QAYYUM IQBAL vs THE STATE AND Another
The petitioner sought leave to appeal against the dismissal of his writ petition by the High Court, arising from criminal proceedings under the Prohibition (Enforcement of Hadd) Order, 1979, where 25 kilograms of Marijuana was allegedly recovered from a house. The core legal questions involved whether the recovery of Marijuana from a house rather than a public place rendered the offence non-cognizable under Article 16 of the Prohibition (Enforcement of Hadd) Order, 1979, whether police investigation without a Magistrate's permission under section 155(2) of the Code of Criminal Procedure 1898 was legally sustainable, and whether non-compliance with rule 6 of the rules framed under Article 31 of the said Order constituted an incurable illegality. The Supreme Court granted leave to appeal to provide an authoritative pronouncement on these questions, directing that trial proceedings continue but final orders be stayed pending the appeal.
- Whether recovery of Marijuana from a house rather than a public place makes the offence non-cognizable under Article 16 of the Prohibition (Enforcement of Hadd) Order, 1979?
- Can an offence under the Prohibition (Enforcement of Hadd) Order, 1979 be investigated without the permission of a Magistrate under section 155(2) of the Code of Criminal Procedure 1898?
- Does non-compliance with rule 6 of the rules framed under Article 31 of the Prohibition (Enforcement of Hadd) Order, 1979 constitute an incurable illegality rather than a curable irregularity under section 537 of the Code of Criminal Procedure 1898?
- Article 3, Prohibition (Enforcement of Hadd) Order, 1979
- Article 4, Prohibition (Enforcement of Hadd) Order, 1979
- Article 9, Prohibition (Enforcement of Hadd) Order, 1979
- Article 16, Prohibition (Enforcement of Hadd) Order, 1979
- Section 155(2), Code of Criminal Procedure 1898
- Article 31, Prohibition (Enforcement of Hadd) Order, 1979
- Section 537, Code of Criminal Procedure 1898
ORDER
ASLAM RIAZ HUSSAIN, J.-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 (NLR 1982 Crl. (Lah.) 212) and Asghar Ali v. The State (PLD 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.