THE STATE through Mehmood Ahmad Butt, Deputy Director, Regional

ASIF SAEED KHAN KHOSA, J.---Mst. Fazeelat Bibi respondent was tried in case F.I.R. No, 93 registered at Police Station Anti-Narcotics Force, Lahore on 4-11-2006 in respect of an offence under section 9(c) of the Control of Narcotic Substances Act, 1997 and also in respect of an offence tinder section 13 of the Pakistan Arms Ordinance, 1965 and vide order dated 15-10-2008 passed by the learned Judge, Special Court, CNS, Lahore she was, on the basis of a confession made by her, convicted for an offence under section 9(c) of the Control of Narcotic Substances Act, 1997 and was sentenced to rigorous imprisonment for two years and eleven months and a fine of Rs,3,00,000 or in default of payment thereof to undergo simple imprisonment for three months. The benefit under section 382- B, Cr.P.C. Was extended to her. The State preferred Criminal Appeal No,1263 of 2008 before the Lahore High Court, Lahore seeking enhancement of the sentence passed by the learned trial court against the respondent but on 18-8-2010 it was held by a learned Division Bench of the Lahore High Court, Lahore that the appeal filed by the State was not maintainable and the appeal so filed was ordered to be converted into a Writ Petition. We have been informed that the State's appeal converted into a Writ Petition is still pending before the said Court. The finding of the Lahore High Court, Lahore regarding non-maintainability of the State's appeal had been challenged before this Court by the State through Criminal Petition No, 974-L of 2010 which was allowed by this Court on 23-12-2010 and leave to appeal was granted "inter alia to consider whether the learned High Court in dismissing State's appeal has correctly interpreted the import of section 48 of the Control of Narcotic Substances Act, 1997". Hence, the present appeal before this Court.

2. We have heard the learned Special Prosecutor for the Anti-Narcotics Force appearing for the State/appellant and have also heard the learned counsel for the respondent besides having gone through the record of the case with their assistance.

3. After hearing the learned counsel for the parties and going through the record of the case with their assistance we have observed that the learned Division Bench of the Lahore High Court, Lahore had held that the State's appeal seeking enhancement of the respondent's sentence recorded by the learned trial court was not maintainable because the provisions of section 48 of the Control of Narcotic Substances Act, 1997 read with section 47 of the said Act did not contemplate maintainability of any appeal seeking enhancement of a convict's sentence. For facility of reference the provisions of sections 47 and 48 of the Control of Narcotic Substances Act, 1997 are reproduced below:

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 trials and appeals before a Special Court under this Act.

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.

(2) An appeal against the order of a Special Court comprising a Judicial Magistrate shall lie to a Special Court comprising a Sessions Judge or an Additional Sessions Judge.

' The impugned judgment passed by the learned Division Bench of the Lahore High Court, Lahore shows that the learned Division Bench had not read the provisions of section 47 of the Act correctly and had, thus, erred in law in concluding that under section 48 of that Act an appeal is not maintainable if through such appeal a sentence of a convict is sought to be enhanced. The learned Division Bench was of the impression that because the Code of Criminal Procedure, 1898 was applicable to the proceedings of a Special Court under the Control of Narcotic Substances Act, 1997, therefore, the scheme of the Code of Criminal Procedure Code, 1898 vis-a-vis an appeal against conviction, an appeal against acquittal and a revision petition seeking enhancement of a sentence was also applicable to such remedies in a case under the Control of Narcotic Substances Act, 1997. We have found such an impression entertained by the learned Division Bench of the Lahore. High Court, Lahore to be erroneous because the provisions of section 47 of the Control of Narcotic Substances Act, 1997 have made the Code of Criminal Procedure applicable "to trials and appeals before a Special Court under this Act" which shows that only the procedure provided in the Code of Criminal Procedure is applicable to trials and appeals provided for under the Act of 1997 and section 47 of the Act of 1997 has not transposed any remedy of appeal or revision from the Code of Criminal Procedure to the Act of 1997. It ought to have been appreciated by the learned Division Bench of the Lahore High Court, Lahore that a remedy of an appeal, revision or review is a creation of a statute and applicability of the procedure prescribed in the Code of Criminal Procedure to proceedings under any other special statute does not ipso facto make the remedies provided in the Code of Criminal Procedure applicable to the other statute. The Control of Narcotic Substances Act, 1997 is a special law containing all the relevant remedies catering for different situations and section 47 of the said Act has only made the procedure contained in the Code of Criminal Procedure applicable to the proceedings under the Act of 1997.

4. The provisions of section 48(1) of the Control of Narcotic Substances Act, 1997 clearly and unambiguously contemplate an appeal to a High Court against an order passed by a Special Court comprising of a Sessions Judge or an Additional Sessions Judge and in the case in hand the learned Judge, Special Court, CNS, Lahore trying the respondent was a Sessions Judge. The right of appeal conferred by section 48(1) of the Control of Narcotic Substances Act, 1997 is all pervasive catering for every kind of appeal from every kind of order passed by such a Special Court and the provisions of section 48(1) of the Control of Narcotic Substances Act, 1997 do not make any distinction between an appeal against a conviction, an appeal against an acquittal or an appeal seeking enhancement of a sentence passed against a convict. The restrictive scope of section 48 of the Control of Narcotic Substances Act, 1997 visualized by the learned Division Bench of the Lahore High Court, Lahore confining it only to an appeal against conviction has been found by us to be offensive to the clear and unambiguous provisions of the said section and, thus, the same cannot be sustained or upheld by us.

5. For what has been discussed above this appeal is allowed, the impugned judgment passed by the Lahore High Court, Lahore on 18-8-2010 is set aside and Criminal Appeal No, 1263 of 2008 filed by the State before the Lahore High Court, Lahore is restored to its original number which shall now be decided by the said Court on its merits.