' ABDUL HAMEED DOGAR, J.---This suo motu revision has been initiated by learned Member Inspection Team on scrutiny of order, dated 29-10-1998 of the learned Sessions Judge, Karachi (East), whereby respondent Muhammad Ashraf was granted bail in Crime. No,10 of 1997 of Excise Police, Karachi lodged under Articles 3 and 4 of Prohibition (Enforcement of Hadd) Order, 1979 (hereinafter to be referred to as "the Order").
2. Precisely the facts leading to the filing of this revision are that on 26-5-1998 Umer Din, Excise Inspector, Malir Division, while patrolling in the area, apprehended respondent/accused Muhammad Ashraf and secured r Kg. Charas from his possession. On completion of investigation he was sent up to face trial under the above provisions of law before the Court of learned Sessions Judge, Karachi (East). The applicant preferred application for grant of bail after arrest before the trial Court which was dismissed on 15-7-1998, where after Criminal Bail Application No,879 of 1998 was preferred before this Court which was dismissed as not pressed on the ground that charge under Article 4 of the Order had been framed and the applicant was left at liberty to move fresh application before the trial Court to be decided on merits. Accordingly the applicant repeated bail application before the trial Court and the respondent was allowed bail on 29-10-1997.
3. Assailing this order on judicial side in this revision application the learned Member Inspection'
Team has urged for its recall mainly on the grounds that the learned trial Judge has taken the cognizance wrongly under the provisions of Prohibition Order and has exercised jurisdiction illegally while granting bail to the respondent. Consequent upon show-cause notice issued to the respondent by this Court, he appeared and engaged Mr. Syed Javaid Haider Kazmi to represent him.
4. We have heard Mr. M. Sarwar Khan, Additional Advocate-General on behalf of the State and Mr. Javaid Haider Kazmi for the respondent/accused.
5. The learned A. A.-G. At the very outset did not support cancellation of bail on merits, but vehemently argued that the learned Sessions Judge should have taken the cognizance of the case under provisions of Control of Narcotic Substances Act, 1997 (hereinafter to be referred to as "the Act"). According to him sections 72 and 74 of the Act clearly stipulate that after coming into existence of the Act, no Court other than the Court constituted under the Act had the jurisdiction in the cases involving narcotics. He further argued that the cognizance taken in the matter is illegal and be scrutinized on revisional side judicially.
6. On the other hand, the learned counsel for the respondent raised two-fold contentions.
According to the first contention this revision is not maintainable as it relates to the cases falling under Hudood Laws where revision is competent before the Federal Shariat Court only. He next contended that since the case was sent up under Articles 3 and 4 of the Order and the charge too was framed under the said provision of law, as such bail was rightly, granted by the learned Sessions Judge, Karachi (East) while exercising jurisdiction properly. In support of his contention he placed reliance on 1986 PCr.LJ 746, 1990 PCr.0 409. PLD 1996 Kar. 267, PLD 1997 SC 315 and 1998 PCr.0 438.
' We do not agree with the learned A. A.-G. For the following reasons:--
(i) In this case not only F.I.R. Was lodged under Articles 3 and 4 of the Order, but charge-sheet was also submitted under these provisions of law, as such the trial Court took the cognizance properly under the abovementioned provisions of law;
(ii) the Prohibition (Enforcement of Hadd) Order, 1979 still holds field for all purposes and has not been repealed by the Act or by any other law as has been done in respect of some laws. Section 78 of the Act shows that only following laws have been repealed:--
(1) The Opium Act, 1857 (XIII 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).
(iii) Had it been the intention of law makers to repeal the order, they would have expressly included the same in section 78 of the Act. Irrespective of this, reference is made to section 12 of the Act, whereby the provisions of the Order (P.O. No,4 of 1979) is kept alive. The said section reads as under:-- "12. 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), or 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) hold or possess on 'behalf of any other person any assets referred to in .Clause (al, and
(c) conceal or disguise the true nature, source, location disposition, movement, title, or ownership of such assets by making false declaration in relation thereto."
7, The Honeble Federal Shariat Court in the case of Rasool Bakhsh v. The State, reported in 1998 PCr.0 438, has elaborately dealt with this aspect of the case and has held at placetum A thereof as follows:-- ' Repeal of statute---Implied repeal---Repeal of a statute, if not express, should not be inferred lightly on the basis of doctrine of implied repeal, unless there were compelling reasons to show that the existing statute and the subsequent statutes were so inconsistent that they could not co-exist and stand together---lmplied repeal of statute disapproved."
8. It has been observed in the judgment 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 with the principles of Islam, whereas the Act to consolidate the laws relating to the narcotics and to eradicate spread of this menace. It was also held in the referred case that neither there is an express repeal of Prohibition (Enforcement of Hadd) Order, 1979 by virtue of promulgation of Narcotics Substances Act/Ordinance nor can the repeal be covered impliedly. On the appeals against the judgments, in which challan has been submitted and in the provisions of the Order, 1979, the Hon'ble Federal Shariat Court has observed in paragraph 27 of the judgment as under:-- "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 Shariat 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."
9. On the competency of the revision before this Court, reference is made to Article 203-DD, whereby the revisional jurisdiction in the cases relating to the enforcement of Hudood Laws lies with Federal Shariat Court. Article 203-DD is reproduced as under:-- "203-DD. (1) The Court may call for and examine the record of any case decided by any criminal Court under any law relating to the enforcement of Hudood for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed by, and as to the regularity of any proceedings of such Court and may, when calling for such record, direct that the execution of any sentence be suspended and, if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record.
(2) In any case the record of which has been called for by the Court, the Court may pass such order as it may deem fit and may enhance the sentence: ' Provided that nothing in this Article shall be deemed to authorise the Court to convert a finding of acquittal into one of conviction and no order under this Article shall be made to the prejudice of the accused unless he has had an opportunity of being heard in his own defence.
(3) The Court shall have such other jurisdiction as may be conferred on it by or under any law."
10. We are fortified in our view by the case of Khursheed v. The State reported in 1990 PCr.L1 409, whereby it has been held that all decisions made by criminal Courts under any law relating to Enforcement of Hudood in respect of some matter in controversy effecting rights of parties are revisable by the Shariat Court under Article 203-DD of the Constitution.
11. In the revision reference has been made to an unreported citation in Criminal Suo Motu Revision No,77 of 1998 of this Court. On its perusal it transpires that challan was prod Iced under section 9 of Control of Narcotics Substances Act, 1997, as such its decision has no applicability with the case in hand. We have also perused the reply of the learned Sessions Judge, Karachi (East) in response to explanation and feel that in view of our above discussion the same is found satisfactory.
12. In view of the above discussion, we are of the view that the case in hand pertains to passing of an order in Hudood Laws, hence the revision is not competent and maintainable before this Court.
The same is accordingly dismissed. With the disposal of revision show-cause notice issued against the respondent/accused stands discharged.
Revision .