' By this Constitutional revision an order passed on 16-10-1999 by the Sessions Judge, Karachi
(West) has been challenged. Obviously this revision is pressed .Under Article 203-DD of the Constitution of the Islamic Republic of Pakistan. The revisional jurisdiction of this Court under the above provisions of the Constitution extends to the extent that correctness, legality or propriety of any finding may be examined and the record of the case may be called for and the Court has to pass such an order as it may deem fit. Obviously it is power of this Court analogous to the power of criminal revisions provided by criminal law.
2. From that point of view, a short background of the case in hand is necessary and it is given as under:-- ' In Sessions Case No,677 of 1996 titled as State v. Sarfraz and others F.I.R. No,164 of 1996 was registered at Police Station, Jackson Karachi West on 9-9-1996. The allegations were that the two accused Sarfraz and Shamshad were found in possession of an iron box containing opium weighing about 22 Kgs. At about 23-40 hours at Timber Pound Road opposite DML House, Keamari, Karachi. The police had produced the challan against them Which came before the- Court of Sessions. Judge, Karachi (West) and on 28-10-1997 charge was framed against them by the Sessions Judge, Karachi (West) (Mrs. Yasmeen Abbasi) for the offence under Articles 3 and 4 of the Prohibition (Enforcement of Hadd) Order, 1979. Accused having pleaded not guilty were put to trial and witnesses were examined. Before the conclusion of the case, the learned Sessions Judge, Karachi (West) on 16-10-1999 passed the order which is reproduced as under:-- "Order. Today Session Case No,677 of 1996, The State v. Sarfraz and others of Police Station Jackson, Karachi is fixed for trial in which witnesses are present.
' In this case F.I.R. Was lodged under Articles 3/4 of Prohibition (Enforcement of Hadd) Order, 1979 and also challan was submitted under the Prohibition (Enforcement of Hadd) Order, 1979.
' My learned predecessor also framed charge against the accused under Prohibition (Enforcement of Hadd) Order, 1979. The R&Ps reveals that witnesses were also examined in this Court by my learned predecessor in capacity of Sessions Judge. But according to the F.I.R. 22 kilograms of opium was allegedly recovered from the possession of the accused on 9-9-1996 by A.S.-I. Syed Imran Ahmed Zaidi of Police Station Jackson. But investigation was conducted by Syed Muhammad Ghafoor. According to section 65 of the Control of Narcotic Substances Ordinance, the Control of Narcotic Substances Ordinance override other laws and also accused can, be punished under the Control of Narcotic Substances Ordinance.
' Therefore, in the circumstances, the challan pending on the file of the Court is returned to concerned S.H.O. With direction to submit the same within three days in the Special Court, Control of Narcotic Substances Ordinance. P.Ws. Present are discharged.
' Announced in open Court.
(Sd). Ali Nawax Pirzada), Sessions Judge, Karachi (West)."
3. The accused through their counsel have challenged the above said order by this revision with the prayer that the said order may be set aside and the trial Court i,e, Sessions Judge West be directed to proceed with the case. Obviously it challenges the finding of the learned Sessions Judge to the effect that since in accordance with the F.I.R. And other facts and circumstances of the case, the allegations were for the recovery of 22 kilograms of opium from the possession of the accused on 9-9-1996 by Syed Imran Ahmad Zaidi of Police Station Jackson who was an A.S.-I. Of Police and that the investigation in this case .Was conducted by Syed Muhammad Ghafoor, the order was illegal and, therefore, required to be set aside by this Court.
4. This revision was admitted at initial stage to consider whether the order was illegal in view of the contention that at the time of the commission of the offence, the Control of Narcotic Substances Ordinance, 1996 was repealed in the month of November, 1996 and thereafter the Control of Narcotic Substances Act was promulgated in the year 1997, therefore, the passing of the order by the learned Sessions Judge returning the challan to the S.H.O. Concerned for submitting the same before the Special Court constituted under the Control of Narcotic Substances Act, 1997 was illegal as the Special Judge Narcotics Control had no jurisdiction in the case.
5. At one stage this revision was placed before the Full Bench of this Court and Honourable Full, Bench was of the view that the controversy involved may be decided by a Single Bench.
Consequently, this matter came for regular hearing before me.
6. I have heard the learned counsel for the petitioners and the learned counsel for the State. The main contention of the learned counsel for the petitioners was to the effect that the provisions of Articles 3 and 4 of the Prohibition (Enforcement of Hadd) Order, 1979 were a valid law and the charge in this case was framed under that law and witnesses were also examined and that, therefore, this case ought to have been decided by the Court of Sessions Judge under the said taw and that the observation of the learned Sessions Judge at a later stage that the jurisdiction to try this case vested in the Special Court constituted under the Control of Narcotic Substances Act was illegal. The learned counsel relied on a Full Court judgment of the Federal Shariat Court reported as 1998 PCr.LJ 438 and contended that the Hudood Laws were in existence and that promulgation of the Control of Narcotic Substances Ordinance which was ultimately turned into an Act of 1997, did not repeal the Prohibition (Enforcement of Hadd) Order, 1979 by the principle of implied repeal as held in the above cited Full Court judgment.
7. To this extent I am in agreement with the contention of the petitioners' counsel that application of principle of implied repeal of Hudood Laws by promulgation of the Control of Narcotic Substances Act, is not correct at all, as held in 1998 PCr.LJ 438. But the case was to he scrutinized whether there existed any illegality in the impugned order? After hearing the learned counsel for the parties, I could not find any illegality, irregularity or incorrectness in the finding of the trial Court and had come to the conclusion that this Court does not deem it fit to pass any other order after examining the record of the case.
8. The case of Rasool Bakhsh and others v. The State 1998 PCr.LJ 438 relied on by the learned counsel for the petitioners has adequately and comprehensively decided the issue wherein appellants who were convicted under the provisions of the Prohibition (Enforcement of Hadd)
Order, 1979 had to file the appeals before the Federal Shariat Court and not before the High Court and that Federal Shariat Court continued to have the jurisdiction irrespective of the promulgation of the Control of Narcotic Substances Ordinance and Act but as regards the controversy raised by this revision, the same is formulated as under:- "Where during the trial of the case in which charge under the Prohibition (Enforcement of Hadd)
Order, 1979 has been framed, the trial Court could validly order for return of the challan holding that jurisdiction had to be exercised by Special Court under the Control of Narcotic Substances Act?"
' My answer to the above formulation after going through the record of this case and hearing the arguments of the learned counsel is that such Court is within its powers to hold at any stage of the case that facts of the case require its trial by Special Court under the Control of Narcotic Substances Act, 1997. Passing of such order by the trial Court, as in the present case, does not create any illegality or violation of law as the trial Court is the master of the facts of the case and its view that the case falls under the jurisdiction of the Special Court, Control of Narcotic Substances Ordinance/Act should be presumed to have been the view held by it after scrutinizing all the facts of that case. The learned counsel tried to discuss the merits of the case before me but I refrained from considering the merits of the case in this order as the same will prejudge the case and pre- emption of decision has to be avoided by superior Courts at the stage when the case is yet to be decided by the trial Court.
9. From the discussion and the arguments of the learned Advocates, it has become clear that the date of the incident in this case was 9-9-1996 when the Control of Narcotic Substances Ordinance, 1996 was in existence and, therefore, the finding of the trial Court is based on such fact and the fact that the quantity of opium alleged to have been recovered was 22 kilograms and the law governing control of narcotic substances was special law and the provisions of section 63 thereof very candidly provided that irrespective of existence of other laws the offences falling under the Control of Narcotic Substances Ordinance were to be tried under the provisions of the said Ordinance.
10. Consequently, I agree with the view of the learned counsel for the State that no illegality is pointed out in the impugned order and, therefore, this revision fails, and the same is dismissed.
' However, no observation made in this order will have effect on the previous proceedings of the, trial Court.