' SABIHUDDIN AHMED, J.--- This appeal under section 48 of the Anti-Narcotic Substances Act, 1997 arises from a judgment of the Sessions Judge, Upmarket convicting the appellant for an offence under section 9 of the Act and sentencing him to undergo five years rigorous imprisonment and pay a fine of Rs,5,000, and in the event of default to undergo further imprisonment of fifteen months. The charge forming the basis of conviction may be reproduced as follows:-- "That on 27-8-1997 Farooque Aslam Bajwa, Excise Inspector along with his subordinate staff on search warrant arrested you from your house and you produced 2 pieces (slabs) of Charas which was 2 kilograms, thus, thereby you committed an offence of section 6 punishable under section 9 of Control of Narcotic Substances Ordinance within the cognizance of this Court.
' And I hereby direct that you be tried by this Court on aforesaid charge."
2. It may not be necessary to discuss in detail the evidence led at the trial as Mr. Rasool Bux Paleejo learned counsel for the appellant did not touch upon the facts of the case and rested his contentions on purely legal grounds. It might suffice to say that according to the prosecution Excise Inspector, Farooq Aslam Bajwah received spy information to the effect that the appellant was dealing in Charas whereupon he obtained a search warrant from the Excise and Taxation Officer and raided the house of the appellant along with a team of Excise staff. Upon being shown the search warrant the appellant took the Inspector to his room in the house and produced two slabs of Chars wrapped in a rilli. The Chars was weighed and sealed on the spot and thereafter, referred for chemical examination. The Inspector lodged the F.I.R. Thereafter, and after completion of investigation challan was submitted, charge framed and trial commenced. The prosecution examined Constable Govindram of the Excise Police who acted Mashir of recovery and arrest and the Investigating Officer Excise Inspector Farooq Aslam Bajwah who also produced the F.I.R. And Chemical Examiner's Report. The appellant's statement under section 342, Cr.P.C. Was recorded who denied the allegations and stated that he was involved in the false case because the brother of a Excise Constable Ghanzafar Ali Khoso had trespassed into the house of his neighbor, he had got the trespasser arrested and, therefore, he was being involved in a false case by the Excise Staff.
The appellant declined to examine himself on oath but produced one Shahmir as defense witness who deposed that he was a neighbor of the appellant, was present at the time of search and nothing was found from the appellant. He further deposed that Inspector Bajwah had informed him that he had foisted Charas on the appellant and demanded Rs,2,400 from him but when he paid the money the aforesaid Inspector told him that the matter had been reported to the higher Authorities and he was helpless in securing the appellants release.
3. Mr. Rasool Bux Palejo learned counsel for the appellant, however, did not question the finding of fact recorded by the trial Court but raised the following contentions:--
(i) That the appellant's trial by the Sessions Judge was coram non judice as offences under the Anti-Narcotic Substances Act were exclusively triable by the Special Courts established under section 46 of the Act.
(ii) That the Excise Police had no jurisdiction to effect the arrest, search, seizure and to investigate into the offence and no conviction could be founded upon such unlawful arrest, seizure and investigation.
(iii) That the provisions of section 25 of the Act excluding operation of the requirements of section 103 of Criminal Procedure Code were violative of Article 14 of the Constitution and searches and arrest made thereunder could not found the basis of a valid conviction.
(iv) That the impugned judgment does not mention the provision of law constituting of an offence of which the appellant was found guilty and is as such no judgment in terms of section 367(2) of the Code of Criminal Procedure.
4. Elaborating his first contention Mr. Palejo pointed out that under section 45 of the Act all the offences cognizable thereunder could be exclusively tried by Special Courts established in terms of section 46. Section 46 enabled the Federal Government and if so directed by the Federal Government, the Provincial Government to establish as many as Special Courts as consider necessary and appoint a Judge of each Special Courts. According to learned counsel no notification had been issued by the Federal or Provincial Government appointing Special Courts ever since the enforcement of the Act i,e, 11-7-1997. We requested Mr., 1 Mian Khan Malik, learned Additional Advocate-General to ascertain the factual position and he confirmed that no notification establishing Special Courts had been issued after 11-7-1997. Learned counsel nevertheless brought to our notice a Notification No,F.19(1)/95-A-III(B), dated 15th August, 1995 issued by the Law and Justice Division Government of Pakistan in the exercise of section 43(2) of the Control of Narcotics Substances Ordinance, 1995, where under the Federal Government had, in consultation with the Chief Justice of the Sindh High Court appointed 21 Sessions Judges in the Province as Special Courts to exercise jurisdiction under the Act within specified territorial limits. At serial No,11 in the table to the aforesaid notification Sessions Judge, Umer Kot has been conferred such jurisdiction within the territorial limits of District Umer Kot. According to learned Additional Advocate-General the special law dealing with offences relating to narcotics was first enforced by way of Narcotics Substance Ordinance on 18-4-1995 and was promulgated to successive Ordinance till it was enacted in the form of an act of Parliament on 7-7-1997. According to him the Sessions Judge in the Province was exercising the jurisdiction of Special Courts by virtue of this Notification.
5. Mr. Rasool Bux Paleejo learned counsel for the appellant did not demur the fact that the present Act was preceded by several Ordinances and each of them was repealed by its successor Ordinance. He was in fact kind enough to furnish a text of 8 Ordinances preceded by this Act promulgated since April, 1995. He nevertheless contended that the 1995 Ordinance was no longer operative and a notification issued or appointment made thereunder would no longer remain operative unless it was protected by any provision of the Act. No such protection or saving could be spelt out from any provisions of the Act. Since the learned Additional Advocate-General was unable to effectively' meet Mr. Plaeejo's contention, we adjourned the hearing on 27-10-1998 to enable him to prepare himself and also issued notice to Syed Madad Ali Shah, Advocate to assist us on this question as well as some others arising in this appeal and we are grateful for doing so at such short notice. Syed Madad Ali Shah, Advocate, however, pointed out that even in the absence of a saving provision in the Act, the notification, dated 15-8-1995 survived the repeal of the Ordinance by virtue of section 24 of the General Clauses Act which reads as under:-- "Section 24. Constitution of orders, etc. Issued under enactments repealed and re-enacted.--- Where any (Central Act) or Regulation is, after the commencement of this Act, repealed and re- enacted without modification, then unless it is otherwise expressly provided any (appointment, notification), order, scheme, rule, form or bye-law, (made or) issued under the repealed Act or Regulation, shall, so far as it is not inconsistent with the provisions re-enacted, continue in force, and be deemed to have been (made or) issued under the provisions so reenacted, unless and until it is superseded by any (appointment, notification), order, scheme rule, form or bye-law, (made or) issued under the provisions so re-enacted (and when any) (Central Act) or Regulation, which, by a notification under section 5 or 5-A of the Scheduled Districts Act, 1874 (XIV of 1874), or any like law, has been extended to any local area, has, by a subsequent notification been withdrawn from the re-extended to such area or any part thereof, the provisions of such Act or Regulation shall be deemed to have been repealed and re-enacted in such area or part within the meaning of this section."
6. Learned counsel argued that since the Control of Narcotic Substances Ordinance of 1995 had been substantially re-enacted through its successor and eventually by the Act the Notification issued under 1995 Ordinance would be deemed to be treated as one under the Act. Inasmuch as it was not inconsistent with any provision of the Act. Learned counsel, inter alia, referred to a Division Bench decision of the Lahore High Court in the Crown v. Wali Dad PLD 1954 Lah. 236 where certain notifications issued under the Forest Act, 1878 regarding protected character of forest would be deemed to be treated as Notifications issued under the Forest Act, 1927 as there was no substantial difference in the relevant provisions of the two statutes enabling issuance of such notification.
7. A similar view was taken by Kaikaus, J. In Umer Hayat v. Hayat Bibi PLD 1958 Lah. 82 and Akhtar Hussain, J. In Municipal Committee, Sialkot v. Muhammad Shafi 1985 CLC 50. In view of the above we are clearly of the opinion that whenever a law is repealed and re-enacted, the notification issued and appointments made under the repealed law do not lapse and can always be deemed to be treated as issued or made under the re-enacted law and Mr. Paleejo's contention cannot be accepted.
9. We also invited learned counsel to address us on the question of jurisdiction of the trial Court from another angle. Assuming a fresh notification establishing Special Courts after the enforcement of the Act was necessary, could the intention of the Legislature express through substantive specific provisions creating offences and providing for their punishment be defeated by inaction of the Government in establishing Special Courts and persons guilty of such offences would go unpunished because of such inaction? Mr. Paleejo asserted that penal statute had to be strictly construed and no Courts other than established Special Courts under section 45 could try such offences. Mr. S. Madad Ali Shah supported his view and the learned Additional Advocate- General did not expressly demur. However, learned counsel were unable to cite any precedent to show that such offences could not be tried at all in the absence of notified Special Courts. With all deference, however, we are aware of the law declared by the Honourable Supreme Court in M.U.A.
Khan v. Rana M. Sultan PLD 1974 SC 228 to the effect that failure or omission of the designated authority to frame necessary rules in exercise of powers conferred by the Legislature cannot be construed as having effect on pending the statute nugatory and unworkable. We are also aware that while interpreting statutes conferring exclusive jurisdiction on designated Tribunals this Court has taken the view that jurisdiction of ordinary Civil Courts stand ousted only when such statutory fora are actually established. One may refer to a Division Bench judgment in H.H. Ahmad v. Pakistan PLD 1972 Kar. 166 followed in United Bank Limited v. Messrs Akbar Agencies Ltd. PLD 1987 Kar. 81 and Shafiq Hanif (Private) Ltd. v. Bank of Credit and Commerce International PLD 1993 Kar.
107. We failed to say why this principle cannot be applied to the instant case when but for the provisions of sections 45 and 46 of the Act, the offence allegedly against the appellant could have been tried by the Court of Sessions under section 5(2) of the Code of Criminal Procedure read with Part H of the Schedule "dealing with offence under other laws". Mr. Paleejo is indeed right to the extent that section 5(2) of the Code is itself subject to the provisions of special law and in any event in case of conflict between the requirements of the Code and the special law the latter must prevail. However, in our humble opinion a question of conflict might arise only when Special Courts exercising exclusive jurisdiction which actually established and a Sessions Court would not stand divested of jurisdiction to try such offence till such time. Mr. Paleejo's objection to the jurisdiction of the trial Court must, therefore, fail in any event.
9. As regards the jurisdiction of the Excise Police to investigate the matter Mr. Mian Khan Malik, learned Additional Advocate-General drew our attention to S.R.O. 59(1)/97 published in Gazette of Pakistan, dated 7-8-1997 and reported in PLD 1998 FSC 2 whereby the Federal Government in exercise of powers under section 21 has authorised, inter alia, members of the Provincial Excise not below the rank of Sub-Inspector or equivalent to exercise functions under sections 22, 23, 37(2) and 38 of the Act out of their respective jurisdictions. As such the contention that Inspector Bajwah had no jurisdiction to investigate the offence is of no consequence. However, learned counsel appears to be on stronger wicket in contending that arrest search and seizure carried out on the basis of a warrant obtained from the Excise and Taxation Officer was invalid. Mr. Paleejo drew our contention to section 20 of the Act which only empowers a Special Court to issue a warrant of arrest or search and the learned Additional Advocate-General candidly conceded that the search obtained was not in accordance with the requirements of law. He nevertheless contended that under section 21(1) an Officer not below the rank of Sub-Inspector of Police or equivalent duly authorized by the Government could even without a warrant enter into a building, seize narcotic drug and arrest a person without a warrant if he was of the opinion that a warrant of arrest or search could not be obtained without providing to an accused an opportunity to escape or conceal evidence. Indeed such power appears to be available to the Notified Officers but reading the provisions of sections 20 and 21 together we are of the view that obtaining a search warrant is a rule and the exercise of unusual power to effect search or arrest without warrant an exception. Indeed there needs to be a conscious application of mind on the part of the officer to effect search or arrest without a warrant as to the possibilities of escape or concealment of the evidence on the part of the offender. We have gone through the entire evidence and found that nothing to this effect has been stated by the Investigating Officer. Moreover, as rightly pointed out by Mr. Vallejo subsection (2) of section 21 requires that before or immediately after taking any action under subsection (1) the Officer concerned must record the grounds and the basis of his information and proposed action and forthwith send a copy thereof to his immediate superiors. Evidently such safe-guard is provided to prevent the abuse of extraordinary powers. We, therefore, find substantial force in Mr. Paleejo's contention that the arrest and search was contrary to the requirements of law.
10. Learned Additional Advocate-General, however, argued that an irregularity in the investigation would not vitiate a trial in terms of sections 156(2) and 537 of the Code unless it had occasioned miscarriage of justice. He relied upon the observations of the Honorable Supreme Court in the case of State v. Muhammad Hussain PLD 1968 SC 265 to the effect that investigation by an Officer of an inferior rank then the one prescribed by law could be treated as a curable irregularity. Syed Madad Ali Shah also supported the aforesaid contention and referred inter alia two recent Supreme Court's decisions in Shiraz Asghar v. The State 1995 SCMR 1365 and State v. Bashir PLD 1997 SC 407 in the latter case, the Honorable Supreme Court took the view that Officer In charge of Police Station could not investigate the offences. Nevertheless such investigations would not vitiate a trial. Mr. Paleejo was unable to show any prejudice caused to the appellants on account of non-fulfillment of the requirements of section 21 of the Act and, therefore, his contention of this score must also fail.
11. Mr. Paleejo next contended that the evidence of recovery of Charas from the appellant deserve no credibility because there were no respectable persons from the locality acting as Mashirs. He argued that no doubt section 25 of the Act excluded the operation of the requirements of section 103, Cr.P.C. But the aforesaid provision was itself invalid being repugnant of Article 14 of the Constitution. He attempted to rely upon certain recent observations of the Honorable Supreme Court in the well-known case Mobaram Ali v. Federation of Pakistan PLD 1998 SC 1445 wherein arbitrary ?Owners of search and arrest conferred upon Police Officers in section 10 of the Anti- Terrorism Act, 1997 were held to be repugnant to Article 14 of the Constitution. While indeed there can be no cavil with the salutary principles laid down by the Honorable Supreme Court we are unable to see how the observations help the appellant. Mr. Paleejo's contention overlooks the fact that despite observing that the provisions of section 10 in its present form were repugnant to the Constitution the Honorable Supreme Court went to hold that this fact, however, would not vitiate trial and judgments already pronounced. Moreover, as pointed out by the learned counsel himself the trial Court did not uphold the evidence of recovery on the basis of section 25 of the Act but considered the matter from the stand point of section 103, Cr.P.C. And observed that absence of witnesses from the locality would not render the evidence unbelievable in terms of well- established parameters of section 103, Cr.P.C. It is, therefore, evident that section 25 has caused no prejudice to the appellant and it is not necessary to examine its Constitutional validity.
12. Finally Mr. Paleejo contended that the trial Court was completely oblivious of the requirements of the special statutes under which it was required to decide the case and did not even refer to the relevant provisions of law under which the appellant was being convicted. He, therefore, argued that the judgment was void in terms of section 367(2) of the Code. Mr. Syed Madad Ali Shah also supported this contention and pointed out that both in the charge as well as in the impugned judgment, the trial Court has described itself as Sessions Judge and not Special Judge under the Act. We would have been persuaded to take serious notice of these grounds if any material prejudice to the appellant could have been shown to have been caused to the appellant on account of such commission. It is indeed correct that under section 367(2) a Court is required to specify the offence of which the accused is convicted and the impugned judgment does not mention such offences. Nevertheless it is evident from the charge that the appellant was duly apprised with relevant provision of the Act wherein he was charged and no material prejudice can be assumed to be caused to him. In Muhammad Nawaz v. State 1979 SCMR 79, the Honorable Supreme Court repelled an identical condition holding that when the petitioner was only charged for an offence punishable under section 411, P.P.C. And upon being found guilty the Magistrate convicted him without mentioning the relevant provision such commission was inconsequential.
Again the appellant has not been able to show any specific violation of the provision of the Act committed by the trial Court so as to cause any prejudice to him. In fact by omitting to consider section 25_ of the Act and measuring evidence of recoveries on the yardstick of section 103 of the Code, the trial Court took a view more tweficial to the appellant.
13. In any event once it is found that the learned Sessions Judge did had the jurisdiction to try the offence under the special law and no violation of the requirements of special law causing material prejudice to the appellant having been shown we are of the considered opinion that a mere miss description of his correct designation under the special law is of no consequence. We are reminded of the salutary observation of the Honorable Supreme Court in Brothers Steel Mills v. Ilyas Mairaj PLD 1996 SC 543 to the following effect:-- "Therefore, it is not liable that the law attaches the Court which has been given the jurisdiction or the procedure which it is required to adopt in its exercise that provides the test; the test is the nature and character of the jurisdiction."
14. For the foregoing reasons we find no merit in this appeal and dismiss the same. We must record our appreciation of the valuable assistance rendered by Mr. Rasool Bux Paleejo, learned counsel for the appellant, Mr. Mian Khan Malik, Additional-General and Particularly Mr. S. Madad Ali Shah, Advocate who agreed to assist the Court at such short notice.