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Criminal Petition for Special Leave to Appeal No. 122 of 1982, decided on 11th May, 1982.
(Against the order of the Lahore High Court, dated 14th March, 1982, passed in Writ Petition No. 5917/81)
----Arts. 3, 4, 9, 16 & 31 read with Criminal Procedure Code (V of 1898), Ss. 155 (2) & 537 and Constitution of Pakistan (1973), Art. 185 (3) Recovery of Marijuana‑Leave to appeal‑Granted to consider whether offence a cognizable one and cannot be investigated without permission of Magistrate, whether accused ought to have been forwarded to Prohibition Officer, whether non‑compliance of such rule constituted an illegality or irregularity and to give authoritative pronouncement on divergent views allegedly taken by Lahore High Court on such question.
Ch. Muhammad Ashraf Azeem, Advocate Supreme Court with Muhammad Aslam Chaudhry, Advocate‑on‑Record for Petitioner.
Tanvir Ahmad Khan, Advocate‑on‑Record for the State.
Date of hearing : 11th May, 1982.
The petitioner seeks Leave to Appeal against the order of the High Court dated 14‑3‑1982, dismissing his writ petition.
2. Qayyum Iqbal petitioner was accused, vide F. I. R. No. 584, Police Station, Peoples Colony, Faisalabad, dated 20‑5‑1980, for offence under Articles 3 and 4 of the Prohibition (Enforcement of Hadd) Order, 1979. The allegation against him was that 25 Kilograms of Marijuana was recovered from him. After investigation the Police submitted its challan only under Article 9 of the said order against him.
3. The learned counsel for the petitioner submitted that in the challan he is accused only of an offence under Article 4 and since Marijuana in question was not recovered from a public place' but from a house; therefore, the offence is not a cognizable one, within the meaning of Article 16 of the said Order. He submitted further that in view of the provisions of section 155(2), Cr. P. C., the offence cannot be investigated without the permission of a Magistrate. It is also submitted that the mandatory provisions of rule 6 of the Rules framed under Article 31 of the said Order have not been complied with in as much as he was not forwarded to the Prohibition Officer of the area as required by the said Rules. He submitted further that non‑compliance with the above‑noted provisions constitutes an illegality and not merely an irregularity curable under section 537, Cr. P. C. The learned counsel also pointed out that divergent view has been taken on this question by the Lahore High Court, in cases State v. Abdul Majid (N L R 1982 Crl. (Lah.) 212) and Asghar Ali v. The State (P L D 1981 Lah. 448).
The matter requires an authoritative pronouncement by this Court.
Leave is, therefore, granted, inter alia, to consider the above‑noted questions. Proceedings before the trial Court shall continue but the final order shall not be passed till the decision of the appeal by this Court.
To be heard alongwith appeals in C. P. S. L. A's. No. 43‑R‑82 to C. P. S. L.A. No. 107‑R‑82.
Leave granted.
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