ISLAMABAD: The Supreme Court on Monday asked the Anti-Narcotics Force’s (ANF) special prosecutor to seek fresh instructions from the federal government regarding proposed amendments to the Control of Narcotic Substances Act (CNSA), 1997.

A seven-judge SC bench headed by Justice Manzoor Ahmad Malik adjourned the hearing on a petition when Special Prosecutor Raja Inam Ameen informed the court that the government had proposed in the National Assembly a set of amendments to the sentencing policy under the CNSA. The set of amendments by the federal government is pending before a standing committee of the National Assembly.

Deputy Attorney General Syed Nayab Gardezi represented the federal government. The question at hand revolves around the 2009 Lahore High Court guidelines for lower courts to be exercised while deciding the quantum of sentence under the CNSA. The issue being discussed is, can the LHC indulge in judicial legislation by usurping the role and functions of the legislature.

On July 14, 2009, a Supreme Court bench had suggested formation of a larger bench to determine if the LHC can set the principle or guidelines for lower courts in the matter of quantum of sentence while convicting and sentencing an accused under the CNSA.

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The larger bench so formed also has to examine whether or not the guidelines set by the high court were in consonance with the law.

Later, on Aug 31, 2009, a four-judge bench headed by Justice Khalilur Rehman Ramday, while hearing the same issue, held that the principle laid down by the high court warranted re-examination, with a directive that notice also be issued to the attorney general. The bench had appointed senior counsel Barrister Aitzaz Ahsan and Khawaja Haris Ahmed as amici curiae to assist the court in the matter.

The apex court, however, suspended the operation of the principle laid down by the high court.

Earlier, Justice Asif Saeed Khosa as judge of LHC in the judgement in question had noted that the sentences provided for the CNSA were prescribed with reference to the quantity of the recovered contraband narcotic substances rather than the kind or nature of the recovered contraband.

The judgement had held that different kinds of contraband narcotic substances covered by the CNSA vary sharply in their harmful nature of dangerous effects as a huge quantity of one substance might be less harmful or dangerous than a small quantity of another substance.

Thus, in many situations a sentencing approach by the lower courts were based only on the quantity of the recovered substance, a trend which may lead to unjust and oppressive results and to punishments which may be unduly cruel and harsh, the high court had held.

Consequently, the high court proposed its own sentencing criteria or the duration of imprisonment for different quantities of different contraband narcotic substances to be followed by trial courts.

The new sentencing policy was suggested by the high court with an observation that it was being done keeping in view the accumulated judicial wisdom and experience to balance it with the interest of justice in the overall social and economic context.

After being elevated as a Supreme Court judge, Justice Asif Saeed Khosa approved the same principle while deciding a case relating to the recovery of narcotic substances.

The sentences specified in the CNSA depend upon the quantity of the recovered narcotic substance and not upon the content of the recovered substance. Thus, the quantity in such cases is the determinative factor as far as the sentences are concerned, the SC judgement had held, adding that it was absolutely necessary that in all such cases there should be no room for doubt as to the exact quantity of the substance recovered.

Published in Dawn, October 1st, 2019