1. Granted. RAHAMT HUSSAIN JAFFERI, J.---This order will dispose of application under section 561-A, Cr.P.C, filed by the appellant Abdul Karim Brohi, praying therein that the case may be remanded to the Court of Sessions Judge/Special Judge C.N.S., Court Shikarpur on the ground that the conviction awarded by the V-Additional Sessions Judge/Special Judge, C.N.S. Court, Shikarpur was illegal and corum non judice in view of the decision given by this Court in Criminal Transfer Application No,D-8 of 2004, Muhammad Rafique v. State decided on 30-3-2004. We have heard the Advocate for the appellant and State counsel. The police challaned the appellant for trial of offence punishable under section 9(c) of the Control of Narcotic Substances Act, 1997. The case was tried by learned V-Additional Sessions Judge/C.N.S. Court, Shikarpur. The said Court convicted the appellant on 16-4-2002. The appellant filed appeal to challenge his conviction and sentence. The Additional Sessions Judge/C.N.S. Court, assumed the jurisdiction to try the appellant in view of Notification No, V(3)SOJ/98 dated 15-9-1999 issued by Government of Sindh, which reads as under:- "Government of Sindh Home Department Karachi, dated 15-9-1999 No, V(3) SOJ/98:- In exercise of the powers conferred by subsection (5) of section 46 of the Control of Narcotic Substances Act, 1997, the Government of Sindh, as directed by the Federal Government, is pleased to confer the powers of a special Court having the powers to try all offences, on all the Sessions Judges and Additional Sessions Judges in he Province in respect of the cases relating to the territorial limits within which each Sessions Judge or Additional Sessions Judge has jurisdiction to try cases under the Code of Criminal Procedure, 1898.
1. (Sd.)
2. Secretary to Government of Sindh Home Department." The said notification was examined by this Court in the case of Muhammad Rafique (supra) and declared the said notification as illegal because it was issued without the consultation of Honourable Chief Justice that was required under section 46(5) of the Control of Narcotic Substances Act, 1997. The learned Advocate for the appellant has stated that as the notification under which the V- Additional Sessions Judge/C.N.S. Court, Shikarpur had exercised the powers was declared illegal, therefore the conviction awarded by him has also become illegal as such, the case may be remanded to the Court of Sessions Judge/C.N.S. Shikarpur. The learned Additional A.-G. Has stated that the order of the Additional Sessions Judge/C.N.S. Court, Shikarpur was passed bonafidely under the notification issued by the Provincial Government, therefore, his actions are saved on the de facto doctrine. The doctrine of de facto has been examined by the Honourable Supreme Court of Pakistan in the case of Muharram Ali v. Federation of Pakistan (PLD 1998 SC 1445). In that case, certain provisions of Anti-Terrorism Act were declared illegal, therefore, the argument was advanced that as the constitution of the Tribunal itself was volatile of the Constitutional provisions, therefore, trial of the petitioner was vitiated but the Honourable Supreme Court of Pakistan repealed the said argument on the doctrine of de facto and relied upon the case of Malik Asad Ali v. Federation of Pakistan (PLD 1998 SC 161) and paragraph of the above said judgment was relied and reproduced which appears at page No,1496, that is as under:- "142. From the above discussion, it follows that the recognition of the principle of de facto exercise of power by a holder of the public office is based on sound principles of public policy to maintain regularity in the conduct of public business, to save the public from confusion and to protect private right which a person may acquire as a result of exercise of power by the de facto holder of the office. However, in the present cases only the acts done and orders passed by respondent No,2 in his de facto capacity of Chief Justice of Pakistan before 26-11-1997 will be protected under the doctrine of de facto exercise of power as on that date, he was restrained by a Bench of this Court through a judicial order from exercising any judicial or administrative function as the Chief Justice of Pakistan."
3. In the present case, the Additional Sessions Judge had exercised the jurisdiction bonafidely under a notification issued by the Government of Sindh. The Government was competent to issue the same but a legal defect was found in the said notification as such, the same was declared illegal.
4. The Judge was not usurper or intruder but was person who discharged the function and duties under colour of lawful authority. Thus the doctrine of de facto would be applicable in the present case. However, if the decision would have been given after the decision of the case of Muhammad Rafique (supra) then the proceedings would have been vitiated. But in the present case the conviction was awarded on 16-4-2002 before the decision of the case of Muhammad Rafiq (supra), as such, the proceedings and conviction awarded by the V-Additional Sessions Judge/C.N.S. Court, Shikarpur are saved on the doctrine of de facto. Consequently, the application is dismissed.