ZARAK ARIF SHAH, ADVOCATE HIGH COURT, PESHAWAR vs The GOVERNMENT OF KHYBER PAKHTUNKHWA arts

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ZARAK ARIF SHAH, ADVOCATE HIGH COURT, PESHAWAR VS The GOVERNMENT OF KHYBER PAKHTUNKHWA arts. 2-a, 175 (3), 203 & 264---General Clauses act (X of 1897), S.6---Khyber Pakhtunkhwa Control of Narcotic Substances act (XXXI of 2019), S. 22 (4) [as amended by Khyber Pakhtunkhwa Control of Narcotic Substances (amendment) Ordinance (II of 2020)]---Control of Narcotic Substances act (XXV of 1997), Ss.45 & 46---Subordinate judiciary---Control and supervision---Independence of Judiciary---Implied repeal---Defective doctrine---Subsequent consultation with Chief Justice---Effect---Petitioner was aggrieved of amendment inserted on the basis of Ordinance promulgated by Provincial Governor abridging powers of Chief Justice designating Special Courts without consultation with Chief Justice of Peshawar High Court---Validity---Matters of appointment, promotion, posting, transfer and conferment of powers including terms and conditions of service of members of Subordinate Judiciary, were controlled and governed by High Court of the Province---any legislative enactment in the garb of power of promulgating an Ordinance, for grabbing Constitutionally assigned mandate of Judiciary was not only violative of arts. 175(3) & 203 of the Constitution but also offended against Constitutional scheme of independence of Judiciary enumerated in art. 175 of the Constitution and Objectives Resolution---Inappropriate and unwarranted interference with powers vested in Chief Justice and High Court by any Executive authority, could create an imbalance in Constitutionally empowered organs of the State which resulted into a state of great confusion and turmoil---Division of functions of three main Organs of State were recognized and emphasized by the Constitution---Later statute repealed the earlier statute and by insertion of S.22 in Khyber Pakhtunkhwa Control of Narcotic Substances act, 2019, i.e. specific provision for establishment of Court in Khyber Pakhtunkhwa, provisions of Ss.45 & 46 of Control of Narcotic Substances act, 1997, had lost their efficacy and applicability in Khyber Pakhtunkhwa and was deemed as impliedly repealed---any amendment abridging powers of Chief Justice and High Court and empowering the Executive authority to confer power on a judicial Officer or designate a Court without consultation of Chief Justice, not only amounted to intrusion and encroachment on the powers vested in Chief Justice and High Court but also was violative of arts. 2-a, 175(3) & 203 of the Constitution---Powers conferred upon Sessions Judges, additional Sessions Judges and Judicial Magistrates 1st Class as Special Court under Khyber Pakhtunkhwa Control of Narcotic Substances (amendment) Ordinance, 2020, without consultation and consent of Chief Justice of the High Court was in violation of S.22 of Khyber Pakhtunkhwa Control of Narcotic Substances act, 2019 and arts. 2a, 175(3) & 203 of the Constitution---Such act of government was void ab initio and holder of the posts of Special Judges as Special Court was to be treated as having exercised powers and functions in a defective capacity---High Court protected all acts done and orders and judgments passed by judges so appointed, including all proceedings under Khyber Pakhtunkhwa Control of Narcotic Substances act, 2019, under defective doctrine, as Provincial Government had rectified its mistake through a subsequent notification and had consulted Chief Justice as required under S. 22 of Khyber Pakhtunkhwa Control of Narcotic Substances act, 2019---Constitutional petition was allowed accordingly.

ZARAK ARIF SHAH, ADVOCATE HIGH COURT, PESHAWAR vs The GOVERNMENT OF KHYBER PAKHTUNKHWA arts — 2021 PLD 45 PESHAWAR-HIGH-COURT

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