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

Constitutional Jurisdiction of High Court

P L D 2006 Lahore 431

Before Syed Shabbar Roza Rizvi, J

MAZHER HUSSAIN---Petitioner

Versus

THE STATE and 2 others---Respondents

Writ Petition No.1564-Q of 2006, decided on 6th April, 2006.

 (a) Constitution of Pakistan (1973)---

----Arts. 199 & 184(3)---Constitutional jurisdiction of High Court---Scope---Constitution of Pakistan is basically a document which provides a system for the country under which it is governed---Constitution also demarcates functions of different organs of the State---in the Scheme of the Constitution, people of Pakistan have also been provided legal and fundamental rights---Arts. 184(3) and 199 of the Constitution have been provided in the Constitution basically to protect these rights and to take a judicial notice if these are violated by any person---Article 199 of Constitution is not meant to usurp the jurisdiction of other constitutional and statutory organs of the State; it is also not meant to render all other laws redundant and it has also not been enacted to affect adversely the administration and running of statutory bodies and departments i.e. Police etc.---High Court has been empowered to intervene under Art. 199 of the Constitution in a matter in which no legal remedy has been provided to address grievance of any aggrieved party/person within its territorial jurisdiction---Such jurisdiction is also available when remedies available under law have been exhausted, but still petitioner's grievance remained unresolved and High Court is satisfied about genuineness of grievance.

 (b) Constitution of Pakistan (1973)---

----Art. 199---Criminal Procedure Code (V of 1898), S.561-A---Constitutional petition---Quashing of F.I.R.---Accused mostly rush to High Court for quashing of F.I.R. by invoking Art.199 of the Constitution while Code of Criminal Procedure, 1898, Police Rules, 1934 and Police Order, 2002, have provided a Scheme to get relief in such-like situation---Police hierarchy has also been provided under those laws.

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

----S. 156---Constitution of Pakistan (1973), Art.199---Constitutional petition---Maintainability---Investigation---Investigation is a statutory function and duty of the police---High Court is not assigned a role of Superior Investigator---High Court can only be approached when concerned Police Authorities, under relevant law, would fail to perform their statutory functions or exceed their jurisdiction, but not immediately after registration of F.I.R.---Such is not a purpose of Art.199 of the Constitution.

(d) Administration of justice---

----Duty and function of counsel---Bar was there to represent their clients as well as to assist the Courts honestly and devotedly, but if 6imsel would involve the Courts in frivolous cases or petty matters, which could be resolved otherwise, that would distract Courts from substantial work like criminal/civil appeals and constitutional issues, etc.---Misconceived and unfounded litigation not only would waste precious public/Court's time, it also would increase pendency of cases---High Court which was apex constitutional and appellate Court within the Province, its basic role was to decide appeals and constitutional issues within reasonable time because justice delayed was justice denied---All stakeholders were advised to let the High Court focus on its real role and job.

Mehr Zauq Muhammad Sipra for Petitioner.

ORDER

SYED SHABBAR RAZA RIZVI, J.---The Constitution of Pakistan is basically a document which provides a system for the country under which it is governed. It also demarcates functions of different Organs of the State. In scheme of the Constitution, people of Pakistan have also been provided legal and fundamental rights. Article 184(3) and Article 199 of the Constitution are provided in the Constitution basically to protect those rights and to take a judicial notice if those are violated by any person; person is defined in clause (5) of Article 199 itself. The Constitution or Article 199 is not meant to usurp the jurisdiction of other constitutional and statutory organs of the State. It is also not meant to render all other laws redundant. It is also not enacted to affect adversely the administration and running of statutory bodies and departments i.e. Police etc. High Court has been empowered to intervene under Article 199 of the Constitution in a matter in which no legal remedy is provided to address grievance of any aggrieved party/person within its territorial jurisdiction. This jurisdiction is also available when the remedies available under the law have been exhausted but still petitioners' grievance remains unresolved; and the High Court is satisfied about genuineness of the grievance.

2. Somehow there is an increased trend that whenever an F.I.R. is registered, the accused persons rush to the High Court for quashment of the same, and invoke Articles 199 of the Constitution. Code of Criminal Procedure, Police Rules, 1934 and now Police Order, 2002 provide a scheme to get the relief in such like situation; a police hierarchy is. also provided under these laws. Investigation is a statutory function and duty of the police. High Court is not assigned a role of superior investigator. High Court can only be approached when the concerned police authorities, under the concerned law, as mentioned above, fail to perform their statutory functions or exceed their jurisdiction, but not C immediately after registration of F.I.R. I have come across cases where within days, even before start of investigation, writ petitions for quashment of F.I.R. are tiled. This is not a purpose of Article 199 of the Constitution.

3. The bar is there to represent their clients as well as to assist the courts honestly and devotedly. But if they involve the courts in frivolous cases or petty matters, which can be resolved otherwise, that distracts courts from substantial work like criminal/civil appeals and constitutional issues, etc. Misconceived and unfounded litigation not only wastes precious public/court time, it also increases pendency of cases. High Court is an apex constitutional and appellate Court within the Province and its basic role is to decide appeals and constitutional issues within reasonable time. Because justice delayed is justice denied. Therefore, all the stakeholders are advised to let the High Court focus on its real role and job.

4. In view of the above, the petitioner is directed to contact S.P. Investigation who is under a statutory obligation as mentioned above to ensure that fair-play is done with the parties, at his level and if the grievance of the petitioner is found correct, the same be rectified. The petitioner is directed to furnish a copy of this order to the S.P. Investigation. This writ petition is disposed of.

H.B.T./M-215/L                                                                                  Order accordingly.