SYED ZAHID HUSAIN BOKHARI, J.- Since similar question of law is involved in Cr. Misc. No. 189-M-1995, Cr. Misc. No. 170-M-1995 and Crl. Misc. No. 171-M-1995,1 would like to dispose of these petitions by this, single Judgment
2. FIR Nos. 56/92 and 57/92 under Articles 3 & 4 of the Prohibition (Enforcement of Hadd) Order (IV 1979), were registered against Haji Nawab Din on 4-3-1992 at P.S. Kehror Pacca, Distt. Lodhran. FIR No. 55/92 of the similar nature was registered against Mazhar Javaid petitioner on 4-3-1992 at the same police station. In all these cases recovery/trafficking of more than one Kg of heroin was alleged.
3. All the three cases after completion of investigation were sent to the Court for trial and the learned Civil Judge 1st Class/Magistrate Section 30, Lodhran took cognizance of the offences, but on 5-10-1995, the learned Trial Judge vide impugned orders of the same date directed transfer of cases to the Court of Sessions Judge, Lodhran on the ground that he has no jurisdiction to tty these cases and on the samen day these files were transmitted to the Court of learned Sessions Judge, Lodhran, on the same day, he passed the following order:- 15.10.1995 ^-'^Ji^^-c^^Control of Narcotic Substances Ordinance, 1995 [(Urdu Text)] On 31-10-1995 charge was framed under Section 9-C, Control of Narcotic Substances Ordinance, 1995 by Sessions Judge/Special Judge, Lodhran.
4. Being aggrieved the petitioners filed these petitions and prayed that orders dated 15-10-1995 passed by the Civil Judge 1st Class/Magistrate Section 30, Lodhran be held to be not warranted by law and be set aside. It was further prayed that the proceedings taken by the learned Special Judge in consequence be annulled and cases be directed to be sent back to the Magistrate Section 30, Lodhran to continue the trial.
5. In the year 1992 charge under Article 3/4, the Prohibition (Enforcement of Hadd) Order (IV 1979), was framed by Magistrate Section 30 and the statement of Muhammad Amin PW was recorded.
The punishment provided under Article 3 is upto imprisonment for life which shall not be less than 2 years and no limit of fine is prescribed. Similarly, under Article 4, in case of possession of one Kg heroin the punishment is upto imprisonment for life and not less than 2 years, and in this Article also, no limit of fine is given. Control of Narcotic Substances Act, 1995 was enforced on 15-8-19S5 and Section 9 of the Ordinance enhanced the punishment of life imprisonment to death and also provided that amount of fine shall not be less than Rs. 1,00,000/-. This would show that substantial change has been made in the quantum of punishment by the Ordinance.
6. Learned counsel for the petitioner argued that this Ordinance cannot have retrospective effect and the petitioners cannot be tried or charged for the offence under Section 9-C of the Control of Narcotic Substances Ordinance, 1995. Contended that being a penal Ordinance cannot have retrospective effect unless specifically provided in the Ordinance itself. Further submitted that Article l2 of the Constitution of Islamic Republic of Pakistan, 1973, safeguard the petitioner's right and provides protection against retrospective punishment in the following words: -
(1) No law shall authorise punishment of a person:
(a) For an act or omission that was not punishable by law at the time of act or omission, or
(b) For an offence by a penalty greater of a kind different from prescribed by law for that offence at the time the offence was committed.
(2) Nothing in clause (I) or in Article 270 shall apply to any law making acts of abrogation or sub- version of a Constitution in force in Pakistan at any time since the 23rd day of May, 1996.
This constitutional provision makes it dear that none can be punished for an act that was not an offence when it was committed or for an offence by a penal greater than or of a kind different from the penalty prescribed by law for the offence at the time, the offence was committed.
7. The petitioners allegedly committed an offence under Article 3/4, the Prohibition (Enforcement of Hadd) Order (IV 1979) on 4-3-1992 which was punishable with imprisonment for life or with imprisonment which is not less than 2 and whipping not exceeding 30 years strips and shall also be liable to fine. The persons accused of these, offences were not liable to be punished to death. The trial of the petitioners for the offences under Section 9-C of the Ordinance would be in violation of the safeguard provided under Article l2 of the Constitution of Islamic Republic of Pakistan, 1973. In the Ordinance VI of 1995 it is nowhere provided that it would have retrospective effect. The Ordinance cannot be termed merely a procedural lav/ but it materially affects the rights of the individual, and therefore, cannot be permitted to have retrospective effect. As a matter of fact this Ordinance is prospective in nature and persons who committed the offences prohibited by this Ordinance on the day of its enforcement or thereafter shall be governed by this Ordinance and not the persons who have committed offences prior to its enforcement. The nexus is the time of commission of offence and not the time of commencement of the trial or its conclusion. Any piece of legislation which deals with the punishment cannot be termed mere a procedural legislation.
8. The imposition of death sentence for the offences relating to narcotics, of course, was the need of the day. One cannot ignore the damage caused to the nation by frequent use, manufacture, transport and trafficking of narcotics. The enhancement of punishment by Ordinance VI of 1995 intends to create a different effect upon the culprits. This sacred object can be achieved subject to the fundamental rights as guaranteed by the Constitution. It may be presumed that at the time of commission of offence, had the petitioners knowledge that they would be punished to death, they might not have committed the offence. While examining and interpreting a statute it has to be seen that Ordinance or Statute is not enforced in contravention of provisions of the Constitution of Islamic Republic of Pakistan, 1973.
9. Ordinance VI of 1995 repealed a number of Acts and ordinances specifically but Prohibition Order IV of 1979 has not been repealed by this Ordinance. This would show that proceedings taken under Prohibition Order IV of 1979 are intact. If the trial of the petitioners is allowed to be continued before the Special Judge, it would amount to repeal of the Prohibition (Enforcement of Hadd) Order IV of 1979. Reliance has been placed on PLD 1969 S.C. 187 and 559, 1978 SCMR 292, PLD 1983 Lahore 420,1987 SCMR 978, 1989 P.Cr.L.J. 1161, 1992 SCMR 602 and 1992 MLD 155. Prohibition Order IV of 1979, is a piece of legislation which is intra-vires the Constitution. It cannot be repealed-by an Ordinance or by implication. It would require amendment of the Constitution.
10. On 25-1-1996 learned Standing Counsel for the Federation of Pakistan half heartedly supported the impugned order of transfer of the cases but he was directed by the Court to take an un- ambiguous stand. He sought adjournment to have instructions from the Federation of Pakistan.
Today he stated that he has consulted the-Federal Law Secretary and the Solicitor to Government of Punjab and on their instructions he submitted that Ordinance VI of 1995 is to be implemented prospectively and not retrospectively.
11. The upshots of the above discussion is that the impugned order passed by the Magistrate Section 30 on 15-10-1995 is illegal and unwarranted by law which is hereby set aside. The proceedings conducted by the Sessions Judge/Special Judge, Lodhran, are therefore, nullity in the eyes of law. Sessions Judge/Special Judge, Lodhran is directed to send back the files of these cases forthwith to the Civil Judge 1st Class/Magistrate Section 30, Lodhran for 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 his powers under Section 346/347 Cr.P.C.
12. Before parting with this judgment, I must show my gratitude to the learned counsel for the parties and M/s. Mian Muhammad Zafar Yasin, Sardar Muhammad Latif Khan Khosa, Sh.
Muhammad Rahim and Malik Muntazir Mehdi, Advocates who appeared on the Court's call arid gave commendable assistance in the disposal of these petitions.