ISLAMABAD: The Supreme Court on Friday allowed the hearing of an appeal by a convict who challenged the vires of the Control of Narcotics Substances (CNS) Act, 1997 along with her petition seeking suspension of her conviction and sentence in a narcotics case.

Justice Qazi Faez Isa heard Advocate Raheel Kamran Sheikh in his chambers and ordered fixing the appeal of Khadija Shah, a British citizen of Pakistan origin and a single parent, along with her petition that challenged her conviction and sentence.

Earlier on Aug 27, the Supreme Court registrar office had returned her petition with an objection. She had pleaded for the suspension of the execution of her sentence by setting aside the March 18, 2014 conviction by a trial court in the narcotics case.

In her petition, she requested the apex court to declare as void and of no legal effect Section 9(c) of the Control of Narcotics Substances Act 1997 (CNSA) for being violative of Articles 9, 10A, 14 and 25 of the Constitution.

Admits for hearing British citizen’s appeal against her conviction

Khadija had been sentenced by the Special Court (Control of Narcotic s Substances), Rawalpindi, and the ruling was later upheld by the Rawalpindi bench of the Lahore High Court.

An FIR (16/2012) was registered against her at the Anti-Narcotics Force police station, Rawalpindi, under Section 9(c) of the CNSA. She was apprehended by ANF personnel from the departure lounge of Benazir Bhutto International Airport, Islamabad, when she came to board flight (PK-791) bound for Birmingham (the UK). A hefty amount of heroin weighing 63.5 kilograms was allegedly recovered from her luggage.

At the time of her arrest, she was 25 and a mother of two children namely five-year-old Ibrahim Munir and four-year-old Alisha Munir and was six months pregnant. She gave birth to her third child, Malaika Munir, in prison during the course of her trial.

The trial court awarded life imprisonment to her and imposed a fine of Rs300,000. In case of non-payment of fine, she was to undergo further simple imprisonment for one year and six months, the court ruled.

In her appeal, she contended that as manifest from jail pro forma, the probable date of her release from jail was Feb 13, 2024. Being British citizens, the children had been taken back to the UK and were in the guardianship of their maternal grandmother, namely Sulma Shah, a 65-year-old lady suffering from ischemic heart disease, arthritis and joint pain, she added.

The appeal contended that the judgements of the trial court and the high court were unsustainable in law and the conviction as well as sentence awarded to the petitioner were not in accordance with the principles of law governing safe administration of justice in criminal cases and, therefore, liable to be reversed.

The petition contended that Section 9(c) of the CNSA was discriminatory, since for the purpose of sentencing, the same failed to reasonably classify between different categories of offenders charged with offences specified in Sections 6, 7, or 8. Likewise, distinction is drawn between kingpins and mere carriers, habitual offenders and first-timers, the able-bodied and the ailing, hardened criminals and vulnerable actors, as also the offenders having no social ties and those who have dependents to take care of, etc.

The strict prescription of death or mandatory imprisonment for life under Section 9(c) of the CNSA amounted to legislative judgement and a usurpation of the judicial function vis-à-vis sentencing discretion of a judge, the petition contended.

The petitioner argued that it was not only violative of the doctrine of separation of powers that served as the bedrock of constitutional scheme but also undermined the fundamental right to fair trial, embodied within Article 10-A of the Constitution that ought to equally apply to a determination of appropriate sentence by an independent and impartial court, through fair and due process of law.

Published in Dawn, September 28th, 2019