Police officers walk past the Supreme Court of Pakistan building, in Islamabad, Pakistan April 6, 2022. REUTERS
ISLAMABAD:
The Supreme Court has ruled that federal legislation will prevail over repugnant provincial laws, declaring that the Control of Narcotics Substances Act, 1997 supersedes the Khyber-Pakhtunkhwa Control of Narcotics Substances Act, 2019 in cases of conflict.
The ruling was handed down by a division bench headed by Justice Muhammad Hasham Kakar while hearing a narcotics case, in which the court held that the federal law would govern sentencing where the two statutes prescribe differing punishments for the same offence.
The judgment assumes significance as it reinforces constitutional supremacy under Article 143 and clarifies that provincial legislation imposing harsher penalties cannot override a validly enacted federal statute occupying the same field.
According to the facts of the case, acting on spy information regarding the presence of the petitioner, allegedly involved in the narcotics business and waiting for customers, Anti-Narcotics Force (ANF) officials rushed to the spot, where the petitioner was found holding a shopping bag in his right hand.
Upon searching the bag, one packet of methamphetamine (ice), weighing one kilogram, was recovered and taken into possession by the seizing officer.
“After conclusion of trial, the petitioner was convicted and sentenced under section 11(b) of Khyber Pakhtunkhwa Control of Narcotic Substances Act, 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 subsequently dismissed by the Peshawar High Court.
The judgment notes that Section 9 of the Control of Narcotics Substances Act, 1997 prescribes punishment for quantities exceeding 500 grams but not kilograms of a psychotropic substance such as methamphetamine.
Subsection (2) provides: “Imprisonment which may extend to seven years but shall not be less than five years, along with a fine which may be up to eight hundred thousand rupees.”
“On the contrary, section 10 of the Khyber-Pakhtunkhwa Control of Narcotics Substance Act 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.”
The court observed that, admittedly, punishment under Section 11(b) of the Act of 2019 is more punitive than the maximum discretionary sentence of up to seven years under Section 9(2) of the Act of 1997 for the same quantity.
The judgment stated that the legal question involved was neither complicated nor novel, as Article 143 of the Constitution provided a complete answer.
Addressing the present matter, the court held that both the trial court and the appellate court had fallen into an error of law by applying the provincial statute. It noted that once the FIR was registered under the federal law and evidence recorded by the Special Court established under that law, the petitioner could only be convicted and sentenced under the Act of 1997.
Accordingly, the SC set aside the petitioner’s conviction under the provincial law and convicted him under the federal statute.
