DOST MUHAMMAD Versus THE STATE

ORDER

F.I.R. No.105 was registered on 14-3-1997 at Police Station City Mianwali against the petitioner under Articles 3 and 4 of the Prohibition (Enforcement of Hadd) Order, 1979 (hereinafter referred to as "the Order") on the allegation that 25 grams of heroin was recovered from the from the possession of the petitioner on 14-3-1997.

2. Learned counsel for the petitioner, inter alia, submits that the Control of Narcotic Substances Ordinance (XLIII of 1997 (hereinafter referred as "the Ordinance") was promulgated on 7-3-1997 which covered the subject-matter and that under section 9 thereof maximum punishment provided for the offence allegedly committed by the petitioner it two years as quantity allegedly recovered from the petitioner was less than 100 grams. He submits that in the presence of the Ordinance, which override other laws according to section 81 thereof, the provisions of the Order would not be applicable. On the other hand, learned A.A.-G., who has entered appearance on Court call, submits that the present case has been registered under Articles 3 and 4 of the Order, and therefore, the petitioner would be tried and, if found guilty convicted and punished under the Order which provides punishment of imprisonment for life to a person found in possession of more than 10 grams of heroin. Learned A.A.-G. has also referred to section 26 of the General Clauses Act, which is as follows: '.

"Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for same offence."

He also submits that since the F.I.R. has been registered under Articles 3 and 4 of the Order, the petitioner could be tried and punished under the same Order.

The learned law Officer has not cited any authority on the point that notwithstanding the promulgation of the Ordinance on 733-1997, the petitioner could be challaned, tried and punished under the provisions of the Order. He 'relied on section 26 of the General Clauses Acts and argued that the case against the petitioner was validly registered under Articles 3 and 4 of the Order.

4. Section 79 of the Ordinance is as follows-

"If an offence punishable under this Ordinance, 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 Ordinance."

Similarly section 81 of the Ordinance provides that "the provisions of this Ordinance shall have effect notwithstanding anything contained in any other law for the time being in force".

5. The joint reading of section 79 and section 81 of the Ordinance makes it clear that the provisions of the Ordinance had overriding effect for those matters not covered by proviso to section 79 thereof. Therefore, the case against the petitioner aught to have been registered under the provisions of the Ordinance and the same law could be followed for the trial and conviction of the petitioner. Looking from another angle, I am of opinion that the provisions of the Ordinance, being more favourable and beneficial to the accused-petitioner, should attract to and applied in the present case and cannot be left to the discretion of the prosecuting agency.

6. Section 9 of the Ordinance provides the punishment of two years for the person who is found in possession of the heroin, less than 100 grams. Allegedly the petitioner was found in possession of 25 grams of heroin, and therefore, under section 9 of the Ordinance the petitioner can be awarded maximum punishment of two years. Thus, his case does not fall within the prohibitory clause of section 497, Cr.P.C. The petitioner was arrested on 4-3- 1997 and since then is behind the bars. The petitioner is, therefore, admitted to bail, subject to his furnishing bail bonds in the sum of Rs.50,000 (Rupees fifty thousand only) with two sureties each in the like amount to the satisfaction of the learned Trial Court, Copy Dasti.

H.B.T./D-12/L Bail granted.