' M. MAHBOOB AHMED, C.J.--- A number of appeals filed in this Court against judgments of various trial Courts in all the Provinces of the country whereby the appellants were convicted under the provisions of the Prohibition (Enforcement of Hadd) Order, 1979 were returned to two Single Benches of this Court. The basis for returning the appeals as may be called out from the orders directing the return of memo. Of appeals is that the Control of Narcotic Substances Ordinance, 1995 having been promulgated and enforced with effect from 22-2-1995, the offences regarding Narcotics had become exclusively triable by a Special Court, if the offence was committed after the date of enforcement of the aforementioned Ordinance since it overrides all other laws as provided by section 65 thereof. The consequential finding was that appeal in the circumstances would lie to the High Court concerned as provided by section 45 of the Ordinance and the Federal Shariat Court Pakistan is no longer of the jurisdiction to entertain the appeals in such cases.
2. Some of the parties whose appeals were returned, filed their appeals in the High Court of Balochistan while some appeals were filed in the Peshawar High Court as also in the Lahore High Court. The High Court of Balochistan, Quetta heard together a number of appeals of this nature and by judgment, dated 3-12-1996 delivered by a Division Bench of the said Court in Criminal Appeal No,230 of 1996 and many such other appeals held as under:-- "In view of the discussion, made hereinabove, we are inclined to lay down following criteria, to exercise jurisdiction under. Section 45 of the Control of Narcotic Substances Ordinance, 1995:--
(A) If the case has been registered under any provision of the Ordinance by competent Investigating Agency, specified therein, at the time when the Ordinance was made applicable, either by issuing a Notification or in pursuance of subsequent provisions contained by successive Ordinance, wherein the Ordinance was to commence, at once;
(B) After investigation, challan has been submitted before Special Court, established under section 43 of the Control of Narcotic Substances Ordinance, 1995.
(C) Trial proceedings including charge has been framed against appellant under the Ordinance; and
(D) The conviction/sentence has been recorded, under the provisions of Control of Narcotic Substances Ordinance, 1995.
' If the above conditions are not satisfied, then appeal would not be competent before High Court, as prescribed under section 45 of the Control of Narcotic Substances Ordinance, 1995."
3. All those appeals were held to be incompetent before the High Court and were directed to be returned for presentment before the appropriate forum.
4. The aforementioned judgment of the High Court of Balochistan has since been reported in PLD 1997 Quetta at page 69.
5. Similarly a Division Bench of the Peshawar High Court in Criminal Appeal No,15 of 1996 and other appeals delivered judgment, dated 11th of June, 1997 and held that in such cases the appeals lie before the Federal Shariat Court and not before the High Court. The appeals were accordingly returned to be presented if advised before the Federal Shariat Court. The judgment of Peshawar High Court has been reported as PLD 1997 Pesh.
135.
6. Some of the appellants whose appeals were returned by the Balochistan High Court filed Criminal Petitions for leave to appeal in the Supreme Court of Pakistan against the judgment of the Balochistan High Court. These petitions were, however, withdrawn and disposed of by judgment, dated 9th of May, 1997 passed by the Honourable Supreme Court of Pakistan in view of the position that in the meanwhile this Court had constituted a larger Bench to consider the point of jurisdiction to hear the appeals in all such matters.
7. One of us (The Chief Justice) sitting in Single Bench had made an order in Criminal Miscellaneous Application No,175/I of 1996 (Zaheer Akhtar v. The State) that the controversy as to the forum of appeal in the above case and in some other appeals pending in this Court where the provisions of the Control of Narcotic Substances Ordinance, 1995 are applicable and those of Articles 3 and 4 of the Prohibition (Enforcement of Hadd) Order, 1979 are also attracted and the Offences have been committed after the promulgation of the Control of Narcotic Substances Ordinance, 1995 having gained significance in view of the Division Bench judgments of the two Honourable High Courts which have formed a view different than the view taken by the two Single Benches of this Court the matter be referred to a larger Bench of this Court. It was also directed by the same order that all the cases involving this point shall be heard by the larger Berich together.
Consequently the present Full Bench was constituted.
8. We have heard all such appeals pending in the Lahore Registry of this Court at Lahore on 18th and 19th of August, 1997. Similarly appeals pending in the Registries at Peshawar and Quetta and at the Principle Seat at Islamabad have been heard at Islamabad on 25th of August, 1997.
9. All the learned counsel who have appeared on behalf of the appellants have supported the aforementioned judgments delivered by the Division Benches of the High Court of Balochistan and of the Peshawar High Court.
10. On the point of implied repeal of the Hadd Order the learned counsel for the appellant in Criminal Appeal No,224/L of 1996 has submitted that there is neither any express repeal of the Hadd Order by the Control of Narcotic Substances Ordinance, 1995 nor the repeal can be inferred from its provisions.
11. The learned Attorney-General for Pakistan, the learned Advocate-General, Punjab, Mr. Naveed Rasul Mirza, Additional Advocate-General, Punjab appearing on behalf of Advocate-General, Balochistan and Mr. Tasleem Hussain, Advocate, Peshawar on behalf of Advocate-General, N.- W.F.P. Appeared before us at Lahore on 18-9-1997 The learned Law Officers have also contributed to the views expressed by the learned counsel for the appellants and submitted that in all such cases appeals would lie to the Federal Shariat Court.
12. The questions that fall for consideration before this Bench may be enumerated as below:--
(i) To which Court the appeal would lie in cases regarding the Narcotics Offences where--
(a) The offence has been committed after the promulgation and enforcement of the Control of Narcotic Substances Ordinance, 1995 i,e, 22-2-1995;
(b) The case has been registered under the provisions of (Enforcement of Hadd) Order, 1979 and/or under the aforementioned Hadd Order and the provisions of the Control of Narcotic Substances Ordinance, 1995;
(c) The challan has been submitted in a Court competent to try Offences under the Prohibition (Enforcement of Hadd) Order, 1979;
(d) The charge has been framed by such Court under the provisions of (Enforcement of Hadd)
Order, 1979 and trial also conducted accordingly; and
(e) The conviction has been recorded by the said Court under the provisions of the (Enforcement of Hadd) Order, 1979.
(ii) Whether by the promulgation and enforcement of the Control of Narcotic Substances Ordinance, 1995/its successor Oidinances or the Control of Narcotic Substances Act of 1997 the Prohibition Hadd Order, 1979 stands repealed.
13. We have given anxious consideration to the above controversy. Taking the second formulation first it may be observed that there is no express repeal of the Order by the Ordinance of 1995 or for that matter by similar successive Ordinances and the Control of Narcotic Substances Act of 1997 inasmuch as the provision contained in them regarding the repeal does not so mention. The laws repealed by section 67 of the Ordinance are:--
(1) The Opium Act, 1857 (XII of 1857);
(2) The Opium Act, 1878 (I of 1878); and
(3) The Dangerous Drugs Act, 1930 (II of 1930).
' The corresponding provision of Control of Narcotic Substances Act of 1997 (hereinafter called the Act) is section 78 which expressly repeals the following laws only:--
(1) The Opium Act, 1857 (XII of 1857);
(2) The Opium Act, 1878 (I of 1878);
(3) The Dangerous Drugs Act, 1930 (II of 1930); and
(4) The Control of Narcotic Substances Ordinance, 1997 (XLIII of 1997).
' It is, thus, clear that there is no express repeal of the Prohibition (Enforcement of Hadd) Order, 1979.
14. Before embarking upon the proposition as to whether implied repeal of Prohibition (Enforcement of Hadd) Order, 1979 can be inferred from the provisions of subsequently promulgated Control of Narcotic Substances Ordinance, 1995 which has since been made an Act of the Parliament, it appears appropriate that the principles governing the implied repeal be kept in views.
The cardinal principle of repeal of statutes is that repeal of a statute, if it be not expressed, should not be inferred lightly on the basis of doctrine of implied repeal, unless there are compelling reasons therefor which may show A that the existing statute and the subsequent statutes are so inconsistent that they cannot co-exist and stand together. The implied repeal of statutes has generally been not approved by the Courts.
15. In support of the above principle reference may usefully be made to Jose Gonzalo De Garcia De Balseras v. The State reported as PLD 1969 Lah.
129. At page 141 of the report the following observation is very apt.
"An inference of repeal by implication which stands clearly negatived in the instant case is even otherwise not favoured by authorities on interpretation of statutes like Maxwell."
16. Again in Abdul Samad alias Dadda v. Iqbal Ahmed Khan Lodhi reported as PLD 1972 Lah. 41 the following para. Appearing at page 47 is worth special attention:-- "(5) The doctrine of implied repeal as expounded by Craise at page 365 of his Book on Statute Law (Sixth Edition) clearly lays down that ' where two Acts are inconsistent or repugnant, the later will be read as having impliedly repealed the earlier. The Court leans against implying repeal, unless two Acts are so plainly repugnant to each other that effect cannot be given to both at the same time, a repeal will not be implied. Special Acts are not repealed by general Acts unless there is some express reference to the previous legislation or unless there is necessary inconsistency in the two Acts standing together... Before coming to the conclusion that there is a repeal by implication the Court must be satisfied that the two enactments are so inconsistent or repugnant that they cannot stand together before they can, from the language of the later, imply the repeal of an express prior enactment i,e, the repeal must, if not express, flow from necessary implication."
17. Applying the touch stone as brought out above we will now examine the various provisions of tne Control of Narcotic Substances Ordinance, 1995/Act of 1997 to see whether the implied repeal of the former statute i,e, the Prohibition (Enforcement of Hadd) Order, 1979 can be inferred.
18. In this regard the first point which catches the eye is that the preambles of the two statutes clearly indicate that the two are intended to achieve different purposes; the Hadd Order to ensure that the laws in relation to intoxication are in conformity witn the principles of Islam i,e, the principles laid by the Qur'an and Sunnah of the Prophet (S.A.W.), whereas the Ordinance/Act to consolidate the laws relating to the Narcotics and to eradicate spread of this menace. This apparently shows that subsequent enactment was neither intended to repeal the former nor can it so do.
19. An appraisal of Articles 3 and 4 of the Prohibition (Enforcement of Hadd) Order, 1979 and of sections 6, 7 8 and 9 of the Control of Narcotic Substances Ordinance/Act also show that the provisions of the two statutes are not inconsistent with each other and there would be no impediment in their coexistence, and thus, there is no reason to infer the implied repeal of the Hadd Order by promulgation of the later Statute.
20. Yet another important aspect of the matter which has prevailed with us to hold that there is no implied repeal of the Prohibition (Enforcement of Hadd) Order, 1979 by the Control of Narcotic Substances Ordinance/Act is the language of section 12(a) of the Control of Narcotic Substances Act of 1997 which is reproduced hereunder for facility of reference:-- "Prohibition of acquisition and possession of assets derived from narcotic offences.--- No one shall knowingly---
(a) Possess, acquire, use, convert, assign or transfer any assets which have been derived, generated or obtained, directly or indirectly, either in his own name or in the name of his associates, relatives or any other person through an act or omission relating to narcotic substances which constitutes an offence punishable under this Act, the Customs Act, 1969 (IV of 1969), the Prohibition (Enforcement of Hadd) Order, 1979 (P.O. No,4 of 1979), under any other law for the time being in force, or constituted an offence under any law repealed by this Act; the Control of Narcotic Substances Ordinance, 1996 (XCIV of 1996) or any other law repealed by this Act; (b)
21. From a plain reading of the above provision it clearly emerges that Prohibition (Enforcement of Hadd) Order, 1979 has been kept alive in contradistinction to the position that all other statutes on the subject such as the Dangerous Drugs, Act, etc. Stand repealed. There is, thus, no escape from the fact that neither there is any express repeal of the Prohibition (Enforcement of Hadd) Order, 1979 by the Control of Narcotic Substances Ordinance or the Act of 1997 nor any implied repeal was envisaged by the Legislature and as such none can be inferred by the Court in view of the discussion made hereinabove.
22. The view taken by us as above that there is neither any express nor implied repeal of the Prohibition (Enforcement of Hadd) Order, 1979 and that the said Order was intended to be kept alive by the Legislature also finds support from section 5 of the Anti-Narcotic Force Act of 1997 which was promulgated on 14th of April, 1997 and brought to our notice by Mr. Naveed Rasul Mirza, Additional Advocate-General, Punjab appearing on behalf of Advocate-General Balochistan. The said provision which is reproduced hereunder shows that the function of the .Force set up under the aforementioned statute is to enquire- into etc. Any offence committed inter alia under the Hadd Order which means that the said Order is kept alive on the Statute Books of the Country:-- "(5) Function of the Force.-- The Force shall (a) inquire into, investigate and prosecute all offences relating to, or connected with, preparation, production, manufacture, transportation, illicit trafficking or smuggling of intoxicants, narcotics and chemical precursors or reagents used in the manufacture of narcotics, or any offence committed in the course of the same transaction under any law for the time being in force, including an attempt or conspiracy to commit, or any abetment of, any such offence, or any offence committed under the Control of Narcotics Substances Ordinance, 1996 (XCIV of 1996), or the Prohibition (Enforcement of Hadd) Order, 1979 (P.O. 4 of 1979)."
23. We, in the context of the above discussion have no hesitation to hold that neither there is an express repeal of Prohibition (Enforcement of Hadd) Order, 1979 by virtue of promulgation of the Control of Narcotic Substances Ordinance/Act nor can the repeal be inferred impliedly.
24. Having come to the conclusion that there is no repeal of the Prohibition (Enforcement of Hadd)
Order we would now take up the first formulation framed as above.
25. This proposition should not present any difficulty in affording an answer. It is well-settled that even if a Court not possessed of the jurisdiction to try a case wrongly assumes the same and exercises power not vested in it and passes an order/judgment in consequence thereof, an appeal from its decision would lie in the same manner as an appeal would lie from a decision made with jurisdiction. Reference, if any, needed in this respect may usefully be made to Muhammad Ashfaq v. The State reported as PLD 1973 SC 368. The relevant portion appearing at page 378 of the report (reproduced below) clearly clinches the matter:--
26. "It is equally well-settled principle that if a Court not having jurisdiction wrongly exercises such a jurisdiction, an appeal lies from that decision in the same manner as an appeal lies from a decision with jurisdiction."
26. Of course, the party aggrieved of the decision passed without jurisdiction may raise this controversy before the Appellate Forum and if the Appellate Forum comes to the conclusion that the decision made so is without jurisdiction as Court of original jurisdiction had exercised the power wrongly, it may set aside the impugned judgment before it on the ground of illegal assumption of jurisdiction leaving the option with the concerned authorities to nave the matter decided by the original forum of competent jurisdiction. However, on the basis of wrong exercise of jurisdiction by a Trial Court its judgment cannot be assailed before an Appellate Forum other than the one prescribed under the law against the judgment of the Court of first instance.
27. Without prejudice, therefore, to the question of validity or otherwise of the judgments appealed against in the cases under consideration inter alia on the ground that those were passed by the trial Court not possessed of the jurisdiction which plea will be decided by the appropriate Bench of this Court when the appeals are heard on merits, the answer to the first proposition is:-- "Appeals against the judgments in which the challan has been submitted under the provisions of Prohibition (Enforcement of Hadd) Order, 1979 trial conducted under the said provisions and conviction recorded accordingly shall lie to the Federal Sharait Court, notwithstanding the position that the offences had been committed before or after the date of promulgation of Control of Narcotic Substances Ordinance, 1995 now Control of Narcotic Substances Act, 1997."
28. Before parting with the reference, we may, however, observe that the Legislature should have been more careful in the enactment of the later statute i,e, Control of Narcotic Substances Ordinance since made an Act to ensure that there is no overlapping of the provisions and that agencies charged with the function of implementing the provisions of the two statutes i,e, Police/AntiNarcotics Force or any other Agency competent to challan the offenders under the provisions of the two laws are not given a free hand to register cases under one statute or the other and, thus, exploit the situation for their personal benefits/ends.
29. Such a situation is definitely not conducive to the proper enforcement of the law and effectual administration of justice and may result in ten frustrations of ten purposes for which these laws have been enacted. The authority concerned with the subject shall be well-advised to find out ways and means so as to remove this anomaly and no free hand in this regard remains available to the concerned agencies to deal with the registration of cases at their whim and caprice. If there be any difficulty in amending the later law instructions may issue laying guidelines for such agencies about the manner of taking cognizance of the offences chargeable under either of the statutes.
30. We had announced a short order on 18th of September, 1997 as the answer to the reference and the above are the reasons in support of the said short order.