The brief facts out of which present writ petition arises are that the case has been registered against the petitioners under the provisions of Drugs Act, 1976 and Rules framed there-under. The challan has already been submitted before the competent Court. The petitioners filed an application under Section 265-K Cr.P.C. before the Drug Court, which was dismissed by the Drug Court vide order dated 2.10.2001. Subsequently, the petitioners filed another application u/S. 265-K Cr.P.C. which was also dismissed by the Drug Court vide order dated 30.9.2003. The petitioners filed this Constitutional petition with the prayer that proceedings before Respondent No, 1 including summoning of the petitioners on the basis of unlawful test report Annexure-A is without order of Provincial Quality Central Board and entire proceedings are without jurisdiction and unlawful authority.
2. The learned counsel of the petitioners submits that action of the respondents is in violation of mandatory provisions of Section 19(6) read with Section 11(5) and Section 16 of Drugs Act, 1976. He further submits that the respondents have initiated action against the petitioners on the basis of order dated 29.11.1994 which is attached with writ petition as Annexure A, which is not in consonance with Section 16 of the aforesaid Act. Similarly, Notification dated 24.3.1992 is not in consonance with the provisions of Drugs Act. He further submits that the permission granted for prosecution against the petitioners vide order dated 3.7.1996 is also in derogation of aforesaid provisions Drugs Act, 1976. He further submits that in similar circumstances, the application was accepted by the Drug Court. In support of his contention, he relied upon "Drug Inspector vs. F.A.
Zubair and others" (N.L.R. 1989 T.D. 378), which was up-held by this Court in unreported judgment dated 13.5.2002 passed in Criminal Appeal No, 666-1989. He further submits that action of the respondents is not in consonance with law laid down by this Court "M/s. Nawab Sons Laboratories
(Pvt) Ltd. through M.D. vs. Government of Punjab, Health Department through Secretary, etc." (PLD 2003 Lahore 115) and by the Honourable Supreme Court in The State through A.G. vs. Iqbal Ahmed Khan" (1996 S.C.M.R. 767).
3. The learned law officer entered appearance on Court's call, he submits that the writ petition is not maintainable.
4. The learned counsel of the petitioners in rebuttal submits that the public functionaries are duty bound to act in accordance with law in view of Article 4 of the Constitution read with Section 24-A in the General Clauses Act.
5. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record.
6. It is better and appropriate to reproduce the prayer clause to resolve the controversy between the parties: It is most respectfully prayed that this petition be accepted, by declaring that prosecution instituted by Respondent No, 2 against the petitioners before Respondent No, 1 titled the State through Abdul Salarn Mufti. vs. M/s. Sulson Pharma, etc. are without lawful authority and the proceedings before Respondent No, 1 including summoning of the petitioners on the basis of unlawful test report Annexure-A without an order of provincial Quality Central Board, and the entire proceedings are without jurisdiction, unlawful, illegal and in clear violation of Articles 4 and 201 of the Constitutional of Islamic Republic of Pakistan, as such unsustainable be quashed in the interest of justice. It is further prayed that during the pendency of this petition, further proceedings in the said case be stayed. It is also prayed that appropriate direction for strict compliance of law and the Constitution may very graciously be issued to the trial Court.
Mere reading of the aforesaid prayer clause reveals that the petitioners have not challenged the legality or illegality of the orders of the Drug Court dated 2.10.2001 and 30.9.2003. It is settled principle of law that the parties are bound by their pleadings as per law laid down by the Honourable Supreme Court in "Mst. Murad Begum, etc. vs. Muhammad Rafiq, etc." (PLD 1974 S.C.
322),
7. The petitioners have not challenged the vires of aforesaid orders of Respondent No, 1 in the prayer clause, therefore, this writ petition is liable to be dismissed only on this short ground. The judgment cited by the learned counsel of the petitioners is distinguished on facts and law as in the cited case, the competent authority has not submitted challan against the petitioner, whereas in the present case, the competent authority has submitted challan against the petitioners before the competent Court, therefore, the petitioners can not take benefit of judgment of this Court. It is pertinent to mention here that the petitioners have filed application under Section 265-K Cr.P.C. without taking the ground that Respondent No, 2 has not passed the order in accordance with law and has argued the case before Respondent No, 1 over and above pleadings, therefore, the application of the petitioners was dismissed by Respondent No, 1 vide order dated 2.10.2001.
Subsequently, the petitioners filed another application, which was also dismissed after considering the objection raised by the petitioners vide order dated 30.9.2003.
8. It is better and appropriate to reproduce the operative part of the order dated 30.9.2003 to resolve the controversy between the parties: "In the present case, Mr. Abdul Salam Mufti had been appointed by the Government of the Punjab as Divisional Drug Inspector and was to exercise his jurisdiction within the division of Gujranwala w,e,f, 11.6.1995 vide gazette notification dated 5.6.1995. It meant that the Provincial Government under Section 17 of the Drugs Act, 1976, had appointed Abdul Salem Mufti, as Drug Inspector and his jurisdiction was Gujranwala Division. In the aforesaid case (1996 S.C.M.R. 767) the complainant was Deputy Inspector of drugs. In my opinion, the cited case with ulmost respect is not applicable to the case in hand. The application is, therefore, dismissed. To come-up for prosecution evidence on 16.12.2003. PWs be summoned."
In case, the operative part of order dated 30.9.2003 and the contents of writ petition, be put in juxta position, then it brings the case of the petitioners in the area of the disputed question of fact, and this Court has no jurisdiction to resolve the disputed question of fact in Constitutional jurisdiction, as per law laid down by the Honourable Supreme Court in "Muhammad Younas Khan's case" (1993 S.C.M.R. 618). Respondent No, 1 has dismissed the application of the petitioners with cogent reasons vide order dated 30.9.2003. It is pertinent to mention here that Respondent No, 1 dismissed the application of the petitioners on 30.9.2003 and the petitioners have filed this Constitutional petition before this Court on 17.6.2004, therefore, this Constitutional petition is liable to be dismissed on the well known principle of laches, as per principle laid down in (PLD 1997 S.C. 304).
9. It is settled, principle of law that Constitutional jurisdiction is discretion in a character, keeping in view the conduct of the petitioners, not mentioning the impugned order of Respondent No, 1 in the prayer clause and did not approach this Court immediately after dismissal of application by Respondent No, 1 on 30.9.2003, I am not inclined to exercise my discretion in favour of the petitioners as per law laid down by the Honourable Supreme Court in the following judgments:-- "Nawab Syed Raunaq Ali us. Chief Settlement Committee". (PLD 1973 S.C. 236).
Federation of Pakistan etc. vs. Haji M.M. Saif-ullah etc." (PLD 1989 S.C. 166).
It is also settled principle of law that each and every case is to be decided on its own peculiar circumstances and facts, as per principle laid down by the Honourable Supreme Court in "Trustee of Port of Karachi vs. M. Saleem" (1994 S.C.M.R. 2213). Therefore, judgments cited by the learned counsel of the petitioners are distinguished on facts and law.
In view of what has been discussed above, this writ petition has no merit and the same is dismissed.