'RAHMAT HUSSAIN JAFFERI, J.--- This order will dispose of bail application filed by applicant Mazhar Ahmed involved in Special Case No,221 of 2004 pending in the Special Court II (C.N.S.) Karachi.
2. Brief facts giving rise to the bail application are that accused Azhar Ahmed, Khan, during interrogation in Crime No,42 of 2003 disclosed to S.-I. Jahangir Khan that Narcotics were lying with his companions Abdul Rehman Khan and Mazhar Ahmed Khan at Landhi. On the said information the complainant S.-I. Jahangir Khan along with his subordinate staff and accused Azhar Ahmed Khan proceeded to 4-B, 34/9 Street No,1, Landhi. When they reached there, they saw a motorcycle in front of them on which two persons were sitting for whom the accused Azhar Ahmed Khan informed the police that they were his companions Abdul Rehman Khan and Mazhar Ahmed Khan.
On the said information, the S.I.P. Got the motorcycle stopped. On inquiries, the person driving the motorcycle disclosed his name as Mazhar Ahmed Khan (the applicant). The police conducted his personal search and found two cloth bags tied around his waist under the shirt, which were secured. The bags were opened which contained opium. One bag contained 1 Kg. Of opium and another bag contained half Kg. Of opium (total weight 1-1/2 Kgs). From each bag, Investigating Officer drew 10 grams of opium as sample for Chemical Analyzer Report. The other person disclosed his name as Abdul Rehman Khan. He was having a shopping bag in his hand, which was also secured. The complainant opened the bag, which contained 2.300 Kgs. Of opium. A sample of 10 grams was drawn from the said opium. Such Mashirnama was prepared in presence of two police constables who were with the complainant. The accused and the property were brought to the police station where the F.I.R. No,43 of 2003 was lodged on 3-11-2003 at 11-00 p.m. A bail application was moved before the trial Court but the same was dismissed hence to present bail application.
3. The learned Advocate for the applicant has argued that entire family of the applicant has been involved in this case; that the prosecution story is highly improbable; that the applicant could have run away by throwing the bundle at the place of incident; that the case has been filed due to personal enmity with the applicant and his brother co-accused Abdul Rahman; that the case of the applicant requires further inquiry. He has also argued that since last one year the case has not proceeded, even the charge has not been framed; that it is the right of the applicant that the case should be decided within shortest possible time; that there is no chance of the case being completed very shortly because the pendency of large number of cases before the trial Court, therefore, the applicant cannot be kept in custody for an indefinite period. In this background, he has stated that the applicant may be granted bail or arrangements may be made for the early disposal of the case.
4. On the other hand learned Special Prosecutor, A.N.F. Has stated that the case has been proved from the evidence of witnesses; that one and half kilograms of opium were secured from the possession of the applicant, therefore, his case falls under section 51 of the Act, 1997; that no proof has been filed about the enmity between the applicant and the Investigation Agencies. As regards the delay in disposal of the case, he has stated that previously there was only one Court for the entire Karachi but subsequently another Court was created to cope up with the work as large number of cases were pending before the said Court; that out of these two Courts one Court has fallen vacant because of the retirement of the Presiding Officer of the said Court, therefore, the entire work load has been placed on the board of one Court as such the delay in the disposal of the case is inevitable; that the applicant is not entitled to the concession of bail.
5. We have given due consideration to the arguments, gone through the material available on the record and find that the applicant was apprehended while going on a motorcycle, on the pointation of accused Azhar Ahmed Khan who was involved in Crime No,42 of 2003. From the personal search of the applicant, the Investigating Officer secured two bags, containing one and half Kgs. Of opium tied around his waist in presence of witnesses. All the witnesses have supported the prosecution case. A sample, drawn from the property was sent to Chemical Analyzer for report whose report is in positive. The applicant has not produced any proof of enmity between him and the Investigation Officer. Thus, there are reasonable grounds for believing that the applicant is involved in the case, as such the case falls within the prohibitory clause of section 51 of Act, 1997, therefore, on merits the applicant is not entitled to the concession of bail.
6. As regards the delay in disposal of the case, we find that this is not the only case where such complaint has been made but since this Bench has been created for deciding narcotics cases we are receiving complaints that the cases were not being proceeded with expeditiously and in some cases it was informed that the accused persons were in jail since last six or seven years without any progress of their cases. The learned Special Prosecutor A.N.F. Has frankly conceded that there are only two Courts in Karachi to deal with all the cases, therefore, pendency of cases has increased and it is not possible for the two Courts to cope up with the work. The advocates for the accused who were appearing in other matters informed the similar position. In order to solve the above problem on 8-9-2004 following order was passed:--- "During the arguments it was emphasized that the applicant, who has been arrested on 3-11-2003 has remained in jail without trial and even charge has not yet been framed. We do understand the difficulty of solitary Special Court presently functioning at Karachi as the other Court is lying vacant.
A question was put to learned Special Prosecutor, A.N.F. About the jurisdiction of the Special Courts, presided over by the learned Sessions Judges of Karachi and exercising some powers under the C.N.S. Act, 1997, he sought time to elaborate the legal aspects. Time is allowed to him. Additionally, we would prefer to issue notice to learned Additional Advocate-General and also Senior Deputy Attorney-General to address the Court on this point. To come up on 16-9-2004."
7. In pursuance of the above order, notices were issued to all concerned. Mr. Azizullah Shaikh, Senior Advocate and Mr. Shoukat H. Zubedi, Deputy Prosecutor-General, NAB were asked to assist the Court on the above point.
8. Mr. Azizullah Shaikh learned Senior Advocate has stated that on 26-8-1997 the Federal Government had issued a notification creating Special Courts in each District of the Province of Sindh which were presided over by the learned Sessions Judges of each District; that the said Courts started functioning but subsequently, a Court was created at Karachi to exercise jurisdiction in Karachi Division; that another Court was created at Karachi to share the burden of earlier created Court; that the notification dated 26-8-1997 has not yet been superseded by any other notification therefore, the Courts created thereunder are still in existence as such the cases pending before the two Courts created at Karachi can be transferred to those Courts to ease the burden of large number of cases pending on the files of the said two Courts, which they cannot manage. Mr. Shoukat H. Zubedi learned D.P.G. NAB has also advanced his arguments on the lines of the arguments of Mr. Shaikh. The learned Standing Counsel and Additional Advocate-General have stated that the notification dated 26-8-1997 is still intact and the Courts created thereunder are still functioning except the Courts at Karachi, South, West, East, Central and Malir; that without supersession of notification dated 26-8-1997 the Courts at Karachi are still validly constituted and they can try the cases in accordance with law within their territorial jurisdiction; that the cases pending before the Karachi South, East, West, Central and Malir Courts were transferred to a single Court presided over by Mr. Ali Nawaz Pirzada, therefore, the large number of cases are pending before the said Court; subsequently, another Court was created by the Federal Government; that some cases have been transferred to the said Court but still the pending cases cannot be handled properly by these two Courts; that the cases can be transferred to other Courts of Karachi South, East, West, Central and Malir so that the accused may get early trial of their cases. The learned Special Prosecutor A.N.F. Has placed all the material and notifications issued by the Federal Government in this respect and has stated that the Special Courts Nos.I and II were created to deal with all the cases of Karachi, therefore, the cases were transferred to the said Courts; that large number of cases are pending before the said Courts therefore, they cannot cope up with the said work hence the delay in disposal of the cases is inevitable.
9. We have given due consideration to the arguments, gone through the material available on the record, various notifications and find that on 11th July, 1997, the Control of Narcotic Substances Act, 1997 (hereinafter referred to as "the Act, 1997") was promulgated. Section 46 of the Act, 1997 deals with the establishment of Special Courts which reads as under:-- "Establishment of Special Courts.--- (1) The Federal Government and, if so directed by the Federal Government, the Provincial Government shall by notification in the official Gazette, establish as many Special Courts as it considers necessary and appoint a Judge for each of such Courts and where it establishes more than one Special Court, it shall specify in the notification the place of sitting of each Special Court and the territorial limits within which it shall exercise jurisdiction under this Act.
(2) There shall be two classes of Special Courts to try offences under this Act, namely:--
(i) Special Courts having the power to try all offences; and
(ii) Special Courts having the power to try offences punishable with imprisonment for two years or less.
(3) No person shall be appointed a Judge of a Special Court referred to:--
(i) in subsection (2)(i) unless he is or has been a Sessions Judge or an Additional Sessions Judge; and
(ii) in subsection (2)(ii) unless he is a Judicial Magistrate of the First Class.
(4) A person shall be appointed as Judge of a Special Court after consultation with the Chief Justice of the High Court of the Province in which the Special Court is established.
(5) The Federal Government or the Provincial Government may, in consultation with the Chief Justice of the High Court, confer the powers of a Special Court referred to:--
(i) in subsection (2)(i), on any Sessions Judge or Additional Sessions Judge; and
(ii) in subsection (2)(ii), on any Judicial Magistrate of the First Class."
10. Under section 46(1), the Federal Government or the Provincial Government on the direction of the Federal Government, can by a notification in the official Gazette establish as many Special Courts as it considers necessary and appoint a Judge for each such Courts and where it establishes more than one Special Court, it shall specify in the notification the place of sitting of each Special Court and the territorial limits within which it shall exercise jurisdiction under the Act, 1997.
11. In pursuance of the said section after about one month of the promulgation of the Act, 1997, on 26-8-1997 the Federal Government issued a notification creating Special Courts in each District of the Province of Sindh by showing their Presiding Officers, Headquarters and territorial limits. The said notification reads as under:- " Attention to D.D.(Law) AMP Karachi Government of Pakistan Ministry of Law, Justice, Human Rights and Parliamentary Affairs ' Islamabad, the 26th August, 1997 Notification ' No,F.15(I)/96-AIII(B).--- In exercise of the powers conferred by subsection (1) of section 46 of the Control of Narcotic Substances Act, 1997 (XXV of 1997), and in supersession of all the notifications issued by this Ministry or the Province of Sindh, the Federal Government, in consultation with the Chief Justice of the Sindh High Court, is, pleased to appoint the following District and Sessions Judges to be the Special Courts with their headquarters specified in column (3) of the table below to exercise the jurisdiction under the said Act within the territorial limits specified in column (4) of that table:- S. No, Name of the Court Headquarters Territorial Limits
(1) (2) (3) (4)
1 Sessions Judge Karachi, SouthKarachi District Karachi South 2 Sessions Judge, Karachi, WestKarachi District Karachi West 3 Sessions Judge, Karachi EastKarachi District Karachi East 4 Sessions Judge, Karachi, CentralKarachi District Karachi Central 5 Sessions Judge, MalirMalir District Malir 6 Sessions Judge, HyderabadHyderabad District Hyderabad 7 Sessions Judge, Thatta.Thatta District Thatta 8 Sessions Judge, BadinBadin District Badin 9 Sessions Judge, SangharSanghar District Sanghar 10 Sessions Judge, MirpurkhasMirpurkhas District Mirpurkhas 11 Sessions Judge, UmerkotUmerkot District Umerkot 12 Sessions Judge, TharparkarMithi District Tharparkar 13 Sessions Judge, DaduDadu District Dadu 14 Sessions Judge, SukkurSukkur District Sukkur 15 Sessions Judge, GhotkiGhotki District Ghotki 16 Sessions Judge ShikarpurShikarpur District Shikarpur 17 Sessions Judge, JacobabadJacobabad District Jacobabad 18 Sessions Judge, KhairpurKhairpur District Khairpur 19 Sessions Judge, LarkanaLarkana District Larkana 20 Sessions Judge, NawabshahNawabshah District Nawabshah 21 Sessions Feroz Judge, Naushero Naushero FerozDistrict Naushero Feroz ' (Abdul Qadir) Section Officer ' The Manager, Printing Corporation of Pakistan Press, Islamabad for favor of publication in the Gazette of Pakistan, Extraordinary, Part-IV."
12. After the establishment of the above mentioned Courts, they started functioning in the Province of Sindh by trying the cases and hearing the appeals. The said notification has not yet been superseded by any other notification as admitted by all the counsel. Thus, until the suppression of the above mentioned notification the Special Courts created therein will continue to function in accordance with law and have jurisdiction to try the cases and hear the appeals as provided under the Act, 1997.
13. On 5th July, 2000 the Government of Pakistan, Ministry of Law, Justice and Human Rights issued another notification appointing four more Judges in the country. Out of them, one Judge was appointed for Karachi. The said notification reads as under:-- "To be published in the next issue of the Gazette of Pakistan Part-II Government of Pakistan Ministry of Law, Justice and Human Rights Islamabad the 5th July, 2000.
Notification ' No,F.21(5)/2000-A.IV.--- In exercise of the powers conferred by subsection (1) of section 46 of the Control of Narcotic Substances Act, 1997 (XXV of 1997), the Federal Government is pleased to appoint with immediate effect and until further orders, the following Judges to be Judges of the Special Courts (Control of Narcotic Substances) with their headquarters specified in column (4) of the table below to exercise the jurisdiction under the said Act within the territorial limits specified in column (5) of the table:-- S. No, Name of the CourtName of the JudgeHeadquarter Territorial Limits 1 Special Court (CNS), Rawalpindi/ IslamabadMr. Saghir Ahmed Qadri AD & SJ, Faisalabad on promotion as D&SJ)Rawalpindi District of Rawalpindi, Attock and Islamabad 2 Special Court (C.N.S.), LahoreSayed Kazim Raza Shamsi AD&SJ, Wazirabad, (On promotion as D&SJ)Lahore District Lahore 3 Special Court (C.N.S.) KarachiMr. Ali Nawaz Pirzada, D&SJ, SukkurKarachi Karachi Division 4 Special Court (C.N.S.)
PeshawarMr.
Muhammad Ashraf Khan, D &SJ, TankPeshawar Peshawar and Kohat District (Ghulam Rasool)"
14. In the above referred notification it will be noticed that the Judges were appointed without creating the Courts as shown in the second column of the notification, as required under section 46(1) of the Act, 1997. Finding this apparent mistake in the notification, the Federal Government issued another notification; dated 17th July, 2000 creating a Special Court at Karachi and fixed Karachi Division as its territorial limits. The said notification reads as under:-- "To be published in the next issue of the Gazette of Pakistan Part-II Government of Pakistan Ministry of Law, Justice and Human Rights Islamabad the 17th July, 2000.
Notification ' No,F.21(5)/2000-A.IV.--- In exercise of powers conferred by section 46(1) of the Control of Narcotic Substances Act, 1997 (Act No,XXV of 1997), the Federal Government is pleased to establish a Special Court at Karachi to exercise jurisdiction under section 46(2)(1) of the said Act within the territorial limits of Karachi Division.
(Ghulam Rasul), Joint Secretary (Administration)
' The Manager, Printing Corporation of Pakistan Press, Shahrah Suharwardy, Islamabad."
15. In pursuance of the above mentioned notification the Honourable Chief Justice transferred all the cases of narcotics pending in the Courts of Special Judges/Sessions Judges, Karachi-South, East, West, Central and Malir to the Special Court Control of Narcotic Substances Karachi Division presided over by Mr. Ali Nawaz Pirzada created under the notification dated 5th July, 2000 and 17th July, 2000.
16. It further appears that the Federal Government wanted to establish a Special Court for Karachi Division to try cases pertaining to Anti-Narcotic Force only. Therefore, on 16th October, 2000 in supersession of notification dated 17-7-2000, created a new Court to try cases investigated by Anti-narcotics force and fixed Karachi Division as its territorial limits. Through this notification, Special Court created under notification 17-7-2000 for Karachi Division was abolished. Such notification was issued which reads as under:-- "Government of Pakistan Ministry of Law, Justice and Human Rights.
Islamabad the 16th October, 2000 Notification ' No,F.21(5)/2000-A.IV.--- (1) In exercise of powers conferred by section 46(1) of the Control of Narcotic Substances Act, 1997 (Act No,XXV of 1997), the Federal Government is pleaded to establish a Special Court at Karachi to exercise jurisdiction under section 46(2)(1) of the said Act in respect of Anti-Narcotics Force cases within the territorial limits of Karachi Division.
2. It supersedes this Ministry's Notification of even number dated 17th July, 2000.
(Abdul Qadir) Section Officer ' The Manager, Printing Corporation of Pakistan Press, Shahrah Suharwardy, Islamabad. ' for favor of publication in the Gazette of Pakistan Extraordinary Part-III."
17. On 18-10-2000, the Special Court created under notification dated 16-10-2000 for Karachi Division was abolished, through a notification under which four new Courts were created for the country. One Court was established for Karachi Division for the cases investigated by Anti-Narcotic Force only and Mr. Ali Nawaz Pirzada was appointed its Presiding Officer. The said notification reads as under:-- "Government of Pakistan Ministry of Law, Justice and Human Rights Islamabad the 18th October, 2000 Notification ' No,F.21(5)/2000-A.IV.--- In exercise of powers conferred by section 46(1) of the Control of Narcotic Substances Act, 1997 (Act No,XXV of 1997), the Federal Government is pleased to establish the Special Courts specified in column (2) and to appoint w,e,f, 5-7-2000, the following Judges as per column 3 to be the Judges of the Special Courts (C.N.S.) with their Headquarters specified in column (4) of the table below to exercise the jurisdiction under the said Act in respect of Anti- Narcotics Force cases within the territorial limits specified in column (5) of the table until further orders:-- S. No, Name of the CourtName of the JudgeHeadquarter Territorial Limits 1 Special Court (C.N.S.)
Rawalpindi/ IslamabadMr. Saghir Ahmed Qadri, AD&SJ, Faisalabad (On promotion as D&SJ)Rawalpindi District of Rawalpindi, Attock and Islamabad Capital Territory 2 Special Court (C.N.S.), LahoreSayed Kazim Raza Shamsi, AD&SJ, Wazirabad (On promotion as D&SJ)Lahore Police Station A.N.F., Lahore 3 Special Court (C.N.S.), KarachiMr. All Nawaz Pirzada, D&SJ, SukkurKarachi Karachi Division 4 Special Court (C.N.S.), PeshawarMr.
Muhammad Ashraf Khan, D&SJ, TankPeshawar Peshawar and Kohat District
2. It supersedes this Ministry's Notification of even number dated 16th October, 2000.
(Abdul Qadir), Section Officer.
' The Manager, Printing Corporation of Pakistan Press, Shahrah Suharwardy, Islamabad. ' for favor of publication in the Gazette of Pakistan Extraordinary Part-III.
18. It will be noticed that in the above notification the Federal Government restricted the jurisdiction of the Courts to the cases that were investigated by Anti-Narcotics Force only. It is well-settled that a Court can be created under any enactment for trial of all cases investigated by all the investigation agencies if various investigation agencies have jurisdiction to do so but the Court cannot be created for a particular investigation agency excluding other agencies. Even otherwise under section 46(1) of the Act, 1997, Federal Government or the Provincial Government on the direction of the Federal Government have been authorized to create a Court and appoint a Judge through notification showing his place of sitting, territorial limits in which he exercises his jurisdiction. Thus, a Court can be created for trial of all cases for the offences committed under the Act within the specified territory whosoever investigated the case. The Act, 1997, does not give powers to the Federal Government to restrict the powers of the Court in respect of particular investigation agency only excluding his jurisdiction of trial of cases investigated by other investigation agencies. Under the Act, 1997, the Federal Government has been given powers to simply define the territorial limits of the Court and nothing beyond that in that regard. Finding this apparent defect in the notification. On 12th March, 2001, the Federal Government modified the notification dated 16-10-2000 extending the jurisdiction of the Courts created thereunder for all the cases investigated by all the investigation agencies instead of the cases investigated by Anti- Narcotic Force only. It will be noticed that the Federal Government instead of modifying the existing notification dated 18-10-2000 modified the already repealed (non-existent) notification dated 16- 10-2000. The said notification was repealed vide notification dated 18-10-2000. The notification dated 12-3-2001 reads as under:-- "Government of Pakistan Ministry of Law, Justice and Human Rights Islamabad the 12th March, 2001.
Notification ' No .F . 21 (5)/2000-A . IV --- In partial notification of this Division's Notification even number dated the 16th day of October, 2000, the words "under section 46(2)(i) of the said Act in respect of Anti- Narcotic Force cases" appearing in paragraph 1 of the said notification be substituted with the following words "in respect of all the cases under the said Act".
(Idrees Mahsud) Section Officer ' The Manager, Printing Corporation of Pakistan Press, Shahrah Suharwardy, Islamabad. ' for favor of publication in the Gazette of Pakistan Extraordinary Part-III.
19. On 2-4-2003, the Federal Government created another Court at Karachi, having territorial limits of Karachi Division. It is pointed out that in the year 2001 Karachi Division was abolished under the Sindh ' Local Government Ordinance, 2001. However, the notification was issued for the area, which was not in existence. The said notification reads as under:-- "To be published in the next issue of the Gazette of Pakistan Part-III Government of Pakistan Ministry of Law, Justice and Human Rights Islamabad the 2nd April, 2003 Notification ' No,F.21(5)/2000-AIV(N).--- In exercise of powers conferred by section 46(1) of the Control of Narcotic Substances Act, 1997 (Act No,XXV of 1997), the Federal Government is pleased to establish another Special Court (Control of Narcotics Substances) at Karachi w,e,f, 1-5-2003 to exercise jurisdiction under section 46(2)(i) of the said Act within the territorial limits of Karachi Division.
' (Muhammad Ayaz Khan) Section Officer The Manager, Printing Corporation of Pakistan Press, Shahrah Suharwardy, Islamabad.
20. After creating the second Court at Karachi for Karachi Division (the area which was not in existence) through the above notification Mr. Abdul Ghafoor Memon was appointed its Presiding Officer vide notification dated 25-10-2003 which reads as under:-- To be published in the next issue of the Gazette of Pakistan Part-III Government of Pakistan Ministry of Law, Justice and Human Rights Islamabad the 25th October, 2003. Notification ' No,F.21(5)/2000-A.IV(N).--- The competent authority has been pleased to appoint Mr. Abdul Ghafoor Memon, District and Sessions Judge/Registrar, High Court of Sindh, Karachi, as Judge of the Special Court-II (Control of Narcotics Substances), Karachi in his own pay and scale on deputation basis for a period of three years or until further orders which ever is earlier, with effect from the date he will assume charge of the said post.
(Muhammad Ayaz Khan) Section Officer ' The Manager, Printing Corporation of Pakistan Press, University Road, Karachi."
21. The Federal Government after creating two more Courts at Karachi for Karachi Division issued a notification dated 31-12-2003 distributing the narcotics cases between the said Courts. The said notification reads as under:-- "To be published in the next issue of the Gazette of Pakistan Part-III Government of Pakistan Ministry of Law, Justice and Human Rights Division Islamabad the 31st December, 2003. Notification ' No,F.21(5)/2000-A.IV(N).--- In partial modification of this Division's Notification No, F. 21 (5)2000. A- IV (1) , dated 16th October, 2000 and N.F.21(5)2001/A.IV(N), dated 2-4-2003, the Federal Government is pleased to distribute .The narcotics cases between the two Special Courts (Control of Narcotic Substances), Karachi as under:-- S. No, Name of Court Headquarter (place of Sitting)Territorial limits 1 Special Court-II (C.N.S.), KarachiKarachi (i)Regional Directorate A.N.F.
Police Station, Karachi)
(ii) A.N.F., P.S. Muhammad Ali Society, Karachi.
(iii) A.N.F.. P.S. Gulshan-e- Iqbal, Karachi).
(iv) Nabi Bakhsh P.S.(P.S. Main A.N.F.
Clifton)
(A.N.F.
P.S.-I (A.N.F.
P.S.-II)
(District South)
(v) Alflah P.S. (District Malir)
(vi) Gulbahar P.S. (District Central)
(vii) Soldier Bazar P.S. (District East)
(viii)Peerabad P.S. (West)
(District police)
2 Special Court- I(C.N.S.), KarachiKarachi All other Police Stations and A.N.F. Police Stations of Sindh except those mentioned I Against special Court-II above.
(Muhammad Ayaz Khan) Section Officer ' The Manager, Printing Corporation of Pakistan Press, Shahrah Suharwardy, Islamabad. ' for favor of publication in the Gazette of Pakistan Extraordinary Part-III."
22. In the above notification, reference of various Police Stations of A.N.F. Has been made but territorial limits of such police stations have not been given. It will be advantageous to give the areas of jurisdiction of such police stations to understand the territorial limits of both the special Courts. In this connection, Government of Pakistan through Narcotics Control Division issued a notification dated 12-6-2002 showing the territorial limits of various Police Stations of A.N.F. Of the country. The relevant portion of the said notification pertaining to the Province of Sinuh is reproduced:-- "Government of Pakistan Narcotics Control Division Islamabad, the 12th June, 2002 Notification ' No,4-4/98 A.N.F. In partial modification of Narcotics Control Division's Notification No,12/1/98-A.N.F.
Dated 9th December, 1999 and Notification of even No, dated 8th January, 2002 and in exercise of powers conferred by subsection (9) of section 6 of Anti-Narcotics Force Act, 1997 (III of 199'7) the Federal Government is pleased to declare the following premises as "Police Station of Narcotics Force" within the areas of their respective jurisdiction: S. No, Offices as Police Stations Areas of Jurisdiction 1 ---------------- -------------------- 2 -------------- -------------------- 3 -------------- -------------------- 4 -------------- -------------------- 5 -------------- -------------------- 6 -------------- -------------------- 7 -------------- --------------------- 8 -------------- --------------------- 9 -------------- --------------------- 10 Office of Regional Directorate A.N.F., KarachiSindh Province and Tehsil Hub of District Lasbela Balochistan Province.
11 Office of A.N.F. P.S. Gulshin- i- Iqbal, Karachi .Districts West and Central Including area of P.S. Gulzar Hijiri and Gadap of Malir District 12 Office of A.N.F. P.S. Muhammad Ali Society, Karachi.Districts East, South and Malir (less area of P.S. Gulzar Hijiri and P.S. Gadap).
13 Office of A.N.F. Hyderabad Hyderabad and Mirpur Khas Divisions.
14 Office of A.N.F. Sukkur Larkana and Sukkur Divisions.
15 ----------------- ----------------
23. Subsequently, on 14-2-2004, a partial modification was made in the notification dated 31-12- 2003. The said notification reads as under:-- "To be published in the next issue of the Gazette of Pakistan Part-III Government of Pakistan Ministry of Law, Justice and Human Rights Divisions Islamabad the 14th February, 2004. Notification ' No,.F.21(5)/2000-A.IV,(N).--- In partial modification of this Divisions Notification of even number, dated 31-12-2003 the words "All other Police Stations" may be replaced by the words "All other Police Stations of Karachi" against Special Court-I (Control of Narcotic Substances), Karachi at S.No,2 in line 1 of last column meant for territorial limits.
(Muhammad Ayaz Khan) Section Officer.
24. In the notification dated 31-12-2003 it will be noticed that two earlier notifications dated 16-10- 2000 and 2-4-2003 have been repealed. It is further pointed out that the notification dated 26-10- 2000 which has been superseded through the above notification has already been superseded twice. Firstly, through notification, dated 18-10-2000 and secondly through notification dated 12-3- 2001. As such, when the notification, dated 31-12-2003 was issued, the notification, dated 26-10- 2000 was not in existence. The said notification was in respect of establishing a Special Court at Karachi to exercise jurisdiction in respect of Anti-Narcotic Force's Police Stations having territorial limits of Karachi Division. The notification, dated 2-4-2003 was in respect of establishment of Special Court at Karachi with effect from 1-5-2003 to exercise jurisdiction under section 46(2)(i) of the said Act within territorial limits of Karachi Division. As already pointed out, that when the said notification was issued, at that time the Karachi Division was not in existence. However, in the notification the territorial limits of the Special Court-I has been increased to the areas of the Province of Sindh except the areas assigned to the Special Court-II. The territorial limits of Special Court-II has been changed from the limits of defunct Karachi Division to the territorial limits of Districts Karachi South, East, West, Central and Malir being the areas of jurisdiction of P.Ss. A.N.F.
Muhammad Ali Society and Gulshan-e-Iqbal, Karachi that also covers the territorial limits of P.S. A.N.F. Main Clifton and other P.Ss. Of District Police Karachi mentioned in the notification against the column of Special Court-II, Karachi.
' A perusal of this notification further reveals that an impression could be gathered that the territorial limits have been assigned in respect of cases investigated by A.N.F. Covering the areas of the jurisdiction of A.N.F. Police Stations, excluding the cases investigated by other investigation agencies. As already observed that the Federal Government cannot impose such restrictions because the Act of 1997 does not give them power to do the same. Such action will be illegal and without jurisdiction. As under the Act, 1997, the Federal Government has been given power to, simply create a Court or Courts and assign them territorial limits in which they exercise their powers. After assigning such limits, no further function is to be performed by the Federal Government as to the curtailment of the jurisdiction of such Courts to the cases investigated by a particular investigation agency. It will be against the policy of independence of Judiciary. Further, most importantly, it will violate the provisions of Article 25 of the Constitution of 1973 as the Article guarantees a similarity of treatment and protection of equal laws which also means that among equals the law should be equally administered and that like should be treated alike. Reference is invited to the case Mehram Ali (supra), 1991 SCM R 1041, AIR 1953 SC 215 and 250. It is further pointed out that equality contemplated by Article 25 is equality both as to substantive and procedural laws. If some authorities are required then reference is invited to AIR 1958 SC 538 and 578, AIR 1952 SC 75, AIR 1957 SC 503 and 927. It is not out of place to mention here that if a person commits an offence under section 9(c) of the Act, 1997 at Jacobabad and A.N.F. Investigated the case then he is to be tried before the Special Court-I (C.N.S.) Karachi. Moreover, if a person commits similar offence at the same place but local police investigated the case then he is to be tried before the Special Court Sessions Judge Jacobabad. As such, there will be discrimination between both the persons that will be violating the Article 25 of the Constitution of 1973.
25. After perusing all the notifications we find that the scheme behind issuing subsequent notifications is that whenever the Federal Government wanted to issue a notification to supersede an earlier notification, then it specifically mentions so in the subsequent notification by mentioning the words "in supersession of notification...". If the above words are incorporated in the notification then intention of the Federal Government is clear that the earlier Notification has been superseded, otherwise not. A further perusal of all the notifications shows that the Federal Government has not mentioned that the said notifications were issued in supersession of notification dated 26-8-1997 by which the Special Courts presided over by the Sessions Judges were created through out the Province of Sindh. Thus, the Special Courts created for the Province of Sindh including for Karachi South, East, West, Central and Malir, are still in existence and have jurisdiction to try the cases within their territorial jurisdiction.
26. Even in the notification dated 31-12-2003 the notification dated 26-8-1997 has not been superseded though two earlier notifications have been superseded which clearly indicates the intention of the Federal Government that the notification dated 26-8-1997 has been made intact and operative.
27. We have also given due consideration to the question of implied supersession of notification dated 26-8-1997, through subsequent notifications. We are of the considered view that principle governing the implied repeal or supersession is that the two Acts or Notifications must be shown to be inconsistent with each other and so repugnant that they cannot stand togethex and are incapable of reconciliation on any fair and reasonable construction. If the notifications are capable of reconciliation on reasonable interpretation or not in conflict with each other or they can stand together then rule of implied supersession would not be applicable.
28. In the present case through notification, dated 26-8-1997 the Special Courts were created in each District of the Province presided over by their respective Sessions Judges. Under the subsequent notifications, two more Courts were created to exercise jurisdiction in respect of certain areas of the Province. Under section 46(1) of the Act,1997, the Federal Government or the Provincial Government under the directions of the Federal Government can establish one or more Courts in any area describing their territorial limits. As such, the said notifications were issued as per mandate of the above provisions of law; therefore, they are not in conflict with each other.
29. However, various Courts have been given territorial limits, which are similar to each other, as such they have concurrent territorial jurisdiction. In this connection, it is pointed out that this is not the first time that the concurrent territorial jurisdiction has been assigned to two or more Courts but in several other laws such practice is in vogue. For example, in Code of Criminal Procedure under section 12, the Provincial Government is competent to appoint one or more Magistrates in a District having similar local area in which they exercise their jurisdiction. In Pakistan Criminal Law Amendment Act, 1958 Special Anti-Corruption Courts have been established. In Karachi, there are two such Courts having similar and equal territorial limits. Under Anti-Terrorism Act, 1997 and National Accountability Bureau Ordinance, 1999 several Courts have been established having similar territorial limits. Even in civil jurisdiction, several Courts have been created under Banking Laws having similar territorial limits. As such giving or assigning similar territorial limits or jurisdiction to two or more Courts is not against the law but it is in harmony with the established practice. Thus, the various notifications through which several Courts having similar territorial limits have been created, can stand together and can be reconciliable on reasonable interpretation.
Therefore, the rule of implied supersession is also not applicable to the present notification.
30. It may be noticed that in the notification dated 31-12-2003, the words "Distribute the narcotic cases between the two Special Courts" appearing in it are very significant. These words are not appearing in any other notification issued earlier under section 46(1) of the Act, 1997. Under the Act, 1997, the Federal Government neither has been empowered to distribute the business between various Courts nor has the business of transfer of cases from one Court to another Court, been assigned to the Federal Government. The power to transfer the cases has been assigned to the High Court under section 49 of the Act, 1997. As such, if we read these words in the sense in which they have been used, then the distribution of the cases between the Courts is beyond the jurisdiction or scope of the Federal Government.
31. The business of distribution of the cases is to be assigned through a statutory provision. For example, under section 17, Cr.P.C. The distribution of business between the Magistrates has been given to the Sessions Judge who is the superior Officer of the Magistrates, as the Magistrates have been made subordinate to the Sessions Judge. Thus, general rule has been enunciated under section 17 of Criminal Procedure Code that a superior judicial forum is competent to distribute the business amongst his subordinates or Courts. In the case of Mehram Ali v. State PLD 1998 SC 1445 the Honourable Supreme Court of Pakistan has held that, all the Courts created under sub- Constitutional laws are subordinate to the High Court not only in judicial matters but in 'administrative matters also If we apply the principlecf distribution of business, then it will be the High Court, which will be competent to distribute the business between various Special Courts having similar territorial limits.
32. If we interpret the notification dated 31-12-2003 as the distribution of narcotic cases between two Special Courts then it will be beyond the powers of the Federal Government to issue such notification as the power of distribution or transfer of cases has been given to the High Court under section 49 of the Act, 1997. In the absence of any provision in the Act, 1997, authorizing the Federal Government to exercise such powers, the said Government cannot exercise the powers of distribution of the cases between the various special Courts. Thus, the notification dated 31-12-2003 can be declared to have been issued without jurisdiction and thereby becomes invalid. However, we are not doing so because a reasonable interpretation has to be given to the notification.
Therefore, we would like to examine it further, to see whether or not it is workable and enforceable.
33. It will further be noticed that in this notification the names of the Courts, places of their sittings and the territorial limits 'of Special Courts Nos.I and II have been mentioned. These aspects in the notification are in harmony with section 46(1) of the Act, 1997 as under which the Federal Government has been allowed to perform following acts.
(1) To create a Court or Courts.
(2) To appointment a Judge or Judges in such Court or Courts.
(3) To fix: lace of sitting of such Court or Courts and
(4) To fix territorial limits of such Court or. Courts.
34. In this notification three conditions viz. 1, 3 and 4 have been fulfilled. A separate notification has been issued in respect of appointment Mr. Abdul Ghafoor Memon as Presiding Officer of Special Court No,H, whereas Mr. Bin Yamin has recently been appointed as Presiding Officer of Special Court. No,I through Notification No, F.21(3)/2000-A-IV(N) dated 6th November, 2004. Thus, all the requirements of section 46(1) of the Act have been fulfilled.
35. It appears that the notification dated 31-12-2003 is not happily worded. However, from the said notification the intention of the Federal Government is clear that two Courts viz. Special Courts Nos.I and II which were already created with their Headquarters at Karachi, have been given territorial limits and jurisdiction different from the territorial limits, already given to them under the earlier notifications which can be termed as modification of the areas of earlier notifications.
36. Thus, this notification can be taken as notification under section 46(1) of the Act, 1997 describing the new territorial limits of Special Courts Nos.I and II. As such, it has been validly issued.
Consequently, all orders passed, judgments announced, Convictions recorded, sentences awarded, proceedings taken and all other ancillary matters dealt with by the said Courts in respect of territorial limits not falling with their jurisdictions are saved on de facto doctrine. Reference is invited to the case of Mehram Ali (supra) and to the case of Malik Asad Ali v. Federation of Pakistan PLD 1998 SC 161.
37. The Act, 1997 has made the Code of Criminal Procedure applicable in the matters under the Act, therefore, taking the benefit of section 17 of Code of Criminal Procedure with necessary adaptation and the rule laid down therein that a superior judicial forum can distribute the business to its subordinate Courts, the High Court being the superior Court of Special Courts, created, under the Act, 1997 can distribute the business of the cases to such Courts which have concurrent and similar territorial jurisdiction. Even otherwise section 49 of the Act, 1997 authorises the High Court to transfer a case or cases from one Special Court to any other Special Court as provided under section 526, Cr.P.C. Thus, the business of distributing the narcotics cases between the Special Courts is the function, power and jurisdiction of the High Court.
38. As regards the delay in disposal of cases, it is the Constitutional right of every accused person that his or her case should be decided within shortest possible time. By virtue of section 51 of the Act, 1997 the accused persons are not entitled to the concession of bail involved in the cases punishable with death. The cases pertaining to the Narcotic Substances exceeding 1 Kg. Are punishable with death or imprisonment for life as per section 9(c) of the Act, 1997. The Courts are strictly following the mandate of the law by refusing to grant the bail falling within the provisions of section 9(c) of the Act, 1997. Only in exceptional cases where the facts and circumstances require for the grant of bail, the bails are being granted. Thus, large number of the accused involved in the cases pertaining to section 9(c) of the Act, 1997 are languishing in various jails for many years without any progress in their cases. Their Constitutional rights are being infringed as the single Court is not able to cope up with the work assigned to it or even two Courts cannot,possibly manage the same.
39. The accused persons are filing bail applications before this Court taking the ground of delay in disposal of their cases by invoking and asserting their Constitutional rights of early disposal of their cases. They are justified in making such assertions. Therefore, in order to make the scheme of the Act, 1997 workable in efficient manner it is expedient in the interest of justice that the work of these Courts should be distributed in such a manner that the cases should be disposed of expeditiously.
40. In the light of what has been discussed above we propose, to the Honourable Chief Justice that all the cases falling under proviso to section 9(c) should remain with the Special Court No,11 covering the territorial jurisdiction of Karachi South, East, West, Central and Malir except the cases falling within the remaining territorial limits of the Province. Whereas the cases falling under Proviso to section 9(c) of the Act, 1997 pertaining to the territorial limits or jurisdiction of other Special Courts of the Province of Sindh, should be transferred to their respective Districts. If those cases are tried at Karachi then it will cause inconvenience to the parties, witnesses, accused and Advocates.
It will also cause financial loss to the accused persons who would be compelled to engage Advocates from Karachi or if they engage Advocate from their respective Districts then expenses will be increased tremendously thereby contravene the Article 37(d) of the Constitution, 1973. The cases falling under section 9(c) of the Act, 1997 (excluding the cases as mentioned above) should be transferred to the Special Courts headed by Sessions Judges of their respective Districts.
Further, the Honourable Chief Justice may from time to time distribute the business between the various Courts having concurrent_territorial jurisdiction as he deems fit otherwise the investigation agencies would file the cases in any of such Courts within their discretion that would adversely affect the administration of justice. For the reasons discussion above the present case, bearing old Special Case No,472 of 2003 and new No,221 of 2004 pending in the Special Court No,II (C.N,S.)
Karachi is transferred from the said Court B to the Special Court presided over by the Sessions Judge, Karachi East for disposal according to law. The prosecution is directed to produce all the witnesses before the said Court within a period of two months so that the case may be completed within shortest possible time.
'The bail application is dismissed in the above terms.