P L D 2010 Lahore 498

P L D 2010 Lahore 498

Before Khawaja Muhammad Sharif, C.J. and Waqar Hassan Mir, J

THE STATE---Petitioner

Versus

Mst. FAZEELAT BIBI---Respondent

Criminal Appeal No. 1263 of 2008, decided on 18th August, 2010.

(a) Control of Narcotic Substances Act (XXV of 1997)---

----Ss. 9(c), 15, 47 & 48---Criminal Procedure Code (V of 1898), Ss.435 & 439---Constitution of Pakistan (1973), Art. 199---Possession of narcotics---Appeal for enhancement of sentence---Competence---Accused was convicted and sentenced to two years and eleven months' R.I. on the basis of confessional statement made by accused and complainant had filed appeal under S.48 of Control of Narcotic Substances Act, 1997 read with Ss.435 & 439, Cr.P.C. for enhancement of sentence---Contention of accused was that appeal was not maintainable as under the law State was not competent to file an appeal for enhancement of sentence; as no provision, expressly and exactly existed with regard to the enhancement of the sentence; that S.48 of Control of Narcotic Substances Act, 1997 had provided only appeal against the order of a Special Court and it was not clear as to whether appeal was against the conviction, acquittal or enhancement of sentence---Validity---Right of appeal was a creation of statute and it was granted in one place and denied in the other; it could not be read into one where it was not provided and unless a right of appeal was clearly and expressly given by the State it would not exist nor was there any scope for inferring such right by implication---There could be cases and circumstances which were not covered by the express provisions of law---Neither any provision covering such cases existed in the Code of Criminal Procedure. nor in the special law enacted for a specific purpose and it could not be said that courts had no power to do justice or to redress wrong merely because no express provision of law could be found to meet the requirements of a case---Every Court, in absence of express provisions of law for that purpose, be deemed to possess as inherent in its very constitution all such powers as were necessary to do the right and to undo a wrong in the course of administration of justice---In spite of there being ouster of power under Ss.435 & 439, Cr.P.C. revisional powers of High Court could not be taken away---By invoking the powers under Art. 199 of the Constitution, High Court could judicially review and set the proceedings in right direction---Though appeal was not maintainable, but as the appellant could invoke the constitutional jurisdiction of High Court, appeal was converted into constitutional petition.

(b) Words and phrases-

-----"Appeal" defined.

(c) Words and phrases---

----"Appeal by right", defined and explained.

(d) Words and phrases---

----"Omnibus", defined and explained.

(e) Control of Narcotic Substances Act (XXV of 1997)---

----S. 47---Possession of narcotics---Application of Code of Criminal Procedure, 1898---Scope---Criminal Procedure Code, 1898 would apply to the trials and appeals before the Special Court---Legislature having used two words "trials and appeals", had specifically ousted the revisional jurisdiction of High Court; and whether or not it could be construed so, the Cr.P.C. would only apply to trials and appeals---`Special Court' as defined in Control of Narcotic Substances Act, 1997 did not include High Court---Section 47 of Control of Narcotic Substances Act, 1997, was not attracted to the appeal placed before the High Court.

(f) Control of Narcotic Substances Act (XXV of 1997)---

----S. 73---Saving of Provincial and special laws---Section 73 of Control of Narcotic Substances Act, 1997, was a saving clause of Provincially and Federally promulgated special laws and would give simultaneous application of the other laws of the same kind e.g. Prohibition (Enforcement of Hadd) Order and Customs Laws.

(g) Control of Narcotic Substances Act (XXV of 1997)---

----S. 74---Application of other laws---Section 74 of Control of Narcotic Substances Act, 1997 gave protection as to punishment against other laws and the punishment provided under Control of Narcotic Substances Act, 1997 and proviso to S.74 thereof nullified the effect of `superdari' provisions contained in Criminal Procedure Code, 1898.

(h) Control of Narcotic Substances Act (XXV of 1997)---

----S. 76---Overriding other laws---Section 76 envisaged "Act to override other laws" i.e. a riding clause and gave effect to statute in terms of special laws having priority over the other general law.

(i) Words and phrases---

----"Adversary system "---Connotation explained.

(j) Interpretation of statutes---

----"Special enactment" and "general law"---Comparison---Special enactment could not be equated with a general law on the subject which did not deal with a particular subject as embraced in its folds by a special law under its own subjective, regularly and procedural provisions---Special statutes inherently by its provisions was a departure from and contrast to a general law containing provisions relating to such subject for which a special statute was made operative---Very objective of enforcing a special law was to bypass the provisions of general law; and it was on account of such express legislative intent that general law had always leaned in favour of special law, except to the impermissible extent under the provisions of such statute; and save to the extent of applicability of remedial or beneficial provisions of general law and not inconsistent to provisions of special law---Law making was the function of legislature and interpretation of laws was the function of the courts---If legislature wanted to promulgate special law setting up a forum for appeal and not giving it power of revision, it could do so, provided such intention was manifestly expressed barring such power---When the legislature specifically provided express bar, then it was to be assumed that legislature had done so purposely and with full awareness.

(k) Criminal Procedure Code (V of 1898)---

----S. 561-A---Inherent jurisdiction of High Court---Scope---Inherent jurisdiction of the High Court under S.561-A, Cr.P.C., was neither specifically nor impliedly barred---Same was available to pass such orders which could be necessary to give effect to any order under Criminal Procedure Code, 1898 or to prevent the abuse of process of any court or otherwise to secure the ends of justice in appropriate case of hardship---Provision of S. 561-A, Cr.P.C. could not be used to override the express provisions of law to offer just another remedy where a remedy already existed or to circumvent the normal course of law because the jurisdiction under S.561-A, Cr.P.C. was an extraordinary one preserved only for extraordinary situations, which power must be exercised sparingly with utmost caution only in exceptional cases and not as a matter of routine, otherwise it could amount to defeating the legislative intent.

(l) Maxim---

----"Quando lex aliquid alicui concedit, concedere videtur id sine quo res ipsa esse non potest": when the law gives a person anything, it gives him that, without which it cannot exist; whenever anything was required to be done by law; and it was found impossible to do that thing, unless something not authorized in express term be also done, then that something else will be supplied by necessary intendment.

A.D. Naseem for Appellant.

Hammad Akbar Wallana, Mian Muzaffar Ahmad, Amicus Curiae and Malik Abdul Aziz Awan, Assistant Advocate-General for the State.

Date of hearing: 2nd August, 2010.


JUDGMENT

WAQAR HASSAN MIR, J.----Through this appeal under section 48 of Control of Narcotic Substances Act, 1997 read with section 435, 139 Cr.P.C, the appellant/State seeks enhancement of sentence awarded to the respondent by the learned trial Court vide order dated 15-10-2008. On the basis of confessional statement made by the respondent, she was convicted under section 9(c) of C.N.S.A., 1997 and sentenced to two years and eleven months' R.I. along with a fine of Rs.3,00,000 and in case of default in payment of fine, to further undergo S.I. for three months. Benefit of section 382-B, Cr.P.C. was extended to the respondent.

2. A case F.I.R. No.93 of 2006 dated 4-11-2006 for offence under sections 9(c)/15 of C.N.S.A., 1997 was registered at Police Station ANF, Lahore against the respondent and his co-accused namely Junaid Iqbal, Javed Iqbal, Mst. Shazia, Mst. Asia and Mst. Asima. It is alleged in the F.I.R. that on the information that the accused namely Junaid Iqbal and Javed Iqbal sell narcotics on Motorcycle No.LWP-3945, a raiding party of police was constituted, which reached in the area of Hussainpura, Chazi Abad and started secret watch around the house of said accused persons; that at about 4-40 p.m., a motorcycle rider entered in the street about whom the informer apprised that he is Junaid Iqbal; that he was apprehended and from his personal search, two packets of Charas, one .30 bore pistol with three magazines and 23 live bullets were recovered, further one shopping bag was also found hanging on the handle of motorcycle of the said accused containing charas, heroin and opium wrapped in small sachets and the total contraband came to 2.070 Kgs. Charas, 295 grams heroin and 120 grams opium; that then the said accused Junaid Iqbal led the police party to his house, where four females were found busy in preparing the small sachets of Charas who disclosed their names as Mst. Fazeelat, Mst. Asia, Mst. Shazia and Mst. Asima, whereas the accused Junaid Iqbal and Mst. Fazeelat on the joint disclosure and pointation got recovered 6 Kgs Charas lying in a room of their house and at the same time and place 2 Kgs Charas and 1.430 Kgs Garda Charas recovered from the possession of accused Mst. Fazeelat Bibi, Mst. Shazia Bibi, Mst. Asia and Mst. Asima, who were busy in preparing the packets of narcotics. It is further alleged in the F.I.R. that on search of house, from 'Jisti Paiti' one .7 MM rifle, one Kalashnikov with two magazines and 20 live bullets, one .12 bore rifle with magazine, Pakistani Currency of Rs.4,47,000 and Defence Saving Certificates of the value of Rs.74,10,000 were also recovered.

3. On 10-8-2007, charge under section 9(c) read with section 15 of C.N.S.A., 1997 was framed against all the accused persons. However, on 15-10-2008 the accused/respondent Mst. Fazeelat Bibi made confessional statement before the learned trial court, which reads as under: --

"Stated, that on 4-11-2006 at about 4-10 p.m. in my House No.36, Street No.2 situated at Hussainpura, Ghaziabad, Lahore myself and my three daughters namely Mst. Shazia, Mst. Asia and Mst. Asima co-accused (since convicted) were apprehended by ANF raiding party while we all were sitting around a heap of 2 Kgs of charas and 1.430 Kgs of Garda charas preparing small packets of narcotics for onward supply to the prospective customers. It is also true that on the same day, time and place my son Junaid Iqbal was also arrested in this case whereafter myself and my son Junaid Iqbal on our joint disclosure and pointing out have led the ANF raiding party to the recovery of 6 Kgs of charas retrieved from a Jisti Peti lying in a room of my residential house. I plead guilty to the charge and put myself at the mercy of the court. I am an old woman of 65 years, my husband has already died And there is none else to look after my three grown up daughters who have already been released from jail after suffering the sentence awarded to them in this case by the court. I request for a lenient view."

The order dated 15-10-2008, impugned in this appeal, is as follows:--

"In view of the confessional statement made by Mst. Fazeelat Bibi accused, it stands established that 2 Kgs of charas and 1.430 Kgs of Garda charas were recovered from the possession of Mst. Fazeelat Bibi accused for which she did not have any legal justification, hence the accused aforesaid is adjudged guilty of offence under section 9(c), C.N.S.A., 1997. Keeping in view that the accused by making confession was repentant on what she has done and have shown a remorse and have saved the precious time of the court and being first offender, her gesture requires a favourable consideration for lesser sentence, the leniency in the sentence in case of. voluntary confession of guilt being a settled policy of courts, (2007 SCMR 206), Mst. Fazeelat Bibi accused is convicted under section 9(c), C.N.S., Act, 1997 and is sentenced to two years and eleven months R.I, along with a fine of Rs.3,00,000 (Rupees three lacs) for three months' S.I. in default thereof. The convict/accused shall get the benefit of section 382-B, Cr.P.C. and the period already spent by her in jail shall be deducted from the sentence announced. The narcotics recovered from the possession of Mst. Fazeelat Bibi accused/convict shall he destroyed by burning after the lapse of period of appeal or revision, if any. Mst. Fazeelat Bibi is already in police custody and is sent to jail for suffering the sentence announced. The personal belongings of convict/accused taken into possession by the I.O. at the time of her arrest shall be returned to her at the end of her sentence."

4. Learned counsel for the appellant has argued that the impugned order is against the law and facts of this case and the conviction is inconsistent with the crime committed by the respondent/accused; that whole family of the respondent/accused. has been found indulged in narcotics business and a huge quantity of contraband was recovered from her possession, which being crime against society always is taken into account very seriously; that the impugned order suffers from misreading and non-reading of incriminating material available on the file; that the learned trial court while passing the impugned order has committed material irregularity and also acted without jurisdiction, therefore, the sentence of the respondent/accused is liable to be enhanced accordingly.

5. On the other hand, learned counsel for the respondent has supported the impugned order and also by relying upon a judgment dated 16-6-2010 passed by a Division Bench of this Court in Criminal Appeal No.424 of 2003 has argued that this appeal is not maintainable as under the law the State is not competent to file an appeal for enhancement of sentence.

6. Heard. Record perused.

7. The filing of this appeal under section 48 of Control of Narcotic Substances Act, 1997 read with sections 435, 439 Cr.P.C. has raised our eyebrows as apparently it has been filed under two different paradoxes, and we were shocked to see, which is glaring ambiguity and got to be resolved. For that, section 48 of Control of Narcotic Substance Act, is reproduced below:--

"(48) Appeal.---(1) An appeal against the order of a Special Court comprising a Sessions Judge or an Additional Sessions Judge shall lie to the High Court and shall be heard by a Bench of not less than two Judges of that Court."

Whether section presents an omnibus provision, giving simultaneously a right to adverse parties to file an appeal; so to see what is appeal and how is it defined.

In Black's Law Dictionary (Eighth Edition), the meanings of "appeal", "appeal by right" and "omnibus" are given as follows:--

"Appeal.--A proceeding undertaken to have a decision reconsidered by higher authority; esp., the submission, of a lower Court's or agency's decision to a higher Court for review and possible reversal."

"Appeal by right.--An appeal to a higher Court from which permission needs not be first obtained."

"Omnibus.--Relating to or dealing with numerous objects of items at once; including many things or having various purposes."

The appeal is a right conferred by the Statute and to one party. Section 435 of C.P.C. reads as under:--

'Power to call for records of inferior Courts. (1)---The High Court or any Sessions Judge, may call for and examine the record of any proceeding before any inferior Criminal Court situate within the local limits of its or his jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of such inferior 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 examination of the record."

Section 439, Cr.P.C. provides as under:

"High Court's powers of revision.--(1)---In the case of any proceeding the record of which has been called for by itself or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by sections 423,- 426, 427 and 428 or on a Court by section 338, and may enhance the sentence; and, when the Judges composing the Court of Revision are equally divided in opinion, the case shall be disposed of in manner provided by section 429.

(2) No order under this section shall be made to the prejudice of the accused unless he has had an opportunity of being heard either personally or by pleader in his own defence.

(3) Where the sentence dealt with under this section has, been passed by Magistrate, the Court shall not inflict a greater punishment for the offence which, in the opinion of such Court, the accused has committed, than might have been inflicted for such offence by Magistrate of the First Class.

(4) Nothing in this section shall be deemed to authorize a High Court:

(a) to convert a finding of acquittal into one of conviction; or

(b) to entertain any proceedings in revision with respect town order made by the Sessions Judge under section 439-A.

(5) Where under this Code an appeal lies and no appeal is brought:, no proceedings by way of revision shall be entertained at the instance of the party who could have appealed.

(6) Notwithstanding anything contained in this section, any convicted person to whom an opportunity has, been given under subsection (2) of showing cause why his sentence should not be enhanced, shall, in showing cause, be entitled also to show cause against his conviction.

The definitions of appeal and revision would show that these are two different phenomenon's, which are to he specifically mentioned in the Statute itself, therefore, section 48 of C.N.S.A. cannot be an omnibus provision. Firstly the Appeal is right as created by the Statute and the other being giving the same cause of action to adverse party.

8. Before proceeding further, it would be relevant to determine whether any appeal for enhancement of sentence is provided under the Control of Narcotic Substances Act, 1997 or whether sections 435 and 439 of Criminal Procedure Code would apply for enhancement of the sentence or under Section 561-A, Cr.P.C. the same can be converted into a writ. First of all, it is emphasized that under the Control of Narcotic Substances Act, there is no provision expressly and exactly with regard to the enhancement of the sentence. Only in section 48 an appeal against the order of a Special Court is provided and it is not clear whether appeal is against the conviction, acquittal or enhancement of sentence. In Criminal Procedure Code, section 417(2) is specifically mentioned qua the acquittal and section 439, Cr.P.C. is with regard to the enhancement of the sentence, thus when there is no unequivocal and clear provision in the C.N.S.A., then how section 48 of C.N.S.A. and sections 435 and 439, of Cr.P.C. could apply simultaneously. However, section 47 of C.N.S. Act, 1997 envisages the application of the Criminal Procedure Code, 1898, which reads as under:

"(47) Application of the Code of Criminal Procedure, 1898.---Except as otherwise provided in this Act, the provisions of the Code of Criminal Procedure, 1898 (Act V of 1898), hereinafter referred to as the Code (including provisions relating to confirmation of a death sentence) shall apply, to trial and appeals before a Special Court under this Act."

From the above narration of the definition, it is vivid that the Criminal Procedure Code shall apply to the trials and appeals before a Special Court. The legislature having used two words "trials and appeals" has specifically ousted the revisional jurisdiction of this Court and whether or not it can be construed as the Code will only apply to trials and appeals. The definition of Special Court as defined in C.N.S.A. does not include High Court, as such section 47 is not attracted to the appeal placed before the High Court.

Further section 73 of Control of Narcotic Substances Act, 1997 provides:--

"(73) Saving of Provincial and Special laws.---(I) Nothing contained in this Act or in the rules made thereunder shall affect the validity of any Federal or Provincial law for the time being in force, or of any rule made thereunder which imposes any restriction or provides for a punishment not imposed by or provided for under this Act or imposes a restriction or provides for a punishment greater in degree than a corresponding restriction imposed by or a corresponding punishment provided for by or under this Act for the cultivation of cannabis plant or consumption of, or traffic in, any narcotics drug or psychotropic substance within Pakistan or other similar matters."

Section 73 is saving clause of Provincially and Federally promulgated special laws and gives simultaneous application of the other laws of the same kind, e.g. Prohibition (Enforcement of Hadd) Order and Custom Laws.

Section 74 of CNSA 1997 reads as under:

"(74) Application of other Laws.---If an offence punishable under this Act, is also an offence in any other law for the time being in force, nothing in that law shall prevent the offender from being punished under this Act:

Provided that nothing contained in section 523 of the Code of Criminal Procedure, 1898 (Act V of 1898), or any other provision of the said Code or any other law for time being in force, the custody of narcotic drugs, psychotropic substances, controlled substances, any material, utensils used for production or manufacture of such drugs or substances or any conveyance used in import, export, transport or transshipment thereof or for commission of an offence under this Act, shall not be given on custody to the accused or any of his associate or relative or any private individual till the conclusion of the case [except as provided in the second proviso to subsection (2) of section 33].

The above section gives protection as to punishment against other laws and the punishment provided under this Act and proviso of the same nullifies the effect of 'superdari' provisions contained in Criminal Procedure Code.

Section 76 envisages "Act to override other laws", i.e., a riding clause and gives effect to the present statute in terms of Special Law having priority over the other General Law.

9. Ours is an adversorial system (According to Black's Law Dictionary (Eighth Edition) "adversary system" means "A procedural system, such as the Anglo-American legal system, involving active and unhindered parties contesting with each other to put forth a case before, an independent decision maker), in which now it is to be seen as to (1) what is right of appeal; (2) what are the revisional powers; (3) if any special enactment in the statute is given overriding effect over the Criminal Procedure Code, whether specifically barred/ousted, or not and certain powers contained in the Criminal Procedure Code can still be vested with the court; (4) three dimensions in the Criminal Procedure Code (i) Appeal under section 110-423, Cr.P.C. (ii) Revision under section 435--440, Cr.P.C. (iii) Appeal against acquittal under section 417--417(2)(A), Cr.P.C. and (5) why expressly provided in the Criminal Procedure Code and why not in the Control 'of Narcotic Substances Act, 1997. For the application of Cr.P.C, legislature in its wisdom has foreseen the exigency of providing different course/routes of law at appellate forum. For understanding what is appeal and revision, Black's Law Dictionary connotation has been provided. Patently revisional power of High Court cannot be taken away but from the recent trend in enactments of special laws, it is noticed that same is being deliberately done away with by the legislature as in Anti-Corruption, Banking, ATA, NAB laws, but till so far decided only section 561-A of Cr.P.C. or Article 199 of the Constitution remains intact and this Court by interpreting judicial dictums have preserved the power to revise or judicially review coupled with its inherent powers. But then again under section 561-A, Cr.P.C, inherent powers of this Court are to be sparingly used and in some extraordinary circumstances where no law is provided to deal with. Therefore, in the given circumstances and as made applicable by this Court, the powers of judicial review cannot also be taken away from this Court and this Court while interpreting other special laws has given dent/room by/for applying powers of judicial review where in the exigencies no procedure is provided for.

10. The definition of "Special Court" does not include the High Court as such section 47 of C.N.S.A., 1997 is not attracted to the appeal filed before the High Court. Section 76 overrides other laws which includes Criminal Procedure Code, which even otherwise has limited application that too before the Special Courts either on original side or appellate side. Since Criminal Procedure Code is not applicable as such no remedy of revision is available because the same has not been provided under this Special Law.

11. The special enactment could not be equated with a general law on the subject which did not deal with a particular subject as was embraced in its folds by a special law under its own substantive, regulatory and procedural provision. Special statute inherently by its provisions was a departure from and contrast to a general law containing provisions relating to such subject for which a special statute was made operative. Very objective of enforcing a special law was to bypass. the provisions of general law and it was on account of such express legislative intent that general law had always leaned in favour of special law except to the impermissible extent under the provisions of such statute and save to the extent of applicability of remedial or beneficial provisions of general law and not inconsistent to provisions of special law.

12. The right of appeal is a creation of statute. It is clearly granted in one place and clearly denied in the other. It cannot be read into one where it is not provided, and unless a right of appeal is clearly and expressly given by the statute it does not exist nor is there any scope for inferring such right by implication. The law making is the function of the legislature and interpretation of the laws is the function of the courts. If legislature wants to promulgate special law setting up a forum for appeal and not giving it power of revision, it can do so provided such intention is manifestly expressed barring such power. When the legislature specifically provides express bar then it is to be assumed that legislature has done so purposely and with full awareness.

13. However, inherent jurisdiction of the High Court under section 561-A, Cr.P.C. is neither specifically barred nor impliedly, therefore, the same is available to pass such orders which may be necessary to give effect to any order under this Code, or to prevent the abuse of process of any Court or otherwise to secure the ends of justice in appropriate case of hardship. But the provisions of section 561-A, Cr.P.C. cannot be used to override the express provisions of law to offer just another remedy where a remedy already exists or to circumvent the normal course of law because the jurisdiction under section 561-A, Cr.P.C. is an extraordinary one preserved only for extraordinary situations which power must be exercised sparingly with utmost caution only in exceptional cases and not as a matter of routine, otherwise it may amount to defeating the legislative intent.

14. There may be cases and circumstances, which are not covered by the express provisions of law i.e. neither any provision covering such cases exists in the Code of Criminal Procedure nor in the Special Law enacted for a specific purpose, because the law-maker may not foresee all the events which may take place in future and no rules which are already in existence can regulate for all times to come, so as to make express provision against all inconveniences, which are indefinite in number and so that their disposition shall express all the cases that may possibly happen in such circumstances, it cannot be said that courts have no power to do justice or to redress wrong merely because no express provision of law can be found to meet the requirements of a case. Every Court in absence of express provisions of law for that purpose be deemed to possess as inherent in its very constitution, all such powers as are necessary to do the right and to undo a wrong in the course of administration of justice. This principle is based on maxim quando lex aliquid alicui concedit, concedere videtur id sine quo res ipsa esse non potest. When the law gives a person anything, it gives him that, without which it cannot exist. Whenever anything is required to be done by law and it is found impossible to do that thing unless something not authorized in express terms be also done then that something else will be supplied by necessary intendment.

15. Since it is clear that in spite of being ouster of power under sections 435 and 139, Cr.P.C, the revisional power of this court cannot be taken away, therefore, by invoking the powers under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, this court can judicially review and set the proceedings in right direction. Resultantly, we hold that though this appeal is not maintainable, but as the appellant can invoke the writ jurisdiction of this court, therefore, this appeal is converted into a writ petition; Office is directed to number it accordingly and fix the same before the court for hearing after notice to the parties.

H.B.T./S-158/L                                                                                    Order accordingly.