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 SCM R 63 = PLJ 2002 SC 304; Federation of Pakistan through. Secretary, Finance, Islamabad and another v.
Malik Mumtaz Hussain and 4 others 1997 SCM R 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. The impugned order of the High Court clearly shows that the High Court had acted on the ipse 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 eases 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 SCM R 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 at pages 81, 88 and 151=152; Muhammad and others v. The State 1984 SCM R 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 31-102005, 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.