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Writ Petition No. 11365 of 1980, decided on 30th March, 1980.

-------Art. 199 and Criminal Procedure Code (V of 1898)-S. 249-A and Prohibition (Enforcement of Hadd) Order (P. O. 4 of 1979), Art. 3/4 Relief prayed for could competently be granted by trial Court under S. 249-A-Constitutional petition to quash proceedings before trial Court held, not maintainable in circumstances of case.

Kh. Abdul Waheed with Ch. Muhammad Ashraf Azeem for Petitioner.

Nazir A. Bhandari, A. A.-G. for Respondents.

Date of hearing : 30th March, 1980.

This constitutional petition seeks declaration that the action taken by respondent No. 1 is illegal and quashment of the proceedings pending in the trial Court in pursuance of case registered at the instance of respondent No. I against the petitioner.

2. Syed Nasir Ali Shah, A. S: I. respondent No. I herein got registered case under Articles 3/4 of the Prohibition (Enforcement of Hadd) Order Iv of 1979 on 20-9-1980 against the petitioner at Police Station, Peoples Colony, District Faisalabad on the disclosure of one Muhammad. Akram son of Muhammad Aslam and recovered 25,000 grams charas from him. The case was investigated and challan submitted to the trial Court for decision.

3. Learned counsel for the petitioner contended that respondent No. 1 being not-a prohibition officer within the meaning of Prohibition (Enforcement of Hadd) Order, 1979 had no jurisdiction to investigate the case and submit challan to the trial Court. It was contended that the offence under Article 4 of the aforementioned Order IV of 1979 being not cognizable, the respondent had no jurisdiction to investigate the matter without obtaining prior permission from the Court of competent jurisdiction. It was also submitted that the proceedings of the case having been initiated on the challan submitted by an incompetent person, has vitiated the trial, as such liable to quashment at this stage.

4. The learned Assistant Advocate-General appearing on behalf of the respondents opposed this petition. A preliminary objection was raised to the effect that as the matter is pending before the learned trial Court, the relief prayed for in this petition can adequately be granted under section 249-A, Cr. P. C. by the trial Court. It was next submitted that the question as to whether the offences allegedly committed by the petitioner are cognizable or non-cognizable depends on the evidence collected against him by the investigating agency. 13 was submitted that Article 3 of Prohibition (Enforcement of Hadd) Order, IV of 1979 is relatable to cognizable offences and the respondent No. 1 had the jurisdiction to register the case, make investigation and submit the report under section 173, Cr. P. C. to the competent Court as provided under Chapter XIV of the Cr. P. C. read with Article 27 of the Prohibition (Enforcement of Hadd) Order, IV of 1979. It was also argued that the action of respondent No. 1 was clothed with jurisdiction and in any case if it is assumed, that the respondent has committed some irregularity in the investigation before submitting the challan to the Court, the proceedings before the trial Court are not automatically vitiated nor the same can be quashed.

5. I have considered the arguments advanced by learned counsel for the parties and perused the documents placed on the file. Undoubtedly the case stands registered under Articles 3/4 of the Prohibition (Enforcement of Hadd) Order, IV of 1979 out of which the offence under Article 3 of the Order is cognizable. The question as to whether the petitioner allegedly committed offences under Article 3/4 of the Order, 1979 cannot be determined without examination of all the documents annexed with the report submitted to the Court under section 173, Cr. P. C. The petitioner contended to annex only copy of the F. I. R. with this petition which by itself cannot conclusively determine in the absence of other material whether the petitioner allegedly committed cognizable or non-cognizable offences. As regards the other submission of learned counsel for the petitioner that respondent No. 1 was not competent to investigate the alleged offences under Article 3/4 of the aforementioned Order and the proceedings before the trial Court in pursuance of the challan submitted by respondent No. I have been vitiated could competently be determined by the learned trial Court under section 249-A, Cr. P. C.

Section 249-A provides

Nothing in this Chapter shall be deemed to prevent a Magistrate from acquitting an accused at any stage of the case if, after hearing the pro secutor and the accused and for the reasons to be recorded, he considers that the charge is groundless or that there is no probability of the accused being convicted of any offence.

It is therefore clear that the learned trial Court at any stage, can acquit the accused if after hearing the prosecutor and the accused and for reason recorded, it is found that the charge against the accused is groundless or there was no possibility of accused being convicted for any offence.

6. Moreover this Court is always reluctant to stifle the proceedings a the inquiry stage before the trial Court on the basis of the insufficiency material on the file or to pre-empt jurisdiction of the trial Court in extra ordinary jurisdiction of this Court when relief prayed for can competently be granted by the trial Court.

7. In view of the observations made above and without expressing an opinion on the merits of this case, I am not inclined to exercise extra ordinary constitutional jurisdiction of this Court in this case and dismiss the petition with no order as to costs.

The petitioner, if so advised, may approach the learned trial Court for the relief prayed for in this petition.

Petition dismissed.

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