' SAEED-UR-REHMAN FARRUKH, J.--- This appeal is directed against the judgment dated 22-1-2004 passed by the Special Judge Narcotics, Mirpurkhas, whereby the appellant was convicted under Article 3 of the Prohibition (Enforcement of Hadd) Order, 1979 and sentenced to twelve years' R.I.
And fine of Rs,5,000 or in default to further undergo three months' S.I. The benefit of section 382-B, Cr.P.C. Was extended to him.
2. Relevant facts are a case was registered on 3-7-1995 under Articles 3 and 4 of the Prohibition (Enforcement of Hadd) Order, 1979 at Police Station Kunri against the appellant on the allegation that he along with his co-convicts (who have not filed appeal) were found in possession of Charas, opium and heroin, of different weights.
3. After completion of investigation the appellant along with his co-accused was challaned to Court. After trial, the impugned judgment was pronounced.
4. At the commencement of the trial the appellant was charge-sheeted for offences under Articles 3 and 4 of the Prohibition (Enforcement of Hadd) Order, 1979 by the learned Sessions Judge, Mirpurkhas vide order, dated 25-10-1995.
' However, before any substantial step could be taken in the trial the learned Sessions Judge framed another charge-sheet, purportedly, against the appellant and his co-accused, in his capacity as Special Judge Narcotics under section 9 of the Control of Narcotic Substances Ordinance, 1997.
5. The prosecution was directed to lead its evidence which complied with this direction. On completion of prosecution evidence statements of the accused were recorded under section 342, Cr.P.C. Wherein they disowned the allegations levelled against them. Ultimately, vide impugned judgment the appellant and his co-accused were convicted and sentenced for offence under Article 3 of the Prohibition (Enforcement of Hadd) Order, 1979.
6. Learned counsel for the appellant made a limited submission in support of this appeal to the effect that offences having been allegedly committed in 1995 the appellant was rightly charge sheeted at the commencement of the trial under Articles 3 and 4 of the Prohibition (Enforcement of Hadd) Order, 1979. It is argued that it was not legally open to the learned Sessions Judge to frame supplementary charge-sheet on 2-6-1997 under section 9 of the Control of Narcotic Substances Ordinance, 1997. According to the learned counsel section 9 of the Control of Narcotic Substances Qrdinance being substantive provision of law could not held applicable retrospectively i,e, with respect to an offence that allegedly, was committed prior to the enforcement of Control of Narcotic Substance Ordinance, 1997.
7. Learned Assistant Advocate-General has very fairly conceded that he would not support the impugned judgment as it suffered from material irregularity apparent on the face of the record, as highlighted by the learned counsel for the appellant.
8. We find force in the submission made by the learned counsel for the appellant. The charge- sheet framed under section 9 of the Control of Narcotic Substances Ordinance related to an offence that allegedly took place long before the enforcement of the Ordinance and it was wholly illegal. Learned trial Judge, though, ultimately convicted the appellant under Article 3 of the Prohibition (Enforcement of Hudd) Order, 1979 yet he has mentioned his designation as Special Judge Narcotics. Such a course of action was not permissible in law. The framing of charge-sheet under section 9 of Control of Narcotic Substance Ordinance, 1997 in the facts and circumstances of the case, was not curable under section 537, Cr.P.C. The impugned judgment is thus, not sustainable in law as the possibility that the appellant might have been misled in defence due to the illegal charge-sheet cannot be excluded.
9. At this stage learned counsel for the appellant submitted that in case the impugned judgment is set aside and the case is remanded to the learned trial Judge the appellant would not claim retrial.
This mode of disposal of appeal is acceptable to the learned Law Officer.
10. Consequently, the appeal is accepted and the impugned judgment is set aside with the result that the case stand remitted to the learned Sessions Judge, Mirpurkhas. He shall grant an opportunity to the appellant to lead defence evidence, if so desired by him, and then after hearing the arguments of the counsel for the parties pronounce a fresh judgment on the basis of the original charge-sheet framed under Articles 3 and 4 of the Prohibition (Enforcement of Hadd)
Order, 1979 and the entire evidence brought on record.
' Since it is an old case it is directed that the same shall be disposed of within a period of three months, positively, with report to Incharge Branch Registry of this Court at Karachi.