2007 SCMR 393 (PLP)
MUHAMMAD YOUNAS and others — Petitioners Versus Mst. PERVEEN alias MANO and others — Respondents
| Citation | 2007 SCMR 393 (PLP) |
| Forum / Court | Supreme Court of Pakistan |
| Bench Members | Khalil-ur-Rehman Ramday, Faqir Muhammad Khokhar and Ch. Ijaz Ahmed, JJ |
| Parties | MUHAMMAD YOUNAS and others — Petitioners Versus Mst. PERVEEN alias MANO and others — Respondents |
| Primary Law | (a) Control of Narcotic Substances Act (XXV of 1997), (c) Control of Narcotic Substances Act (XXV of 1997), (b) Control of Narcotic Substances Act (XXV of 1997) |
Q1: What are the key laws and sections cited in 2007 SCMR 393 (PLP)?
This judgment primarily cites: (a) Control of Narcotic Substances Act (XXV of 1997), (c) Control of Narcotic Substances Act (XXV of 1997), (b) Control of Narcotic Substances Act (XXV of 1997) as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case 2007 SCMR 393 (PLP)?
The case was heard and decided by the Supreme Court of Pakistan bench comprising: Khalil-ur-Rehman Ramday, Faqir Muhammad Khokhar and Ch. Ijaz Ahmed, JJ.
Q3: What is the official citation format for this judgment on Pakistan Law Portal?
Cite this legal precedent as: 2007 SCMR 393 (PLP) (MUHAMMAD YOUNAS and others — Petitioners Versus Mst. PERVEEN alias MANO and others — Respondents). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Laws Cited
Representation
- 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).
- 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.
- 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.
- 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).
- 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.
- 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.
Headnotes / Summary
(On appeal from the judgment, dated 31-10-2005 of the Lahore High Court, Lahore passed in Writ Petition No.13094 of 2005).
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.
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.
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
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.
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. 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).
Judgment & Decree
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.