DOST MUHAMMAD KHAN, C.J.---This and the connected Constitutional Petitions, bearing Nos. 722, 1451, 25, 1921, 1804 and 3123 of 2011 have arisen because of the raid conducted, seizure made and recovery effected of narcotics substances in different areas of Khyber Agency/FATA, mentioned in the aforesaid writ petitions.
2. Initially, the petitioners sought abashment of all the F.I.Rs, registered against them, however, during preliminary hearing many points of law as well as constitutional arose, therefore, some of them amended their writ petitions to bring it in conformity therewith.
3. In view of the facts and circumstances, the following points of law and constitution arose for consideration of the Court:--
(i) Whether the provisions of Anti-Narcotics Force Act, 1997 has been extended. To Federally Administered Tribal Areas by the competent authority and if not, its effect on the present cases.
(ii) Whether the provisions of the Control of Narcotic Substances Act, 1997 have been extended by the competent authority to Federally Administered Tribal. Areas and if not so, its effect on the present cases.
(iii) Who is the competent authority to extend the applications of law enacted by the Parliament to Federally Administered Tribal Areas and through what means.
(iv) Whether the Anti-Narcotics Force is competent to conduct raid, make seizure, effect recoveries of narcotics substances and to carry out investigation into such cases within the Federally Administered Tribal Area and if not so, its effect.
(v) Which Court is competent to try offences under the Control of Narcotic Substances Act, 1997 in Federally Administered Tribal Areas and to which Appellate Fore the appeal shall lie when under section 48 of the Act ibid, the appeal shall essentially lie to the High Court, to be heard by a Bench of not less than two Judges?
(vi) Whether the proceedings conducted, investigations carried out and all actions taken by the Anti-Narcotics (Task) Force in these cases are curable in view of the facts and circumstances of the case and to what extent?
(vii) Whether the Political Agent has been legally empowered through Notification/Regulation issued under Article 247 of the Constitution of Pakistan vide S.R.O. No 1295(1)/98 dated 16-11-1998, to hold trial as required under the FCR or as a Sessions Judge and what should be the mode of trial?
4. In view of the intricacy involved because of the complicated questions of law and constitution and also the State was not effectively represented by senior most lawyers, hence, we appointed Barrister M. Zahoor-ul-Haq as amicus curiae at the cost and expense of the ANF to assist the Court.
5. All these petitions came up for hearing and during that course, all legal aspects and constitutionality of the action taken, the legality of the proceedings conducted and the future course, to be adopted, were extensively argued, discussed and deliberated upon.
6. At the time of promulgation of the two (2) enactments i,e, Control of Narcotic Substances Act, 1997 and Anti-Narcotics Force Act, 1997 by the Parliament, its territorial extension was made to the entire Pakistan, however, due to constitutional bar, contained in sub-Article (3) of Article 247 of the Constitution of Pakistan, 1973, it was having no extra territorial application to Federally Administered Tribal Areas. To conveniently understand the true import of the above provisions of the Constitution, the same is reproduced below:--- "Art. (3) No Act of Parliament shall apply to any Federally Administered Tribal Area or to any part thereof unless the President so directs, and no Act of Parliament or a Provincial Assembly shall apply to a Provincially Administered Tribal Area, or to any part thereof unless the Governor of the Province in which the Tribal Area is situate, with the approval of the President, so directs; and in giving such a direction with respect to any law, the President or, as the case may be, the Governor, may direct that the law shall, in its application to a Tribal Area, or to a specified part thereof have effect subject to such exceptions and modifications as may be specified in the direction. "
"Art. (4) Notwithstanding anything contained in the Constitution, the President may, with respect to any matter within the legislative competence of Parliament, and the Governor of a Province, with the prior approval of the President, may, with respect to any matter within the legislative competence of the Provincial Assembly make regulations for the peace and good government of a Provincially Administered Tribal Area or any part thereof situated in the Province."
7. The plain phraseology and language used in Sub-Article (3) leaves nothing in doubt that any Act/law enacted by the Parliament shall not to apply ipso facto to Federally Administered Tribal Areas unless and until the President so directs while. Under Sub-Article (4) power has been conferred upon the President to enact laws falling within the legislative competence of the Parliament and make it applicable through a Regulation, for the peace and good governance in Federally Administered Tribal Areas. Further Sub-Article (5) of Article 247 of the Constitution has conferred upon the President undefined powers to make regulations with respect to any matter for the peace and good governance of the FATA or any part thereof. The latter provisions further reinforces the authority and power of the President to make regulation for Federally Administered Tribal Areas or any part thereof subject to the condition that it shall be for maintaining peace and for good governance.
8. The understandable legal position, emerging from the reading of the above three Sub-Articles of the Constitution, is thus, that the laws enacted by the Parliament shall not extend to Federally Administered Tribal Areas unless the President so directs and under Sub-Article (4), the laws, not enacted by the Parliament although within its legislative competence, may be enacted and made applicable to Federally Administered Tribal Areas by the President while under Sub-Article (5) due to insertion of non obstante clause, the. President has been further authorized and empowered to make regulation for Federally Administered Tribal Areas for maintaining peace and for good governance there thus, the above Articles of the Constitutions on one hand oust the legislative competence and authority of the Parliament to make laws and extend it to Federally Administered Tribal Areas while at the same time, a substitute for the Parliament has been designated, the President of Pakistan, who has the sole legislative authority for Federally Administered Tribal Areas, therefore, for all legal intents and proposes neither the Anti-Narcotics Force Act, 1997 nor the Control of Narcotic Substances Act, 1997 could have extra territorial application with regard to Federally Administered Tribal Areas.
9. Due to the fact that the neighbouring country Afghanistan is the major source of production of narcotics substances, adjoining the border of Federally Administered Tribal Areas, therefore, the impact and effect of the drugs and its marketing, sale and purchase and business of narcotics substances is carried on largely in FATA, hence, at some stage, the Federal Government hastily and without adhering to the Constitutional mandate and command extended and made applicable these two enactments to Federally Administered Tribal Areas, however, after some cases came up before the High Court in the past, it realized quickly that under the provisions of Article 247 of the Constitution, it was not within the legislative competence of the Ministry of SAFRAN or that of Narcotics Division, Government of Pakistan, or any Ministry of the Federal Government to enact, legislate and extend the application of such laws to Federally Administered Tribal Areas, therefore, at that stage, the President of Pakistan intervened in the matter and issued S.R.O. 1295(1)/98 dated 16-11-1998 which reads as follows:-- "S.R.O. 1295(I)/98.---In exercise of the powers conferred by clause (3) of Article 247 of the Constitution of the Islamic Republic of Pakistan, the President is pleased to direct that the Control of Narcotic Substances Act, 1997 (XXV of 1997), shall apply to the Federally Administered Tribal Areas.
(Sd.) xxx Muhammad Abbas Khan, Secretary"
10. Again, vide S.R.O. 489(1)/98, the provisions of Anti-Narcotics Force Act, 1997 was extended to Federally Administered Tribal Areas which reads as follows:-- "S.R.O. 489(I)/98:---In exercise of the powers conferred by clause (3) of Article 247 of the Constitution of the Islamic Republic of Pakistan read with Article 146 thereof the President is pleased to direct that the Anti-Narcotics Force Act, 1997 (III of 1997) shall apply to the Federally Administered Tribal Areas subject to the following conditions namely:
(a) the Anti-Narcotics Force shall not exercise any power under the said Act in the said areas without prior permission of the Governor of North-West Frontier Province; AND
(b) the Anti-Narcotics Force shall follow such instructions as the Home and Tribal Affairs Department, Government of the North-West Frontier province may deem proper to give in each case under the said Act.
Sd/-xxxx Muhammad Abbas Khan, Secretary"
11.- The above notification was further amended through Notification No,4-4/98-ANF dated 6-12- 2010 which reads as follows:- Notification No,4-4/98-ANF. --In partial modification of Narcotics Control Division's Notification No, 12/1 /98-ANF dated 9th December, 1999 and Notification No,4-4/98-ANF dated 12th June, 2002 also in the light of S.R.O. 489(I)/98, S.R.O. 1295 (1)/98 and in exercise of the powers conferred by subsection (9) of section 6 of the Anti-Narcotics Force Act, 1997 (Ill of 1997) the Federal Government is pleased to extend the jurisdiction of the following police stations in addition to Notification No,4-4/98-ANF dated 12th June, 2002 as mentioned against each, subject to concurrence of FATA Secretariat:-- S.No.Police Station Areas of Jurisdiction
1. Police Station ANF Peshawar 1. Khyber Agency.
2. Mohammad Agency.
3. Bejour Agency.
2. Police Station ANF Kohat 1. Orakzai Agency.
2. Kurram Agency.
3. Police Station ANF D.I. Khan 1. North Waziristan.
2. South Waziristan.
Sd/xxx MRs, Alia Asad S.O. (P-III/ANF).
12. In view of the above enactments/regulations, issued by the President of Pakistan within his legislative competence with regard to FATA, it has become clearer than crystal that the effect and application of both the enactments i,e, the Anti-Narcotics Force Act, 1997 and Control of Narcotic Substances Act, 1997 has been extended and made effective/operative in FATA, therefore, all the raids conducted by the Anti-Narcotics Force in the two (2) Tehsils of Khyber Agency were within the lawful authority of Police Station ANF Peshawar thus, all actions taken, investigations conducted, inquiries made; seizure of narcotics made, recovery of the same effected were lawful and authorized by law, hence, the same could not be quashed or set at naught.
13. Notwithstanding the above constitutional and legal position, the Court is still confronted with further legal complications needs to be resolved because under the provisions of section 46 of the Control of Narcotic Substances Act, 1997 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 which shall exercise jurisdiction under this Act while under the provisions of section 48 of the Act ibid, an appeal against the order of the Special Court, comprising a Sessions Judge or an Additional Sessions Judge, shall lie to the High Court and shall be heard by a Bench of not less than two Judges of that Court, however, realizing the omission of wider legal consequences, through another Notification No,F.12(3)--98-POB, dated 19-11-2009, the Political Agents were empowered to try and punish the accused charged for offences under the Control of Narcotic Substances Act, committed within FATA. Further, both the enactments i,e, Anti-Narcotics Force Act, 1997 and Control of Narcotics Substances Act, 1997 were made part and parcel by the schedule, annexed to Frontier Crimes Regulation, 1901.
14. Here, another legal anomaly with regard to legal fiction arises as to whether the Political Agent shall adopt the procedure, prescribed under the provisions of section 11 of the FCR or to try such offences as a Sessions Judge. In this regard, reference could be made to Notification No,8-W, dated 3-9-1939, issued in the gazette of India, extraordinary, page No,73, September 3, 1939, issued under section 313 of the Government of India Act, 1935 by the then Governor General in Council where under certain enactments were made applicable to FATA. The powers and jurisdiction of the Sessions Judge were invested on the Political Agent while exercising powers under the Frontier Crimes Regulation, 1901, therefore, in view of the latest notification, including the two enactments i,e, Control of Narcotic Substances Act, 1997 and Anti-Narcotics Force Act, 1997, and in view of the second schedule of B the Frontier Crimes Regulation as well as necessary corollary and unavoidable implications, the District Magistrate/Political Agent shall have to exercise powers of a Sessions Judge in offences under the provisions of Control of Narcotic Substances Act, 1997 and the role of the Council of Elders to which a reference is made under the provisions of section 11, FCR has become either redundant or has been narrowed in its scope and application.
15. Now the next question, which emerges out of the above legal position, would be as to what sentence, the Political Agent, in the capacity of Sessions Judge, can competently award upon a convict according to the quantity of narcotics substances, recovered from him/them. The substantive provisions of the FCR albeit, do not permit and authorize the Political Agent, exercising the powers of a Sessions Judge to award sentence of death but the maximum sentence he can award is the imprisonment up to 14 years with fine or both, however, the next question of law, being of vital importance, is that when the Control of Narcotic Substances Act, 1997 has been made applicable as a whole, subject to the condition that while carrying out raids, making seizure, effecting recoveries and conducting investigations, the Anti-Narcotics Force shall have to get the permission of the Government of Khyber Pakhtunkhwa (the then N.-W.F.P.). This permission, per available record, was granted in all these cases, in anticipation by the Section Officer concerned, followed by the approval of the Governor of Khyber. Pakhtunkhwa, hence, the raids conducted, the seizure made of narcotics substances from the accused in the above cited areas of FATA/Khyber Agency, the recoveries affected and the investigation conducted were within the lawful authority of the ANF of Police Station Peshawar and, therefore, could not be declared null and void. If some procedural irregularity has been committed in the course of these proceedings, the same are curable under the purview of curative provisions of section 537, Cr.P.C.
16. The next question of law, being of equal vital importance, is that under the provisions of section 48 of the CNS Act, the appeal from the order of the Special Court, constituted under the CNS Act, shall lie to the High Court which shall be heard by a Bench of not less than two Judges, however, once the President of Pakistan through the above S R.0 has conferred jurisdiction on the Political Agent and has extended the applications of the Anti-Narcotics Force Act, 1997 and Control of Narcotic Substances Act, 1997 to FATA then, the hierarchy setup under the FCR shall continue to exercise its jurisdiction and authority in these cases by necessary implications because jurisdiction of the High Court is not extended to FATA, in view of Sub-Article (7) of Article 247 of the Constitution of Pakistan, 1973.
17. The above legal anomaly, posing considerable confusion, needs to be clarified and the ambiguity has to be removed by the President of C Pakistan while exercising powers conferred upon him by Sub-Articles (5) and (6) of Article 247 of the Constitution, so that, the Peshawar High Court is invested with and conferred upon appellate jurisdiction to hear appeals against the order of conviction or acquittal, as the case may be, passed by the Political Agent exercising the powers of the Sessions Judge in cases of Control of Narcotic Substances Act, 1997 because of the quantum of punishment provided under section 9(c) CNS Act is harsh, hence, requires to be scrutinized and the reappraisal of evidence is made in a fair and just manner by the High Court and not by the Executive Officer like Commissioner FCR, who is possessed of a little experience and knowledge about the cardinal principle of law and justice on the subject and also because the newly inserted Article in the Constitution i,e, 10-A, which in a firm commanding language essentially requires that every person, charged for a criminal offence, shall be entitled to a fair trial and due process of law.
Without making such clarification and conferring powers of Appeal Court on the High Court against the order of the Political Agent in the capacity of Sessions Judge, the 'mandatory D requirements of Article 10-A shall stands violated and fair trial, now being fundamental right of each accused, would be denied to him. This phenomenon, ultimately, is bound to nullify the effect and operation of Article 10-A of the Constitution, hence, it is suggested to the President of Pakistan to intervene in the matter and after due deliberation and consultation to bring about necessary changes/amendments in the law, highlighted above, so that, complete justice is done to accused person charged for such offences, however, till such clarifications are made through a regulations, the Commissioner FCR would be competent to hear appeal against the order of the Political Agent, exercising the powers of a Sessions Judge in such cases.
18. In 'view of the aforementioned reasons, all these writ petitions are partially allowed to the extent, explained above. The proceedings conducted by the Anti-Narcotics Force of Peshawar Police Station in all these cases are held to be within its lawful authority, however, in view of the change of trial fore, the ANF Peshawar, which has registered these cases, shall submit complete Challan directly to the Political Agent, Khyber Agency, who shall himself conduct the trial in the manner explained and highlighted above. The ANF officials, who were party to such proceedings during the course of investigations of all these cases, shall be competent witnesses to depose against the accused charged in all these cases before the Court of Political Agent in the capacity of Sessions Judge. It is further directed that the case property shall also be handed over to the concerned official of the Political Agent against proper receipt along with complete files in original and trial shall commence immediately before the Political Agent/Sessions Judge and be conducted with a.
Reasonable speed.
Copies of this judgment be sent to Law Division, Ministry of SAFRAN and Narcotics Division, Government of Pakistan, for doing the needful as held above.