' On 11-2-1994 the Drug Inspector/respondent No,2 alongwith other Drug Inspector visited the premises of Messrs Quality Traders, outside Lohari Gate, Lahore and took samples of Skilax Drops bearing batches Nos.7318-7388 and sent the same to the Government Analyst for test and analysis.
The sample of the Drugs were found to be superious and sub-standard quality having certain 'marks of difference, vide report of Analyst dated 2-1-1995. Respondent No,2 visited Gujrat Medicines House, Lohari Gate, Lahore on 4-1-1995 to verify the genuineness of Bill No,514 dated 15- 10-1994 issued in favour of the petitioner No,2 by Messrs Gujrat Medicines House, Lohari Gate Lahore. But did not find Agha Nadeem petitioner No,1 present there. On 5-1-1995 respondent No,2 straightaway got the case registered with police Station, Lohari Gate, Lahore.
2. The petitioner's counsel contended as follows:-
(i) F.I.R. Has been recorded in violation of sections 11(5)(b) and 19(6) of Drug Act, 1976 read with Rule 4 of the Drug Rules, 1989. The criminal case under section 23/27 could not be registered without prior permission of the Provincial Quality Control Board set up under section 11 of the Act.
(ii) If Drugs found substandard, section 22(4) and (5) grant right to the petitioner to challenge such report within 30 days, therefore, his report cannot be taken into consideration in violation of section 22 of the Act.
(iii) The appointments of Drug Inspector, Divisional Inspector, Divisional Industries Inspector, and District Inspector for Lahore area are in violation of the provisions of the said Act being overlapping appointments for one and the same area.
(iv) Appointment of the Analyst was not in accordance with the ,provisions of Act special in violation of section 16 of Act as the notification did not mention area or classification which is a condition precedent.
3. The petitioner's counsel argued that the F.I.R. Was registered without prior permission of the Provincial Quality Control Board set-up as required by sections 11(5)b, 19(6) of Drug Act, 1976 read with Rule 4 Drug Rules, under the provision of said Act, therefore, F.I.R. May be quashed. Relying on the following judgments.
' AIR 1945 Privy Council 18, Malik Shaukat Ali Dogar and 12 others v. Ghulam Qasim Khan Khakwani and others PLD 1994 S.C. 281, Brig. (Retd.) Imtiaz Ahmad v. Government of Pakistan etc. 1994 SCMR 2142, Anwar Ahmad Khan v. The State and another 1996 SCMR 24, The State v. Muhammad Aslam Shakir etc. NLR 1993 Crl. 31, Munir Ahmad v. The State 1993 MLD 1386, Jameel Ahmad Khan and others v. A.C. And others 1990 PCr.LJ 1475 and Abdul Hague v. The State PLD 1996 SC 1.
4. The petitioner's counsel further argued that Drug was found of substandard quality and the respondent No,2 did not provide him an opportunity to challenge the same under section 22, therefore, the proceedings are without lawful authority and has referred The State v. Messrs Kalco Pharma and 4 others 1990 PCr.LJ 865.
5. The District Inspector Respondent No,2 was appointed in violation of the provisions of the Act and relied upon the judgment reported as The State v. Iqbal Ahmad Khan 1996 SCMR 767.
6. The learned counsel further argued that respondent No,2 in his parawise comments admitted to the extent that no F.I.R. Shall be lodged without prior permission of Provincial Quality Control Board vide letter dated 20-7-1991 of the Government of Punjab, Health Department. The letter dated 30- 12-1991 has authorised the Inspector to make a complaint to the Drug Court directly without seeking specific instructions of the Provincial Quality Control Board. The learned counsel argued that this letter did not authorise respondent No,2 to lodge F.I.R. Against the petitioner. Similarly, letter dated 15-1-1995 only indicates to follow up the cases and make reports to the Government of progress on top priority basis. This letter also does not authorise the respondent No,2 to lodge F.I.R.
Further, letter dated 18-3-1995 issued by the Secretary Provincial Quality Control Board to the Inspector of Drugs Vehari, therefore, this letter also does not authorise respondent No,2 to lodge F.I.R. The learned counsel also argued that Dr. Ikram-ul-Haq was not competent to allow respondent No,2 to lodge F.I.R. Being at the same time holding the two posts i,e, Government Analyst and Secretary Punjab Quality Control Board, and that the report submitted by him is not a report in the eyes of law prepared in violation of the Provisions of Punjab Drugs Act 1976, He has relied upon the following case-law.
' Pakistan v. Public at Large PLD 1984 SC 304, Rehmatullah v. Ali Muhammad and another 1983 SCMR 2100.
' On the other hand, the learned Additional Advocate-General vehemently opposed the petition.
7. Civil Miscellaneous No,886 of 1995 was filed under Order 1, Rule 10, C.P.C. Read with section 151, C.P.C. For impleading High Noon Laboratory Lahore as party/respondent in the writ petition.
Similarly, Civil Miscellaneous No,407 of 1995 has been filed under Order 1, Rule 10, C.P.C. On behalf of Malik Muhammad Hanif for impleading him as respondent. It is pertinent to mention here that in Civil Miscellaneous No,886 of 1995 an order was passed that it be heard alongwith main case, and in Civil Miscellaneous No,407 of 1995 order was passed that application is allowed subject to all just exceptions.
8. The learned counsel for the applicant in Civil Miscellaneous No,886 of 1995 Mr. Munir Ahmad Bhatti contended that applicants are lawful manufacturers of Skilax Drops bearing batches Nos.7318-7388 which were found superious by the Government Analyist, therefore, applicants are necessary party. The learned counsel further contended that, originally, in case of acquittal of the accused the complainant had a right to file revision petition under Cr.P.C. With permission of the Deputy Commissioner. Presently, by virtue of Enforcement of Sharia Act, 1991 and Article 2-A of the Constitution; and -addition of section 417(2)A by way of amendment in Cr.P.C. On 14-11-1994, any aggrieved person has a right to file appeal against the acquittal of any accused without permission of Deputy Commissioner. He relied upon the following judgments: ' Daulat v. Mohabbat and 6 others PLD 1992 Lah. 167, Behram Khan and 4 others v. Mehr Mumtaz Hussain Lali, Additional District Judge etc. PLD 1992 Lah.
524.
9. The learned counsel, of the applicant on merits, contended that petitioner No,1 Khwaja Adnan had since been absconded; therefore, F.I.R. Cannot be quashed partially and narrated the facts in chronological order that Yasir Mahmood Inspector, recovered the said batches on 11-12-1994 and prepared a report in form No,5. On 12-12-1994 Yasir Mahmood sent his report to the Analyst. The Analyst found them spurious vide its report dated 2-1-1997. On 14-12-1994, applicant was contacted by the said Inspector and the applicant informed him that it was not manufactured by the applicant.
' He further stated on the basis of the report and parawise comments of respondent No,2 that F.I.R.
Was rightly lodged.
10. The learned counsel then relied upon section, 154, Cr:P.C. And stated that any person can lodge the report and the Inspector is bound to take action, and in case the contention of the petitioner is accepted then section 154, Cr.P.C. Becomes redundant. The learned counsel further relied upon section 3(b)(ii), section 3-zz, section 19(6) and Rule 4(3), Drugs Rules, 1988 and Act, 1976 and contended that action of the respondent No,2 was valid and in accordance with law relying upon the meaning of the word "prosecution" as given in legal terms and phrases by M. Ilyas Khan. It means initiation of proceedings of a criminal nature before a Court of Law.
11. The learned counsel keeping in view the abovementioned provisions contended that instructions can be oral. In the present case instructions have already been given in 1991 by competent authority through a general order. The learned counsel further contended that offence is of a serious nature and the life of the human-being is involved, therefore, writ cannot be issued as the action of the petitioners comes under the area of injustice to the general public and relied upon:-- ' Market Committee, Multan etc. v. Muhammad Sabir 1995 SCMR 305.
' The learned counsel further contended that action of the petitioners is based on illegality, therefore, High Court cannot exercise its discretionary jurisdiction in favour of the petitioners and relied upon:-- ' Muhammad Ishaq v. Member Board of Revenue and 18 others 1994 MLD 2254.
' The learned counsel further contended that the F.I.R. Lodged by way of irregular proceedings cannot be quashed under Article 199 and relied upon AIR 1955 SC 196. The learned counsel further contended that High Court cannot interfere in the investigation and F.I.R. Cannot be quashed. He relied upon:-- ' Malik Shaukat Ali Dogar and 12 others v. Ghulam Qasim Khan Khakwani and others PLD 1994 SC 281.
12. The learned counsel for the petitioner in reply, contended that applicant is not necessary party as the applicant is only witnesses in the proceedings before respondent No,1 and relied upon:-- ' Syed Ali Nawaz Shah Gardezi v. Lt.-Col. Muhammad Yusuf Khan, Commissioner PLD 1962 Lah. 558, Pakistan Banking Council and another v. Ali Mohtram Naqvi and others 1985 SCMR 714, Abdul Ghafur v. The Thal Development Authority PLD 1972 Lah 169.
13. I have given my active consideration to the contentions of all the learned counsels. The material point involved for determination in the present case is whether the respondent No,2 was competent to lodge F.I.R. Without obtaining permission from the Quality Control Board? I confine myself only to this question. It is condition precedent under relevant provisions of the DrugA ' Act, 1976 and rule 4 of Drug Rules that a criminal case under section 23/27 of the Drugs Act cannot be registered without prior permission of the Quality Control Board set up under section 11 of the Act.
14. It is pertinent to mention here that respondent No,2 did not seek any permission from the Quality Control Board. Annexrues "R.1" to "R.3" alongwith report parawise Comments of respondent No,2 do not support the case of respondent No,2. In the absence of permission from the competent Authority the proceedings suffer from coram non judice as initiated against the mandatory provisions of law, therefore, based on mala fide and without lawful authority as held in PLD 1971 SC
124. The subsequent proceedings, based on the F.I.R. Illegally lodged, are also bound to fall on the ground automatically, as is held in PLD 1982 Lah.
1.
15. In views of what has been discussed, this writ petition is accepted and the F.I.R. Is quashed, with no order as to costs. The respondents are at liberty to act in accordance' with law. As the writ petition is accepted after hearing the arguments of the applicant in the aforementioned Civil Miscellaneous, there is no need to pass any separate order on the application and stands disposed of as such.-