' The petitioners who are officials in the Excise and Taxation Department at Hyderabad, on 23-7- 1998 at about 2-30 p.m. At a place near Fateh Chowk, Tando Muhammad Khan Road, apprehended two ,persons namely Ismail and Rafiq-uz-Zaman, while travelling in a Suzuki pick-up and secured 33 Kg of Charas from their possession, lying in the Suzuki pick-up. They registered a case under section 9 of the Control of Narcotic Substances Act, 1997, vide F.I.R. No,13 of 1998 at Excise Police Station, Hyderabad. After investigation both the accused were sent up before the Special Court for Naroctic Control Substances.
2. On the complaint of mother of Rafiq-uz-Zaman, addressed to the Chief Minister, Sindh alleging that a false case had been cooked up against her son and another by wrongly and dishonestly foisting huge quantity of Charas, Chief Minister called for a report from Commissioner, Hyderabad Division. On his part Commissioner entrusted the enquiry to Deputy Commissioner Hyderabad, who appointed S.D.M., Latifabad and S.D.M., City as Enquiry Officers. Both the S.D.Ms. Held a preliminary enquiry into the complaint and deputed Mukhtiarkar Latifabad to visit the area where the accused persons were apprehended, to ascertain their general reputation in the local public. After a detailed preliminary enquiry these Enquiry Officers forwarded their fmdings to the Deputy Commissioner, Hyderabad who forwarded the fmdings to the Commissioner, Hyderabad Division.
Both the Enquiry Officers found that both the accused were wrongly trapped by the Excise and Taxation Staff in connivance with drug dealers and were found to be innocent. They proposed prosecution against the Excise and Taxation Party for involvement of innocent_ persons in a heinous crime falsely and a legal action against local police, who were oblivious of their duty in not taking action against the drug paddlers miming a drug den within their jurisdiction. On his part Commissioner, Hyderabad Division forwarded his recommendations to the Chief Minister, proposing the following action:--
(a) Zaheer Hussain son of Pir Ali Shah,Assistant Excise and Taxation Officer, Crime Branch, Hyderabad, Excise Inspector, Crime Branch Mr. Shafi Muhammad Siyal and Excise Jamandar Mazhar Ali Rajput should be prosecuted for indulging innocent people in false cases and should be removed from service after observation of codal formalities.
(b) A stern action should be taken against S.H.O. And H.C. Iltaf of Hali Police Station, Hyderabad due to whose negligence drug menace in American Quarters is flourshing.
(c) The case i,e, F.I.R. No,18, dated 23-7-1998 may be withdrawn.
' A summary was forwarded for necessary action against the petitioners as well as officials of Hali Police Station, Hyderabad, which in the event of Governor's Rule was approved by Governor of Sindh. It is against the aforesaid findings of Enquiry Officers and the proposed action that the petitioners have invoked the Constitutional jurisdiction of this Court, seeking the following' reliefs:-- "(a) It may be declared that the enquiry report submitted by Commissioner, Hyderabad is null, void and baseless.
(b) That respondent No,1 may kindly be restrained from taking any action against petitioners as proposed by respondent No,1, till final disposal of this petition.
(c) That respondent No,1 may kindly be restrained from withdrawing the case of F.I.R. No,13 of 1998 against accused persons, as they are very big drug sellers and one accused Namely Rafiq-uz- Zaman is previously convicted.
(d) That any other relief and appropriate order may kindly be solicited to vanish the grievance of petitioners."
3. A pre-admission notice was issued to the respondents, whereupon Director Excise and Taxation, Hyderabad has offered his comments, more or Jess supporting the case of the petitioners, whereas in the comments offered by S.D.M., City and S.D.M., Latifabad, facts and details leading to this petition have been incorporated clarifying that no action was initiated by Deputy Commissioner, Hyderabad, but that it was initiated by the Chief Minister of Sindh himself and they acted as Enquiry Officers and recorded their findings after a detailed preliminary enquiry.
4. At the hearing we called upon the learned counsel to satisfy us as to how this Court could interfere with the administrative and executive actions, which are still in offing and no adverse action has so far been taken against die petitioners. Learned counsel submitted that the petitioners were not associated in the enquiry process; that they were not provided an opportunity of cross-examining the witnesses; that they were not offered a reasonable opportunity of hearing and lastly that the Enquiry Officers acted unlawfully and without jurisdiction. Learned counsel contended that based on their investigation, case had been sent up before the Special Court of Narcotics, where an application for withdrawal of prosecution was moved, but disallowed by the learned Special Judge. He further submitted that the petitioners have no adequate and alternate remedy in law, therefore, they are constrained to invoke the extraordinary jurisdiction of this Court.
He has cited cases reported as Abdul Hai v. The Administrator, Hyderabad Municipal Corporation, Hyderabad and another (PLD 1985 Kar. 319) and Abdul Rehman Hayat and another v. Wealth Tax Officer and another (1988 SCM R 1722).
5. Reverting to the first contention of the learned counsel for petitioners, it may be observed that since the Excise and Taxation Staff is authorised to apprehend and investigate an offence under the Narcotic Laws, they in their wisdom registered a case reflecting the recovery of huge amount of Charas from two persons which on a preliminary detailed enquiry by two Magistrates was found to be false and concocted. As regards association of the petitioners with the said enquiry, it may be observed that it was a preliminary enquiry based upon a complaint addressed to the Chief Minister of Sindh, in which their viewpoint was noted, but there was apparently no occasion for allowing the witnesses to be cross-examined which is only permitted in regular departmental enquiries or Court trials. Suffice it to say that the petitioners were called by the Enquiry Officers and their viewpoint was ascertained. As to the jurisdiction of the Enquiry Officers and that of Deputy Commissioner, Hyderabad, it is in the sole discretion of the competent Authority to appoint any person as Enquiry Officer to ascertain the truth of a complaint and there is no hard and fast rule that such enquiry must be conducted through the superior officers of the persons complained against.
6. Taking up the second contention of the learned counsel as observed earlier the petitioners were authorised to send a case under Narcotic Laws before a Court of law. The circumstance that the learned Special Judge did not consent to the withdrawal of the prosecution may not be relevant in the background of this petition as the same is judice. Before this Court on criminal side. At the moment we advisedly refrain from expressing ourselves on the merits of the order, passed by the learned Special Judge. Reverting to the last contention of the petitioners, that they have no other alternate and adequate remedy, it may be observed that there is no final order or action taken against the petitioners and this is only a preliminary stage, initiating proposed action Against the petitioners, which can only be sustained if it has been taken in accordance with law. In fact the proposed action may amount to a show-cause notice, which does not furnish any valid and lawful ground to a person to rush to the Court of law and forestall an action that may be taken strictly according to law. Even otherwise, if at this stage of the proceedings the petitioners have no adequate remedy, this can hardly be a ground for entertaining a petition as the petitioners would have sufficient opportunity to contest the proposed proceedings and agitate against the final order, if ultimately passed against them. It can, thus, be hardly said that the petitioners have no alternate remedy against the proposed action.
7. In Abdul Hai's case a Division Bench of this Court held that if a right of appeal was not available to the petitioner he could maintain a petition and that in the case of an order passed without any jurisdiction, party affected could press into service writ jurisdiction of the High Court. In Abdul Rehman Hayat's case the legal position was reaffirmed by expressing the view that extraordinary jurisdiction of the High Court can ordinarily be invoked when there is no other remedy provided by law. There can be hardly any cavil with the legal proposition propounded by their Lordships, but as already observed the petitioners have an alternate and adequate remedy against the final action if adverse to their interest in the ultimate analysis.
8. Learned counsel also relied upon Rustam Ali v Muhammad Hanif and 6 others (1997 SCM R 2008) and Syed Wajih-ulHassan Zaidi v. Government of Punjab and others (1997 SCM R 1901). While Rustam Ali's case arose out of an interim order passed by the Lahore High Court in relation to quashment of investigation of a crime, in the latter case view expressed was that purpose of Constitutional jurisdiction relating to judicial review is to foster justice and eliminate possibility of perpetual illegallity. There is no cavil with the proposition of law, but the facts and the set of circumstances in which the present petition has been instituted do not justify any interference with executive actions which are still in offing and not finalised.
9. In view of what has been stated above, we are of the considered view thaw extraordinary jurisdiction can hardly be exercised in the matter before us. While dismissing the petition in limine petitioners would be advised to face the proceedings that may be taken and to seek remedy against any adverse action, that may follow in the circumstances.