SAJID KHAN Versus State
MUHAMMAD HASHIM KHAN KAKAR, J.--- Through this petition, the petitioner, Sajid Khan, has assailed the legality of judgement dated 23.12.2024, passed by the Peshawar High Court, Peshawar, whereby the conviction and sentence awarded to the petitioner by the learned Judge Special Court (CNS-III), Peshawar was maintained in crime No. 26/2023 dated 10.02.2023 registered under section 9(2)5 of the Control of Narcotic Substances Act, 1997 ("the Act of 1997") at police station ANF Peshawar.
2. Relevant facts for disposal of the instant petition appear that on spy information regarding presence of the petitioner (involved in narcotics business) and waiting for customers, ANF officials rushed to the spot where the petitioner was found while holding a shopping bag in his right hand. On search of the said shopping bag, one packet methamphetamine (ice) total weighing one KG was recovered, which was taken into possession by the seizing officer.
3. After conclusion of trial, the petitioner was convicted and sentenced under section 11(b) of Khyber Pakhtunkhwa Control of Narcotic Substances Act, 2019 ("the Act of 2019") to suffer 10 years rigorous imprisonment with fine of Rs. 5 lacs and in default whereof to further undergo for one year simple imprisonment with benefit of section 382-B, Cr.P.C. His appeal under section 24 of the Act of 2019 was dismissed by the High Court, however, the sentence of one year simple imprisonment awarded to him in default of payment of fine of Rs.500,000 was modified and reduced to one month simple imprisonment. Hence the present petition for leave to appeal.
4. Mr. Amjad Noor, the learned counsel for the petitioner, does not the press the instant petition on merits and while seeking reduction in the quantum of sentence awarded to the petitioner stated that the first information report was registered under section 9 of the Act of 1997 while the petitioner was convicted and sentenced under section 11-B of the Act of 2019, which is a provincial enactment carrying a more stringent punishment than the corresponding provision under the Act of 1997. While making reference to Article 143 of the Constitution of the Islamic Republic of Pakistan ("the Constitution"), which mandates the supremacy of the Federal legislation over repugnant provincial laws, made a request for moderate reduction in the quantum of sentence. On the contrary, learned Special Prosecutor General for the State/ANF while defending the Trial Court's judgement conceded that there is a conflict between the two laws and that Article 143 of the Constitution does indeed establish the primacy of the Federal legislation. However, he argued that the petitioner was found in possession of narcotic substance and his guilt has been proved beyond reasonable doubt, therefore, the sentence should not be interfered with.
5. At the very outset, it would be pertinent to mention here that section 9 of the Act of 1997 prescribes punishment for contravention of section 6 (Prohibition on production/manufacture), section 7 (prohibition on import/export/transport) and section 8 (prohibition on possession/supply). For quantities exceeding 500 grams but not exceeding one kilograms of a psychotropic substance like methamphetamine, subsection (2) provides " Imprisonment which may extend to seven years but shall not be less than five years along-with fine which may be up to eight hundred thousand rupees ." On the contrary, section 10 of the Act of 2019 prohibits possession, transport or supply of methamphetamine within the province and section 11 provides punishment for contravention of section 10, for quantities of more than 100 grams but not exceeding one kilogram, " imprisonment not less than ten (10) years and shall also be liable to fine not less than five (05) lac. " Admittedly, punishment under section 11(b) of the Act of 2019 is more punitive than the maximum discretionary sentence of upto 7 years under section 9(2) of the Act of 1997 for the same quantity.
6. Admittedly, possession of narcotic drugs and psychotropic substances is an offence under both the Acts under discussion and this Court always emphasized that uniformity in penal sanctions for national issues like narcotics control is imperative. The legal question involved in the instant petition is neither complicated nor novel in nature as Article 143 of the Constitution furnishes a complete answer. As stated above, punishment under the provincial law is more stringent, prescribing a mandatory minimum sentence and a higher maximum term of imprisonment. The Act of 1997 being a Federal law occupies the field and prevails over the Provincial legislation and the resolution of this conflict is dictated by Article 143 of the Constitution, which reads as under:
"If any provision of an Act of a Provincial Assembly is repugnant to any provision of an Act of Majlis-e-Shoora (Parliament) which Majlis-e-Shoora (Parliament) is competent to enact, then the Act of Majlis-e-Shoora (Parliament), whether passed before or after the Act of the Provincial Assembly, shall prevail and the Act of the Provincial Assembly shall, to the extent of the repugnancy, be void."
7. The Trial as well as Appellate Court fell into error of law by applying the provincial law. Once the FIR was registered under the Federal law and evidence was recorded by the Special Court established and notified under the Federal law, the petitioner could only be convicted and sentenced under the provisions of the Act of 1997. The ends of justice demand that a person be sentenced under the law that is constitutionally valid and applicable.
8. For the aforesaid reasons, this petition is dismissed, however, with the following modifications in the impugned judgment:
(i) the conviction of the petitioner under section 11 of the Act of 2019 is set aside and he is convicted under section 9 of the Act of 1997; and
(ii) his sentence of imprisonment is also reduced to 5 years rigorous imprisonment with a fine of Rs.100,000/- and in default thereof to further undergo simple imprisonment for two months.
9. The Registrar of this Court shall send a copy of this judgment to the Hon'ble Chairperson of the Law and Justice Commission of Pakistan, the learned Attorney General for Pakistan and Secretary, Ministry of Law and Justice, Government of Pakistan, for their information and appropriate action.
MH/S-2/SC Appeal allowed.