Amendment 2022 in section 9A cnsa not effect on the convicted person who are convicted before 2022.

Form No:HCJD/C-121

ORDER SHEET

LAHORE HIGH COURT, MULTAN BENCH, MULTAN

JUDICIAL DEPARTMENT

Case No.

Writ Petition No.16629 of 2023

Imran Mustafa

Versus

Government of Punjab, etc

S.No. of order/

Proceeding

Date of order/

Proceeding

Order with signature of Judge, and that of

Parties of counsel, where necessary.

21.11.2023

Mr. Muhammad Usman Sharif Khosa, Advocate

for the petitioner/convict.

Miss Samina Mahmood Rana, Assistant

Advocate General with Dr. Qadeer Alam, AIG

(Prison), Punjab.

Mr. Muhammad Ali Shahab, Deputy Prosecutor

General.

Kizar Abbas, SO (Legal), Home Department,

South Punjab.

Instant is a petition that has been filed by

Imran Mustafa (convict herein) under Article

199(1)(ii) of the Constitution of Islam Republic of

Pakistan 1973 (hereinafter referred to as the

“Constitution”) with the supplication that reads:

“…awfully implored that instant

solicitation be approved and

application of newly inserted

Section 9(A)1 be declared as

having no legal effect on the

petitioner/convict as he was

charge sheeted under Section 9-C

Control of Narcotic Substances

Act, 1997 prior to promulgation

of Narcotic Substances Amended

Act, 2022 dated 5th September,

2022.

It is correspondingly prayed that

respondent No.2 be directed to

award all special remission earned

by the petitioner on special

occasions since his arrest on

12.11.2020 till to date and his

sentence be reduced accordingly.

Writ Petition No.16629 of 2023

It is correspondingly prayed that

respondent No.2 be directed to

award all monthly, quarterly as

well as

annually ordinary

remission earned by the petitioner

since his arrest on 12.11.2020 till

to date and his sentence be

reduced accordingly.

Any other relief………..”

Facts in brief giving rise to the filing of

instant petition are that convict having been

booked in case F.I.R. No.810 of 2020 dated

12.11.2020, under section 9(c) of the Control of

Narcotic Substances Act, 1997 (“CNSA, 1997”),

registered at Police Station Qutabpur, Multan was

sent to face the trial and after being indicted and

tried was convicted under section 9(c) of

CNSA, 1997 and sentenced to ten years and six

months rigorous imprisonment with fine of

Rs.50,000/-, in default of payment of fine to

further undergo simple imprisonment for eight

months.

Convict assailed his conviction and sentence

before this Court by way of filing Criminal Appeal

No.514/2022 which was dismissed vide judgment

dated 15.12.2022 by maintaining his conviction,

however, sentence awarded to him by learned trial

court was reduced to rigorous imprisonment for six

years by also maintaining the amount of fine and

imprisonment in default whereof. Convict who

was rounded up on 12.11.2020 in above referred

case requested the respondents for his release but

was informed that owing to insertion of section

9(A) (1) through an Act namely Control of

Narcotic Substances (Amendment) Act, 2022 (Act

No.XX of 2022) (hereinafter referred to as the

Writ Petition No.16629 of 2023

“Amendment Act, 2022), no remission could have

been awarded to him and his probable date of

release as told was 24.01.2025. Hence, this

petition.

Report was requisitioned from respondent

No.2 and same was submitted containing their

stance precisely that in view of insertion of section

9(A) (1) through an amendment promulgated

under Amended Act, 2022, no remission in

sentence for the prisoners convicted under CNSA,

1997 could have been granted.

Learned counsel for the convict contended

that when convict was booked in the case and even

when was indicted and convicted, provisions of

section 9(A) (1) were not inserted in CNSA, 1997

and even the provisions of section 9(A) (1) of

Amendment Act, 2022 had no retrospective effect

as the said section do not contain any provision

signifying the intention of legislature qua its

applicability with retrospective effect. Learned

counsel by placing reliance on “Shah Hussain v.

The State” (PLD 2009 SC 460) and “Nazar

Hussain and another v. The State” (PLD 2010 SC

1021) argued that convict is entitled to earn

remissions.

Learned Law Officers argued that in reply to

the guidance sought by Inspector General of

Prisons, Punjab, Lahore from Government of

Punjab, Law and

Parliamentary Affairs

Department through letter No.OP:15-11/2023/5503

dated 28.09.2023, opined that the principle of grant

of no remissions in sentence seems to be

applicable in all cases from the date of insertion of

Writ Petition No.16629 of 2023

the Amendment Act, 2022 notwithstanding

anything contained in Prison Rules, 1978. Learned

Law Officers, however, when confronted with the

query put by us that where certain rights were

available with the convict qua his entitlement to

get the benefit of remissions in accordance with

existing law when he was arrested, tried and

convicted, how he can be deprived of getting

remissions in view of insertion of section 9(A) (1)

through Amendment Act, 2022 that was inserted

subsequent to his conviction and sentence, failed to

meet the point.

Heard either of the sides and record perused.

The moot point that requires our

consideration and its decision is that whether the

provisions of section 9(A) (1) of the Amendment

Act, 2022 have retrospective effect and in turn

depriving of the convict who has been arrested,

indicted and convicted before 06.09.2022 when the

said section was inserted. Undeniably convict was

rounded up on 12.11.2020 in case

F.I.R. No.810/2020 dated 12.11.2020, under

section 9(c) of CNSA, 1997, registered at

Police Station Qutabpur, Multan and after having

been sent to face trial, was indicted on 23.12.2020

and was convicted and sentenced on 10.05.2022.

There is also no denial to the fact that section

9(A) (1) was introduced by virtue of an

amendment through the Amended Act 2022 dated

06.09.2022. Provisions of section 9(A) (1) are

reproduced hereunder for the facility of ready

reference:

“9(A)(1) Notwithstanding anything

contained in any other law or prison

Writ Petition No.16629 of 2023

rules for the time being in force, no

remissions in any sentence shall be

allowed to a person, who is convicted

under this Act:

Provided that in case of a juvenile or

female convicted and sentenced for an

offence under this Act, remission, may

be granted as deemed appropriate by

the Federal Government.”

Bare perusal of above would vividly suggest

that same have given no retrospective effect by the

legislature. Even it does not transpire therefrom

that the rights available to an accused involved in

case falling within the purview of CNSA, 1997

prior to the amendment made on 06.09.2022 have

been taken away in any manner whatsoever. The

provisions of section 9(A) (1) of Amendment Act,

2022 from their bare reading are prospective in

nature and same cannot be given effect

retrospectively by placing any sort of embargo on

the right of a convict qua earning remissions who

had been arrested, indicted and even convicted

prior to insertion of section 9(A) (1) through

Amendment Act, 2022. Almost similar sort of

point in issue was taken up and dealt with by this

Court in case “M. Aslam Mouvia v. Home

Secretary and others” (PLD 2011 Lahore 323),

wherein after having referred to good number of

case laws on the moot point by the apex Court, this

Court resolved the same in the following terms:

“20. The trial of the petitioner

commenced before insertion of

section 21-F of the ATA. Certain

rights had already accrued in favour

of the petitioner by way of his

entitlement to the benefit of

remissions in accordance with law in

the field at the relevant time i.e. the

time that the alleged offence was

committed, F.I.R. was registered

against him, he was arrested and his

16629 of 2023

trial commenced. Any subsequent

changes in law would not have the

effect of depriving him of the rights

which were available to him at the

time when the offence was

committed and the trial commenced.

In addition, there is nothing in

section 21-F of ATA to indicate even

remotely that it has retrospective

operation or that it has the effect of

taking away the rights that were

available to certain convicts under

the prevalent law when the offence

was committed, the F.I.R. was

registered or the trial commenced.

Looked at from this point of view,

the provisions of section 21-F are

prospective in nature and, therefore,

cannot take away or affect the rights

which were available to the petitioner

at the relevant time. In support of this

contention, reliance may also

usefully be placed on the dictum of

the honourable Supreme Court of

Pakistan in the case of Commissioner

Sindh Employees etc. (2002 SCMR

39).

21.

In the case of Pakistan Steel

Mills (2002 SCMR 1023), the

honourable Supreme Court of

Pakistan has held that any

amendment in law will not take

away, empower, nullify or destroy a

vested right, which has attained

finality and has become past and

closed transaction. Admittedly,

registration of the case against the

petitioner, his arrest and initiation of

his trial were all prior to the insertion

of section 21-F. As a result, the

dictum of the honourahle Supreme

Court of Pakistan in the aforesaid

cases is clearly applicable to the facts

and circumstances of the present

case. In Muhammad Rafi ud Din's

case reported as PLD 1971 SC 252

and Hassan's case reported as PLD

1975 SC 1, it has clearly and

unambiguously been laid down that

where a law was altered during

pendency of an action, the rights of

the parties are to be decided

according to the law as it existed

when the action was initiated and not

under the law prevailing on the date

of the judgment/order. Looked at

from this angle also, the act of the

Writ Petition No.16629 of 2023

respondents whereby the petitioner

has been denied the benefit of

remissions under the Pakistan Prisons

Rules is neither legally justified nor

sustainable.

(Underlining is to supply emphasis).

The dicta laid down in case referred supra is

squarely applicable to the facts and circumstances

of the instant case on its all fours and we see no

reason to take a different view.

As natural and logical corollary to the above

discussion, we hold the convict entitled to earn

remissions albeit insertion of section 9(A) (1) in

CNSA, 1997 through Amendment Act, 2022.

Petition in hand is allowed with the direction to

respondent No.2 to grant remissions to the convict

in accordance with law and rules. Office is

directed to transmit copies of this order to the

Additional Chief Secretary (Home), Government

of the Punjab, Home Department, Lahore and I.G.

Prisons, Punjab, Lahore, who in turn will circulate

this order to Superintendents of all the Jails in the

Province of Punjab for compliance.

(Sardar Muhammad Sarfraz Dogar) (Shakil Ahmad

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