Through this petition, the petitioner has challenged the order dated 25.10.2005 passed by the learned Addl. Sessions Judge, Multan, whereby he dismissed the application filed by the, petitioner for entrustment of trial of case FIR No, 39/94 dated 18.9.1994 under Articles 3/4 Prohibition (Enf. Of Hadd) Order of 1979 read with Section 14/2/30 of Dangerous Drugs Act at Police Station P.N.C.B.
Multan, to the Court of Ilaqa Magistrate Section 30 for trial.
2. Brief facts of the case are that FIR No, 39/1994 was got registered on 18.9.1994 under Article 3/4 of Prohibition (Enf. Of Hadd) Order-IV of 1979 at Police Station P.N.C.B. Multan with the allegations that I.
K.G. heroin was recovered from the possession of the petitioner. After observing all the legal formalities challan u/S. 173 Cr.P.C. submitted in the Court of Ilaqa Magistrate Section 30, Multan, where charge was framed and statement of three PWs was recorded. On 1.6.1998 the Learned Magistrate Section 30 through a reference sent the case to the learned Sessions Judge, Multan for proper order on the basis that he did not have jurisdiction to proceed with the matter as 1 Kg heroin was involved in the case. Learned Sessions Judge, Multan vide his endorsement dated 6.6.1998 entrusted the case to the Court of learned Addl. Sessions Judge, Multan, who vide his order dated 6.6.1998 observed that maximum punishment provided under Article 3/4 of Prohibition (Enf. Of Hadd) Order 1979 was life imprisonment and Section 30 Cr.P.C. as amended by the. Legal Reforms Ordinance, 1997 empowers the Judicial Magistrate to try and award any punishment except punishment of death and sent back the file to learned Sessions Judge for its entrustment to Magistrate Section.
30. The file was placed before the Learned Sessions Judge, Multan, who vide his order dated 11.6.1998 sent back the case to the Court of Learned Addl. Sessions Judge for trial.
Consequently the petitioner filed an application on 27.5.2003 praying therein that the case be entrusted in the Court of learned Magistrate Section 30 Multan, which was rejected by the learned Addl. Sessions Judge vide his order dated 25.10.2005. Hence this petition.
3. Learned counsel for the petitioner submitted that the impugned order is not only against the law and facts of the case but also against the record; that the case was registered on 18.9.1994 i,e, before the promulgation of Control of Narcotic Substances Ordinance, 1995 and Control of Narcotic Substances Act, 1997 and under proviso two of Article 4 of the Prohibition (Enf. of Hadd) Order IV, 1979, in case the quantity of heroin recovered exceeds 10 grams, offender shall be punished with the imprisonment for life or with imprisonment, which is not less than 2 years, therefore, the alleged offence committed by the petitioner is not punishable with death penalty in any case and in such like circumstances the Court of learned Addl. Session's Judge, Multan has absolutely no jurisdiction to decide the case; that the impugned order passed by the learned Courts below are absolutely without jurisdiction harsh and improper. He has placed reliance on "Muhammad Wazir alias Jeero and another vs. The State" (2002 YLR 1961).
4. On the other hand learned Assistant Advocate General Punjab has vehemently opposed the petition.
5. I have heard learned counsel for the parties and perused the record. Case relates to the year 1994 but the trial has not so far been concluded for want of decision about forum having jurisdiction in the matter, which by itself amounts to abuse of the process of law. The matter had been shuttling between the Courts of the Sessions Judge and Magistrate Section 30, Multan to determine the forum having the jurisdiction for conducting the trial of the case and finally the Sessions Judge entrusted the case to the Court of Addl. Sessions Judge for trial by means of the impugned order on the ground that hue quantity of heroin being involved in the case and the offence being punishable with imprisonment for life Magistrate Section 30 would not be competent to pass reasonable sentence. Offence committed by the accused according to second proviso of Article 4 of the Prohibition (Ed: Of Hadd) Order 1979, is punishable with imprisonment for life and not with death therefore the Magistrate Section 30 has jurisdiction to proceed with the trial of the instant case. Section 30 Cr.P.C. is reproduced below: "Offences not punishable with death:--Notwithstanding anything contained in Sections 28 and 29, the Provincial Government may invest any Magistrate of the First. Class with the powers of try as a Magistrate all offences not punishable with death."
6. The instant case was registered in the year, 1994 when neither the Control of Narcotic Substances Ordinance, 1995 nor Control of Narcotics Substances Act, 1997 was enforced. The punishment provided under Article 3 is up to imprisonment for life which shall not be less than 2 years and no limit of fine is prescribed. Moreover, a bare reading of second proviso of Art. 4 of the Order ibid makes it clear that in case the quantity of heroin recovered, exceeds 10 grams of heroin, the offender shall be punished with imprisonment for life or with imprisonment which is not less than two years and with whipping not exceeding 30 stripes and he shall also be liable to fine.
Control of Narcotic Substances Act, 1995 was enforced on 15.8.1995 and Section 9 of the Ordinance enhanced the punishment of life imprisonment to death and also provided that the amount of fine- shall not be less than Rs, 1,00,000/-. however this Ordinance being a Penal Ordinance cannot have retrospective effect and the petitioner cannot be tried or charged for the offence under Section 9 (c) of Control of Narcotics Substances Ordinance, 1965. Moreover, Article 12 of the Constitution of Islamic Republic of Pakistan, 1973 safeguards the petitioner's right and provides protection against retrospective punishment. Therefore, it is crystal clear that the offence committed by the petitioner was not punishable with death in any case.
7. For what has been discussed above the instant petition is accepted, the impugned orders dated 6.6.1998 and 25.10.2005 passed by the learned Sessions Judge and Addl. Sessions Judge, Multan are set aside and the case would be sent back to the Court of learned Magistrate Section 30.
Multan for its trial in accordance with law. It may be made clear that if before pronouncement of the judgment, the trial Court comes to the conclusion that it cannot adequately sentence the accused, it may exercise its powers u/S. 346/347 Cr.P.C.
8. It has been noticed that despite a lapse of more than eleven years, the trial has not been concluded so far. In these circumstances. I direct the Learned trial Court to conclude the trial within four months after receipt of this order.