Syed Iftikhar Shah v. Federation of Pakistan through Secretary, Ministry of Law and Justice, Islamabad and others

PESHAWAR HIGH COURT, PESHAWAR

(Constitutional Jurisdiction) W.P. No. 9294‐P/2025

Syed Iftikhar Shah

Vs .

Federation of Pakistan through Secretary, Ministry of Law and Justice, Islamabad and others

Petitioner(s) by: M/S Noor Alam Khan & Fawad Afzal Khan Safi, Advocates for petitioner.

Respondent(s) by: Mr. Taimoor Khan, AAG for Federation. Mr. Waqar Orakzai, AAG for Provincial Government.

Research Assistance: Mazhar Ali Khan, Deputy Registrar, PHC.

Dates of hearing: 25.03.2026.

JUDGMENT

SYED ARSHAD ALI, J.‐

1.Through this instant petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (Constitution), the petitioner, Syed Iftikhar Shah, assails the constitutional validity of Section 526B of the Code of Criminal Procedure, 1898 (Cr.P.C.), as inserted by the Code of Criminal Procedure (Khyber Pakhtunkhwa Amendment) Act, 2025 (Khyber Pakhtunkhwa Act No. IV of 2025). Consequentially, the petitioner challenges the legality of the transfer of his criminal case, arising from FIR No. 115, dated 16.01.2025, registered under Section 9‐D of the Khyber Pakhtunkhwa Control of Narcotic Substances Act, 2019 (KPCNSA), from the Special Court (Narcotics) to the Special Judge, Anti‐Terrorism Court‐II, Peshawar (ATC‐II).

2.The genesis of the present controversy lies in the petitioner’s arrest in connection with the aforementioned FIR. His trial was initially pending before an Additional

Sessions Judge (ASJ), Peshawar, who was designated as a “Special Court” under Sections 2(a) and 2(o) of the KPCNSA, vested with exclusive jurisdiction over narcotics matters pursuant to Sections 22 and 23 of the said Act. However, subsequent to the promulgation of the Cr.P.C. (Khyber Pakhtunkhwa Amendment) Act, 2025, and a consequential administrative notification issued by Peshawar High Court, Peshawar (Endorsement No. 8171‐82/PHC/SDJ/HRW dated 08.09.2025), the petitioner’s case was transferred to the ATC‐ II, Peshawar.

3.The core contention of the petitioner is that the ATC, being a creature of a distinct statute (Anti‐Terrorism Act, 1997), lacks the inherent or statutory jurisdiction to try offences exclusively triable under the KPCNSA. It is argued that the amendment to the general law (Cr.P.C.) cannot override or confer jurisdiction contrary to the specific, self‐ contained jurisdictional mandates and non‐obstante clauses of the special parent statute, i.e., the KP CNSA. This challenge primarily invokes the principle of generalia specialibus non derogant, asserting that special laws must prevail over general laws.

4.The singular question requiring our adjudication in this writ petition is whether the newly inserted Section 526B of the Cr.P.C., which empowers the High Court to transfer criminal cases from a Court of Session to a Special Court or between Special Courts, constitutes a valid exercise of legislative authority, or if it is ultra vires the Constitution for purportedly encroaching upon the exclusive jurisdiction and non‐obstante clauses enshrined in special statutes like the KPCNSA.

5.The Khyber Pakhtunkhwa Act No. IV of 2025

introduced Section 526B into the Cr.P.C., which reads as follows:

“526B. Power to transfer cases to Special Courts.‐‐‐ (1) Notwithstanding anything contained in any other law for the time being in force, the High Court, under intimation to Government, may, if considers it expedient so to do in the interest of justice, transfer any case‐

(a)from Court of Session to a Special Court; or (b) from one Special Court to another Special Court.

(2)Upon transfer of a case under sub‐section (1), any connected case or cases shall also stand transferred.

(3)A special Court, to which the case is transferred under sub‐section (1), shall be deemed to be the Court, in which the case was originally instituted, and shall have all the powers and jurisdiction of such Court.

(4)A Special Court, to which the case is transferred under sub‐section (1), shall proceed with the case from the stage, at which it was pending, immediately before such transfer, and it shall not be bound to recall and rehear any witness, who has given evidence, and may act on the evidence already recorded.

Explanation: In this section, the words “Court of Sessions” and “Special Court”, shall have the same meanings as have been assigned to them respectively by the Code or any special law.”

6.This newly enacted provision embodies two crucial legislative devices: a non‐obstante clause in sub‐ section (1) and a deeming clause in sub‐section (3), the legal implications of which are central to resolving the present controversy. The central contention of the petitioner that the transfer of a narcotics case to an Anti‐Terrorism Court through Section 526B Cr.P.C. constitutes an impermissible and permanent alteration of the ATC’s substantive statutory jurisdiction, rests on a fundamental misapprehension of judicial administration. Jurisdiction operates on two distinct planes: substantive (subject‐matter) jurisdiction and procedural (adjudicatory or functional) jurisdiction. Section 526B Cr.P.C. does not alter or enlarge the permanent, substantive subject‐matter jurisdiction of the ATC under its parent statute. Instead, it equips the transferee forum with

case‐specific functional jurisdiction derived directly from a valid statutory command, ensuring that procedural rules serve rather than subvert the ends of justice.

7.The operational cornerstone of Section 526B is the deeming clause in sub‐section (3), which mandates that a transferee Special Court “shall be deemed to be the Court in which the case was originally instituted, and shall have all the powers and jurisdiction of such Court.” The Supreme Court of Canada in R. v. Verrette [1978] 2 S.C.R. 838, 845, defined the deeming clause as: “a deeming provision statutory fiction; as a rule it implicitly admits that a thing is not what it is deemed to be but decrees that for some particular purpose it shall be taken as if it were that thing although it is not or there is doubt as to whether it is.” It is a well‐settled principle of statutory construction across common law jurisdictions that a deeming clause creates a statutory legal fiction. When the legislature mandates that a court treat a state of affairs as existing, the judiciary is bound to carry that fiction to its logical conclusion. Reference may also be made to Rizzo & Rizzo Shoes Ltd. (Re) [1998] 1 SCR 27; Canada Trustco Mortgage Co. v. Canada [2005 SCC 54]; Survivance v. Canada [2006 FCA 129]; Quebec (Revenue) v. Caisse populaire Desjardins de Montmagny [2009 SCC 49]; and Canada (Judicial Council) v. Girouard [2019 FCA 148]. The foundational precedent established by the UK House of Lords in East End Dwellings Co. Ltd. v. Finsbury Borough Council [1952] AC 109, per Lord Asquith governs this field:

"If you are bidden to treat an imaginary state of affairs as real, you must also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it... The statute says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state

of affairs."

8.The above principle has been consistently affirmed by the Hon’ble Supreme Court in Syed Muddasar Shah Termizi v. Peshawar High Court [2021 SCMR 116], elucidating that a deeming clause necessitates giving full effect to the statutory fiction it creates, requiring courts to recognize all consequences and incidents that naturally flow from that fiction. Similarly, the Supreme Court in Muhammad Mubeen‐us‐Salam v. Federation of Pakistan [2006 PLD 602 SC], clarified that a deeming clause is strictly limited to the specific purpose for which it was created and cannot be extended beyond the language of the section to import additional fictions or collateral consequences not intended by the legislature. The worthy Lahore High Court in Noor Muhammad Khan v. Board of Revenue [PLD 1976 Lahore 1061], held that when the law commands the Court to treat an imaginary state of affairs as real, the Court must look at the fiction and not the actual facts. Reference may also be made to Dr. Abdul Nabi v. Executive Officer, Cantonment Board, Quetta [2023 SCMR 1267] & State of Bombay v. Pandurang Vinayak [AIR 1953 SC 244]. Applying these principles, the deeming clause under Section 526B(3) does not reclassify an ATC judge into a CNSA judge in perpetuity. Rather, it imposes a mandatory statutory fiction: for the limited purpose of the transferred proceeding, the transferee court stands in the legal shoes of the transferor court, inheriting all its inherent trial powers, statutory procedural rules, and evidentiary standards.

9.The petitioner further asserts that Section 526B cannot override the exclusive jurisdiction provisions of special laws like the KPCNSA. This argument fails when evaluated against the mechanics of the non‐obstante clause

in Section 526B(1) starting with the phrase “Notwithstanding anything contained in any other law for the time being in force...”. As elucidated in Arif Hussain Shah v. Operation Director (PLD 1979 Lahore 603), the term “non‐ obstante” means “despite” or “in spite of,” and it serves to set aside as no longer valid any existing law that is inconsistent with the new enactment. This device is deliberately employed by the Parliament or Provincial Assembly to make a provision paramount, ensuring it prevails irrespective of contradictory mandates in other statutes. However, to reconcile the conflict between a general enactment and a special law, we must apply the principles established worthy Islamabad High Court in Messrs Federal Bank for Cooperatives, Islamabad v. Commissioner of Income Tax, Companies Zone, Islamabad (2021 PTD 1203), which clarify that while a special law generally prevails over a general law, a statute later in time (as the latest expression of the legislature’s intent) will prevail if it contains an explicit non‐obstante clause. This overriding power is not absolute; according to Syed Mushahid Shah v. Federal Investment Agency (2017 SCMR 1218), a non‐obstante clause is invoked only to resolve “irreconcilable conflicts” after a thorough analysis of the object, purpose, and policy of the competing statutes.

10.Furthermore, the Supreme Court in Muhammad Mohsin Ghuman v. Government of Punjab through Home Secretary, Lahore (2013 SCMR 85) cautioned that a special enactment is not automatically overridden by a later general enactment simply because the latter opens with a non‐ obstante clause; rather, there must be a “clear inconsistency” between the two. In the instant case, the clear inconsistency arises between the exclusive jurisdiction of the

CNSA Courts and the High Court’s newly mandated power to transfer cases for the ends of justice. By enacting Section 526B, the legislature has provided a specific and definitive expression of intent to override previous jurisdictional barriers. As held by this Court in Dr. Azhar Khan Jadoon v. Registrar, Peshawar High Court (2026 PHC 1251), the inclusion of such a clause in the parent legislation that governs the hierarchy of courts allows the legislature to “pierce the veil of exclusivity” that usually surrounds special tribunals. Therefore, the general transfer power of the High Court, as updated by the latest legislative expression, effectively carves out a valid exception to earlier special laws, ensuring that the ends of justice and fair trial are prioritized.

11.Reverting to the challenge on constitutional grounds, Article 175(2) of the Constitution unequivocally stipulates that “No Court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law.” This fundamental constitutional provision provides that the jurisdiction of every court in Pakistan is not inherent but is a creature of either the Constitution itself or a law made by the competent legislature. The Provincial Assembly of Khyber Pakhtunkhwa, within its legislative domain, is fully empowered to enact laws pertaining to criminal procedure in terms of Article 142(b) of the Constitution, including amendments to the Cr.P.C. The insertion of Section 526B, therefore, falls squarely within the legislative competence of the Provincial Assembly. By enacting this provision, the legislature has validly conferred upon the High Court, and consequently upon the transferee Special Court, the specific jurisdiction to transfer and try cases in the manner prescribed. This is a clear exercise of legislative power to

confer jurisdiction “by or under any law” as envisaged by Article 175(2). In light of these settled principles, Section 526B Cr.P.C. is an unassailable exercise of legislative authority. It creates a valid statutory bridge, enabling the High Court to fulfill its supervisory duty under Article 203 of the Constitution without undermining the integrity of special tribunals or violating constitutional limits. Therefore, the contention that the transfer mechanism is ultra vires the Constitution lacks merit.

12.The petitioner’s heavy reliance on the doctrine of generalia specialibus non derogant, asserting that the general provisions of the Cr.P.C. cannot override the exclusive jurisdictional mandates of special statutes like the KPCNSA rests on a flawed premise regarding implied repeal and statutory conflict. As a fundamental principle of statutory construction, the rule lex posterior derogat priori (a later statute abrogates an earlier one) applies when two statutes are so inherently inconsistent that they cannot stand together, or where the later statute makes express reference to the earlier enactment.

13.However, as established by the Indian Supreme Court in R.S. Raghunath v. State of Karnataka [AIR 1992 SC 81], a special enactment or rule cannot be held to be overridden or impliedly repealed by a later general enactment simply because the latter opens with a non‐ obstante clause, unless there is a clear, irreconcilable inconsistency between the two legislations. This doctrine was further elucidated in Chandra Prakash Tiwari v. Shakuntala Shukla [AIR 2002 SC 2322], where the Inidan Supreme Court approved Broom’s Legal Maxim and reiterated the precedent set in Maharaja Pratap Singh Bahadur v. Thakur Manmohan Dey [AIR 1966 SC 1931],

holding that:

“It is then, an elementary Rule that an earlier Act must give place to a later, if the two cannot be reconciled ‐ lex posterior derogat priori ‐ non est novum ut priores leges ad posteriores tranhantur‐and one Act may repeal another by express words or by implication; for it is enough if there be words which by necessary implication repeal it. But repeal by implication is never to be favoured, and must not be imputed to the legislature without necessity, or strong reason, to be shown by the party imputing it. It is only effected where the provisions of the later enactment are so inconsistent with, or repugnant to, those of the earlier that the two cannot stand together; unless the two Acts are so plainly repugnant to each other that effect cannot be given to both at the same time a repeal cannot be implied; and special Acts are not repealed by general Acts unless there be some express reference to the previous legislation, or a necessary inconsistency in the two Acts standing together, which prevents the maxim generalia specialibus non derogant from being applied. For where there are general words in a later Act capable of reasonable application without being extended to subjects specially dealt with by earlier legislation, then, in the absence of an indication of a particular intention to that effect, the presumption is that the general words were not intended to repeal the earlier and special legislation, or to take away a particular privilege of a particular class of persons.”

14.Similarly, in Ashoka Marketing Ltd. v. Punjab National Bank (AIR 1991 SC 855), the Supreme Court of India held:

“61. The principle which emerges from these decisions is that in the case of inconsistency between the provisions of two enactments, both of which can be regarded as Special in nature, the conflict has to be resolved by reference to the purpose and policy underlying the two enactments and the clear intendment conveyed by the language of the relevant provisions therein.”

15.Applying these settled principles to the present matter, the enactment of Section 526B Cr.P.C. does not result in an implied repeal, curtailment, or extinction of the substantive jurisdiction of Special Courts established under specific statutes like the KPCNSA or the Anti‐Terrorism Act, 1997 (ATA). There is no inherent or direct inconsistency

between the substantive jurisdiction conferred upon Special Courts by their parent enactments and the High Court’s procedural authority to transfer cases under Section 526B. Neither statute forbids the operation of the other. The special enactments create and define the jurisdiction of Special Courts, while Section 526B provides an administrative and adjudicatory mechanism for the transfer of specific files in the interest of justice.

16.Consequently, the controversy before us does not turn on a collision between a general law and a special law, nor on a struggle for prevalence between an earlier and a later enactment, as no statutory repugnancy exists. The Special Courts established within the province fall squarely within the administrative hierarchy and supervisory jurisdiction of the High Court under Article 203 of the Constitution, which mandates that the High Court shall supervise and control all courts subordinate to it. By invoking Section 526B, the High Court does not strip a Special Court of its statutory character or permanently rewrite its jurisdictional boundaries under its parent Act. Instead, in the valid exercise of its constitutional supervisory role and statutory transfer authority, the High Court merely shifts functional jurisdiction over a specific case or class of cases to another competent forum within its supervisory umbrella to ensure a fair, secure, and expeditious trial under Article 10A of the Constitution.

17.The insertion of Section 526B into the Cr.P.C. does not introduce an alien legal concept, nor does it create an unprecedented judicial power. Rather, it codifies, clarifies, and streamlines an authority already inherent in and structurally available to the High Court under its overarching statutory and constitutional mandate. Long

prior to this amendment, the High Court exercised extensive authority under Section 526 Cr.P.C. to transfer criminal proceedings across forums to secure a fair trial and serve the ends of justice. In Ahmad Omar Saeed Shaikh v. The State [2002 SCMR 1562], the Supreme Court of Pakistan upheld the transfer of proceedings between Anti‐Terrorism Courts, highlighting the expansive scope of transfer powers under Section 526 Cr.P.C. read with Section 28 of the Anti‐ Terrorism Act, 1997 (ATA) to ensure witness protection and a secure judicial environment. Furthermore, as recognized in Muhammad Akbar Khan v. SHO [2017 PCrLJ 1280], while ordinary trial courts lack the authority to transfer matters to Special Courts, the High Court demonstrably possesses such power under Section 526(3) Cr.P.C. Therefore, Section 526B merely gives explicit statutory expression to this pre‐ existing supervisory authority, creating a structured mechanism for transfers between Courts of Session and Special Courts, or between Special Courts inter se, under the High Court’s administrative superintendence.

18.Building upon this foundation, the petitioner’s specific objection that an Anti‐Terrorism Court (ATC) lacks jurisdiction to try a narcotics case because it is not a “scheduled offence” under the ATA, 1997, fails to account for the transformative legal fiction enacted by Section 526B(3) Cr.P.C., as discussed supra. While an offence under the KPCNSA is not per se a scheduled offence under the ATA, the statutory deeming clause commands that upon transfer, the transferee Special Court “shall be deemed to be the Court in which the case was originally instituted and shall have all the powers and jurisdiction of such Court.” Pursuant to the principles articulated in East End Dwellings Co. Ltd. and Syed Muddasar Shah Termizi (supra), this legal fiction must be

carried to its logical conclusion. The transfer does not alter the general scheduled jurisdiction of the ATC in perpetuity; rather, it clothes the ATC with case‐specific functional jurisdiction, conferring upon it all the statutory powers, procedures, and evidentiary rules of the Special Court (CNSA) for the limited trial of the transferred matter.

19.Crucially, ATCs are courts of competent jurisdiction presided over by judicial officers drawn from the cadre of District & Sessions Judges, appointed in accordance with Article 175 of the Constitution. As observed in Ali Nawaz v. State [2024 PCrLJ 658], the High Court possesses full authority to transfer cases, including those not originally classified as scheduled offences to an ATC when extraordinary circumstances, public safety, or witness protection so demand. Because the transferee judge possesses identical judicial qualifications and operates under full procedural safeguards, such a transfer causes no prejudice to the accused and fully respects the fundamental right to a fair trial guaranteed under Article 10A of the Constitution.

20.Finally, the petitioner’s challenge to the administrative notification (Endorsement No. 8171‐ 82/PHC/SDJ/HRW) issued by this Court to give effect to the transfer is constitutionally unsustainable. The administrative actions, orders, and notifications of the High Court issued under the authority of the Chief Justice or the Judges collectively are immune from challenge via a writ petition before the same High Court. In Gul Taiz Khan Marwat v. Registrar, PHC [PLD 2021 SC 391], the Supreme Court authoritatively settled that a High Court cannot issue a writ against itself or against its own administrative functions performed by its Judges under Article 199 of the

Constitution. Allowing a litigant to challenge such an administrative transfer order through a judicial writ on the original side would compel the High Court to sit in judgment over its own official acts, a posture incompatible with judicial propriety and institutional integrity. The administrative notification in question was issued in valid exercise of the High Court’s constitutional powers of superintendence under Article 203, read with the express statutory machinery of Section 526B Cr.P.C.

21.In light of the foregoing, Section 526B of the Cr.P.C. is held to be a constitutionally valid exercise of legislative authority under Article 142(b) and Article 175(2) of the Constitution. It does not repeal, extinguish, or alter the substantive jurisdiction of Special Courts, but provides a valid procedural framework for the High Court to exercise its supervisory function under Article 203. Consequently, the transfer of the petitioner’s case to the Special Court (ATC) carries full legal sanction, and the instant writ petition, being devoid of merit, is hereby dismissed.

JUDGE

JUDGE

Date of hearing & announcement Of Judgment...............25.03.2026

Nawab Shah CS (DB) Justice Syed Arshad Ali & Justice Sadiq Ali