CH. IJAZ AHMAD, J.- The brief facts out of which the present, writ petition arises are that on 7.5.1997 while Muhammad Iqbal, SI/respondent No. 1 was present at Chowk Sargana to check the crimes, he received a spy information that petitioner sells herein 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 FIR on the same day and sent to the Police Station Mitrue and case FIR No. 116/97 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, SI 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. SRO 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 u/Ss. 20, 21, 34(2) and 35 of the, said Act within the area of their respective jurisdiction. He further argued that respondent No. I Muhammad Iqbal at the relevant time was not legally authorised 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, FIR may be quashed. He relied upon 1997 Pakistan Criminal Law Journal 10.
Supreme Court AJK (Muhammad Rafique v. Ibrar Hussain) and the relevant observation 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 upon Aziz-ur-Rehman v. Presiding Officer, Local Council Elections and others (1993 S.C.R. 117); in which this Court stated the settled law that if an Act is required to be performed in a specific manner by law or Rules, it should be performed according to the prescribed manners, alone or not at all."
3. The learned Addl. 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 jurisdictionto quash the FIR. He further argued that the -petitioner committed a hellions offence am1 heroin was taken, into possession- front: hint at die spot.
4. I have given my anxious consideration to the contentions of the learned counsel of the parties. It is condition precedent by virtue of Section 21( 1) of the Act that an Officer not below the rank of SI of Police or equivalent authorised 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. 318( 1 >/95 revealed that the Federal Government authorized the member not below the rank of Inspector- of the Anti-Narcotics 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 controversy is whether the respondent No. 1 being SI 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 Mahorile the Sub'-Inspector;. The learned Addl, Advocate General failed to bring on record any notification to authorize the respondent/SI to- initiate the proceedings. Section 21(2) provides conditioned precedent, that SI 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 initialed proceedings under the Act shall he 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 Airlines case (PLD 1979 Lahore page 416).
Section 156(2) Cr.P.C. Is reproduced hereunder;- "No proceedings of a police officer in- any such case shall at any stage be called- in question-on the ground that the case shall: one which such officer was not empowered under this Section to investigate."
I am also fortified by the judgment reported as PLD 1956 Lahore 87 and the judgment of Shaman's case 1972 Pakistan Cr. Law Journal 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 authorized the SHO to depute one of his officers not below the rank of ASI 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 lays down that no proceedings of a 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-settled that any illegality or irregularity in the investigation does not vitiate the trial."
Section 156 was also interpreted in Muhammad Ashiq's case (/9 "It is well-settled that any illegality committed in the course of investigation does not affect the competence and jurisdiction of the Court in the 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 u/S. 537 of the Criminal Procedure Code.
This proposition is further supported by the following judgments:-
(1) Abdul Noar's case (PLD 1958 Dhaka 145)
(2) Walizak's case (PLD I960 Karachi 204)
(3) Rasheed's case (AIR 1955 S.C. 196)
(4) Noor Alum's case (PLD 1955 Lahore 667) and
(5) (PLD 1961 Dhaka 565) case of Jan Ullah.
5. In view of what has been discussed above, the contention of the learned Addl. Advocate General has force, whereas the case cited 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 Cr.P.C. This Court has seldom exercised jurisdiction to quash the FIR, as the law' laid down by the Privy Council, which was subsequently approved and confirmed by our Hon'ble Supreme Court. This Court has no jurisdiction to quash the FIR in view of AIR 1945 Privy Council page 18 (Kh. Nazir's case), PLD 1971 S.C.
677 (Shehnaz Begum's case) and 1994 S.C.M.R. 2142 (Brig. Imtiaz's case), 1997 P.Cr.L.J. 124, PLD 1993 SC 399 and PLD 1994 SC 281.
6. In view of what has been discussed above, this writ petition is dismissed with no order as to costs.