AZMAT KHAN vs THE STATE
This criminal appeal arose from the judgment of the Peshawar High Court, which had dismissed the appellant's petition for post-arrest bail regarding an offence under Article 3/4 of the Prohibition (Enforcement of Hadd) Order 1979 involving the alleged possession of 5 kilograms of opium. The core legal question was whether an amendment introduced by Ordinance XXIV of 1993—which omitted the word 'Raw' before 'Opium' and made possession of opium exceeding one kilogram punishable with life imprisonment—applied retrospectively to an offence committed prior to its promulgation. The Supreme Court accepted the appeal and granted bail to the appellant in the sum of Rs. 50,000 with three sureties. The Court held that penal amendments increasing punishment or altering substantive law do not operate retrospectively to the detriment of an accused person for an offence committed before the amendment took effect.
- Does a penal amendment omitting 'Raw' from Article 4 of the Prohibition (Enforcement of Hadd) Order 1979 apply retrospectively to offences committed before its enactment?
- Can an accused be subjected to enhanced punishment under an amendment enacted after the date of the alleged commission of the offence?
- Article 3, Prohibition (Enforcement of Hadd) Order 1979
- Article 4, Prohibition (Enforcement of Hadd) Order 1979
ORDER
' Leave granted in this case against the judgment of the Peshawar High Court, Peshawar, dated 7- 4-1993; whereby the appellant's prayer for grant of bail in an offence under Article 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979, was dismissed.
2. The accused/appellant was apprehended with 5 kilogram of Opium and his bail application having been rejected by the lower Court he approached the High Court. The learned Judge in the Chamber dismissed the appellant's petition in his view that the offence under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979 is punishable with imprisonment for life. It was contended by the learned counsel that it was the possession of "Raw Opium" which is punishable with imprisonment for life and not opium as held in Noor Hussain v. The State (PLD 1992 F.S.C. 497). It was further contended that appellant was arrested with the Opium on 24-1-1993 but so far he has not been put on trial.
3. The learned Addl. Advocate-General, however, argued that Article 4 of the Order has been amended by Ordinance 24 of 1993 dated 26-9-1993 whereby the word "Raw" has been omitted and now possession of opium exceeding one kilogram is punishable with imprisonment for life. It was further argued that challan against the accused/appellant has now been submitted and P.Ws.
Have been summoned for the date fixed in the case.
4. The learned counsel for the appellant, however, argued that the amendment is not retrospective to make it applicable to the present case.
5. We find force in the contentions of the learned counsel for the appellant. Accordingly, the appeal is accepted and the appellant is allowed bail in the sum of Rs,50,000 with three sureties in the like amount from the men of means and from the settled area to the satisfaction of the trial Court.
Cited by 2 cases
- Khalid Mattoo vs The State & another 2022 LHC 6207
- MUHAMMAD ALI vs THE STATE 1997 MLD 1065