MALIK JAVID IQBAL WAINS, J.: Through this constitutional petition filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, the petitioners have called into question the validity of the order dated 04.07.2011, passed by the Drug Court, Multan (hereinafter "trial court"), whereby they were summoned to stand trial along with their co-accused in connection with case FIR No.36/2010, registered under Sections 23 & 27 of the Drugs Act, 1976 (hereinafter "Act, 1976").
2. Briefly stated, the facts of the case are that the Provincial Drugs Inspector conducted an inspection of the business premises of M/S Hamza Medical Store, Lalli Lal Road, Layyah City. During the inspection, he recovered certain drugs, bills/warranties and found that drugs were being sold without a valid sale license or warranties, whereupon he seized items included unregistered drugs and reported the matter to the Chairman, District Quality Control Board, Layyah, through letter No.657/703 dated 06.11.2007. After reviewing the report of the Provincial Drugs Inspector, the Chairman issued a show cause notice to the petitioners vide letter No.DQCB/R-258/138/2007, dated 17.02.2009, and further issued a notice for personal hearing. After hearing the petitioners and considering their replies to the show cause notice, the Secretary, District Quality Control Board, Layyah, issued a warning letter to them vide letter No.383-85/DQCB dated 25.04.2009.
3. The record further reflects that the Provincial Drugs Inspector, District Layyah, after seeking permission from the District Quality Control Board, Layyah, filed a complaint before the Drug Court, Multan, against one Syed Muhammad Safeer Imam under Sections 23 and 27 of Act, 1976. During the trial, the learned Assistant District Public Prosecutor (hereinafter ADPP) filed an application dated 23.06.2011 before the trial court for summoning the petitioners, asserting that they had supplied the medicine to co-accused Syed Safeer Abbas. It was further mentioned by the ADPP that a letter was also sent to the Chairman, District Quality Control Board, Layyah, by the Provincial Drugs Inspector seeking permission for prosecution against all the accused persons, however, the Board neither issued show cause notice nor implicated the petitioner in this case.
4. The trial court, after hearing arguments on the application and with the consent of learned counsel for co-accused in the above FIR, summoned the petitioners to face trial proceedings vide impugned order dated 04.07.2011.
5. Learned counsel for the petitioners submits that the impugned order passed by the trial court is against law and facts. He further contends that the trial court can only take cognizance of those cases, which have been transmitted to it by the District or Provincial Quality Control Boards. He asserts that since the District Quality Control Board issued a warning to the petitioners, the said order attained finality and no further action can be taken against them without following the procedure provided in Section 30 of Act, 1976. Learned counsel adds that the ADPP had no authority to file an application before the trial court for summoning the petitioners, as the matter to their extent had already been finalized.
6. Conversely, the Additional Advocate General, Punjab and learned Assistant Attorney General for Pakistan have defended the impugned order passed by the trial Court and pray for dismissal of instant writ petition.
7. Arguments heard. Record perused.
8. To resolve the controversy raised in this writ petition, the following core questions require determination: i. Whether the learned Assistant District Public Prosecutor (ADPP) was legally competent to file an application for summoning the petitioners in the absence of a statutory complaint filed by a designated Inspector under Section 30 of the Drugs Act, 1976; ii. Whether the learned Drug Court could assume jurisdiction to entertain such an application, bypassing the statutory mechanism laid down in Sections 19 and 30 of the Drugs Act, 1976, and the Punjab Drug Rules, 2007; iii. Whether the impugned proceedings and order offend the fundamental rights of the petitioners guaranteed under Articles 4 and 10-A of the Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter "the Constitution").
9. It is an established fact that the District Quality Control Board, Layyah, after issuing a show cause notice and providing a personal hearing to the petitioners, concluded the proceedings by issuing a warning letter dated 25.04.2009. However, neither subsequent reference was made by the Board for prosecution nor was any complaint lodged by a Provincial or Federal Drugs Inspector under Section 30 of the Act, 1976.
10. During the course of arguments, in response to a specific query from the Court, the Secretary, District Quality Control Board, Layyah, candidly stated that no complaint was ever filed by the Drug Inspector against the petitioners in the Drug Court, as is mandatorily required under Section 30 of the Act, 1976. This express admission reveals that the statutory mechanism for initiating prosecution, requiring a formal complaint by a duly authorized Inspector with the prior sanction of the Quality Control Board, was never initiated in the present case.
11. The Act, 1976, being a special statute, prescribes a complete procedural framework, which must be strictly adhered to. Section 19(6) of the 'Act ibid' clearly mandates that no prosecution shall be instituted unless the matter is first referred to the relevant Board and a decision is made thereon.
Section 30 of the "Act, 1976" is explicit that only a Federal or Provincial Inspector is competent to institute a prosecution under the "Act". This section prohibits institution of prosecution by any person except by a Federal Inspector or the Provincial Inspector. This statutory scheme overrides general criminal procedure and binds all authorities acting under the Act. Reliance in this regard can be placed on the case titled "THE STATE through Advocate-General, High Court of Sindh, Karachi vs. IQBAL AHMED KHAN" (1996 SCMR 767), wherein the apex Court while elaborating the applicability of Section 30 has held that:
4. .... Therefore, balance has to be maintained between the rights of the citizens and the powers of the authorities. The provisions of the Act have to be seen in this background and it was with this view that limitation on instituting prosecution has been prescribed by section 30. A prosecution can be instituted by a Federal Inspector or a Provincial Inspector. Mr. Halipota, the complainant did not hold any of the positions and was, therefore, not competent to institute the case/prosecution before the Drug Court. The entire proceeding was, therefore, vitiated. The view taken by the High Court is correct and in consonance with the provisions of law."
12. In view of above provision of law, it is clear that learned ADPP is not vested with any power under the Act, 1976 to initiate or revive prosecution. Bare reading of the Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2006, reveals that the role of Prosecutor is restricted to represent the Government, scrutinizing investigation reports, advising law enforcement, and conducting prosecution where lawfully instituted. The ADPP cannot override a concluded administrative decision made by the competent authority under the Act, 1976.
13. The trail court was equally bound to examine the maintainability of the application and its own jurisdiction before passing the impugned summoning order. By ignoring the statutory bar, the trial court acted without lawful authority. The Supreme Court of Pakistan has time and again held that when the law requires a particular procedure to be followed, any deviation renders the action void ab-initio.
14. It must be underscored that this procedural irregularity strikes at the very root of due process.
Article 4 of the Constitution guarantees that no action detrimental to the life, liberty, body, reputation or property of any person shall be taken, except in accordance with law. Here, the petitioners were deprived of the statutory safeguards guaranteed by the Act, 1976 and the Punjab Drug Rules, 2007. The ADPP's unilateral act of filing an application and the trial Court's acceptance amounts to an arbitrary exercise of power, in clear derogation of Article 4 of the Constitution.
15. Furthermore, Article 10A of the Constitution enshrines the fundamental right to a fair trial and due process. The petitioners had already faced a complete adjudication by the competent authority i.e. District Quality Control Board, which, after hearing and considering their defence/please, decided to conclude the matter by issuing a warning. Subsequently, reopening the prosecution on the same allegations, without issuance of a fresh show-cause notice, in the absence of a lawful complaint or statutory authorization, amounts to an exercise without lawful authority and constitutes a violation of the petitioners' rights to legal certainty, procedural finality, and fair process.
16. Moreover, when an administrative adjudication after a hearing, crystallizes the right of fair trial and due process under Article 10A of the Constitution, any attempt to reopen such a closed matter without fresh lawful process amounts to double jeopardy in the administrative sense and vitiates the settled expectation of legal certainty.
17. The impugned order thus fails the test of reasoned decision making, fair procedure and the fundamental requirements of a valid judicial determination. It is non-speaking, assigns no reasons for bypassing the clear statutory framework, and was passed without notice to the petitioners.
Such an order offends settled principles of natural justice and fails the touchstone of fairness under Article 10A of the Constitution.
18. A judicial order must stand on cogent reasons and must reflect conscious application of mind to the facts and law involved. In the present case, the order is non-speaking and assigns no rationale for departing from the express statutory framework governing the matter.
19. Moreover, it is an admitted fact that the impugned order was passed without issuing any notice to the petitioners, thereby depriving them of their fundamental right to be heard, which is a cardinal principle of natural justice rooted in the maxim audi alteram partem. Instead, the summoning order was made solely on the basis of consent by the counsel for the co-accused, which neither binds the petitioners nor substitutes the mandatory requirement of prior notice and fair hearing. This approach undermines the procedural safeguards enshrined in Article 10A of the Constitution, guaranteeing the right to fair trial and due process. It is well-settled that an order affecting a party's rights, passed without affording them an opportunity of hearing and without jurisdiction is coram non judice and void ab initio. Reliance in this regard can be placed on "JAMEEL QADIR and another vs. GOVERNMENT OF BALOCHISTAN, LOCAL GOVERNMENT, RURAL DEVELOPMENT AND AGROVILLES DEPARTMENT, QUETTA through Secretary and others" (2023 SCMR 1919), wherein the Hon'ble Supreme Court of Pakistan has held as under: - "10.....The term 'jurisdiction' in the legal parlance means the command conferred to the Courts by law and Constitution to adjudicate matters between the parties. The jurisdiction of every Court is delineated and established to adhere to and pass legal orders. Transgressing or overriding the boundary of its jurisdiction and authority annuls and invalidates the judgments and orders. In order to deal with the different species of litigation, some Courts and Tribunals are vested with exclusive jurisdiction for taking cognizance of matters which other Courts cannot take under the rigidity or stringency of exclusive jurisdiction to deal with and decide the lis. No Court has the right to decide any lawsuit which is beyond the purview of its jurisdiction and want of jurisdiction conveys an action beyond the domain earmarked to any particular Court or Tribunal which cannot be cured, even by consent or acquiescence of parties. It is the prime duty of the Court to decide the question of jurisdiction first in case of doubts raised regarding jurisdiction, and in any such situation it is the responsibility of the Court to endeavor to resolve the issue of jurisdiction at an early stage of the proceedings."
20. In view of these serious legal infirmities, the impugned order is liable to be declared illegal, arbitrary, and contrary to the settled principles of fair procedure, reasoned decision making, and constitutional guarantees of due process.
21. Resultantly, the impugned order dated 04.07.2011, passed by the trail court is hereby declared to be without lawful Jurisdiction and of no legal effect.
22. The instant writ petition stands allowed.