2007 S C M R 393

[Supreme Court of Pakistan]

Present: Khalil-ur-Rehman Ramday, Faqir Muhammad Khokhar

and Ch. Ijaz Ahmed, JJ

MUHAMMAD YOUNAS and others----Petitioners

Versus

Mst. PERVEEN alias MANO and others----Respondents

Civil Petitions Nos.2116 and 2355-L of 2005, decided on 13th October,

2006.

(On appeal from the judgment, dated 31-10-2005 of the Lahore High
Court, Lahore passed in Writ Petition No.13094 of 2005).

(a) Control of Narcotic Substances Act (XXV of 1997)---

----Ss. 6, 7 & 9---Criminal Procedure Code (V of 1898), S.173---

Narcotic Substance, recovery of---Accused found to be innocent during
investigation--Validity--Competent Court vested with jurisdiction
either to accept or not to accept police report recommending discharge
of accused or cancellation of case against him---Principles.
The police is required to submit its report of investigation under
section 173, Cr.P.C., to the Special Court established under the
provisions of sections 45 and 46 of the Control of Narcotic Substances
Act, 1997, which may or may not agree with same, after conscious
application of judicial mind and consideration of the material placed
before it. It is not obligatory for the competent Court to accept police
report recommending the discharge or cancellation of the case and may
proceed to take cognizance of the offence depending upon the facts and
circumstances of each case.

Safdar Ali v. Zafar Iqbal and others 2002 SCMR 63 = PLJ 2002 SC
304; Federation of Pakistan through Secretary, Finance, Islamabad and
another v. Malik Mumtaz Hussain and 4 others 1997 SCMR 299 and
Muhammad Alain and another v. Additional Secretary to Government
of N.-W.F.P. Home and Tribal Affairs Department and 7 others PLD
1987 SC 103 rel.

(b) Control of Narcotic Substances Act (XXV of 1997)---

----Ss. 6, 9 & 9(c)---Criminal Procedure Code (V of 1898), S.173---

Constitution of Pakistan (1973), Arts.199 & 185(3)---Constitutional
petition before High Court--Quashing of F.I.R.---Charas and Opium,
recovery of---F.I.R., registration of---Superintendent of Police
(Investigation) finding F.I.R. to be false---Quashment of F.I.R. by High
Court on basis of ipsi dixit of police---Validity---High Court should
have directed police to submit challan one way or the other before
Special Court---High Court had passed .impugned order without
satisfying as to relevancy or sufficiency of .investigation material
justifying quashment of F.I.R.---Supreme Court set aside impugned
order while directing Investigating Agency to place collected material
before Special Court which would he at liberty to act in accordance
with law.

(c) Control of Narcotic Substances Act (XXV of 1997)---

----Ss. 21 & 22--Criminal Procedure Code (V of 1898), S.173---Arrest
of accused and/or seizure of narcotics in violation of provisions of
Ss.21 & 22 of Control of Narcotic Substances Act, 1997---Effect---
Guilt or innocence of accused would not depend on question of
competence or otherwise of Police Officer to investigate offence---
Trial of accused would not be vitiated merely for the reasons that the
case had been investigated by an officer not authorized to do so--Court
would determine guilt or innocence of accused only on basis of
evidence produced irrespective of the manner in which it was brought
before the Court--Purpose of enacting such provisions stated.

Under sections 21 and 22 of the Control of Narcotic Substances Act,

1997, only an officer of the rank of Sub-Inspector or equivalent or
above may exercise the powers of arrest and seizure of narcotics. But
this is not an absolute rule. There may be cases of extreme urgency
requiring prompt action, where an accused is caught with narcotics in
his possession by a Police Officer of a lower rank. Can it be said that
such Police Officer should just let him go with the narcotics? The
answer would certainly be in the emphatic "No". The guilt or
innocence of an accused does not depend on the question of
competence or otherwise of a Police Officer to investigate the offence.
A trial of an accused is not vitiated merely on the ground that the case
has been investigated by an officer who is not authorized to do so
unless a contrary intention appears from the language of a statute. The
competent Court would proceed to determine the guilt or innocence of
an accused on the basis of the evidence produced before it irrespective
of the manner in which it is brought before it.

In a proper case, a Police Officer, if guilty of deliberate usurpation of

power and violation of a statute, may render himself liable to
disciplinary or penal action or both in accordance with law. The
purpose of enacting protective provisions of sections 21 and 22 of the
Act seems to he that normally the cases of narcotics being of serious
nature should be handled by more responsible Police Officers.

M. Abdul Latif v. G.M. Paracha and others 1981 SCMR 1101; State
through Advocate-General, Sindh v. Bashir and others PLD 1997 SC
408; The Crown v. Mehar Ali PLD 1956 FC 106; M.S.K, Ibrat v. The
Commander-in-Chief, Royal Pakistan Navy and others PLD 1956 SC
264; Ahmad Khan v. Rasul Shah and others PLD 1975 SC 66;
Muhammad and others v. The State 1984 SCMR 954 and The State v.
Sohail Ahmed and 4 others PLD 1990 FSC 29 rel.

Ch. Talib Hussain, Advocate-on-Record for Petitioners (in C.P.

No.2116-L of 2005 and for Respondent No.3 in C.P. No.2355-L of
2005).

Muhammad Akbar Tarar, Additional Advocate-General, Punjab for the

State (in C.P. No.2355-L of 2005).

Rao Muhammad Yusuf Khan, Advocate-on-Record (In C.P. No.2355-L

of 2005 and Respondents Nos.2 and 3 in C.P. No.2116-L of 2005).

Sh. Najamul Hassan, Advocate Supreme Court and Haji Muhammad

Rafi Siddiqui, Advocate-on-Record for Respondent No.1 (in both
Petitions).

Date of hearing: 13th October, 2006.

JUDGMENT

FAQIR MUHAMMAD KHOKHAR, J, --- The petitioner,

Muhammad Younas, an A.S.-I. during course of investigation of a
narcotics case conducted a raid and got case F.I.R. No.407 of 2005
dated 24-6-2005 registered against the respondent No.1 Mst. Perveen
alias Mano and her son Irfan, with Police Station Harbanspura, District
Lahore under sections 6/9 and 9(c) of Act for recovery of Charas
weighing 79 Kgs. and 4 Kgs. Opium.
2. The respondent No.1 filed Writ Petition No.13094/Q of 2005 for
quashment of F.I.R. No.407 of 2005. The Superintendent of Police
(Investigation), Lahore informed the High Court that the said F.I.R.
was found to be false and that the narcotic substances had actually been
recovered from some other persons. A learned Division Bench of the
Lahore High Court, Lahore, vide impugned judgment dated 31-10-
2005, quashed the F.I.R. and also directed Major Mubashar Ullah,
S.S.P. and Superintendent Police (Investigation) Lahore, to conclude
the investigation as to wherefrom the delinquent police officials had
obtained two Maunds of Charas and to submit report to the High Court
for further action against them. Hence, both these petitions one by
Muhammad Younas A.S.-I. complainant, and the other by the State, for
grant of leave to appeal.

3. The learned Advocate-on-Record for the petitioner Muhammad

Younas argued that the quashment or otherwise of F.I.R. was a matter
falling within the domain of the Special Court. The proper procedure
was not followed by the High Court as it was after the submission of a
report under section 173, Cr.P.C. that the Special Court was to
determine by going through the entire material collected by the
prosecution, whether to cancel the case or to proceed with its trial
notwithstanding a negative report of the police. It was lastly contended
that the provisions of Article 18(6) of the Police Order, 2002, were not
kept in view by the High Court while exercising its constitutional
jurisdiction for entrustment of investigation to other Senior Police
Officers.

4. The learned Additional Advocate-General, Punjab also submitted

that respondent Mst. Perveen alias Mano had a previous history of her
involvement in drug cases. She was challaned in cases F.I.R. No.45
dated 14-2-1997 and F.I.R. No.130 dated 10-5-2000 registered at
Police Station Gujarpura, Lahore under section 6/9 of the Act. He
further contended that the High Court had not examined the material
collected by the police while passing the impugned order.

5. On the other hand, the learned counsel for the respondent Mst.
Perveen alias Mano submitted that F.I.R. No.407 of 2005 was
thoroughly investigated by senior Police Officers of the rank of
Superintendent of Police and the same was found to be false. It was
next contended that as required by the provisions of sections 21 and 22
of the Act only an officer not below the rank of Sub-Inspector of Police
or equivalent could exercise the powers of search, seizure of narcotics
and arrest of the accused. The petitioner/complainant Muhammad
Younas, being as Assistant Sub-Inspector, was not authorized to do so.
Therefore, the High Court had correctly quashed the F.I.R.

6. We have heard the learned counsel for the parties as well as the
learned Additional Advocate-General, Punjab at length and have also
perused the available record with their assistance. We find that there
are serious allegations against the respondent No.1 and her son Irfan
for their involvement in the narcotics case. The police is required to
submit its report of investigation under section 173, Cr.P.C., to the
Special Court established under the provisions of sections 45 and 46 of
the Act, which may or may not agree with same, after conscious
application of judicial mind and consideration of the material placed
before it. It is not obligatory for the competent Court to accept the
police report recommending the discharge or cancellation of the case
and may proceed to take cognizance of the offence depending upon the
facts and circumstances of each case. Reference may usefully be made
to the cases of Safdar Ali v. Zafar Iqbal and others 2002 SCMR 63 =
PLJ 2002 SC 304; Federation of Pakistan through Secretary, Finance,
Islamabad and another v. Malik Mumtaz Hussain and 4 others 1997
SCMR 299 and Muhammad Alam and another v. Additional Secretary
to Government of N.-W.F.P. Home and Tribal Affairs Department and
7 others PLD 1987 SC 103. The impugned order of the High Court
clearly shows that the High Court had acted on the ipso dixit of the
police in quashing the F.I.R. and does not seem to have scanned the
entire material collected by the prosecution. It would have been
appropriate if the police was directed to submit its challan one way or
the other before the Special Court.

7. The other argument of the learned counsel for the respondent No.1
as to the violation of the provisions of sections 21 and 22 of the Act
needs to be dealt with. Ordinarily, only an officer of the rank of Sub-
Inspector or equivalent or above may exercise the powers of arrest and
seizure of narcotics. But this is not an absolute rule. There may be
cases of extreme urgency requiring prompt action, where an accused is
caught with narcotics in his possession by a Police Officer of a lower
rank. Can it be said that such Police Officer should just let him go with
the narcotics? The answer would certainly be in the emphatic "No".
The guilt or innocence of an accused does not depend on the question
of competence or otherwise of a Police Officer to investigate the
offence. A trial of an accused is not vitiated merely on the ground that
the case has been investigated by an officer who is not authorized to do
so unless a contrary intention appears from the language of a statute.
The competent Court would proceed to determine the guilt or
innocence of an accused on the basis of the evidence produced before it
irrespective of the manner in which he is brought before it. A
somewhat similar view was taken in the cases of M. Abdul Latif v.
G.M. Paracha and others 1981 SCMR 1101; State through Advocate-
General, Sindh v. Bashir and others PLD 1997 SC 408; The Crown v.
Mehar Ali PLD 1956 FC 106; M.S.K. Ibrat v. The Commander-in-
Chief, Royal Pakistan Navy and others PLD 1956 SC 264; Ahmed
Khan v. Rasul Shah and others PLD 1975 SC 66 at pages 81, 88 and
151=152; Muhammad and others v. The State 1984 SCMR 954 and
The State v. Sohail Ahmed and 4 others PLD 1990 FSC 29. We may
however, observe that in a proper case, a Police Officer., if guilty of
deliberate usurpation of power and violation of a statute, may render
himself liable to disciplinary or penal action or both in accordance with
law. The purpose of enacting protective provisions of sections 21 and
22 of the Act seems to be that normally the cases of narcotics being of
serious nature should be handled by more responsible Police Officers.

8. In our view, the impugned order of the High Court is not sustainable
at law. The same was passed without satisfying as to the relevancy or
sufficiency of the investigation material justifying the quashment of the
F.I.R.

9. For the foregoing reasons, these petitions are converted into appeals
and the same are allowed. The impugned order dated 31-10-2005,
passed by the High Court of quashing F.I.R. No.407 of 2005 is set
aside and the Writ Petition No.13094 of 2005 is dismissed. The
material collected by the Investigating Agency shall be placed before
the Special Court which shall be at liberty to act in accordance with
law. There shall be no order as to costs.

10. A copy of this judgment shall be transmitted to the Federal

Secretaries of Interior and Narcotics Divisions, Government of
Pakistan, Islamabad as well as to the Inspectors-General of Police of
the Provinces for taking necessary action and issuing instructions in the
matter.

S.A.K./M-180/SC Appeals
accepted.