PESHAWAR: The Peshawar High Court has ruled that the amendment made in the relevant law last year prohibiting remissions to convicts in narcotics cases could not be applied retrospectively to persons convicted prior to it.

A bench consisting of Justice Ishtiaq Ibrahim and Justice Sahibzada Asadullah accepted three petitions filed by convicts challenging withholding of remissions to them by the authorities of respective prisons in the light of amendments made in the Control of Narcotics Substance Act (CNSA), 1997, last year.

One of the petitioners three petitioners, Ajab Khan, contended that as he was convicted in 2020, prior to the said amendments, therefore, those changes in the law could not be applied with retrospective effect to him.

Advocate Noor Alam Khan and Fawad Afzal Safi appeared for the petitioners and contended that the Control of Narcotics Substance (Amendment) Act 2022 was passed by the Parliament and published in the official Gazette on Sept 6, 2022.

Court rules Control of Narcotics Substance (Amendment) Act 2022 can’t be applied retrospectively

They stated that through the said amendments a new section 9(A) was incorporated in the CNSA which provided that no remission in any sentence should be allowed to a person, who was convicted under this Act. They added that the said section further provided that neither probation in any sentence should be allowed nor any accused convicted under the Act should be released on parole.

Noor Alam stated that his client Ajab Khan was arrested on Sept 18, 2019, on charges of smuggling 11kg heroin and was charged under section 9-C of the CNSA.

He stated that the petitioner was convicted by the trial court on Nov 13, 2020, and was sentenced to life imprisonment with fine of Rs100,000. He added that the court had also extended benefit of section 382-B of the Code of Criminal Procedure to the petitioner, under which his period of detention prior to his conviction, had to be counted in his prison term.

He stated that his appeal was partially accepted by the high court in Oct 2022 and his prison term was reduced to eight years, whereas the fine was maintained.

The counsel stated that before the amendments made in the law, several remissions permissible under the prison rules and announced by the government from time-to-time were granted to the petitioner. However, he stated that after the said amendments the prison authorities had withdrawn the remissions from the petitioner.

Moreover, he added that the petitioner was a first time offender and because of his good conduct he was also entitled to be released on parole under the Good Conduct Prisoners Probational Release Act, 1926.

He contended that under the Constitution of Pakistan these amendments could not be applied retrospectively. He added that as the petitioner was arrested in 2019 and convicted in 2020, therefore, the law introduced in 2022 could not be applied to him as well as other prisoners convicted before it.

The Khyber Pakhtunkhwa government had opposed the contention of the petitioners stating that under the CNS (Amendment) Act 2022, they were not entitled to remissions.

The government adopted the plea that in a similar nature case the director reclamation and probation had stated that prisoner convicted under section 9 of the CNSA was not covered/eligible under the Good Conduct Prisoners Probational Release Act.

Published in Dawn, September 23rd, 2023