When ‘act’ does not Tantamount to ‘Offence’

Before any illegality or commission of offence the state legislatures have to legislate a law against that act that has to be declared illegal, or an offence and is punishable under the eye of law.

In case where the ‘act’ has been committed without any prior law in field, the state under no circumstances can punish the offender or accused person because his act absolved him from being declared as “Offender”, or “criminal” therefore is not punishable under any law. In a case where any  drug has not been declared as “illegal drug” by the Ministry of Narcotics, Pakistan and has been exported via foreign vessel/cargo and left the chores of Pakistan water/territory. During its voyage towards its destination in sea waters after months the same has been declared as illegal being Psychotropic Substance vide SRO, Ministry of Narcotics, Pakistan. In this scenario, the act cannot be considered as ‘continuation of offence’ as the export of the drug has not been declared illegal at the time of export, therefore it cannot be considered as an offence as there was no law in the field when the drug left the chores of Pakistan territory. Therefore, does not countable as  “ continuation of an offence”.

Secondly section 4 of the Pakistan Penal code states:

Extension of Code to extra territorial offence- The provisions of this Code apply also to any offence committed by-

  • Any citizen of Pakistan or any person in the service of Pakistan in any place without and beyond Pakistan
  • Any person or any ship or aircraft registered in Pakistan under this Code.

Provisions of this section sufficiently add in case, where any offence has been committed in a vessel that has been registered in Pakistan or for other matter a Pakistani citizen present on a vessel in waters going from Pakistan to any other country and a law has been implemented and declared the drug illegal and export also therein, then it will be considered an offence punishable under the law.

Fact of the matter is that in case when the vessel is Malta foreign registered and the vessel is a cargo vessel as there was no Pakistani or any other person was on the vessel, it cannot be considered as ‘continuation of offence’ while still being on voyage towards its destination. 

Lastly, Article 12 of the constitution states: Protection against retrospective punishment 1. No law shall authorize the punishment of a person a. for an act or omission that was not punishable by law at the time of the act or omission; or b. for an offence by a penalty greater than, or of a kind different from, the penalty prescribed by law for that offence at the time the offence was committed.2. Nothing in clause (1) or in Article 270 shall apply to any law making acts of abrogation or subversion of a Constitution in force in Pakistan at any time since the twenty-third day of March, one thousand nine hundred and fifty-six, an offence.

Article 12 of the Constitution does not specifically define ‘judiciary’. This gives the judicial authorities the power to pronounce decisions pertaining to cases of present nature where the law does not hold field when offence has been committed and when it holds the field it does not have retrospective effect.   

Under Article 12 of the Constitution of Pakistan, 1972

No law will act in retrospective   notwithstanding the above, when the ‘act’ does not included as a term ’offence’, than the benefit of doubt goes in favor of the exporter who have exported the drug which was  not illegal at that time.

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