' IHSANUL HAQ CHAUDHRY, J.---This is to be read in continuation of our short order of today.
2. The relevant facts for decision of this petition are that the petitioners were cited as accused in case F.I.R. No,1 of 1997 dated 14-1-1997 registered with Police Station Anti-Narcotics Force, Model Town, Lahore under section 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979. The F.I.R. Was lodged on the receipt of written complaint of Rana Abad Ali Inspector, A.N.F., Lahore, It was alleged that the officers received information that M/s. Multi Pharma (Pvt.) Ltd. 2 Lakshmi Street, New Anarkali Lahore is selling Acetic Anhydride powder used for the production of heroin openly and on receipt of this information a raiding party, headed by Lt.-Col. Muhammad Younas Joint Director, A.N.F., Lahore and including of complaint, Ijaz Kazmi, Maj. Abdur Rab and other subordinates was formed to raid the premises. They reached the office of Multi Pharma (Pvt.) Ltd. In the official vehicle. The petitioners were found present in the premises and on search the raiding party took into custody three bags weighing about 20kg containing powder used in the manufacture of heroin, a Carton weighing 52 kgs. Small drum weighing 26 Kgs. Beside them took into custody two white cans and one blue plastic cane into possession containing 11 kgs. Each of Acetic Anyhdride.
They took samples of 5 grams each of the powders and six Ounce of the liquid. They were put under seal. In the end it was written that prima facie the petitioners have been found guilty of keeping in their possession Acetic Anhydride for use of manufacturing of heroin for sale, therefore, they were guilty of offences under section 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979 and 9/15 of the Control of Narcotics Substance Act, 1996. The A.N.F. After investigation submitted the report under section 173 in the Court of Sessions Judge Lahore and alongwith the report also reports of the Pakistan Council of Scientific and Industrial Research and report of the Chemical Examiner. Reports from the Pakistan Council of Scientific and Industrial Research are Annexures H and J.
3. The trial Court recorded the statements of C.W.1 and 2 appended as Annexures K and L with this petition respectively. The petitioners have moved for quashment of the F.I.R. On the ground that they were involved in Criminal Case merely on the basis of suspiciion and the allegations were belied by reports Exhs. C.W.1/1 and C.W.2/1. The petition was admitted to hearing. Notice was issued to the respondent, who has entered appearance through Ch. Muhammad Suleman, Advocate and contested the petition on behalf of the respondent.
4. Learned counsel for the petitioners argued that Multi Pharma (Pvt.) Ltd. Is holder of licence for the manufacturing Drugs registered under the Drugs Act, 1976 and they have legally imported Phenobarbitone. It is argued that the raid was illegal and mala fide. The arguments were summed up with the submission that the document Exhs. C.W.-1/1 and C.W.-2/1 have disproved the allegations in the F. I. R.
5. On the other hand Ch. Muhammad Suleman, Advocate argued that the Phenobarbitone is used to supplement the heroin. It is added that the same appears in the list appended with C.N.S. Act, 1996. It is argued that it is no stage for quashment of the proceedings as the trial is at limine stage and the parties are trying to prove their respective contentions.
6. We have given our anxious consideration to the arguments advanced on behalf of the parties.
M/s. Multi Pharma (Pvt.) Ltd. Is registered for manufacturing of 56 allopathic drugs including Phenobarbitone by the Central Registration Board set up under the provisions of Drugs Act, 1976 which is not denied by the respondent. It is also admitted that it has imported 150 kg of Phenobarbitone.
7. Learned counsel argued that about 90 Kgs. Of Phenobarbitone had been illegally used as the firm has filed to account for the same. It is interesting to record here that on the last date of hearing Mr. Muhammad Sharif Chohan, Advocate and Mr. Bilal Khan, Advocate appeared on behalf of the respondent and contended that Phenobarbitone is a constituent of Heroin use for its preparation. Even Ch. Muhammad Suleman, Advocate initially ' towed in the same line but he like others was asked to refer to any text book or formula according to which Phenobarbitone was used for manufacture of Heroin. Then he advanced the argument noted above. It is crystle clear from the F.I.R. Itself that the case was registered merely on suspicion. This fact was admitted by the complainant who was present in person on the last date of hearing that he suspected the powder was Acetic Anhydride. The samples of powder and liquid were referred to the PCSIR Laboratory, Lahore. Its report is as under:- RESULTS IDENTIFICATION OF CHEMICALS SAMPLE "A" is Phenobarbitone.
2. SAMPLE "B" is Caffeine
3. SAMPLE "C" is Methyl salicylate.
' This report is dated 10/20-1-1997 and available on record as C.W.-1/1. The author of this report was appeared as C.W.1 and proved this report. He was not cross examined on behalf of the complainant while in reply to the cross-examination by the defence counsel he submitted that Phenobarbitone is not used in manufacturing of Heroin. The other report again by the PCSIR Laboratory is Annexure-J C.W.-2/1 and proved by C.W.-2 wherein result was recorded as under:- RESULTS QUALITATIVE AND QUANTITATIVE ANALYSIS OF PHENOBARBITONE
1. Identification: Infra Red Spectrum and Chemical tests are identical to standard Phenobarbitone.
2. Assay 100% Phenobarbitone.
3. The sample supplied is 100% Phenobarbitone and it is not a precursor to the manufacture of Heroin.
The same was proved by C.W.-2 He stated that all the three chemicals namely Phenobarbitone, Caffeine and Methyl Salicylate were not used for the manufacturing of Heroin. There was no justification whatsoever to continue with the prosecution of the petitioners after these two reports were received by ANF and, at least, after the same were proved by C.W.1 and 2. The prosecution is clearly abuse of process of law. The same cannot be allowed to go on. There is even not remotest possibility of the petitioners being convicted in face of this clear evidence of experts. The scope of quashment was examined with reference to the available precedents starting with the case of Emperor v. Khawaja Nazir Ahmad (AIR 1945 PC 18) in W.P.No, 1203 of 1997/RWP, decided on 16-10- 1997 wherein it was held as under: - ' The rule thus modified makes limited interference possible against violation of the fundamental rights, criminal inquiry, prosecution of citizen by abusing the statutory powers or machinery of criminal law being used mala fide or for ulterior purpose. The High Court in such case could look into the facts and pass order as were found just, legal and quitable."
' This is a fit case for applying the above principle.
8. The A.N.F. Is discharging very onerous duty but it does not mean that it should be allowed to play with the rights and liberty of the citizens. It was the duty of the officers and their prosecutior to immediately move for cancellation of the case after the receipt of reports of PCSIR Laboratory which is an official institution of reputate.
9. The arguments as to misuse of Phenobarbitone are beyond the competency of A.N.F. It would be actionable under the Drugs Act, 1971 and not under the A.N.F. Act, 1996. The proceedings against the petitioners are illegal, unwarranted and clearly abuse of the process of the Court. We are proposing action against the concerned officials of the A.N.F. But if in future, this attitude continued then the responsible officials have to suffer the consequences of their illegal acts. It is made clear that act initially may not be illegal or mala fide but after coming to know of true position, to insist would make the action illegal and mala fide.
10. The upshot of this discussion is that this petition is accepted. The result is that the proceedings in case F.I.R. No,1 of 1997 are quashed.