C.P.No.D-1899 of 2009
Present: Mr. Justice Muhammad Ather Saeed &
Mr. Justice Muhammad Ali Mazhar.
Date of hearing : 28.02.2011
Petitioners : Haji Muhammad Iqbal and others.
Respondents : Muhammad Saeed and others.
Mr. Muhammad Anwar Tariq, Advocate for the petitioner.
Mr. Muhammad Ashraf Khan Mughal, Deputy Attorney General.
Mr. Saifullah, Assistant Advocate General.
Ms. Akhtar Rehana, Additional Prosecutor General.
Mr. Ashfaq Hussain Rizvi, Special Prosecutor ANF.
Muhammad Ali Mazhar, J.:- This constitution petition is brought for the quashment of FIR No.537/2009 registered under section 6/9-C of Control of Narcotic Substances Act, 1997 at police station SITE, Karachi, with the following prayer:-
A) Declaring that the registration of FIR No.537/2009 under section 6/9-C of control of Narcotic Substances Act, 1997 by the P.S. SITE Area, Karachi, and further proceedings conducted thereof i.e. investigation and submission of report under section 173 Cr.P.C. by respondents No.1 and 2 are without authority, usurpation of power and coram non judice.
B) That in consequence of such unauthorized and illegal registration of the case pending proceedings before respondent No.3 i.e. special case No.236 of 2009 (State versus Haji Muhammad Iqbal & others) be declared as nullity in the eye of law and may be quashed.
C) That since the petitioners are in custody, they may be released forthwith by way of interim order with further direction that the proceedings pending before the respondent No.3 i.e. special case No.236 of 2009 (State versus Haji Muhammad Iqbal & others) till the hearing and disposal of this petition be stayed.
D) Any other relief, which this hon’ble court may deem fit and proper.
2. The brief facts as stated in the petition are that petitioner No.1 is running business in shop No.44 under the name and style of “Baba Fareed Burger & Gold Drink” near Godhra hospital, New Karachi and owns a Suzuki van registration No.CJ-7927, which is on permanent rental for pick and drop of two shifts of various students of Universal Grammar School. The petitioners No.2 and 3 are the loader and driver employed by the petitioner No.1 to pick and drop the students and during summer vacations in the aforesaid educational institution, this vehicle was being used for picnic parties.
3. While the petitioner No.3, the driver of the vehicle and petitioner No.2 were returning from their assignment, two persons gave signal to them and the petitioner No.2 stopped the vehicle. The said persons told them that their vehicle had gone out of order due to some fault and requested them to shift their goods/stock on their Suzuki van. They agreed to do so against the fare of Rs.500/-. At the time of loading the goods, the persons informed that the goods contains hosiery items/cut pieces. When they reached near Philips John company, SITE area Karachi, they were stopped by the police officials along with respondent No.2 and on search of the vehicle charas of huge quantity was recovered from the said vehicle. The petitioners No.2 and 3 were brought at police station SITE area Karachi, whereafter petitioner No.1 was also called by the police from his house and on his refusal to accede to their alleged illegal demand, petitioner No.1 along with other petitioners was involved in crime No.537/2009 and thereafter seizure memo was prepared. The challan has been submitted in the competent court and charge has already been framed against the petitioners. The petitioners have challenged that the proceedings carried out by the respondents No.1 and 2 including registration of FIR, investigation and submission of challan under section 173 Cr.P.C. including the framing of charge are all illegal and ab initio void, therefore this petition has been filed with the prayer that the proceedings against the petitioners are liable to be quashed.
4. We have heard the learned counsel for the parties and have perused the record.
5. The learned counsel for the petitioners argued that after promulgation of Control of Narcotic Substances Act, 1997, which has come into force w.e.f.11.07.1997, Anti Narcotics Force has been created to inquire into and investigate the offences relating to narcotics, therefore in presence of the aforesaid Act and after creation of Anti Narcotics Force, local police is not vested with any right or authority to register the FIR and the entire process including the registration of FIR, investigation and trial of case is coram non judice. Learned counsel referred to section 3 of the Anti Narcotics Force Act, 1997 in which Narcotics Force has been constituted and he also referred to section 5 of the same Act, which provides the functions of Force in which it is, inter alia, provided that the Force shall inquire into, investigate and prosecute all offences relating to or connected with, preparation, production, manufacture, transportation, illicit trafficking or smuggling of intoxicants, narcotics and chemical precursors and reagents used in the manufacture of narcotics, or any offence committed in the course of the same transaction under any law for the time being in force, including an attempt or conspiracy to commit, or any abetment of any such offence.
6. The learned counsel also referred to Section 28 of the Control of Narcotic Substances Act, 1997, which provides that the Federal government may invest any officer of law enforcement agency or any other officer within their respective jurisdiction with the powers of an officer-incharge of a police station for the investigation of offence under this Act and in order to substantiate his arguments, the learned counsel argued that since in this case under section 28, the Federal government has not invested the police with the powers of an officer-incharge of a police station for the investigation of offence, therefore no proceedings could be initiated against the petitioners. The learned counsel for the petitioners has relied upon and reproduced S.R.O. 600(I)/97 dated 07.07.1997 in the memo of petition by virtue of which power of investigation has been delegated in the aforesaid Notification, which reads as under:-
“S.R.O.600(I)/97 dated 07.07.1997.- In exercise of the powers conferred by section 28 of Control of Narcotic Substances Act, 1997 (XXV of 1997), the Federal Government is pleased to invest the members and officers not below the rank of Sub-Inspector of the Anti Narcotics Force and Excise, Customs and Revenue Departments and Frontier Corps, in the Provinces of Balochistan and the Northern West Frontier, with the powers of an officer-in-charge of a police station for the investigation of offences under the said Act.”
7. According to learned counsel, since the respondents No.1 and 2 were not authorized or vested with any power under the aforesaid Notification issued under section 28 of the Control of Narcotic Substances Act, 1997, therefore action taken by them against the petitioners is nullity in the eyes of law. The learned counsel has also relied upon and reproduced another Notification S.R.O.no.787(I)/2004 dated 16.09.2004 in the memo of petition which has been issued in exercise of the powers conferred by subsection (1) of Section 21 of the Control of Narcotic Substances Act, 1997, which reads as under:-
“SRO No.787(I)/2004 dated 16.09.2004. In exercise of the powers conferred by sub-section (1) of section 21 of Control of Narcotic Substances Act, 1997 (XXV of 1997), and in supersession of its Notification No.S.R.O. 656(I)/2004 dated 2nd August, 2004, the Federal Government is pleased to authorize the members of not below the rank of Sub-Inspector or equivalent of the Anti Narcotics Force, Provincial Excise and Police Departments, Inspector or equivalent of the Customs Department and Subedar in the Frontier Corps in the Provinces of Balochistan and the North-West Frontier, Sub-Inspector or equivalent of Pakistan Rangers (Sindh), Sub-Inspector or equivalent of Pakistan Rangers (Punjab). Naib Supedar or equivalent of Pakistan Coast Guards and to the officers of Maritime Security Agency not below the rank of Chief Petty Officer to exercise the powers and perform the functions under the aforesaid section and sections 22, 23, 37(2) and 38 of the said Act within the area of their respective jurisdiction.”
8. The learned counsel argued that the above Notification excludes the powers of local police to take any action under section 21 of the aforesaid Act and if it is assumed that the local police has been given power to search, seize and arrest the person found involved under any offence of the aforesaid Act, the respondents No.1 and 2 have failed to comply with the requirements of subsection (2) of section 21 of the Control of Narcotic Substances Act, 1997, which was mandatory requirement and non-compliance of which negated the entire action. He further argued that the respondents No.1 and 2 have also failed to comply with the requirement of section 27 of the aforesaid Act, which makes it mandatory that every persons arrested and articles seized under a warrant issued under section 20 shall be forwarded without delay to the authority by whom the warrant was issued and every person arrested and article seized under section 20 or section 21, shall be forwarded without delay to the officer-incharge of the nearest police station and the special court having jurisdiction. The learned counsel laid much emphasis that offences under Control of Narcotic Substances Act, 1997 are to be exclusively dealt with by Anti Narcotics Force, therefore the proceedings initiated by the respondents No.1 and 2 are nothing but an abuse of the process of court. It is trite principle of law that a thing required to be done in a certain way must be done in that way and not otherwise. In support of his arguments, the learned counsel for the petitioners relied upon the following case law:-
1. PLD 2009 SC 194 (State Life Insurance Corporation versus Jaffar Hussain). In this matter, the hon’ble supreme court has held that the high court under Article 199 of the constitution is not entitled to substitute its own direction for that of the authority whose decision is questioned or interfered with findings of facts arrived at upon a proper appreciation of the entire evidence or material available before such authority. Excessive use of lawful power was also unlawful and could attract the judicial review jurisdiction of superior courts.
2. PLD 2002 Karachi 464 (Syed Murad Ali Shah versus Government of Sindh). In this case, the learned divisional bench of this court held that as per well settled principles laid down by the hon’ble supreme court it has been the practice and procedure when it is demonstrated to the high court that when a complaint, investigation, report or other step either in lodging of an FIR or prosecution of a criminal case is patently against the provisions of any law or otherwise no case can possibly be made out then this court has been clothed with the jurisdiction to quash the same as no useful purpose would be served to keep the matter lingering on. This in fact amounts to an abuse of the process of a court of law.
3. PLD 1994 SC 486 (Maritime Security Agency, Karachi versus Muhammad Saleem Khan). In this matter, the hon’ble supreme court has held that if quashment of a criminal case is sought on the ground that the charge is groundless or that there is no probability of the accused being convicted of an offence, which questions cannot be decided without appraisal of the evidence or the material placed on record or where the question is, whether the facts as alleged in the F.I.R. or in a direct complaint constitute an offence or not, the high court should insist upon that the above questions should be agitated before the trial court under section 249-A, or 265-K, Cr.P.C. as the case may be or through any other permissible mode before invoking the jurisdiction of the high court, however, if the quashment of criminal proceedings is sought on the ground that the proceedings are ex facie without jurisdiction and continuation of the same will constitute abuse of the process of the court, the high court will entertain proceedings without insisting upon that a party should first approach the trial court.
4. PLD 1997 SC 408 (State versus Bashir). In this case, a plea was raised that CIA personnel have no power under Cr.P.C. to investigate a cognizable offence and to submit a challan in respect thereof and, therefore the entire trial vitiated on account of coram non judice. The hon’ble supreme court dilated upon this issue whether this illegality/irregularity if already committed by the C.I.A. personnel would vitiate the trial and observed that subsection (2) of section 156, Cr.P.C. expressly provides that no proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate It is an admitted position that the C.I.A. is part of the police force. It is in fact a special branch carved out from the police force for special purpose. Violation of section 156(1) of the Cr.P.C. may not vitiate trial if no serious prejudice has been caused to the accused person concerned resulting in miscarriage of justice in view of above subsection (2) of section 156, Cr.P.C. but it does not mean that the C.I.A. personnel should knowingly violate the above provision of the Cr.P.C. On the contrary, they are legally duty bound to ensure the supremacy of law.
5. PLD 1989 Karachi 157 (Ali Hussain versus Presiding Officer, Special Court). In this case, the learned divisional bench of this court held that if a criminal proceeding before a tribunal is ex facie without jurisdiction, the high court may not insist upon the filing of an application by an accused under section 249-A, Cr.P.C. or 265-K, Cr.P.C. It is well settled principle of law that when an impugned action or proceeding is without jurisdiction, high court will not decline its constitutional jurisdiction merely on the ground that the alternate remedy by way of an appeal or revision has been provided under any other law.
6. 1999 P.Cr.L.J. 1909 (Ch. Alla-ud-din versus S.S.P. District Sargodha). This matter relates to section 3 of the Federal Investigation Agency Act, 1974 in which the Federal Government has right to constitute an agency to be called FIA for inquiring into an investigation of the offences specified in the schedule. The learned single judge of Lahore high court has held that section 202 Cr.P.C. empowers the court to send a complaint filed before it to any judicial officer subordinate to it or to any other police officer. This section does not empower the police officer to hold an inquiry or investigate a case about which the police officer has no jurisdiction.
7. 1968 P.Cr.L.J. 97 (Mst. Mumtaz Begum versus The State). This matter pertains to West Pakistan Suppression of Prostitution Ordinance, 1961, in which the learned single judge of the Lahore high court held that a qualified power of arrest is given to certain police officers under section 13 of the aforesaid Ordinance. It excludes the general power of arrest by the police officers. The offences under the West Pakistan Suppression of Prostitution Ordinance, 1961 are not cognizable offences. It is now a well settled proposition of law that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all.
8. 1978 P.Cr.L.J. 812 (Muhammad Yaqoob versus The State). This matter related to Federal Investigation Agency Act, 1974, in which the learned single judge of this court held that the Federal Investigation Agency Act, 1974 was promulgated only to empower the Federal Police to investigate certain offences, as formerly only the provincial police had powers to investigation under the Code of Criminal Procedure. Under this Act, it has been provided that in respect of the offences enumerated under the Schedule, the Federal Investigation Agency will exercise the same powers as the provincial police under the Code of Criminal Procedure. It is nowhere mentioned in the Federal Investigation Agency Act, 1974 that the offences specified in the Schedule to that Act would be regarded as cognizable offences and F.I.A. could send up a charge-sheet in respect of them.
9. The learned AAG argued that there is no illegality committed by the respondents No.1 and 2 and they properly lodged the FIR. He also referred to the notification dated 16.09.2004 reproduced by the learned counsel for the petitioner himself in the memo of petition, which was issued in exercise of powers vested in under sub-section (1) of section 21 of the Control of Narcotic Substances Act, 1997 and argued that under this notification police department is empowered to exercise the powers provided under Sections 21, 22, 23 & 37(2) of the Control of Narcotic Substances Act, 1997. He vehemently opposed the petition and referred to a judgment reported in 2008 SCMR 1254 (Zafar versus The State). This criminal appeal was directed against the judgment passed by this court, whereby criminal appeal was dismissed and the conviction was maintained. The learned counsel for the appellant in that case argued that the occurrence had not taken place within the jurisdiction of the police station ANF-II, Muhammad Ali Society where on the day of occurrence P.W. Syed Liaqat Ali was posted and he was not authorized to arrest the appellant and register the case in his own police station. It was further argued that the Investigating Officer himself was the complainant as well as the witness of recovery and no independent witness from the public has been associated by the police (ANF) and all the witnesses of occurrence and recovery were the government employees and they had deposed against the appellant just in their subordination. The appeal was dismissed by the hon’ble supreme court by holding that the provisions of sections 20 to 22 of the Control of Narcotic Substances Act, 1997 being directory, non-compliance thereof would not be a ground for holding trial/conviction bad in the eyes of law and on this ground, the conviction of the appellant cannot be set aside. The hon’ble supreme court further referred its earlier judgments reported in 2001 SCMR 36; 2003 SCMR 881; and PLD 2004 SC 394, wherein it was observed by the hon’ble supreme court that where provisions of Control of Narcotic Substances Act are directory in nature, non-compliance of the same is not fatal.
10. The Additional Prosecutor General also vehemently opposed the petition and argued that while registering the case against the petitioners, the respondents No.1 and 2 had not committed any illegality and under the law they were authorized to take cognizance in the matter and there is no illegality committed by them. The learned counsel referred to an unreported judgment dated 30.10.2008 of hon’ble supreme court delivered in Cr. Petition No.3-K/2008 (The State versus Abdali Shah), which was preferred against the order passed by this court in Cr. Bail Application No.902/2007. The brief facts were that while a police party was on patrol duty on 23.01.2007 in the SITE area, Karachi, they saw two persons standing beside a taxi and closing its dickey, who tried to escape on seeing the police personnel. From the taxi, cartons were recovered and each carton contained 12 bags. In all 52 K.G. of charas was recovered. The accused were brought to the police station where Sub-Inspector prepared the memo of arrest and recovery as well as registered the FIR. The Prosecutor General argued in that case that the learned high court granted bail on mere technicalities and did not discuss the merits of the case. The learned Prosecutor General further argued in the honorable Supreme Court in the aforesaid case that under section 156(2) Cr.P.C. investigation carried out by an unauthorized police officer is curable under section 537 Cr.P.C. being an irregularity at the most. The hon’ble supreme court cancelled the bail with the following judgment:
“7. It would be seen that a huge quantity of 52 Kgs. of charas was allegedly recovered from the taxi beside which the respondent was standing while closing its Dickey. It is not possible that the police would foist such a huge quantity of charas upon him. It appears that the learned High Court has relied heavily upon the technical aspect of the seizure and arrest which in our opinion are misconceived as in the first place no raid was carried out by the police personnel but the respondent apprehended during normal patrol duty. As such, the provisions of section 21 are not applicable. Even otherwise it cannot be expected that upon apprehension of the accused the police party would go in search of the officer, who is entitled to arrest the accused being an ASI. At the most, this was an irregularity which was curable under section 537 Cr.P.C. as held by this Court in the case of Muhammad Hanif (supra).
8.Similarly, the second ground which weighed with the learned High Court that the investigation was not carried out by an official authorized to do so, also is devoid of substance, since no prejudice has been caused to the respondent by such investigation. The case of Muhammad Farooq Khan v. The State (2007 P.Cr.L.J. 1103) relied upon in the impugned order is distinguishable from the facts of the present case as therein mala fides were alleged against the investigative agency in which even a learned division bench of Sindh High Court came to the conclusion that the investigation should have been entrusted to another agency . In this regard, the reference can be made to the case of State through A.G. v. Bashir (supra) wherein it was held that investigation by an officer not authorized to do so was merely an irregularity which is curable under section 537 Cr.P.C.”
11. The learned Special Prosecutor General, ANF argued that under section 156 of Cr.P.C. any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case and no proceedings of police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate. He further referred to section 54 of Cr.P.C., which provides that any police officer may, without an order from a Magistrate and without a warrant, arrest the accused persons on the conditions mentioned in the said section. He also referred to section 25 of the Control of Narcotic Substances Act, 1997 in which it is provided that the provisions of the Code of Criminal Procedure except those of section 103, shall, mutatis mutandis, apply to all searches and arrests in so far as they are not inconsistent with the provisions of Sections 20, 21, 22 and 23 to all warrants issued and arrests and searches made under these sections. The learned counsel did not dispute both the Notifications i.e S.R.O.600(I)/97 dated 07.07.1997 issued by the Federal Government under section 28 of the Control of Narcotic Substances Act, 1997 and S.R.O. No.787(I)/2004 dated 16.09.2004 issued under subsection (1) of section 21 of the Control of Narcotic Substances Act, 1997 and argued that since under section 21 of the Act, notification has already been issued in which the police is authorized to exercise the powers and perform functions provided under sections 22, 23, 37(2) and 38 of the Act, therefore, the respondents No.1 and 2 have rightly exercised their powers and there is no illegality committed by them while arresting the petitioners and registering FIR under the provisions of Control of Narcotic Substances, Act, 1997. The learned counsel further added that the director general appointed under Anti Narcotic Force Act has a very limited force which is not enough to cover entire city.
12. The learned DAG adopted the arguments advanced by the learned Assistant Advocate General, Additional Prosecutor General, and Special Prosecutor General, ANF and further added that the petitioner has failed to make out any case for the quashment of proceedings and the petition is liable to be dismissed.
13. After hearing the arguments of all the learned counsel, we have minutely examined the provisions of Anti Narcotic Force Act, 1997 and the Control of Narcotic Substances Act, 1997. Under section 3 of the Anti Narcotic Force Act, 1997, the Anti Narcotic Force has been constituted. It is further provided in the same section that for all intents and purposes the successor of Pakistan Narcotics Control Board and Anti Narcotics Task Force in respect of all cases, inquiries, investigation, assets, liabilities, rights, obligations and privileges and matters relied thereto to connected therewith and under section 5, it is, inter alia, provided that the Force shall inquire into, investigate and prosecute all offences relating to or connected with, preparation, production, manufacture, transportation, illicit trafficking or smuggling of intoxicants, narcotics and chemical precursors or reagents used in the manufacture of narcotics, or any offence committed in the course of the same transaction under any law for the time being in force. Under clause(e) of section 2, police has been defined, which means a police force constituted by the federal government or provincial government under the Police Act, 1861. The learned counsel for the petitioner mainly relied upon sections 21 and 28 of the Control of Narcotic Substances Act and argued that unless a notification is issued under section 28 by the federal government investing any officer of law enforcement agency or any other officer within their respective jurisdiction with the powers of an officer in charge of a police station for the investigation of offence, the police cannot exercise any power.
14.The learned counsel himself reproduced a notification issued under section 21 of the CNS Act, 1997 in which the federal government has authorized the members of not below the rank of Sub-Inspector or equivalent of the Anti Narcotics Force, Provincial Excise and Police Departments etc. to exercise the powers and perform the functions under sections 21, 22, 23, 37(2) and 38 of the Control of Narcotics Substances Act, 1997. Section 21 of the aforesaid act pertains to power of entry, search, seizure and arrest without warrant, which, inter alia, provides that where an officer, not below the rank of Sub-Inspector of Police or equivalent authorized in this behalf by the federal government or the provincial government, who from his personal knowledge or from information given to him by any person is of opinion that any narcotic drug, psychotropic substance or controlled substance in respect of which an offence punishable under this Act has been committed is kept or concealed in any building, place, premises or conveyance, and a warrant for arrest or search cannot be obtained against such person without affording him an opportunity for the concealment of evidence or facility for his escape, such officer may detain, search and, if he feels proper, arrest any person whom he has reason to believe to have committed an offence punishable under this Act. Section 22 of the Act provides that an authorized officer under this section may have the powers to seizure and arrest in public places and for this purpose the expression “public place” includes any public conveyance, hotel, shop or any other place intended for use by, or accessible to the public. Similarly, section 23 relates to power to stop and search conveyance.
15.Under subsection (2) of section 37, it is clearly provided that where in the opinion of the director general or an officer authorized under section 21 an offence is being or has been committed, he may freeze the assets of such accused and within seven days of the freezing shall place before the court the material on the basis of which the freezing was made and further continuation of the freezing or otherwise shall be decided by the court. The powers given under Section 38 of the Act are relevant to tracing of assets, which inter alia, provides that an officer empowered under section 21 or any other person authorized under section 37 shall proceed to trace and identify such assets where a reasonable suspicion exists about any person that he has acquired assets through illicit involvement in narcotics.
16. We are of the firm view that after authorizing the police under the aforesaid notification issued by virtue of section 21 of the Act, the respondents No.1 and 2 have rightly exercised their power and there is no illegality apparent on the face of the record, which may be cured in this constitutional petition. Another notification which has been reproduced in the petition is S.R.O.600(I)/97 dated 07.07.1997 which has been issued under section 28 of the Control of Narcotic Substances Act, 1997 is only relevant to invest the members and officers not below the rank of Sub-Inspector of the Anti Narcotics Force and Excise, Customs and Revenue Departments and Frontier Corps in the provinces of Balochistan and the North West Frontier with the powers of an officer in charge of a police station for the investigation of offences under the said Act. We have reconciled sections 21 and 28 of the Control of Narcotic Substances Act, 1997 and are of the view that notification issued under section 28 has neither any overriding effect on the notification issued under section 21 nor it seems to be the intention of legislature that for the purposes of issuing notification under section 21, prior notification under section 28 is a condition precedent without which, the notification issued under section 21 can not be effectively imposed or implemented.
17.Under Section 21 various powers have been conferred upon the police and other law enforcement agencies while the premise and scope of section 28 is only confined to the powers that may be invested upon any officer of law enforcement agency or any other officer within their respective jurisdiction with the powers of an officer incharge of a police station for investigation of the offences under this Act. So we have safely concluded that the powers conferred under section 21 can be exercised independently and those powers are not subservient or subordinate to the powers conferred by the federal government on the officer of law enforcement agency for the purpose of investigation. The scope and ambit of both sections is neither overlapping nor have any overriding effect on each other. At this juncture, we would also like to observe that at present the petitioners are allegedly involved in a case registered under sections 6/9(c) of Control of Narcotic Substances Act, which provides a maximum penalty of death or imprisonment for life or imprisonment for a term which may extend to fourteen years and shall also be liable to fine which may be up to one million rupees. It is further alleged in the FIR that 289 Kgs. of charas was recovered in the case, which is much more than the quantity of narcotic drug exceeding the limit specified in clause (b) of section 9 of the Control of Narcotic Substances Act, therefore at this stage it cannot be determined whether the petitioners are innocent or guilty of an offence unless the proper trial is commenced and concluded. Section 29 of the Control of Narcotic Substances Act, 1997 clearly provides that in the trial under this Act, it may be presumed, unless and until the contrary is proved, that the accused has committed an offence under this Act. Under Section 25 of the Act, the provisions of the Code of Criminal Procedure except those of section 103, shall, mutatis mutandis, apply to all searches and arrests in so far as they are not inconsistent with the provisions of section 20, 21, 22 and 23 to all warrants issued and arrests and searches made under these sections. Section 103 of Cr.P.C. makes it mandatory that before making a search, the officer or other person about to make it shall call upon two or more respectable inhabitants of the locality in which the place to be searched is situate to attend and witness the search and may issue an order in writing to them or any of them so to do. It is worthwhile to mention here that for the purposes of making searches and arrest under section 25 of the Control of Narcotic Substances Act, 1997 the provisions of Cr.P.C. relevant to searches and arrests have been made applicable except section 103, which shows that under this special Act, the legislature in order to avoid the intricacies and implication of section 103, purposely excluded this section to make Control of Narcotic Substances Act more potent and workable to save the society from heinous crime.
18. If the contention raised by the learned counsel for the petitioner is accepted that except Anti Narcotic Force appointed under the Anti Narcotic Force Act, 1997 no other person or police official has any right and authority to arrest or investigate in the matter, then the whole purpose of the conferring an authority under Section 21, 22, 23, 37(2) and 38 of Control of Narcotic Substances Act, 1997 will be nullified and become redundant and for each and every time before registering or making arrest of any accused, it would become mandatory that Anti Narcotic Force should be present at the scene of occurrence of offences punishable under the above Act and local police shall have no role to play, which will be in the negation of notification himself relied upon by the learned counsel for the petitioner, which has been issued in exercise of powers conferred under Section 21 of the Control of Narcotic Substances, Act, 1997.
19. The judgments referred to by the learned counsel for the petitioner are mostly based on well settled principle and enunciation of law that if this Court in exercise of power conferred under Article 199 of the Constitution or the inherent power under section 561-A, Cr.P.C. reaches to a conclusion that the proceedings initiated are ex facie illegal and FIR has been lodged in violation or contravention of some law, this court has ample power, authority and jurisdiction to quash the proceedings but before doing this, a positive conclusion should have been drawn in which it must be cleared beyond any shadow of doubt that the proceedings are ex facie coram non judice. It is also a well settled proposition of law that this court in exceptional cases can exercise jurisdiction without waiting for trial court to pass orders under section 249-A or 265-K, Cr.P.C., if the facts of the case so warrant. If on the basis of facts admitted and patent on record no offence can be made out, then it would amount to abuse of the process of law to allow the prosecution to continue with trial. Where assumption of jurisdiction is without lawful authority and is apparent on the face of proceedings, same can be quashed in constitutional jurisdiction. At this juncture, we would also like to rely upon a case reported in PLD 1992 SC 353 (Habib Ahmed versus M.K.G. Scott Christian) in which the hon’ble supreme court held that if prima facie the offence had been committed, justice required that it should be inquired into and tried. If the accused are not as a result of trial found guilty, they have a right to be declared “honorably acquitted by the competent court”. On the other hand, if the evidence against the accused discloses a prima facie case, then “justice clearly requires that the trial should proceed according to law”.
20.In the judgment reported in 2006 SCMR 1192 (Haji Sardar Khalid Saleem versus Muhammad Ashraf and others), the hon’ble supreme court has held that it is a settled law that if prima facie an offence had been committed, the ordinary course of trial before the court should not be allowed to be deflected by resorting to constitutional jurisdiction of high court. By accepting the constitutional petition, the high court erred in law to short circuit the normal procedure of law as provided by law while exercising equitable jurisdiction, which is not in consonance with law laid down by this court in the case of Habib Ahmed versus M.K.G. Scott Christian (PLD 1992 SC 353). Much emphasis has been laid by the learned counsel for the petitioner on the case reported in the case of Maritime Security Agency, Karachi versus Muhammad Saleem Khan (PLD 1994 SC 486). The facts and circumstances of this case are highly distinguishable to the facts and circumstances of the present case as the functionary in that case had no jurisdiction to seize the trawler or to arrest its crew members or to lodge the report therefore the entire exercise was declared coram non judice with further observation that the high court could invoke section 561-A, Cr.P.C. but in the case in hand the learned counsel for the petitioner himself reproduced a notification in which beside other functionary/ law enforcement agency, the police department was also authorized to exercise the powers conferred under sections 21, 22, 23, 37(2) and 38 of the Control of Narcotic Substances Act, 1997. The contention of the learned counsel for the petitioner that the power granted under section 21 of the aforesaid Act cannot be exercised without the notification issued under section 28 is not correct in our view as we have already held (supra) that powers granted under sections 21 and 28 both have different premise and scope and cannot be linked together and absence of notification under section 28 will not negate or nullify powers exercised by the respondents No.1 and 2 in view of the aforesaid notification.
21.The hon’ble supreme court in the case reported in 2008 SCMR 1254 (Zafar versus The State), which is a case directly pertaining to section 9(c) of the Control of Narcotic Substances Act, 1997, held that section 22 of the Control of Narcotic Substances Act being directory, non-compliance thereof would not be a ground for holding the trial/conviction bad in the eyes of law and on this ground, the conviction of appellant cannot be set aside. The finding of hon’ble supreme court in an unreported judgment delivered in Cr.Petition No.3-K/2008 is also relevant in which it was held that no raid was carried out by the police personnel but the respondent apprehended the accused during normal patrol duty as such provisions of section 21 are not applicable. It has been further held in the same judgment that even otherwise, it cannot be expected that upon apprehension of the accused the police party would go in search of the officer, who is entitled to arrest the accused. At the most, this was an irregularity, which was curable under section 537, Cr.P.C.
22. We have also examined Section 537, Cr.P.C., which, inter alia, provides that no finding, sentence, order passed by a court of competent jurisdiction shall be reversed or altered on account of any error, omission or irregularity in the complaint, report by police officer under section 173, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during trial or any inquiry or other proceedings under the Code.
23. The upshot of the above discussion is that there is no illegality or violation of law committed by respondents No.1 and 2 while arresting the petitioners and or registering the case. We do not find any merits in this petition, which is dismissed accordingly along with the pending application.