ASIF SAEED KHAN KHOSA, J.---While dealing with Criminal Miscellaneous No,1673-B of 2004, Criminal Miscellaneous No,697-B of 2005, Criminal Miscellaneous No,8974-B of 2004, Criminal Miscellaneous No,6512-B of 2004, Criminal Miscellaneous No,640-B of 2005, Criminal Miscellaneous No,1 of 2004 in Criminal Appeal No,1521 of 2004, Criminal Miscellaneous No,1 of 2004 in Criminal Appeal No,800 of 2004, Criminal Appeal No,1527 of 2001 and Criminal Appeal No,1528 of 2001 which involve alleged recovery of narcotic substances from the petitioners/appellants therein a Division Bench of this Court comprising of my learned brothers Ali Nawaz Chowhan and Rustam Ali Malik, JJ. Passed the following order on 17-2-2005: "We have heard the arguments in the following cases:-- In these cases a common question is involved whether the poppy-straw recovered from the petitioners required a test at the Office of the Chemical Examiner for ascertaining the quantity of narcotics substance/morphine as a prelude to a report under section 173, Cr.P.C.
2. The argument vehemently advanced by the petitioners side is that some portions of the poppy straw have to be excluded as these are not narcotics substance at all. That regarding punishments there is also a need for interpretation of the law.
3. We would have given our findings but we have been informed that in Farhad Ali v. State 2003 MLD 1475 a view has already been taken by a learned Division Bench of this Court comprising of our learned brothers Khawaja Muhammad Sharif and Asif Saeed Khan Khosa, JJ.
4. This matter being of great public importance and for avoiding possibility of any contradictory views by two Division Benches of this Court we are of the view that the matter may be placed before the Hon'ble the Chief Justice for constituting a larger Bench for reviewing these cases and for an authoritative judgment on the subject for future guidance and in the public interest."
On the basis of that request made by the Division Bench the Hon'ble Chief justice was pleased to constitute the present Full Bench so that an authoritative pronouncement may be rendered on the referred issues.
2. I have found that in most of the above mentioned cases under consideration before the referring Division Bench the substance allegedly recovered from the petitioners/appellants therein was Toast which was being treated by the Division Bench as 'poppy straw'. The discussion that follows would show that Port and poppy straw may not necessarily and always be one and the same thing. I have, therefore, split the question referred to us in the following parts so that each aspect of the referred question can be considered and decided separately and appropriately:-
(i) What exactly is that which is called Toast'?
(ii) Whether Poast is a narcotic substance within the purview of the Control of Narcotic Substances Act, 1997 or not?
(iii) Whether ascertainment by a Chemical Examiner regarding the actual quantity of morphine in the recovered substance is necessary in a case of recovery of Poast?
3. We have heard the learned counsel for the parties at some length over a period of four days and I have gone through the material referred to by them with due consideration and scrutiny.
4. Mr. Gauhar Razzaq Awan, Advocate for the petitioner in Criminal Miscellaneous No,1673-B of 2004 has pointed out that by virtue of section 6 of the Control of Narcotic Substances Act, 1997 the prohibitions contained in the said Act pertain to three different kinds of narcotic substances, i,e, 'narcotic drug', `psychotropic substance and `controlled substance and the said three categories of narcotic substances have separately been defined in sections 2(s), 2(za) and 2(k) of that Act respectively. According to him only the definition of 'narcotic drugis relevant to the issues involved in this reference. He has maintained that the definition of 'narcotic drugcontained in section 2(s) of the Act includes opium and poppy straw but if the said definition is read with the provisions of sections 2(t)(i), 2(w) and 2(v) of the Act then only those poppy plants appear to be relevant which are of the species Papaver Somniferum L and not of all the other different species of poppy plant. He has argued that application of the provisions of the Act to all species of poppy plant is illegal and the same is proving to be oppressive.
5. Mr. Burhan Moazzam Malik Advocate for the petitioner in Criminal Miscellaneous No,6512-B of 2004 has referred to the definitions of 'opium contained in section 3(i) of the Opium Act, 1878, section 2(e) of the Dangerous Drugs Act, 1930, Schedule appended with the Prohibition (Enforcement of Hadd) Order, 1979, section 2(r) of the Control of Narcotic Substances Ordinance, 1995 and section 2(t) of the Control of Narcotic Substances Act, 1997 in order to highlight that in all the earlier definitions of 'opiumonly those poppy plants were relevant "from which narcotics can be extracted" but in the definition of 'opium contained in the Act of 1997 the words from which narcotics can be extracted" were omitted by the legislature which creates an impression that now all species of poppy plant may attract the definition of 'opium'. He has, however, hastened to add that if section 2(t) of the Act is read with section 2(w) and section 2(v) of the Act then it once again emerges that only those species of poppy plant are relevant to the definition of `opium which can be used for extracting narcotics therefrom and not all species of poppy plant. Mr. Malik has maintained that a combined reading of the provisions of section 2(t)(i), (ii) and (iii) with those of section 2(w) and section 2(v) shows that in order to qualify as 'opiumthe parts of the plant, its juices and its mixtures must originate from a plant of the species Papaver Somniferum L.
He has also referred to sections 4 and 5 of the Act in order to highlight that the plants which can be called 'narcotic plantshave been clearly specified in the said sections and they include only cannabis plant, coca bush and opium poppy. According to him section 2(v) defines 'opium poppyas "the plant of the species Papaver Somnieferum L" and, thus, no other plant as such can be termed as narcotic plant and possession of such other plant or any part thereof cannot attract the prohibitions contained in the Act. Mr. Malik has further maintained that if cultivation of all other species of poppy plant is not prohibited by section 4 of the Act and if such cultivation is not punishable under section 5 of the Act then it would be anomalous to hold that possession of such other species of poppy plant or parts thereof is by itself culpable. According to him it would be ridiculous to maintain that a person cannot be stopped from cultivating such other species of poppy plant but he or anybody else in possession of the crop of such plant can be sentenced to death under section 9(c) of the Act. It has, therefore, been submitted by him that in the interest of harmonious interpretation of different provisions of the Act so as to obviate any chance of a conflict between the same section 2(t) should be read as referring only to those species of poppy plant which are mentioned in section 2(w) read with section 2(v) and sections 4 and 5 of the Act. He has referred to the case of Inayat-ur-Rehman v. The State (1998 MLD 323) decided by the Hon'ble Federal Shariat Court in terms of the old definition of 'opiumand to the case of Farhad Ali v. The State (2003 MLD 1475) decided by a Division Bench of this Court wherein Poast has been accepted as a narcotic substance. In support of his arguments Mr.Malik has also referred to the relevant extracts from the following authoritative works: The New Oxford Encyclopedic Dictionary published by the Oxford University Press.
Parikh's Text Book of Medical Jurisprudence and Toxicology authored by Dr. C.K. Parikh and published by CBS Publishers & Distributors in 1996.
Modi's Text-Book of Medical Jurisprudence and Toxicology, Pakistani Edition published by Shan Book Corporation, Lahore, Pakistan.
Lyon's Medical Jurisprudence of India published by Law Publishers (India) Pvt., Allahabad, India in 1988.
A Modern Herbal authored by Mrs. C.F. Leyel and published by Tiger Books International, London, U.K. In 1992.
Medicinal and Poisonous Plants of Pakistan authored by Syed Riaz Baquar and published by Printas, Karachi, Pakistan in 1989.
Herbs & Other Medicinal Plants published by Galley Press, and Medical Jurisprudence and Toxicology authored by H.W.V Cox and published by The Law Book Company (P) Ltd.,Allahabad, India in 1995.
6. Miss Nighat Saeed Mughal, Advocate for the petitioner in Criminal Miscellaneous No,697-B of 2005, Mr. Bashir Ahmad Qureshi, Advocate for the petitioner in Criminal Miscellaneous No,8974-B of 2004, Mr. Aftab Ahmad Bajwa, Advocate for the petitioner in Criminal Miscellaneous No,640-B of 2005 and for the petitioner-appellant in Criminal Miscellaneous No,1 of 2004 in Criminal Appeal No,1521 of 2004 and Mr. Mudassar Abbas Maghiana, Advocate for the petitioner appellant in Criminal Miscellaneous No,1 of 2004 in Criminal Appeal No,800 of 2004 have adopted the above mentioned arguments advanced by Mr. Burhan Moazzam Malik, Advocate. Mr. Bajwa has also referred to different provisions of the Single Convention on Narcotic Drugs, New York (1961) and the Control of Narcotic Substances (Regulation of Drugs of Abuse, Controlled Chemicals, Equipment and Materials) Rules, 2001 framed under the Control of Narcotic Substances Act, 1997.
7. Sardar Muhammad Latif Khan Khosa, Advocate for the appellant in Criminal Appeal No,1527 of 2001 and Criminal Appeal No,1528 of 2001 has submitted that the definition of 'poppy strawcontained in section 2(w) read with section 2(v) of the Control of Narcotic Substances Act, 1997 is limited only to poppy plant of the species Papaver Somniferum L and, thus, the same cannot be extended or applied to poppy plants of the other species or their parts. He has vehemently argued that the definition of 'opiumcontained in section 2(t), particularly in section 2(t)(i) of the said Act, is susceptible to misuse and the same is in fact being gravely misused by the Anti-Narcotics Force and the same, therefore, needs to be interpreted by us in such a manner that it minimizes the sufferings of the citizens. He has gone on to maintain that restrictions placed by the said definition of `opiumcurtail or abridge the citizens Fundamental and Constitutional Rights guaranteed by the Constitution of the Islamic Republic of Pakistan, 1973 through its Articles 2-A, 4, 9, 14 and 18 and, thus, by virtue of the provisions of Article 8 of the Constitution the same are ipso facto void. In this regard he has placed reliance upon the cases of Miss Benazir Bhutto v. Federation of Pakistan and another (PLD 1988 SC 416), Ms. Shehla Zia and others v. WAPDA (PLD 1994 SC 693) and Government of N.-W.F.P. v. Muhammad Irshad and 3 others (PLD 1995 SC 281). He has also referred to some extracts from the following books: Ibtadai Muashariat authored by Dr. Abdul Hameed Malik and published by Standard Book House, Urdu Bazar, Lahore, Pakistan, Medicinal and Poisonous Plants of Pakistan authored by Syed Riaz Baquar and published by Printas, Karachi, Pakistan in 1989, Economic Botany: A Textbook of Useful Plants and Plant Products authored by Albert F. Hill and published by Tata McGraw-Hill Publishing Company, Ltd., New Delhi, India, Feeds and Feeding: A Handbook for the Student and Stockman authored by Frank B. Morrison and published by The Morrison Publishing Company, Clinton, Iowa, U.S.A in 1959, The Medicinal and Poisonous Plants of India authored by Rev. Fr. Jean Ferdinand Caius and published by Scientific Publishers, Jodhpur, India in 1986, A Textbook of Pharmacology authored by George Edward Trease and published by Bailliere, Tindall and Cox, London, U.K in 1949, Textbook of Pharmacognosy authored by T.E Wallis and published by CBS Publishers & Distributors, Delhi, India, Pharmacognosy authored by Varro E. Tyler, Lynn R. Brady and James E. Robbers and published by Lea & Febiger, Philadelphia, U.S.A.
In 1976, Commentaries on Narcotic Drugs and Psychotropic Substances Act, 1985 authored by Kaushalendra Kumar and published by Eastern Book Company, Lucknow, India, and Trease and Evans, Pharmacognosy authored by William Charles Evans and published by W.B Saunders Company Ltd., London, U.K.
8. As against that Malik Wagar Salim, Deputy Attorney-General for Pakistan has argued that the entire Papaver family of plants (poppy plants) has consciously been included by the legislature in the definition of 'opiumcontained in section 2(t) of the Control of Narcotic Substances Act, 1997 and, thus, every part (Except seeds) of every species of poppy plant is covered by the definition of 'opium'. He has pointed out that section 76 of the Control of Narcotic Substances Act, 1997 gives the provisions of the said Act an overriding effect overall other laws for the time being in force and, therefore, the earlier definitions of 'opiumcontained in some earlier laws are not relevant for the present purposes. He has referred to the case of Solvex (Pakistan) Ltd. v. Market Committee, Multan and 2 others (1999 CLC 49) to maintain that a definition contained in one enactment cannot be applied to another enactment. He has argued that the intention of the legislature has to be given effect to by this Court and in case of any discord between different provisions an interpretation is to be advanced which harmonizes the seemingly conflicting provisions. He has referred to the cases of Mian Ahmed Saeed and others v. Election Tribunal for Kasur at Okara and others (2003 SCMR 1611) and Yousaf Muneer Shaikh and others v. Election Commission of Pakistan and others (2005 CLC 123) in this respect. He has urged that while interpreting a statute the language of the statute is to be accepted and applied in terms of the literal meanings of the words employed by the legislature and this has been so held in the case of Pakistan Textile Mill-Owners Association, Karachi and 2 others v. Administrator of Karachi and 2 others (PLD 1963 SC 137) and Malhar v. Government of Sindh and others (2005 CLC 285). He has submitted that a Court of law cannot add to or subtract from a law enacted by the legislature and cannot embark upon rewriting a law according to its own notions or perceptions. In this context he has relied upon the cases of Trustees of the Port of Karachi v.
Muhammad Saleem (1994 SCMR 2213) and Padmasundara Rao and others v. State of. T.N and others (AIR 2002 SC 1334). According to him a Court is not to be concerned with the consequences of an interpretation to be rendered by it as the matter of consequences lies within the domain of public policy. He has referred to the case of Director Industries, Government of N.-W.F.P., Peshawar v. Messrs Nowshera Engineering Company Limited and 4 others (2002 SCMR 1747) in this regard. He has vehemently argued that according to the law laid down in the cases of Collector of Central Excise and Sales Tax v. Rupali Polyester Limited and others (2002 SCMR 738) and Mrs. Benazir Bhutto and another v. Federation of Pakistan and another (PLD 1989 SC 66) a Court is only to find out the intention of the legislature and when such intention has been found and identified by it then it has no other option but to give effect to the same. According to him a law may contain separate provisions creating separate offences entailing different punishments and each of such provisions is to be given separate effect to by a Court as was held in the case of Northern Bottling Co. (Pvt.) Limited, Peshawar v. Federation of Pakistan and 2 others (2004 PTD 2267). According to the learned Deputy Attorney-General the vires of a law can be examined with reference to the municipal law and not with reference to an International Convention or Protocol and for this he has referred to the case of Federation of Pakistan and others v. Shaukat Ali Mian and others (PLD 1999 SC 1026). He has lastly maintained that the question of ascertaining percentages of morphine in a recovered substance is relevant only to mixtures or preparations mentioned in section 2(t)(iii) and section 3 of the Control of Narcotic Substances Act, 1997 and such a question has no relevance to recovery of Poast or Doda which is recovered in its natural or crushed form.
9. Mr. Muhammad Sharif, Advocate, Special Prosecutor for the Anti-Narcotics Force and Mr. Muhammad Hanif Khatana, Additional Advocate-General, Punjab have adopted the arguments advanced by Malik Waqar Salim, Deputy Attorney-General for Pakistan.
Mr. Sharif has also referred to the following material: Kitabistan's Standard Dictionary published by Kitabistan Publishing Company, Lahore, Pakistan, Terminology and Information on Drugs published by the United Nations International Drug Control Programme, United Nations Single Convention on Narcotic Drugs, 1961, The United Nations and Drug Control, The United Nations and Drug Abuse Control, Drugs of Abuse published by the United States Department of Justice, Drug Enforcement Administration, Cocaine, Opium, Marijuana published by the Untied States Department of Justice, Drug Enforcement Administration, A Textbook of Pharmacognosy authored by Youngken, Pharmacognosy authored by Varro E. Tyler, Lynn R. Brady and James E. Robbers and published by Lea & Febiger, Philadelphia, S . A in 1981, Pharmacognosy authored by George Edward Trease and William Charles Evans and published by Bailliere Tindall, London, U.K., UNODC Bulletin on Narcotics, INCB Report, 1997 published by the United Nations Information Service, Hungarian Extraction of Alkaloids from Poppy Straw, Poppy Straw and International Narcotics Control, and UNODC Draft Single Convention: Control of Poppy Straw
10. After hearing the learned counsel for the parties and going through all the material referred to by each of them I have found that the following provisions of the Control of Narcotic Substances Act, 1997 are relevant for the purpose of proper understanding and appreciation of the respective submissions made by the learned counsel for the parties: "2. Definitions:--
(s) "narcotic drug" means coca leaf, cannabis, heroin, opium, poppy straw and all manufactured drugs;
(t) "opium" means---
(i) Poppy straw that is to say all parts of poppy plant (Papaver Semniferum or any other species of Papaver after mowing, not being seeds;
(ii) the spontaneously coagulated juice of capsules of poppy which has not been submitted to any manipulations other than those necessary for packing and transport; and
(iii) any mixture with or without natural materials of any of the above forms of opium, but does not include any preparation containing not more than 0.2 per cent of morphine;
(v) "opium poppy" means the plant of the species Papaver Somniferum L;
(w) "poppy straw" means all parts except the seeds of the opium poppy after mowing;
3. Calculation of percentages in liquid preparation.---The Federal Government may make rules prescribing the methods by which percentages in the case of liquid preparations shall be calculated for the purposes of clauses (g), (h) (t) and (u) of section 2:--
4. Prohibition of cultivation of narcotic plants.---No person shall cultivate any cannabis plant, coca bush or opium poppy, or gather any portion of a cannabis plant, coca bush or opium poppy: Provided that the Federal Government or a Provincial Government authorized by the Federal Government may, subject to such conditions as it may prescribe, permit under a licence cultivation or gathering of any such narcotic plant or any portion thereof exclusively for medical, scientific or industrial purposes.
5. Punishment for contravention of section 4.--- Whoever contravenes the provisions of section 4 shall be punishable with imprisonment which may extend to seven years or with fine of with both.
6. Prohibition of possession of narcotic drugs, etc.--- No one shall produce, manufacture, extract, prepare, possess, offer for sale, sell, purchase, distribute, deliver on any terms whatsoever, transport, dispatch any narcotic drug, psychotropic substance or controlled substance except for medical, scientific or industrial purposes in the manner and subject to such conditions as may be specified by or under this Act or any other law for the time being in force.
7. Prohibition of import or export of narcotic drugs, etc.---
8. Prohibition of trafficking or financing the trafficking of narcotic drugs, etc.---
9. Punishments for contravention of sections 6, 7 and .8.---------- "
11. Now I proceed to record my conclusions vis-a-vis the question framed above and reasons for the arriving at such conclusions.
12.Question No. (i):What exactly is that which is called `Poast "?
It has been agreed before us by the learned counsel for all the parties and it is also borne out from the authoritative works referred to above that in the local parlance Poast is the name given to that part of a poppy plant which has the shape of ,a basket, sack or pouch and it contains the seeds of such plant. This natural pouch or bulb made of the skin of the plant is meant by the nature to hold and protect the seeds of the plant contained therein. In some parts of this country, this natural pouch of the poppy plant is also known as Doda. The Control of Narcotic Substances Act, 1997 calls this part of a poppy plant as `capsule of poppy and this finds a specific mention in section 2(t)(ii) of the said Act. The authoritative works mentioned above as well as the learned counsel for all the parties before us are also in agreement that if an unripe capsule of a poppy plant is given an incision then a fluid oozes out of the same containing meconic acid and a number of alkaloids including narcotise and morphine which fluid thickens within a short time and becomes brown in colour and such substance is pure opium. It is also agreed at all hands that even ripe and dry capsules of poppy contain morphine and other alkaloids, i,e, opium, although less in quantity, which can be used for sedative and narcotic action. Most of the authoritative works produced by the learned counsel for the parties also confirm that alkaloids can be extracted even from a mature and dry plant of poppy or poppy straw whether it is in its natural shape or is in a crushed form, However, the seeds contained in a capsule of poppy are free from morphine. After its mowing every part of a poppy plant, including its capsule/Poast/Doda but excluding the seeds, is generally called poppy straw and , thus, every Poast/Doda is a part of a poppy straw but all poppy straw may not necessarily be Poast/Doda because poppy straw can be any other part of the mowed poppy plant as well excluding the seeds.
13. Question No. (ii): Whether Poast is a narcotic substance within the purview of the Control of Narcotic Substances Act, 1997 or not ?
Under section 6 of the Control of Narcotic Substances Act, 1997 possession, etc. Of any narcotic drug is culpable. Section 7 of the said Act prohibits import or export, etc. Of any narcotic drug and section 8 proscribes trafficking and financing, etc. Of any narcotic drug. Section 2(s) of the Control of Narcotic Substances Act, 1997 defines `narcotic drugand according to the said definition narcotic drug includes 'opiumand 'poppy straw'. Section 2(t) of the Control of Narcotic Substances Act, 1997 defines 'opiumand according to section 2(t)(i) 'opiummeans "poppy straw" that is to say all parts of poppy plant (Papaver Somniferum or any other species of Papaver) after mowing, not being seeds". It has not been disputed before us that Poast or Doda is a part of a poppy plant and, thus, there is no difficulty in concluding that in view of the provisions of section 2(t)(i) of the Control of Narcotic Substances Act, 1997 Poast or Doda, being a part of a poppy plant, falls within the definition of 'opiumand, therefore, the same has to be treated and accepted as 'narcotic drugfor the purposes of section 2(s) of that Act. It may be true that section 2(t)(i) also speaks of poppy straw and according to the definition of 'poppy strawcontained in section 2(w) read with section 2(v) only poppy plant of the species Papaver Somniferum L is relevant to the definition of poppy straw but at the same time it is equally true that section 2(t)(i) expressly travels beyond the definition of poppy straw contained in section 2(w) read with section 2(v) and consciously extends the definition of 'opiumto all parts of a poppy plant whether such plant is of the species known as Papaver Somniferum or is of any other species of Papaver. This clearly demonstrates the legislative intent that the specification of poppy plant contained in section 2(w) read with section 2(v) is not relevant for the purposes of the definition of 'opium'. Section 2(t)(i) has a larger swa y than the limited scope of section 2(w) read with section 2(v) and it may well be that the two are intended to cater for different situations or purposes. It appears that section 2(w) and section 2(v) have relevance to sections 4 and 5 of the said Act and not to the definition of 'opiumcontained in section 2(t) thereof. Sections 2(w) and 2(v) speak of 'opium poppyand section 4 also expressly speaks of 'opium poppyand not just its cultivation but also gathering any portion of it. Gathering of portions of opium poppy is nothing but gathering of poppy straw and this is why sections 2(w) and 2(v) speak of poppy straw with reference to opium poppy only. It may be pertinent to mention here that the legislature appears to be quite conscious of the definition of `poppy strawcontained in section 2(w) read with section 2(v) but for the purposes of defining 'opiumthe legislature wanted to go beyond the scope of the provisions of section 2(w) and section 2(v). The expanse and all encompassing character of the provisions of section 2(t)(i) of the Control of Narcotic Substances Act, 1997 leave me in no doubt that the legislature evidently intended that Poast or Doda of all poppy plants of whichever species is to be treated as `narcotic drug'.
14. I have observed that "Opium" had been defined by section 3(i) of the Opium Act, 1878 as "poppy straw, that is to say, all parts of poppy plant (Papaver Somniferum or any other species of Papaver) after mowing, not being seeds, from which narcotics can be extracted". The same definition of 'opiumhad been employed by the legislature in section 2(e) of the Dangerous Drugs Act, 1930, Schedule appended with the Prohibition (Enforcement of Hadd) Order, 1979 and section 2(r) of the Control of Narcotic Substances Ordinance, 1995. I have further observed that in section 2(t)(i) of the Control of Narcotic Substances Act, 1997 the above mentioned definition of 'opiumcontained in the earlier laws had been altered and the words "from which narcotics can be extracted" had been omitted by the legislature. Section 76 of the Control of Narcotic Substances Act, 1997 gives the provisions of the said Act an overriding effect over all other laws for the time being in force and, therefore, the earlier definitions of 'opiumcontained in the earlier laws are not relevant for the present purposes. This factor strengthens my above mentioned conclusion that now all kinds of poppy plant attract the definition of 'opium'. Omission of the words "from which narcotics can be extracted" in section 2(t)(i) of the Act of 1997 is nothing but a conscious omission by the legislature and the same unmistakably points towards the intention of the legislature in that regard. The Preamble to the Control of Narcotic Substances Act, 1997 confirms the fact that through this new legislation the legislature intended to consolidate and "amend" the earlier laws holding the field in respect of narcotic substances.
It is not for us to supply the omission by changing the present definition of 'opiumand to undo what the legislature consciously wanted to achieve. Our task for the present purposes is only to understand the legislative intent vis-a-vis the present definition, interpret it and to give effect to it. It has been asserted before us by some of the learned counsel that the present definition of 'opiumomits some words used in the definition of 'opiumcontained in the above mentioned earlier laws and such omission is attributable to an oversight of the draftsman of the present law. .I have found such an assertion to be nothing but misconceived as the present definition of 'opiumhas been enacted not by a draftsman but by both the Houses of Parliament presumably after due consideration of every word of the proposed legislation. Such an assertion wants us to understand, and that too without any basis, that the Members of the Parliament had passed this legislation without due scrutiny of the same. I for one am not ready to subscribe to this view which attributes thoughtlessness to the Parliament. Traditions of judicial interpretation are quite well- entrenched in our country and according to the same we, like our counterparts in the other civilized and democratic countries, are to attribute wisdom to the legislature and not thoughtlessness or ignorance.
15. For what has been observed above I have entertained no manner of doubt that, as per the provisions of section 2(t)(i) of the Control of Narcotic Substances Act, 1997, all poppy straw, i,e, all parts of a poppy plant, including Poast or Doda, of whichever species qualifies as 'opiumand opium is a 'narcotic drug'. There are, however, two exceptions to this, i,e, firstly, the seeds of a poppy plant are not included in the definition of 'opiumor even in the definition of 'poppy straw and, secondly, a part of a poppy plant can be called 'opiumor 'poppy strawand hence 'narcotic drugonly after it has been mowed and not before that stage. This is evident from the plain language of sections 2(t)(i) and 2(w) itself and the reasons for the same are quite obvious. I have already observed above that the seeds of a poppy plant do not contain morphine. Apart from that if the seeds of a poppy plant cannot be possessed then there would be no future crops of poppy to be sown and, thus, the permissible medical, scientific or industrial uses of such crops would be rendered an impossibility. The provisions of sections 2(t)(i) and 2(w) clearly manifest that even Poast or Doda of a poppy plant may not by itself be offensive as long as juice is not extracted from it or as long as it is not mowed. The juice extracted from such un-mowed Poast or Doda may attract the definition of 'opiumcontained in section 2(t)(ii) but such un-mowed Poast or Doda is not by itself, hit V the definition of `opium'. However, after its mowing, Poast or Doda, like all other parts of the poppy plant excluding the seeds, falls in the general category of poppy straw and squarely attracts the definition of 'opiumcontained in section 2(t)(i).
16. Section 4 of the Control of Narcotic Substances Act, 1997 shows that every crop of poppy is not prohibited as far as its cultivation is concerned. Cultivation of that poppy plant is prohibited which can be termed as 'opium poppy'. Apart from cannabis plant and coca bush it is only opium poppy which is a narcotic plant and any other kind of poppy plant is not a narcotic plant. The reason for this appears to be that poppy plants of other species can be used for medical, scientific or industrial purposes under a valid licence to be issued by the competent authorities. If after mowing of such permitted crop of poppy plants no valid licence is possessed for its possession then such possession becomes culpable under section 6 of the Act as all parts of such plants, except seeds, otherwise qualify as opium after mowing. Cultivation of a prohibited crop is an offence under section 4 and is punishable under section 5 and the same is different from an offence of possession under section 6 which is punishable under section 9. A cultivator and a possessor may or may not be the same person. Thus, nothing turns on the difference between punishments under sections 5 and 9. One relates to an offence before mowing and the other deals with possession after mowing. There is nothing in the Act which prohibits punishment of a person for both the said separate offences. Prohibition against cultivation is intended to nip the evil in the bud and to stop the poison from being produced whereas prohibition against possession is meant to stop the poison from spreading after it has already taken effect. The difference in punishments in these respects is, thus, quite understandable.
17. The discussion made above leads me to an irresistible and inescapable conclusion that Poast or Doda, both in its natural and crushed forms, is a narcotic substance within the purview of the Control of Narcotic Substances Act, 1997.
18. Question No.(iii): Whether ascertainment by a Chemical Examiner regarding the actual quantity of morphine in the recovered substance is necessary in a case of recovery of Poast?
A perusal of the provisions of section 2(t) of the Control of Narcotic Substances Act, 1997 shows that clause (t)(i) deals with the parts of a poppy plant in their natural or crushed forms, clause (t)(ii) deals with unmanipulated juice oozing out of or extracted from the capsule of such plant and clause (t)(iii) deals with a 'mixtureprepared from the above mentioned two forms of opium. The said provisions unambiguously show that the question of percentage of morphine is relevant only to the case of a mixture referred to in clause (t)(iii) of section 2 of the said Act and such a question has no relevance to opium in the form of parts of the poppy plant or in the form of juice of the capsules of poppy. Section 3 of the said Act is confined to 'liquid preparations only and refers to calculation of percentages only in the context of such liquid preparations. Poast or Doda by itself cannot be termed as a 'mixtureor 'liquid preparation for the purposes of section 2(t)(iii) or section 3 and, therefore, in a case of recovery of Poast or Doda no ascertainment by a Chemical Examiner is required regarding quantity of morphine, etc. Available in such Poast or Doda.
19. The issue raised before us pertaining to the vires of different provisions of the Control of Narcotic Substances Act, 1997 oh the touchstone of the Constitution of the Islamic Republic of Pakistan, 1973 and the issue canvassed before us regarding harsh or oppressive nature of the sentences provided by the Control of Narcotic Substances Act, 1997 vis-a-vis recovery of Poast/Doda have consciously been left by me unattended to as the same have been found by me to be outside the scope of the present reference. We are not seized of any challenge to any provision of the Control of Narcotic Substances Act, 1997 and all that we are seized of is a Reference requiring us to interpret some provisions of the said law. The issues pertaining to the vires of the said law or propriety of the sentences provided therein can be raised only through an independent Constitutional petition and the same cannot be gone into by us obliquely through the present Reference. It is trite that the vires or propriety of a law cannot be assailed through collateral proceedings. Without in any manner prejudging the issue regarding severity of the punishments provided by the Control of Narcotic Substances, Act 1997 I may, however, only reproduce a passage from the order passed by a Division Bench of this Court in the case of Nazar Hussain v. The State 2002 PCr.LJ 440: "We are conscious that some of the views expressed by us above and some of the interpretations advanced by us vis-a-vis different provisions of the Control of Narcotic Substances Act, 1997 may appear to some to be somewhat harsh or stringent but we maintain that the same are in consonance with the spirit of the said law. The said law is not an ordinary law as the menace that it purports to curb is not common place and the criminals who indulge in it are not of the normal type. The mischief sought to be suppressed by this law is not just a crime against a human being but a crime against the humanity and, therefore, a response to the same has to be aggressive and punitive rather than benign and curative. It may be true that an individual subjected to the rigours of this law may sometimes suffer disproportionately but the greater good of the society emerging from stringent application of this law may make this approach worth its while."
20. This Reference is answered and decided by me in the terms recorded above. The Office of this Court shall now fix the above mentioned petitions and appeals before appropriate Benches for their decision in accordance with the law.
21. Before parting with this judgment I would like to record my appreciation for the labour put in, the research undertaken and the assistance rendered to us by the learned counsel for all the parties.
(Sd.)
Asif Saeed Khan Khosa, J.
ALI NAWAZ CHOWHAN, J.---I have gone through the views of my very learned brother Hon'ble Asif Saeed Khan Khosa, J., and wish to respectfully record my own views in this matter of public importance.
2. The Control of Narcotic Substances Act, 1997 (hereinafter called the C.N.S.A) came about on 11th July, 1997 with a purpose of consolidating and amending the laws relating to narcotic drugs etc. And with an additional aim of regulating the treatment and rehabilitation of narcotic addicts and matters connected therewith.
3. For purposes of these matters, we have to focus on the definition of opium, opium straw and narcotic drugs given in the C.N.S.A.
And the erstwhile laws:-- DEFINITIONS Name of NarcoticOpium Act, 1878 The Dangerous Drugs Act, 1930 Control of Narcotic Substances Act, 1997 Opium (i) Poppy straw, that is to say, all parts of poppy plant (Papaver somniferum or any other species of Papaver) after mowing, not being seeds, from which narcotics can be extracted; and(i) Poppy straw, that is to say, all parts of poppy plants emniferum or anyother species of Papaver) after mowing not being seeds, from which narcotics can be extracted;(i) Poppy straw, that is to say, all parts of (Papaver the poppy plant(papaver somniferumor any other species of papaver) after mowing, other than the seeds; (ii) the spontaneously coagulated juicecapsules of poppy which has not been submitted to anymanipulations other than those necessary for packing and transport; and(ii) any mixture, with or without natural of materials, of any of the above forms of opium; but does not includeany preparation containing not more than 0.2 per cent of morphine.(ii) the spontaneously coagulated juice of capsules of poppy which has not been submitted to any manipulations other than those necessary for packing and transport; and (iii) any mixture, with or without natural materials, of any of the above forms of opium, but does notinclude (iii) any mixture, with or without natural materials, of any of the above forms of opium, but does not include any any preparation containing not more than 0.2 per cent of morphine, or a manufactured drug as defined in section 2 of the Dangerous Drugs Act, 1930preparation containing not more than 0.2 per cent of morphine.
4. The Control of Narcotic Substances Act, 1997 defines "opium poppy" as follows:- Poppy straw as follows:-- "Poppy straw means, all the parts except the seeds of the opium poppy after mowing."
5. A perusal of earlier definition of poppy straw as given in the Opium Act of 1878 shows the following additional words: "from which narcotic can be extracted". Whereas, in the definition of opium as given in section 2(t)(i) of the poppy straw, these words: "from which narcotic can be extracted" have been excluded. It is perhaps for this reason that a separate definition of poppy straw and opium poppy had to be given.
6. It is on this account that a grievance has arisen. It is said that the change in the definition through deletion of words was the mistake attributed to the draftsman who also coined definitions of opium, opium poppy, opium straw without showing any reason for the new definition and thus erroneously a departure was taken from the definitions tested and proved since 1878. That the draftsman was neither a botanist nor a pharmacist to speak anything on the subject.
7. That this change of definition has led to unjust results vis-a-vis the punishment prescribed under this law in section 9 of the Act.
8. Section 9 of the Act reads as follows:-- "Punishment for contravention of sections 6, 7 & 8.---Whoever contravenes the provisions of sections 6, 7 or 8 shall be punishable with:----
(a) imprisonment which may extend to two years, or with fine, or with both, if the quantity of the narcotic drug, psychotropic substance or controlled substance is one hundred grams or less;
(b) imprisonment which may extend to seven years and shall also be liable to fine, if the quantity of the narcotic drug, psychotropic substance or controlled substance exceeds one hundred grams but does not exceed one kilogram; and
(c) death or imprisonment for life or imprisonment for a term which may extend to fourteen years and shall also be liable to fine which may be up to one million rupees, if the quantity of narcotic drug, psychotropic substance or controlled substance exceeds the limits specified in clause (b): Provided that if the quantity exceeds ten kilograms the punishment shall not be less than imprisonment for life."
9. This implies that all narcotic drugs, psychotropic substances or control substances have been placed equally for purposes of the punishment determinable through weight of the substances recovered.
10. That on one side, we have fully processed narcotic drugs on the other side we have the poppy straw from which traces .Of opium were only extractable and which remained a chaff essentially and these have unreasonably been brought under the definition of opium through exclusion of the essential words of the definition: "from which narcotic substances can be extracted" resulting in absurd results and iniquitous law.
11. It is said that after opium was extracted, the straw part of the plant was used for medicinal purposes by our society since remote antiquity. It is stored. By Hakeems and the local medicinal practitioners purely for medicinal purposes without there being the mens rea for possessing-or trafficking or dealing with it with the same intention which: may be ascribed to the drug traffickers. That people use the straw and the dried capsule after the actual extraction of the opium from it for several innocent purposes socially acceptable.
12. The first question to be seen is whether in the realm of positive law we are also bound to accept the altered or briefed definitions of plants or products or those coined by a draftsman who may not be even a botanist or an expert and who offers no explanation for the departure from a definition known since over a hundred years in this context.
13. A reference may be made in this context to the following views of Sir Edward Coke which he gave in the case of Dr. Bonham in 1610 as the Chief Justice of the King's Bench of the U.K:-- "An act of Parliament had authorized the London College of Physicians to license the practice of medicine in the Cityand empowered the college, to punish physicians practising without the required licence. When one Dr. Bonham appeared before Coke on appeal on a charge of having violated the statute, the Chief Justice held Dr. Bonham innocent upon the grounds that the law in question was void. He went on to observe: 'And it appears in our books, that in many cases, the common law will control acts of Parliament, and sometimes adjudge them to be utterly void; for when an act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it and adjudge such act to be void'."
14. In the case of Marbury v. Madison, the views of Lord. Cope were referred to and it was said that "when an act of parliament is against any right and reason the common law will control it and adjudge such act to be void". In Marbury v. Madison, it was said:-- "It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each. So if a law be in opposition to the Constitution; if both the law and the Constitution apply to a particular case, so that the Court must either decide that case conformably to the law, disregarding the Constitution; or conformably to the Constitution disregarding the law; the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty."
"It is the position of the Constitution as the supreme law of the land that has made judicial review a practical necessity. If such paramount position is to be maintained in practice, the Courts must refuse to enforce laws that conflict with Constitutional provisions."
15. Now we have to see whether Control of Narcotic Substances Act, 1997 by giving such a definition was violating any of fundamental law and whether we have to enforce the C.N.S.A 1997 as such or we have to refrain ourselves from enforcing its such portions which are in conflict not only with the fundamental law but also with reason and common sense.
16. While interpreting a statute, we have either the literal approach or purposive approach also called the golden rule. Under the literal approach, words of a statute are sufficient to determine every question that arises under it regardless of the consequences.
Whereas, the essence of the purposive approach is for Judges to answer several question: What is the object and the legislation, what part in the achievement of that object the section under construction was intended to play and the subject of the Act.
17. In the case of Muhammad Shafi v. DSP (PLD 1992 Lahore 178), a Division Bench of this Court held that the requirements of the purposive approach was that the Judge must impute "to Parliament an intention not to impose a prohibition inconsistent with the object which the statute was designed to achieve, though the Draftsman has omitted to incorporate in express words any reference to that intention.
It was observed that in recent years, the modern Jurists and the Courts, were outgrowing the 'superstitious aweof the printed word and its magic potency and the literal approach has been gradually eroded and replaced by purposive approach to statutory interpretation. It was observed that the meaning of a statute is a juridical creation in the light of social demands. It was further said:-- "The meaning of a statute consists in the system of social consequences to which it leads or of the solution to all possible social questions that can arise under it. These solutions and systems of social consequence cannot be determined solely from the words used, but require a knowledge of the social conditions to which the law is to be applied as well as the circumstances which led to its enactment. Legal rules relate to human life, and grammar and formal logic alone will not enable us to reduce their juridical consequences. The meaning of a statute is, then, a juridical creation in the light of social demands."
18. As we see the preamble of C.N.S.A, its purpose is to control production, processing and trafficking of narcotic drugs, psychotropic substances as well as the treatment of addicts. This is the reason why stringent sentences have been prescribed.
19. Section 4 of the Act prohibits cultivation of opium poppy and other plants mentioned therein unless there was a licence issued for such cultivation by the Federal or Provincial Government so that the cultivation may be carried and any narcotic plant or portion thereof may be gathered for purpose of medicinal, scientific or industrial purpose's. Section 5 of the Act prescribed punishment of 7 years for those who may carry on the cultivation without a permit.
20. Whereas, sections, 6, 7 & 8 relate to import of such substances, trafficking of such substances or possession of such substances and the violations attract section 9.
21. Obviously, when somebody is cultivating a plant, he is also in possession of the same in the area of a field. But the punishment prescribed there is less and has no relationship with the quantity as in the case of section 9 read with sections 6, 7 & 8. So, the purpose of this law is not to completely stop the cultivation and production of the opium or other narcotic substances nor to ban their availability for medicinal and scientific purposes.
22. As has been argued before us, the poppy straw after mowing and after the extraction of the opium juice from it, is taken away by the Hakeems, the village apothecaries, the Pansaries for medicinal and local use.
23. We have also been told that there are hardly cases of trafficking of poppy straw and that there has never been a news about seizure of the poppy straw at the airport nor one hears of the import of this substances or its illegal export which is only confined to the end product already extracted from the poppy straw. That, therefore, the main object of the law is not directed towards the opium straw.
24. I have not been able to understand as to why omissions were made from the classical definitions of opium in this law. Because as I see, the classical definitions were not in clash with the purpose of the law, rather the omission has created an unreasonable situation and hardship for our people and this in fact is in clash with the purpose for which the new law came about.
25. The definitional omission may be attributed to thoughtlessness of the draftsman rather than to the intention of the legislature.
Modern Legislation resorts to deeming clause quite often and some time uses the expression "as it" for importing deeming effect.
The purpose of Y importing deeming clause is to impose an artificial construction of a word or phrase that would not otherwise prevail and sometimes it is to make the construction certain. In this connection, reference may be made to the case of St. Aubyn v.
A-G (1952 AC 15).
26. I am, therefore of the view that the classic definition of opium under the circumstances will always be read as part of the statute and in the alternate we are not to enforce a definition which is contrary to an accepted definition of opium and opium straw.
27. Another dimension of the case is whether persons in possession of pure narcotic drugs, psychotropic substances and those in possession of poppy straw having only a trace of the substance can be treated alike grouped or classified together for punishment to be determined through weightage of the substance in terms of section 9 of the C.N.S.A 1997 and in view of Article 25 of the Constitution.
28. What is a reasonable classification? This principle is laid down in the case of I.A. Sherwani v. Government of Pakistan (1991 SCMR 1041). But when there is an unreasonable classification and people are grouped together in an unreasonable way for purposes of punishment. This infringes their right to equality before law. How can an accused in a case of an accepted heinous crime be equated with a person of a much lesser crime only because of an alteration in the definition of the crime and which definition may be opposed to the accepted classical definition.
29. I may further highlight my question saying that can a pickpocket and a dacoit/robber be grouped together for purposes of akin sentence?
30. Equality, one of the most fundamental concepts of morality, law, and political theory, has been written into every bill and declaration of human rights, has been the rallying cry of revolution and the focus of social change, and has been the demand of the oppressed and the under privileged. It is generally considered to be one of the principal foundation stones of liberalism and liberty, for as the rule of law is fundamental to democracy, justice is the soul of law and equality is the heart of justice. The denial of equality has often been accompanied by injustices ranging from discrimination to severe persecution as we also see presently in these cases.
31. Whenever we, therefore, see in a statute -a clear violation of the principle of equality, it is the bounden duty of a Constitutional Court to point it out, to declare it and to stop short of enforcing such a provision of law as we are bound to follow the Constitution most sincerely, irrespective of the fact whether the Constitutional provisions were specifically invoked or not. In this connection, I may also refer to Surah Al-Asar, the English translation of which as rendered by Abdullah Yousaf Ali, re-produced below:-- "1. By (the Token of)
Time (through the Ages),
2. Verily Man Is in loss,
3. Except such as have Faith And do righteous deeds, And (join together)
In the mutual teaching Of Truth, and of patience and Constancy."
According to which, we have to follow the truth, declare the truth and declare it at all times.
32. The upshot of my views is that the definition of opium and opium straw as given by the C.N.S.A., 1997 through omission of the essential words "from which narcotic substances can be extracted" which was part of the classical definition, has always to be read as a part of the definition in the C.N.S.A., 1997. Because the alternate definition which has been given through the aforesaid omission tends to create an unreasonable classification violative of the principle of equality before law, is harsh, unreasonable, arbitrary and thus not enforceable.
(Sd.)
Ali Nawaz Chowhan, E SARDAR MUHAMMAD ASLAM, J.---I have had the advantage and privilege of going through the proposed judgments authored by my E learned brothers Asif Saeed Khan Khosa, J., and Ali Nawaz Chowhan, J. E. I am in respectful agreement with the opinions expressed and conclusions arrived at on all the relevant issues by my learned brother Asif Saeed Khan Khosa, J. And I answer the reference accordingly.
(Sd.)
Sardar Muhammad Aslam, J.
DECISION OF THE FULL BENCH By a majority of two against one this reference is answered in the terms recorded in the judgment delivered by Asif Saeed Khan Khosa, J.
(Sd.)
Asif Saeed Khan Khosa, J.
(Sd.)
Ali Nawaz Chowhan, J.
(Sd.)
Sardar Muhammad Aslam, J.