SHARIF HUSSAIN BOKHARI, J.- FIR No. 105 was registered on 14.3.1997 at Police Station City Mianwali against the petitioner under Articles 3 and 4 of die Prohibition (Enforcement of Hadd) Order, 1979 (hereinafter referred to as "the Order) on the allegation that 25 grains of heroin was recovered from the possession of the petitioner on 14.3.1997.
2. Learned counsel for the petitioner, inter alia, submits that the Control of Narcotic Substances Ordinance (XLJII of 1997) (hereinafter referred as 'the Ordinance') was promulgated on 7.3.1997 which covered the subject-matter and that under Section 9 thereof maximum punishment provided for the offence allegedly committed by the petitioner is two years as quantity allegedly recovered from the petitioner was less then I0O grams. He submits that in the presence of the Ordinance which override other law's according to Section 81 thereof, the provisions of the Order would not be applicable. On die other hand, Learned AAG, who has entered appearance on Court call, submits dux the present case has been registered under Articles 3 and 4 of the Order and, therefore, the petitioner would be tried and. If found guilty, convicted and punished under the order which provides punishment of imprisonment for life to a person found in possession of more than 10 grams of heroin. Learned AAG has also referred to Section 26 of the General Clauses Act which is as follows:- "Where an at or amission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for same offence".
He also submits that since the FIR has been registered under Articles 3 and. 4 of the Order, the petitioner could be tried and punished under the same Order.
3. The Learned Law Officer has not cited any authority on the point that notwithstanding the promulgation of the Ordinance on 7.3.1997, the petitioner could be challaned, tried and punished under the provisions of the Order. He relied on Section 26 of the General Clauses Act and argued that the case against the petitioner was validly registered under Articles 3 and 4 of the Order.
4. Section 79 of the Ordinance is as follows:- "If an offence punishable under this Ordinance, is also an offence in any other law for the the being in force, nothing in that law shall prevent the offender from being punished under this Ordinance".
Similarly Section 81 of the Ordinance provides that "the provisions of this Ordinance shall have effect notwithstanding anything contained in any other law for the the being in force".
5. The joint reading of Section 79 and Section 81 of the Ordinance makes it clear that the provisions of the Ordinance had over-riding effect for those matters not covered by proviso to Section 79 thereof. Therefore, the case against the petitioner ought to have been registered under the provisions of the Ordinance and the same law would be followed for the trial and conviction of the petitioner. Looking from another angle I am of the opinion that the provisions of the Ordinance, being more favourable and beneficial to the accused-petitioner, should attract to and applied in the present case and cannot be left to the discretion of the prosecuting agency.
6. Section 9 of the Ordinance provides the punishment of two years for the person who is found in possession of the heroin less than I00 grains. Allegedly the petitioner was found in possession of 25 grams of heroin and therefore, under Section 9 of the Ordinance the petitioner can be awarded maximum punishment of two yens. Thus his case does not fall within the prohibitory clause of Section 497 Cr.P.C. The petitioner was arrested on 14.3.1997 and since then is behind the bars. The petitioner is, therefore, admitted to bail, subject to his furnishing bail bonds in the sum of Rs.
50.000/- (Rupees fifty7 thousand only) with two sureties each in the like amount to the satisfaction of the Learned trial Court. COPY DASTI.