' The brief facts out of which the present writ petition arises are that on 7-5-1997 while Muhammad lqbal S.-I./respondent. No,1 was present at Chowk Sargana to check the crimes, he received a spy information that petitioner sells heroin and if a raid is conducted, he would be arrested. He alongwith police party went to the Dhari, where petitioner was sitting on a cot under a Sheesham tree, who on seeing the police party, went away from the spot, however, he left a shopper, wherein respondent No,1 found a little weighing scale and 30 grams heroin alongwith a cash of Rs,200, he recorded the informal F.I.R. On the same day and sent to the Police Station Mitru and case F.I.R..
No,116 of 1997 was registered, hence the present writ petition.
2. The petitioner's counsel contended that under the provisions of the Control of Narcotic Substances Act, 1997, respondent No,1 Muhammad Iqbal, S.-I. Of police was not legally authorized to conduct the said raid, arrest and to initiate proceedings against the petitioner. He further contended that as per Notification No,S.R.0.318 (1)/95, it has been clearly stated that no Police Officer below the rank of Sub-Inspector is authorized to exercise the powers and perform the functions under sections 20, 21, 34(2) and 35 of the said Act within the area of their respective jurisdiction. He further argued that respondent No,1 Muhammad lqbal at the relevant time was not legally authorized to conduct the alleged raid or to arrest the petitioner and to initiate proceedings under the said Act. Even otherwise, respondent No,1 was Sub-Inspector, therefore, he was not eligible to take action. He further argued that the action taken in violation of the mandatory provisions of the said Act, therefore, F.I.R. May be quashed. He relied upon Muhammad Rafique v.
Ibrar Hussain 1997 PCr.LJ 10, SC (AJ&K) and the relevant observion is as follows:-- "The learned counsel contended that rules framed by the Shariat Court had the force of law and it was mandatory for the Court to allow it. He relied on Aziz-ur-Rehman v. Presiding Officer, Local Council Elections and others 1993 SCR 177 in which this Court stated the settled law that if an act is required to be performed in a specific matter by law or rules it should be performed according to the prescribed manner alone or not at all."
3. The learned Additional Advocate-General contended that the provisions of said Control of Narcotic Substances Act are directory in nature; therefore, their violation is not material. He further argued that violation of these provisions is illegality or irregularity, which can be cured. He further argued that petitioner can agitate these points before the competent Court and this Court has no jurisdiction to quash the F.I.R. He further argued that the petitioner committed a heinous offence and heroin was taken into possession from him at the spot.
4. I have given my anxious consideration to the contentions of the learned counsel of the parties. It is conditioned precedent by virtue of section 21(1) of the Act that an officer not below the rank of S.- I. Of Police or equivalent authorized in this behalf by the Government is competent to initiate the proceedings against the petitioner, therefore, respondent No,1 being a Sub-Inspector was not competent to initiate the proceedings against the petitioner. The Notification S.R.O.3318(1)/95 revealed that the Federal Government authorized the member not below the rank of Inspector, of the Anti-Narcotic Force, the Officer not below the rank of inspector, in the Excise, Police and Custom Departments. Therefore; the only material point to resolve the present controverts is whether the respondent No,1 being S.-I. Of Police Department was competent to initiate proceedings under the said Act or not? The provisions of the aforesaid Act authorized respondent No,1 to initiate proceedings subject to the condition that the Government has issued Notification to authorise the Sub-Inspector. The learned Additional Advocate-General failed to bring on record any notification to authorize the respondent/S.-I. To initiate the proceedings. Section 21(2) provides conditioned precedent that S.-I. Must be notified through notification to initiate the proceedings under the said Act but the provisions of the Act did not provide penal consequences where the person not duly authorized initiated proceedings under the Act shall be vitiated. In the absence of the penal consequences, these provisions are not mandatory in nature, meaning thereby these provisions are directory in nature. This fact is also supported by reading section 47 of the Act by virtue of which provisions of Criminal Procedure Code are applicable; therefore, section 156(2) of Criminal Procedure Code is applicable on the well-known principle of legislation by reference or by adoption. I am fortified by the Pakistan International Airline's case PLD 1979 Lah.
416. Section 156(2), Cr.P.C. Is reproduced hereunder:-- "No proceeding of a Police Officer in any such case shall at any stage be called in question on the ground that case was one which such officer was not empowered under this section to investigate."
' I am also fortified by the judgment reported as PLD 1956 Lah. 87 and the judgment of Shamam's case 1972 PCr. LJ 400 and the relevant observation is as follows:-- "Section 156, Cr.P.C. Does not lay down in any mandatory terms that the investigation cannot be carried out by an Officer other than the Station House Officer, in fact, the section expressly authorizes the S.H.O. To depute one of his Officers not below the rank of A.S.-I. To proceed, to the spot and investigate the facts and circumstances of the case. In this case, the investigation has been verified by a Senior Officer, namely the District Inspector of Police. We also find that subsection (2) of section 156, Cr.P.C. Specially lies down that no proceeding of the Police Officer shall be called in question on the ground that the case was one which such Officer was not empowered under this section to investigate. Finally, it is well-geniled that any illegality or irregularity in the investigation does not vitiate the trial."
' Section 156 was also interpreted in Muhammad Ashiq's case 1980 PCr.LJ 97 in the following terms:- - "It is well-settled that any illegality committed in the course of investigation does not affect the competence and jurisdiction of the Court in trial."
' The Supreme Court of Pakistan in Muhammad Hussain's case has taken note of similar provision of section 5-A of Prevention of Corruption Act, 1947 and the relevant observation is as follows:-- "The trial is not vitiated but the violation of the legal provision by what Police Officer a case of corruption by a public servant may be investigated is an irregularity falling to be dealt with under section 537 of the Criminal Procedure Code."
' This proposition is further supported by the following judgments:--
(1) Abdul Noor's case PLD 1958 Dacca 145, (2) Walizar's case PLD 1960 Kar. 204, (3) Rasheed's case AIR 1955 SC 196, (4) Noor Alam's case PLD 1955 Lah. 667 and (5) case of Jainullah PLD 1961 Dacca 565.
5. In view of what has been discussed above, the contention of the learned Additional Advocate- General has force, whereas the case died by the learned counsel for the petitioner is distinguished on facts and law, as the case cited by the petitioner is based on another well-known principle.
When a thing is to be done in a particular manner, it must be done in that way and not otherwise, so this principle is not attracted in the given circumstances of the case keeping in view section 47 of Control of Narcotic Substances Act read with section 156(2) and section 537, P.P.C. This Court has seldom exercised jurisdiction to quash the F.I.R., as the law laid down by the Privy Council, which was subsequently approved and confirmed by our Honourable Supreme Court. This Court has no jurisdiction to quash the F.I.R. In view of Kh. Nazir's case AIR 945 PC 18, Shehnaz Begum's case PLD 1971 SC 671; 1997 PCr.LJ 124, PLD 1993 SC 399 and PLD 1994 SC 281.
In view of what has been discussed above, this writ petition is dismissed with no order as to costs.