Order passed by President against recommendations of Wafaqi Mohtasib

 PLJ 2004 Lahore 151 [Rawalpindi Bench Rawalpindi]

Present: ABDUL SHAKOOR PARACHA, J. MUHAMMAD HUSSAIN and another-Petitioners

versus

FEDERATION OF PAKISTAN through SECRETARY LAW JUSTICE DIVISION GOVT, OF PAKISTAN, ISLAMABAD and another-Respondents

W.P. No. 2840 of 2001, heard on 29.5.2003.

Establishment of Office of Wafaqi Mohtasib (Ombudsman) Order 1983--

—-Art. 32-Constitution of Pakistan (1973), Art. 199-Order passed by
President against recommendations of Wafaqi Mohtasib whereby relief
granted to petitioners by Wafaqi Mohtasib was withdrawn-Such order of
President being in violation of principles of natural justice i.e., not
affording opportunity of being heard to petitioner, was excluded from
consideration-As far sale agreement, time was not the essence of
contract-Delivery of possession of plot in question, having not been
delivered to petitioner, he could not be expected to have complied with
terms of agreement relating to payment of remaining/balance amount-­
Amount of specified interest demanded from petitioner was, thus, not
warranted and the same was declared to be without lawful authority and
of no legal effect.                                                                    [P. 155] A

1996 MLD 60; AIR 1958 Punj 289; 1998 CLC 1453 and 1999 SCMR 2744 ref. Ch. Muhammad Tariq, Advocate for Petitioners. Mr. Nau-Bahar Ali, Advocate on behalf of Malik M. Nawaz Khan, Advocate for Respondent No. 2.

Mr. Ahmad Naeem Qureshi, Federal counsel for Respondent No. 1. Date of hearing : 29.5.2003.

JUDGMENT

The facts of this case are brief and straightforward. The petitioners purchased one Agro Farm measuring 2.5 Acres, Bearing No. 8, situated at Poultry and Vegetable Scheme No. I (Extension), Tarlai Kalan, District Islamabad, for a total consideration of Rs. 17,50,000/-, in the year 1994, out of ten plots which were put to auction by the C.D.A. As per terms of the auction, the petitioners paid Rs.1005000/- including C.V.T. and income tax, which was acknowledged by the CDA on acceptance of the bid offered by the petitioners. The possession was not delivered to the petitioners by the CDA because the original owners whose lands were acquired were in possession of the same and litigations were pending between the owners and Respondent No. 2, CDA. On 9.7.1995, a legal notice was served to the respondent demanding possession of the plot by the petitioners. The Respondent No. 2

 

demanded balance amount along with interest within 15 days from the petitioners vide their notice/letter dated 9.7.1998. The petitioners lodged a complaint to the Hon'ble Wafaqi Mohtasib, Islamabad asserting their grievance that the possession of the plot has not been delivered, who directed the C.D.A. vide his order dated 11.2.1999 to deliver the possession of the plot. The petitioners were also directed to pay the balance amount within seven days after the delivery of possession to them. The physical possession of the plot was delivered to the petitioners on 8.6.1999 and the petitioners also paid the balance amount of Rs. 8,85,000/- to the CDA on 17.5.1999 before the delivery of possession of land to the petitioners. Meanwhile, the respondent filed a representation before the Worthy President of Pakistan seeking annulment of the order of Wafaqi Mohtasib dated 11.2.1999. Through letter dated 15.6.2001 of the Law, Justice and Human Rights Division, Government of Pakistan, Islamabad, the petitioners were informed, that representation of CDA has been accepted by the President and he has set aside the order of the Wafaqi Mohtasib dated 11.2.1999. Respondent No. 2 CDA vide letter dated 2.8.2001 also demanded Rs. 6,11,384/- as interest from the petitioners.

2.     In pursuance of the order dated 16.11.2001 of this Court,
Respondent No. 2 CDA has filed written statement, wherein it has been
admitted that the plot in dispute was purchased by the petitioners through
open auction held on 8.2.1994. They deposited 50% of the total premium of
the plot amounting to Rs. 8,75,000/- after which formal allotment letter was
issued to them on 4.9.1994 (Annexure-1); the balance 50% amount of
Rs.  8.75000/- was payable in four equal six monthly instalments of
Rs. 2,18,750 each by 30.9.1994, 31.3.1995, 30.9.1995 and 31.3.1996. It was
further stated that the allottees neither paid any instalment nor even
approached the Authority for delivery of possession of the plot. However, for
the first time the legal notice dated 8.9.1998 was received from the allottees
requesting for handing over of possession of the said plot. Since village Jaba
Tali was existing in the above mentioned scheme area, including the site of
the said plot, as an encroachment by local Abadi, the physical possession of
plot could not be handed over to the allottees. It was admitted that the
petitioners filed a complaint before the Wafaqi Mohtasib and being aggrieved
of the findings/recommendation dated 16.2.1999 of the Wafaqi Mohtasib, the
CDA made a representation to the Hon'ble President, who accepted the
same and set aside the recommendations of the Wafaqi Mohtasib.

3.  Purchasing of the plot by the petitioners through auction held on
8.2.1994 and the deposit of 50 percent Premium of the plot amounting to
Rs. 8,75,000/- and issuance of allotment letter on 4.9.1994 (Annexure-I) by

the CDA, Respondent No. 2, in favour of the petitioners are admitted by both the sides. The controversy can be resolved by reading of the allotment letter dated 4.9.1994 (Annexure-I) in which schedule of payment of remaining four instalments by 30.9.1994, 31.3.1995, 30.9.1995 and 31.3.1996 has been mentioned. It is also provided under Condition No. 4 that the possession of the land shall be taken by the allottee within one month from the date of issuance of the letter, failing which possession shall be deemed to have been taken over. Conditions Nos. 4, 5 and -6 of the said allotment letter are relevant, which read as follows:-

"4. Possession of the land shall be taken by you within one month from the date of issue of this letter, failing which possession shall be deemed to have been taken over.

5.         If any amount remains in arrears for more than two months, it
shall be lawful for the Authority to cancel the allotment/lease and
resume possession of the plot in accordance with the terms and
conditions contained herein.

6.         Charges on delayed payments will be levied at the rate of 16% per
annum (or as may be revised from time to time) on all types of
delayed payments."

4. It is respondent-CDA's own case that village Jaba Tali, which was existing in the above mentioned scheme area, including the site of the plot, as an encroachment by local Abadi, physical possession of the plot could not be handed over to the allottee concerned, meaning thereby that the CDA was not able to perform its part of the agreement. In this view of the matter, the Respondent No. 2 could not ask for payment of the remaining instalments within the stipulated period mentioned in the allotment letter. According to Section 51 of the Contract Act, when a contract consists of reciprocal promises to be simultaneously performed, no promisor needs perform his promise, unless the promisee is ready and willing to perform his reciprocal promise. In case reported asRasik v. Chandra (10 1C 525), it has been ruled that a purchaser is not bound to pay the balance of the purchaser money till the vendors have put the property in the condition in which it was to be conveyed to him." Similarly, Section 52 of the said Act says that, "Where the order in which reciprocal promises are to be performed is expressly fixed by the contract, they shall be performed in that order; and, where the order is not expressly fixed by the contract, they shall be performed in that order which the nature of the transaction requires."

In the case of Said Muhammad vs. Abdur Rehman (1996 MLD 60) while interpreting the provisions of Section 51 of the Contract Act, 1872 (IX

of 1872) while relying on the case reported as DinaNath Dutt vs. Maha Vir Gupta (AIR 1958 Punj. 289) (V 45 C 77) (D.B.) it was held that:

"Plaintiff need not have offered to make balance amount to defendant on specified date for defendant's title was not perfect on said date and defendant was not ready on said date to perform his reciprocal promise of transfer of land in favour of plaintiff."

In the case of Dina Nath Dutta (Supra) it was held that even if time is the essence of contract of sale, where the vendor has not perfected his title to the goods by the date when the contract has to be completed, there is no breach of the contract on the part of the vendee.

5.    The Wafaqi Mohtasib recommended that the agency should
deliver possession of the plot as soon as possible to the petitioners and they
shall  pay the balance amount  of premium' within  seven  days  of the
possession is delivered to them. Before the representation under Article 32 of
the Establishment of Office of Wafaqi Mohtasib (Ombudsman) Order 1983
could have been filed by the Respondent No. 2 CDA before the President, the
order of the Wafaqi Mohtasib dated 11.2.1999 was implemented in letter and
spirit as the petitioners had paid the balance amount on 17.5.1999 and
performed their part of agreement and the Respondent No. 2 delivered the
possession and thus it also performed its part of the agreement.

6.         The plot allotted to the petitioners was admittedly subject-matter
of litigation right from the date of auction. The respondents failed to deliver
the possession of the said plot to the petitioners with clear title and free of
encroachment which resulted in delay in payment of premium price. In such
circumstances,  non-compliance of the terms of the allotment order by
respondent,   ensuing  from  litigation   and  encroachment  on  the  plots,
legitimately gave a right to the petitioners to require the respondent to hand
over physical possession to enable them to pay the balance price and proceed
with the project in question. The petitioners, in these circumstances, could
have not made suffer for the acts of others or action or inaction on the part of
the respondent. Therefore, the respondent was not justified to impose the
delayed payment charges.

7.         A similar question came up for consideration before this Court in
case reported as Messrs Essem Hotels (Pvt.) Ltd, through Director vs.
Capital Development Authority, Islamabad through Chairman and 2 others
(1998 CLC 1453) and it was observed that respondent could not impose
delayed payment charges, and the impugned order to that extent was
declared to be illegal and of no legal effect.

8.   The petitioners were not given any-notice or were heard before
the worthy President while passing the impugned order communicated to
the petitioners by Law, Justice and Human Rights Division, Government of
Pakistan vide letter dated 14.5.2001. It has been held in the case reported as
Federation    of   Pakistan    through    Secretary,    Establishment   Division,
Government of Pakistan Islamabad vs. Muhammad Tariq Pirzada and 2
others (1999 SCMR 2744) that:

"Even if it was assumed that institution of "Wafaqi Mohtasib" was an administrative body and President of Pakistan also acted in administrative capacity, while disposing of petition under Art. 32 of Establishment of Office of Wafaqi Mohtasib (Ombudsman) Order, 1983, an aggrieved person in whose favour a recommendation had been made or finding recorded by Mohtasib had legal right to demand that adverse decision should not be taken against him in violation of principles of natural justice."

9.   I am constrained to exclude from consideration the order passed
by the President, whereby representation of the Authority against • the
recommendations of Wafaqi Mohtasib was accepted on the ground that the
order passed by the President is in violation of the principles of natural
justice and that time was not the essence of the agreement under the
Contract Act, 1872. There was no fault of the petitioners that the plot, which
was under litigation and was in possession of the\ex-owners, could not have
been handed over to the petitioners within the stipulated time of one month.
In this view of the matter, the demand of the respondent of the amount of
Rs.  6,11,384/- through the impugned letter  of the respondent bearing
No.  CDA/EM-II/PVC-39/(8)/2001/708  dated  2.8.2001  is  declared to be
without lawful authority and of no legal effect.

Resultantly, the writ petition is allowed and disposed of.
(A.A.)                                                                               Petition accepted.

 

Re-Examination Allowed by Islamabad High Court

 PLJ 2015 Cr.C. (Islamabad) 3 (DB)

Present: Shaukat Aziz Siddiqui & Athar Minallah, JJ.

SHEREEN GUL alias FATIMA--Petitioner

versus

SPECIAL JUDGE, ANTI-TERRORISM COURT-I,
ISLAMABAD, etc.--Respondents

Crl. Rev. No. 52 of 2014, decided on 9.9.2014.

Criminal Procedure Code, 1898 (V of 1898)--

----Ss. 439, 161 & 540--Qanun-e-Shahadat Order, (10 of 1984), Art. 161--Constitution of Pakistan, 1973, Art. 199--Constitutional Petition--Re-examination of witness--Re-summoning to make better statement amount to improve examination in chief and to fill up lacunas which would adversely affect defence version--Scope of re-examination was limited--Validity--It is mandatory for Court to summon a witness to recall and re-examine him if it appears just and essential for decision of case--After filing of complaint, some progress was made during investigation in case for payment of ransom amount and for that purpose, applicant/complainant got recorded his statement by narrating factual aspect regarding mode of payment to abductor, to that extent his deposition was not recorded before Court, therefore, it does not amount to fill up any lacuna in evidence rather essential and helpful for reaching to just conclusion of case--Order for production of a documents in order to obtain proper proof of relevant facts, in any form, at any time from any witness or form parties and also cross-examine any witness upon any answer given in reply to any such question except some exceptions provided in order--Revision was dismissed.         [P. 6] A & B

Ch. Abdul Khaliq Thind, Advocate for Petitioner.

Date of hearing: 9.9.2014.

Order

Instant Revision Petition u/S. 439, Cr.P.C., has been preferred against the order dated 10.06.2014 passed by learned Special Judge, Anti Terrorism Court, Islamabad whereby the application u/S. 540, Cr.P.C. moved by the complainant/Respondent No. 2, Azmat Khan in case FIR No. 260, u/S. 365-A, PPC, registered with P.S Ramna, Islamabad for re-examination of witness/complainant. The application u/S. 540, Cr.P.C. was moved by the witness/complainant who is the real son of the abductee namely Haji Rahim with the assertion that his incomplete statement was recorded on 24.04.2014 and no chance was given to the complainant to narrate the complete story; therefore, he may be permitted to complete his statement recorded u/S. 161, Cr.P.C. dated 15.07.2014 in Zimni No. 6. Learned Judge, Special Court (ATC-I) allowed the said application for re-examination of witness/ complainant.

2.  Learned counsel for petitioner contended that Respondent No. 2/complainant was called for evidence as PW-1 on 24.04.2014 who recorded his evidence and also cross-examined, That during the examination-in-chief PW-1 did not involve the petitioner in the commission of crime and learned Judge at the completion of his evidence verbally reprimanded the said witness for not naming/involving the petitioner, thereafter, the respondent filed an afterthought application u/S. 540, Cr.P.C. for re-examination of the PW-1 which the Respondent No. 1 accepted vide impugned order dated 10.06.2014.

3.  Learned counsel for petitioner argued that impugned order is illegal against law and facts of the case and learned trial Court fell in error while accepting the application u/S. 540, Cr.P.C. That the re-summoning of the complainant to make a better statement amount to improve his examination-in-chief and to fill up the lacunas which would adversely affect the defense version. That the scope of Re-examination is limited and placed under certain clogs, that too if certain ambiguity is sought to be removed, or certain explanation is need which is not subject of the impugned order.

Arguments heard. Record perused.

4.  For convenience sake, operative part of the impugned order dated 10.06.2014 passed by learned Special Judge, ATC-I, Islamabad is reproduce as under:--

"I have given careful consideration the available record as well arguments advanced by both sides and to observe that basically the applicant/complainant filed a complaint regarding abduction of his father namely Haji Rahim and got recorded his statement before this Court. After filing of complaint, some progress was made during investigation in the case for payment of the ransom amount and for that purposes, the applicant/complainant got recorded his statement vide Zimini No. 6, by narrating the factual aspect regarding mode of payment to the abductor, to that extent his deposition was not recorded before this Court. The arguments advanced by the defense counsel that if permission is granted for re-examination of the complainant, it will prejudice the case of the accused. I do not agree with the contention of the learned defense counsel because the complainant has joined investigation after filing of the complaint and got recorded his statement as prosecution witness, therefore, such omission for not recording his statement does not in any way fill up the lacuna of the prosecution case but the same will be helpful for reaching to just conclusion, whether the ransom amount was demanded and aid according to the prosecution version, therefore, in the interest of justice, I allow the instant application for re-examination of witness/ complainant namely Azmat Khan u/S. 540, Cr.P.C. who be summoned for the adjourned date."

For reaching to a just conclusion, Section 540, Cr.P.C. is reproduced hereunder:

"540. Power to summon material witness or examine person present.--Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it essential to the just decision of the case."

5.  Perusal of above provision makes it abundantly clear that in order to reach to a just conclusion, it is mandatory for the Court to summon a witness to recall and re-examine him if it appears just and essential for the decision of the case. In the present case, after filing of complaint, some progress was made during investigation in the case for payment of the ransom amount and for that purpose, the applicant/complainant got recorded his statement vide Zimini No. 6 by narrating the factual aspect regarding mode of payment to the abductor, to that extent his deposition was not recorded before the Court, therefore, it does not amount to fill up any lacuna in the evidence rather essential and helpful for reaching to the just conclusion of the case. This material fact is also mentioned in the report u/S. 173, Cr.P.C.. The law favours adjudication of cases on merit rather than technicalities and should always be interpreted in aid of justice and fairplay. Article 161 of the Qanun-e-Shahadat Order 1984, also empowers a Judge to put questions or order for production of a documents in order to obtain proper proof of the relevant facts, in any form, at any time from any witness or form the parties and also cross-examine any witness upon any answer given in reply to any such question except some exceptions provided in the order ibid. We are not persuaded with the argument of the learned Counsel for the appellant that impugned order resulted into filling up the lacunas left in the case.

6.  In view of above, by placing our reliance on case law reported as PLD 1984 S.C 95, we are of the view, that order passed by the learned Special Judge, ATC-I, Islamabad is well reasoned and no exception can be taken thereto, hence the Revision Petition is dismissed.

(R.A.)  Petition dismissed

Quashment without moving 249-A and 265-K Petition

PLJ 2006 Lahore 425
[Multan Bench Multan]

Present: Muhammad Nawaz Bhatti, J.

AGHA NADIM and another--Petitioners

versus

PROVINCIAL QUALITY CONTROL BOARD GOVERNMENT OF THE PUNJAB HEALTH DEPARTMENT, CIVIL SECRETRIAT, LAHORE through its CHAIRMAN and 5 others--Respondents

Writ Petition No. 2546 of 1995, decided on 21.4.2005.

(i)  Constitution of Pakistan, 1973--

----Art. 199--Quashment of F.I.R.--Held: Every criminal case should be judged on its own facts & circumstances--It was not necessary that before moving High Court petitioners must move trial Court u/Ss. 249-A or 265-K Cr.P.C.--If Court was satisfied that on the basis of false complaint, process of Court was being abused to subject to accused for unnecessary harassment, it has power to quash such criminal proceedings.         [P. 429] E

(ii)  Drugs Act, 1976 (XXXI of 1976)--

----S. 22--Punjab Drugs Rules 1988--R. 4(3)--Held: Report of Drugs Testing Laboratory was not supplied to petitioners, so they could not challenge the same u/S. 22--Moreover case was registered on the complaint of drug inspector, on the permission of Provincial Quality Control Board which did not issue any show cause notice to petitioners u/R. 4(3) of the Rules 1988--Registration of case against petitioners was held to be without lawful authority.          [Pp. 428 & 429] A, C & D

(iii)  Drugs Act, 1976 (XXXI of 1976)--

----S. 17--Appointment of drug inspector--In presence of one drug inspector appointed for a District, appointment of another inspector for the whole division, including said District--Held: Such appointments are overlapping.         [P. 428] B

1968 SCMR 1256; 1989 P.Cr.L.J. 507 & 1985 SCMR 257, ref.

Sh. Zia Ullah, Advocate for Petitioners.

Mr. Muhammad Sarwar Bhatti, AAG for Respondents Nos. 1 to 5.

Date of hearing : 13.4.2005.

Judgment

Briefly stated the prosecution case is that on 18.12.1994, Respondent No. 4 inspected the premises of M/s Imran Drug Centre, Club Road, Vehari, recovered and seized 47 x 15 mg skilax Drops, Batch No. 7318, purported to be manufactured by M/s Highnoon Laboratory, Lahore/Respondent No. 6, on Form No. 5, which were suspected to be spurious due to a number of differences in the packing material. A sample of the same was sent to Drug Testing Laboratory Lahore for test/analysis. The Government Analyst/Respondent No. 2 reported the said drug to be spurious vide Test Report No. TRA 32/DTL dated 2.1.1995. Muhammad Younas, the Chief Manager production of M/s Highnoon Laboratory, Lahore, examined the said drug in presence of Respondent No. 4 and stated that the said drug was not manufactured by M/s Highnoon Laboratory, Lahore, and hence a supurious as defined under Section 3(ZB)(ii) of the Drugs Act, 1976. M/s Imran Drug Centre, Club Road, Vehari, has supplied the invoice/warranty as a proof of his purchase of the said drug from M/s Azmat Medical Store, Arif Bazar,Burewala. M/s Azmat Medical Store, Arif Bazar, Burewala, has also supplied the invoice/warranty as a proof of his purchase of the said drug from M/s Quality Traders, 7-A, Alminar Market, O/s Lahore/Petitioner No. 2. M/s Quality Traders has supplied the Invoice/Warranty as a proof of their purchase of the said drug from M/s Gujrat Medicine House, Jinnah Medicine Market, Lahori Gate, Lahore. On 30.3.1995, Respondent No. 4 got the case FIR No. 46 registered against the petitioners with Police Station, City Vehari.

2.  Through this writ petition, the petitioners have prayed that the permission granted by Respondent No. 1 for the registration of the case against the petitioners, the appointment of Respondents Nos. 2, 3 & 4 as Government Analyst, Punjab, and Drug Inspector, Vehari District, Vehari, respectively, and the consequent registration of the case against the petitioners by Respondent No. 5 at Police Station City Vehari, under Section 14 of the Dangerous Drugs Act, 1930, and Section 23, read with Section 27 of the Drugs Act, 1976, may kindly be declared to be without lawful authority and of no legal effect and the FIR may be quashed.

3.  Learned counsel for the petitioners has contended that before granting the permission under Sections 11(5)(b) and 19(6) of the Drugs Act, 1976, read with Rule 4 of the Punjab Drug Rules, 1988, for the registration of the case against the petitioners, Respondent No. 1 failed to observe the principles of natural justice by not issuing show cause notices to the petitioners, getting their replies or providing them an opportunity of hearing, therefore, the permission granted by Respondent No. 1 for registration of the case is a nullity in the eye of law; that the appointments of Mian Ghulam Nabi as Drug Inspector for whole of the Multan Division, including Vehari District and Muhammad Zubair as Drug Inspector for the District Vehari are in violation of the provisions of the Drugs Act, 1976 being overlapping appointments and, therefore, the registration of the case against the petitioners by Respondent No. 5 at the instance of Respondent No. 4 is a nullity in the eye of law; that under Section 22 (4) of the Drugs Act, 1976, an accused person has the right to challenge the result of the Government Analyst within 30 days and it is the report of the Laboratory specified in sub-section (5) of Section 22 of the Drugs Act, 1976 which is to be treated as final in the case. As the report of the Government Analyst dated 2.1.1995 has not been supplied to the petitioners, they have not challenged the same before the Laboratory specified in sub-section (5) of Section 22 of the said Act, therefore, the report of the Government Analyst dated 2.1.1995 being not final, no case could be got registered against the petitioners and that as the offence of manufacture and sale of the drug in question took place at Lahore, no case could be registered against the petitioners at Police Station City Vehari. Reliance is placed upon Agha Nadim and another vs. The Station House Officer Police Station, Lohari Gate, Lahore and another (1998 P.Cr. L.J. 181) and Shuja Ullah vs. The State and others (1994 P.Cr.L.J. 1065).

4.  On the other hand, the learned Assistant Advocate General has vehemently opposed the petition and support the comments submitted by Respondents Nos. 1, 2, 3, 4 and 6. He has submitted that an alternate remedy is available under Sections 249-A & 265-K Cr.P.C. to the petitioner therefore, they must seek that remedy before the trial Court.

5.  I have heard learned counsel for the petitioners as well as the learned Assistant Advocate-General and gone through the comments submitted by Respondents Nos. 1, 2, 3, 4 and 6.

6.  The case was registered on the complaint of Respondent No. 4 who was granted permission by Respondent No. 1 for the said purpose. But the permission was granted to Respondent No. 4 without issuing show-cause notices to the petitioners, which is the requirement of sub-rule (3) to Rule 4 of the Punjab Drugs Rules, 1988. Sub-rule (3) to Rule 4 is reproduced below:

"The Board shall examine the cases referred to it by any Inspector under the Act before directing him to prosecute such accused or recommending it to the Licencing Authority for cancellation or suspension of the Licence:

Provided that no such action shall be taken without a show-cause notice to the accused".

Comments submitted by Respondent No. 1 also reveal that show-cause notices were not issued to the petitioners before granting permission to Respondent No. 4 for registration of the case.

7.  So far as overlapping appointments of the Drug Inspectors are concerned, suffices it to say that Mian Ghulam Nabi was appointed as Drug Inspector for whole of the Multan Division, including Vehari District, which is in violation of Section 17 of the Drugs Act, 1976. The said section is reproduced below:

"The Federal Government or a Provincial Government may, by notification in the official Gazette, appoint such persons as it thinks fit, having the prescribed qualifications, to be Federal Inspectors or, as the case may be provincial Inspectors for the purpose of this Act within such local limits as it may assign to them respectively:

Provided that no person who has any financial interest in the manufacture, import, export or sale of any drug shall be appointed:

Provided further that a person serving under the Federal Government or another Provincial Government shall not be so appointed without the previous consent of such Government".

In presence of appointment of Muhammad Zubair as Drug Inspector for the District Vehari, which is the concerned District, appointment of Mian Ghulam Nabi as Drug Inspector for whole Multan Division including District Vehari is overlapping.

8.  The recovered sample of the drug in question was sent by Respondent No. 4 to Respondent No. 2 for test and analysis, who vide his report  dated  2.1.1995  found  the same to be of substandard quality. But the said report was not supplied to the petitioners and for this reason they had not challenged the same under Section 22 of the Drugs Act, 1976. Comments of Respondent No. 4 reveal that a copy of test report was supplied to the petitioner vide letter dated 5.1.1995. But the said letter was addressed to Agah Nadeem M/s Gujrat Medicine House, Jannah Medicine Market Lahori Gate, Lahore, and not to Agha Nadeem M/s Nadeem Medical Store, Academic Road, Lahore Cantt. In this petition Petitioner No. 1 Agha Nadeem himself says that he has nothing to do with M/s Gujrat Medicine House, Jannah Medicine Market Lahori Gate, Lahore. Therefore, the report being not final, the registration of the case against the petitioners is without lawful authority. Even otherwise case cannot be registered at Vehari as the offence allegedly took place at Lahore.

9.  So far as the contention of the learned Assistant Advocate-General that the petitioners must seek an alternate remedy under Sections 249-A and 265-K Cr.P.C. before the trial Court is concerned, suffice it to say that it is not necessary that before moving the High Court the petitioners must move the trial Court under Sections 249-A or 265-K Cr.P.C. Every criminal case should be judged on its own facts and circumstances. This Court has power to quash criminal proceedings if satisfied that a false complaint had been brought and the process of Court was being abused to subject to the accused to unnecessary harassment. Reliance in this behalf is placed upon Raja Haq Nawaz vs. Muhammad Afzal and others (1968 SCMR 1256), Ghulam Ali vs. Javid and another (1989 P.Cr.L.J. 507), Abdul Ghafoor vs. The State (NLR 1999 Criminal 66) and Mian Munir Ahmad vs. The State (1985 SCMR 257).

10.  In view of the above circumstances, this writ petition is accepted and the permission granted by Respondent No. 1 for the registration of the case against the petitioners being unlawful authority, the FIR in question is quashed.

(J.R.)    Writ petition allowed