Through this petition, the petitioners have challenged the order, dated 24-1-2002, passed by the learned Sessions Judge, Khanewal, whereby he sent the case, registered vide F.I.R. No. 235 of 1994 at Police Station, Kacha Khoh on 14-12-1994, for offences under Articles 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979, (hereinafter to be referred as Order), to the Court of the learned Additional Sessions Judge, Khanewal, for trial.
2. The matter relate to the year 1994 and the trial has not been Concluded so for because which Court had jurisdiction to try the instant case could not be resolved. It by itself amounts to abuse of process of Courts, therefore, in the interest of justice I convert this petition into application under section 561-A. Cr.P.C.
3. The relevant facts leading to the instant petition are that in the aforementioned case one Kg. and 175 grams heroin was allegedly recovered from the accused/petitioners and after investigation the case was sent up for trial to the Court of the Magistrate having the Powers of Section 30, Cr.P.C., who took cognizance of the case vide order. dated 23-2-1995 and distributed the copies of the statements of the prosecution witnesses recorded under section 161, Cr.P.C. However, the learned trial Court on 6-5-1999 referred the case to the Court of the learned Sessions Judge, Khanewal, on the ground that the recovered Heroin was more than 200 gms., therefore, the Court had no jurisdiction to try the case.
3-A. Vide order, dated 13-5-1999, the learned Sessions Judge, Khanewal, sent the case back to the Court of the Magistrate Section 30, Khanewal; referring the provisions of the Order and held that the case indeed was triable by the Court of Magistrate Section 30 and not by the Court of Sessions. The matter did not finish here. The Judicial Magistrate Khanewal, vide order, dated 16-4-2001 again referred the matter to the learned Sessions Judge, Khanewal, to determine the jurisdiction relating to the trial of the instant case.
4. On 25-4-2001 without assigning any reason, the learned Sessions Judge, entrusted the case to Kh. Muhammad Zafar Iqbal, Additional Sessions Judge, Khanewal. Most unfortunately, before entrusting the case to the Court of the learned Additional Sessions Judge, Khanewal, the learned Sessions Judge neither heard the parties nor gave any reason and the case was entrusted by pasting routine stamp.
5. The petitioners moved an application to the learned Additional Sessions Judge, that he had no jurisdiction to try the case in the light of the order passed by the learned Sessions Judge, Khanewal, dated 13-5-1999, which still held field and had attained finality, whereby the case was sent back to the Magistrate Section 30 for trial. The said application was decided by the learned Additional Sessions Judge, Khanewal, and vide order, dated 22-1-2002 he referred the matter to the learned Sessions Judge, Khanewal, who passed the impugned order, dated 24-1-2002, referred to above.
6. I have heard the learned counsel for the parties, gone through the orders and the available record. The impugned order passed by the learned Sessions Judge, Khanewal, is based upon only one reason that very huge quantity of narcotics was involved and the offence was punishable' with life imprisonment, therefore, the Magistrate Section 30 would not be competent to pass reasonable sentence and in the interest of justice and in the light of section 347, Cr.P.C. it would be proper if the case was tried by the Court of learned Additional Sessions Judge, to whom the case was already entrusted. I am afraid, the order passed by the learned Sessions Judge is devoid of reasons and is against the provisions of law. According to section 30, Cr.P.C. which is reproduced:- -- Offences not punishable with death.---Notwithstanding anything contained in sections 28 and 29, the Provincial Government may invest any Magistrate of the First Class with powers of try as a Magistrate all offences not punishable with death.
7. The instant case was registered in the year 1994 when neither the Control of Narcotic Substances Ordinance, 1995 nor Control of Narcotic Substances Act, 1997, were enforced. A reading of proviso 2 of Article 4 of the Order makes 'it clear that in case the quantity of heroin recovered, exceeds 10 grams of Heroin, the offender could be punished with imprisonment for life or with imprisonment which is not less than two years and with whipping not exceeding 30 stripes. The proviso 2 of Article 4 of the Order is being reproduced for ready reference.
'Provided further that, if the intoxicant in respect of which the offence is committed is heroin, cocaine, opium or coca leaf, and the quantity exceeds ten ' grams in the case of heroin or cocaine or one kilogram in the case of raw opium or coca leaf, the offender shall be punishable with imprisonment for life or with imprisonment which is not less than two years and with whipping not exceeding thirty stripes, and shall also be liable to fine."
It is crystal clear that the offence committed by the petitioners was- not punishable with death in any case.
8. It also pertinent to refer proviso 2 of Article 27 of the Order, which further clarifies the point of jurisdiction:--- "Provided further that an offence punishable under Article 8 shall be triable by a Court of Sessions and not by a Magistrate authorized under section 30 of the said Code and an appeal from an order under that Article (from an order under any provision of this Order which imposes a sentence of imprisonment for a term exceeding two years) shall lie to the Federal Shariat Court."
9. The intention of the Legislature is clear that the offences relating to Article 8 of the Order would be triable by the Court of Sessions, while the offences under the other Articles of the Order would be tried by the Court of Magistrate having the powers of Section 30, Cr.P.C. However, the appeals would lie before the Federal Shariat Court in case the sentence. of imprisonment exceeds two years.
10. Now come to the reason advanced by the learned Sessions Judge, that Magistrate Section 30 could not impose imprisonment for more than seven years, therefore, the case should be tried by the learned Additional Sessions Judge. If such an interpretation is accepted, in that case the provisions of section 30, Cr.P.C. would be redundant and meaningless, because in that case all the cases in which the punishment prescribed was more than seven years would have to be entrusted to the Court of Sessions. Obviously it was not the intention of the Legislature when section 30, Cr.P.C: was enforced.
11. The learned Sessions Judge has put the cart ahead of bull and presupposed the quantum of sentence and conviction. The trial Court after recording the evidence if comes to the conclusion that offender deserves sentence of a period more than seven years, then the case can be referred to the learned Sessions Court.
12. The learned counsel appearing on behalf of the State has no cavil to this proposition.
13. For what has been discussed above, I set aside the order passed by the learned Sessions Judge, Khanewal, dated 24-1-2002. The case would be sent back to the Court of the Magistrate Section 30, Khanewal for its trial.
14. It has been noticed that despite a lapse of more than seven years, the trial has not been concluded so far. A perusal of the order, dated 24-1-2002 reveals that the petitioners are in custody. In these circumstances, I direct the trial Court to conclude the trial within two months after receipt of this order.
15. This petition stands allowed.