' The appellant Lal Bux has been convicted and sentenced to life imprisonment plus fine of Rs,1,00,000 (Rupees one lac) for an offence under section 9(c) of the Control of Narcotic Substances Act, 1997 by the Court of learned Sessions/Special Judge (Narcotics), Karachi East, vide judgment, dated 11-9-1999, in Special Case No,29 of 1998 (F.I.R. No,1 of 1992 Police Station Excise Police), Karachi (East).
2. Briefly stated, the case of prosecution is that on receiving spy information that huge quantity of Charas was lying in appellant's house, complainant Mazhar Hussain, Inspector Special Anti- Narcotics Team Excise Police, Karachi, accompanied by his staff and two Mashirs belonging to public namely, Noor Saqeem and Faiz Muhammad, raided the house of appellant Lal Bux at village Jhoonjar near Super Highway, Karachi on 23-1-1992. The appellant got out of the house and succeeded in fleeing away. The complainant entered the house and found 07 drums lying in the room, each containing 09 bags of Charas. On opening, each bag was found to contain 20 slabs of Charas. One slab was weighed and its weight was found to be one kilogram. The complainant seized the Charas and sealed the same in presence of Mashirs; one slab was, however, sealed separately for the purpose of sending it to Chemical Analyser for test. He prepared seizure memo.
And returned to Excise Police Station alongwith the property where he lodged F.I.R. Accused Lal Bux was arrested by C.I.A. Police and the complainant put him under formal arrest on 13-5-1992. On completion of the investigation the case was challaned in Court showing co-accused Khuda Bux as absconder, but subsequently, Khuda Bux joined the proceedings after obtaining bail before arrest and both of them were tried jointly.
3. At the commencement of the trial, learned Special Judge, Narcotics for District East, Karachi framed the charge on 28-5-1998 for an offence under section 6/9 of the Control of Narcotic Substances Ordinance to which the appellant and co-accused Khuda Bux pleaded not guilty. The prosecution, in order to prove the charge, examined four witnesses namely P.W.1 Noor Saqeem, P.W.2 Ghulam Rasool, P.W.3 PC Saif Ali and P.W.4 Mazhar Hussain, the complainant. Statements of the appellant and co-accused Khuda Bux were recorded under section 342, Cr.P.C., wherein they denied the case of prosecution. Both of them examined themselves on oath under section 340(2), Cr.P.C., and in their defence they examined two witnesses namely D.W.1 Shaukat Ali and D.W.2 Gul Muhammad. On assessm ent of the evidence on record the learned Special Judge for Narcotics, Karachi, East acquitted co-accused Khuda Bux of the charge and convicted the appellant for an offence punishable under section 9(c) of the Control of Narcotic Substances Act, 1997 and awarded him the sentence mentioned above.
4. Above judgment of conviction has been challenged, inter alia, on the ground that the impugned judgment is illegal, coram non judice and without jurisdiction. It is urged that Control of Narcotic Substances Act, 1997 (herein below to be referred as the 'Act') came into force in the year 1997 while the offence was allegedly committed on 23-1-1992 which was registered as Crime No,1 of 1992 under Article 3/4 of the Prohibition Order, 1979. It is vehemently contended that learned Special Judge fell in a grave error and committed illegality by convicting the appellant under the Act which provides greater penalty and was not in force at the time of commission of offence.
5. Learned counsel has referred_ to Article 12 of the Constitution of Islamic Republic of Pakistan (1973) and contended that the impugned conviction is in gross violation of the said provision of the Constitution.
6. Learned counsel has further placed his reliance upon the cases of Tariq Cotton Mills Ltd. v. Joint Registrar (1989 CLC 2103) and Abdul Rehman v. The State (1978 SCM R 292).
7. Mr. Habib Ahmed learned A.A.-G. Appearing for the State has conceded that the impugned judgment is illegal and without jurisdiction and the case is fit for remand. According to him the Control of Narcotic Substances Act, 1997 cannot be given retrospective effect.
8. Article 12 of the Constitution provides that:---
(2) .."
"(1) No law shall authorize the punishment of a person---
(a) for an act or omission that was not punishable by law at the time of the act or omission; or
(b) for an offence by a penalty greater than, or of a kind different from, the penalty prescribed by law for that offence at the time the offence was committed.
9. The offence was allegedly committed on 23-1-1992 and was registered under the provisions of Prohibition (Enforcement of Hadd) Order, 1979. The appellant was challaned for the said offence at the completion of investigation on 23-5-1992 while charge against the appellant was framed under sections 6 and 9 of the Control of Narcotic Substances Ordinance (Ordinance XLIII of 1997) on 28-5-1998.
10. Admittedly, Control of Narcotic Substances Act, 1997 was not in force in 1992. None of the provisions of the Control of Narcotic Substances Act give retrospective effect to the application of its provisions to an act of commission/omission prior to the date of its promulgation.
11. The case of the appellant is fully supported by the above-referred authorities. There could indeed be no punishment for an act not punishable under a law which was not existent at the time of alleged commission of offence nor any charge under such enactment be framed. No penal provision of a statute can be given retrospective effect.
12. In view of the above, we would set aside the conviction and sentence passed against the appellant and remand his case to the learned Sessions Court, Karachi, South for trial of the same in accordance with the law enforce at the relevant time by a competent Court.