1998 P Cr (PLP)

4. Learned counsel for the petitioner seeks quashment of the F.I.R. on the ground that C.I.A. had no authority to either register a case or investigate the same, muchless when the offences forming subject-matter of the F.I.R. were non-cognizable by virtue of Article 16 of Prohibition of (Enforcement of Hadd) Order, 1979. It was further argued that the entry by the A.S.-I./C.I.A. and the raid by the police party into the house of the petitioner was violative of the provisions of Article 22 of the Prohibition (Enforcement of Hadd) under, 1979. The consequent proceedings including registration of the F.I.R. were a nullity in eyes of law, also on account of violation of section 103, Cr.P.C.

5. In aid of his submissions the learned counsel for the petitioner has relied on Iftikhar Ahmad v. The State PLD 1995 Lah. 606, to argue that the permission granted by the S.S.P. to investigate the case" could not save the F.I.R. as it was obtained on 27-11-1997 (this was the original date on the application with the diary number). However, to defeat the petitioners case the same had been interpolated and changed from 27-11-1997 to 29-10-1997. In Iftikhar Ahmad's case (supra) postulated that the members of C.I.A. Staff irrespective of their rank and status could investigate such cases only which were entrusted to them by the Officer Incharge of Police Station to whom they were subordinate i.e. in case of C.I.A. Staff the S.P. of the District I find it difficult to agree with the submission of the learned counsel, that seeking of permission in this case was after thought, as it is mentioned in the F.I.R. itself that superior officers were being moved to obtain permission for investigation. The case was registered on 29-10-1997 and the permission to investigate was also granted on the same day. The A.S.-I. seems to have acted in line with the caution given by this Court i.e. "we have noticed a growing tendency in the members of the C.I.A. Staff and the Officers-in-Charge of the C.I.A. Staff to commence investigation of cases of their own. This is illegal and this practice must be stopped".

6. The learned counsel for the petitioner proceeded to argue that the offences of this case were non-cognizable and, therefore, F.I.R. could not be registered without permission of the Magistrate. Reference has been made to Article 16 of Prohibition (Enforcement of Hadd) Order, 1979 which reads as follows:-- "

16. Cognizance of certain offences.-- (1) The following offences shall be cognizable, namely:-- (a) an offence punishable under Article 3; and (b) an offence punishable under Article 4, Article 8. or Article 11. if committed at a public place. " (2).... . (a).... . (b).... . It was urged that the proviso to sub-Article (b) i.e. "if committed at a public place" had a bearing with Articles mentioned both in sub-Articles (a) and (b). Reliance in this behalf was placed on Mukhtar alias Karoo v. The State 1988 PCr.LJ 591 wherein it was held that in Article 16 the offences mentioned in sub clauses (1)(a) and (I)(b) are bracketed together by the use of word and which had been used conjunctively. The words "if committed at a public place", occurring at the end of clause (1)(b) are bracketed the offences mentioned both at (1)(a) and (1)(b). It was, thus, held that an offence punishable under Article 3 could be treated as cognizable only if it was committed at a public place. Meaning thereby, that if an offence mentioned under Article 3 of the order is committed at a place other than a public place, accused of such an offence could neither be arrested nor the case property be seized except under a search warrant issued by a competent authority under Article 22 of the Order.

7. The learned Judge while deciding the above case further observed that by enacting this provision the Legislature intended to save the subject from embarrassment of house search based on false information, and the offence being non-cognizable in nature, the registration of a case in this behalf and investigation therein could not be carried out without permission of the Magistrate as envisaged under section 155(2), Cr.P.C. The same view was adopted in Muhammad Aslam v. The State 1993 PCr.LJ

205. With utmost respect, I do not find myself in agreement with the interpretation adopted and rendered in afore referred decisions. While enumerating the cognizable offences the same have been apportioned in Article 16(1)(a) and (1)(b). Had it been the intention of the law that offences enumerated therein have to be bracketed together, than all of them could have been specified only in Article 16(1)(a) and there was no occasion to draft the two provisions separately. On the other hand the learned A.A.-G. submits that the words "if committed at a public place" are a suffix to only Article 11 and have as such no meaning to Articles 4 and 8 referred to Article 16(1)(b). The word OR which', precedes Article 11 excludes he application of the words "at a public place" to Articles 4 and

8. This, 1 am afraid is too restrictive an interpretation. Where two interpretations are permissible, the one 'beneficial to an individual viz-a-viz the State should be followed. I, thus, hold that articles 16(1)(a) is not controlled the word "if committed at a public place" and words and at the end of Article 16(1)(a) has to be read disjunctively, in order to give a correct interpretation of the law Bindra's Interpretation of Statutes of 7th Edition page 1036). An offence under Article 3 of Prohibition of (Enforcement of Hadd) Order, 1979 as I see it, is a cognizable offence, regardless whether committed in a public place or not. Thus, where a case is registered relating to facts entailing commission of both cognizable and non-cognizable offence; section 155(2), Cr.P.C. is not attracted. The police can investigate all such cases without permission of a Magistrate. In expressing this opinion, I am duly fortified by the pronouncement made by Mr. Sajjad Ahmed Sipra, J. in Rao Muhammad Jalees alias Jaloo v. The State 1990 PCr.LJ 26.

8. As far as the non-obtaining of warrant to enter the house of the petitioner under Article 22 of the Prohibition of (Enforcement of Hadd) Order, 1979, suffice to say that this is not a case in which the police had conducted the raid on a tip or information by a Mukhbar. In fact, in the case in hand, the police had arrested one Muhammad Safdar in a case registered vide F.I.R. No.521 of 1997 under section 3/4 of the Prohibition of (Enforcement of Hadd) Order, 1979 at Police Station Nawan Kot and in the course of investigation he had disclosed that he was a Karinda/partner with the petitioner and could lead to the storage of illicit liquor and ammunition at the premises in issue. The things recovered were in the nature of goods being found on pointation of an accused in the course of investigation. Article 22 was thus, not strictly applicable to the facts in hand. This provision as such, was not be of much relevance for the purpose of quashment of the F.I.R., it may however, merit examination at the time of trial.

9. The objection regarding failure to comply with provisions of section 103, Cr.P.C. is not in issue, as the petitioner has not placed on record the recovery memo. Be that as it may, this point too could be well-attended to at the trial stage.

10. The learned A.A.-G. opposing the petition relied on The State v. Bashir PLD 1997 SC 408 wherein the Supreme Court had observed that C.I.A. certainly had no power to investigate or registered a case unless so authorised by a senior officer. All the same it has been observed, that investigation by C.I.A. even though not authorised, yet this fact alone would not vitiate the trial unless it were shown that it had occasioned serious prejudice to the accused person, resulting in miscarriage of justice. On behalf of the State it was argued that the learned counsel for the petitioner was not able to refer to any circumstance from which it may be inferred that some prejudice had been caused to the petitioner. Reference was also made to the judgment of the Shariat Court (Appellate Bench) in Zaidullah v. The State PLD 1990 SC 1186, in which the issue was whether cognizance could be taken by the police when the case was relatable to Articles 3 and

4. Considering that offence of Article 4 was only cognizable provided it was committed at a public place, it was observed that as the accused was operating a narcotics den in his house, the case was registered both under sections 3 and

4. In such an event the police intervention was held permissible.

11. Learned A.A. -G. also advocated that where a Police Officer carries out investigation without obtaining permission to investigate it, per se does not constitute a defect to warrant vitiating of a trial. In aid of this submission, learned Law Officer relied on Muhammad Ashiq v. The Martial Law Administrator 1980 PCr.LJ 97 and State v. Z.A. Bhutto PLD 1978 Lah. 523 p.606 (F.B.) as well as Crown v. Mehr Ali PLD 1956 FC 106 wherein the Apex Court held that lack of authority in the Investigating Agency did not by itself vitiate the proceedings of a trial.

12. In view of the above discussion, it is my considered view that there is nothing exceptionable about the registration of the case (F.I.R. No.552 of 1997) by Sanda Police on the report in writing made by the A.S.-I./C.I.A. and nor is the investigation undertaken by him in any manner unwarranted, particularly in the face of permission/entrustment order passed by the S.S.P., Lahore, There being no merit of the petition, it is dismissed, with no order as to costs. H.B.T./M-668/L Petition dismissed.