This petition under section 561-A of the Code of Criminal Procedure seeking quashment of proceedings of the case for alleged commission of offence punishable under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979 (President's Order No. 4 of 1979), pending against the petitioner and two of his co-accused in the Court of the learned Magistrate invested with powers under section 30 of the Code of Criminal Procedure, Kabirwala, arises out of the following circumstances. On the 14th October, 1979, at 2.00 p. m., Chaudhri Muhammad Hussain, Inspector of Police, Crime Investigating Agency, Multan, while he was in the company of other police officials, looking for some dacoits, stopped car bearing Registration No. F.D.D. 142 coming from Kabirwala at Rangu bridge, in the area of village Kotla, within the jurisdiction of Police Station Kabirwala, Asghar A.I petitioner was driving the car and Bashir Ahmad was occupying the front seat beside him.
Munawar Hussain was sitting in the rear seat. Chaudhri Muhammad Hussain searched the car and found 37 kilograms of charas contained in two cloth bags in the boot. He drew a sample of 50 grams of charas for sending it for examination to the Chemical Examiner. He took charas and sample thereof in his possession after having made them into sealed parcels. He drafted report regarding commission of offence under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979, by the petitioner and his co-accused and sent it to Police Station, Kabirwala where case was registered at 2.30 p. m., that day. The petitioner and his co-accused were challaned and are facing trial before the learned Magistrate.
2. The petitioner and his co-accused moved an application under section 249-A of the Code of Criminal Procedure before the learned trial Magistrate to secure an order of their acquittal on the grounds that three of the recovery witnesses had not supported the prosecution story of recovery of charas from their possession and the evidence of other witnesses would not strengthen the prosecution case and that the provisions of rule 6 of the Punjab Prohibition (Enforcement of Hadd)
Rules, 1979, had not been complied with. The application having been dismissed by the learned Magistrate the petitioner has approached this Court for quashment of proceedings of the case for reasons which will be presently dealt with.
3. Placing reliance upon the provisions of rules 3(2), 4(4), 6 and 8 of the Punjab Prohibition (Enforcement of Hadd) Rules, 1979, made by the Governor of the Punjab in exercise of the powers conferred by Articles 21 and 31 of the Prohibition (Enforcement of Hadd) Order, 1979, the learned counsel for the petitioner maintained that though Inspector of Police was empowered to make search of the Cdr yet he was not competent to take charas in his possession, retain it with him or get case registered and investigate the same without the permission of or without joining in investigation the Prohibition Officer who is none other than the Excise and Taxation Officer of Multan district. To appreciate the argument of the learned counsel it may be advantageous to reproduce the aforementioned rules for facility of, reference, Rule 3(2)--The Excise and Taxation Officer shall exercise within the district of his posting the powers of Prohibition Officer under the Order.
Rule 4(4)--A Prohibition Officer shall exercise the powers of a Police Officer under Chapter XIV of the Criminal Procedure Code while conducting investigation in a cognizable offence under the Order.
Rule 6.-When any person is arrested by any competent officer, if he is not a Prohibition Officer, be shall foward him to the Prohibition Officer of the area with a report containing the facts relating to his arrest and if the Prohibition Officer is satisfied on the basis of the material and facts placed before him that a prima facie. Case is made out against the accused and the accused is not released on bail he may be sent to the police station of the area where the offence has been committed for custody and formal registration of the case.
Rule 8.-The Officer Incharge of a police station shall take charge of and keep in safe custody, pending the orders of a Magistrate or a Prohibi--petition Officer, all articles seized under the Order which may be delivered to him and shall allow the Prohibition Officer to affix his seal to such articles and to take samples therefrom.
4. The learned counsel tried to interpret the phrase any competent officer' occurring in rule 6 to include any Police Officer like Chaudhri Muhammad Hussain, Inspector of Police, and contended that after having arrested the petitioner and his co-accused the Inspector was duty bound to forward them to the Prohibition Officer with the requisite report containing the facts relating to their arrest and it was for the Prohibition Officer to decide if prima facie case had been made out against the accused and if they were not released on bail to send tbem to the police station and direct registration of the case. The construction placed by the learned counsel on the wording of rule 8 was that it was for the Prohibition Officer to affix seal to the charas recovered from the possession of the petitioner and his co-accused and draw sample therefrom and that the Inspector of Police possessed no such authority.
5. Articles 16, 21 and 27 of the Prohibition (Enforcement of Hadd) Ord.-r, 1979, referred to by the learned Assistant Advocate-General appearing on behalf of the State, provide answer to the arguments of the learned counsel for the petitioner. The offence of transporting any intoxicant envisaged by Article 3(f) and of possessing or keeping in one's custody any intoxicant at a public place as contemplated by Article 4 are declared by Article 16 to be cognizable by police. Article 27 keeps the powers of the police officers enjoyed under the Code of Criminal Procedure for registering and investigation cases, taking case property into possession and submission of challan to Court intact. The Punjab Prohibition (Enforcement of Hadd) Rules, 1979, a species of subsidiary legislation, cannot override the parent legislation, namely, the Prohibition (Enforcement of Hadd) Order, 1979. Therefore, the Rules cannot be interpreted so as to deprive the police officers of the powers which the Order specifically preserves for them.
6. It may be pointed out that the `competent officer of which rule 6 speaks is not a police officer but an officer appointed by the Provincial Government under Article 21 (b) of the Order. Under rule 4(2) all Excise and Taxation constables are declared to be officers appointed under Article 21 of the Order. It is such an officer, other than a Prohibition Officer, who is required under rule 6 to forward an arrested person to the Prohibition Officer, A Police Officer having independent powers under the Code of Criminal Procedure can act on his own to deal with the offender . He is no obliged to send the person he arrests to the Prohibition Officer.
7. Again rule 8 just enables the Prohibition Officer to affix his seal to intoxicants kept by the officer incharge of a police station in his custody and take samples therefrom. It cannot be interpreted in the way the learned counsel for the petitioner has attempted to adopt to mean that it is only the Prohibition Officer who can take possession of the intoxicants and send samples for examination to the Chemical Examiner. The police officers' powers to take possession of the intoxicants and forward their samples for analysis to the Chemical Examiner have not in any way been excised.
8. What weight is to be attached to the evidence of the three of the recovery witnesses who have turned hostile or to the testimony of other wit--nesses who have supported the prosecution case is a question that pertains to appreciation of evidence and it is to be resolved by the learned trial Court and not by this Court in proceedings under section 564-A of the Code. It is not the intention of the law that in exercise of powers under section 561-A of the Code of Criminal Procedure the normal course of trial in the subordinate Courts should be diverted. Where the allegations made against the accused disclose commission of offence it is for the trial Court on the evidence to determine whether the allegations are true or false. The proceedings cannot be quashed simply for the reason that the petitioner considers that the allegation are false
9. The contention of the learned counsel for the petitioner that in the absence of Chemical Examiner's report touching the contents of the sample of charas sent to him the prosecution case could not conceivably be established against the accused loses its force when we notice that the Chemical Ex--aminer's report has by now been received and placed on the record.
10. In view of what bas been said above the petition is found to be without any force and is consequently dismissed.