merits. M. Y. H./J‑38/ K Petition dismissed.