P L D 1980 Karachi 418 (PLP)

(c) Upon information received from any person other than a Police Officer or an officer of the Armed Forces, or upon its own knowledge or suspicion that such offence has been committed. Here, the Summary Military Court, Hyderabad, took cognizance of the offence under the West Pakistan Pure Food Ordinance, 1969, under clauses (a) and (b) above when charge-sheet against petitioner was submitted to it. Facts given in the charge-sheet constitute an offence under section 6 read with section 23 of the West Pakistan Pure Food Ordinance. Rana Muhammad Shafi an Inspector Intelligence Cell, Anti-Corruption Establishment, Hyderabad is a Police Officer for all purposes, and report in writing of the facts constituting the offence in the charge-sheet is enough for the Summary Military Court to take cognizance of the offence. The provisions in section 32 of the Pure Food Ordinance that offences under the Ordinance can only be taken cognizance of on the report of Health Officer of Local Authority or an authorized Inspector, shall when the offence is taken cognizance of by a Military Court stand altered by clause (2) of Article 2 of M. L. O. 4, ibid. The fact that a report in writings was not made by Health Officer or Inspector, would not debar the Military Court from taking cognizance of the offence under the Pure Food Ordinance, when taken in accordance with clause (2) of Article 2 oft M. L. U.

4. The cognizance of the offence committed by the petitioner under the West Pakistan Pure Food Ordinance, was thus taken legally.

7. Under clause (7) of Martial Law Order 4, Summary Military Court shall exercise the same powers and follow the same procedure as a Summary Court Martial held under the Pakistan Army Act, 1952, and the provisions of the Act and rules made thereunder shall apply to and govern such proceedings. Rules 90 to 116 of the Pakistan Army Act Rules deal with the procedure before the Summary Military Court. It was contended by the petitioner's counsel that the Summary Military Court violated the provisions of rules 13, 23(1), 24(1),

113. Rule 13 will not be applicable to the case of the petitioner, as it deals with the power of Commanding Officer to hear the charge against a person subject to the Army Act, before his case is referred to Military authorities. Petitioner is not subject to the Army Act and rule 13 will not be attracted in his case. Rule 23 deals with the right of accused to prepare defence. The record of the proceedings shows that petitioner was asked if he intended to call any witness in defence, but he replied in the negative. He did not avail of the opportunity to call defence witnesses. Rule 24 deals with the information of charge and delivery of the list of officers of the Court to the accused. Although under Proviso (b) of Article 7 of M. L. O. 4, the Summary Military Court is not required to frame a formal charge, yet chargesheet was framed against the petitioner and he was informed by the officer of the. Court. Under rule 113, petitioner could have a person to assist him during the trial, whether a legal adviser or any person. There is nothing on record to show that there was any legal adviser or other person to assist the petitioner available whom the Presiding Officer of the Summary Military 'Court refused to allow to assist the petitioner. Even in the petition there is no allegation that petitioner was refused assistance of Legal Adviser. There is no provision of law that Legal Adviser to the petitioner was to be provided by the Military Court. The petitioner had an opportunity to cross-examine all the witnesses, which he availed of. Provisions of rules 90 to 116 of the Pakistan Army Act Rules have been complied with. There is no breach of any provision of the Pakistan Army Act Rules. Since the Summary Military Court has tried the case against petitioner within jurisdiction, this Court will not interfere on the ground that some rules of procedure were not followed. In this connection reference is. made to the following observation of the Supreme Court in the case of F. B. Ali v. State (1): "The learned Attorney-General has also referred us to a number of decisions from the English jurisdiction to support his contention that if a Court Martial has jurisdiction to try and hear a case then the - High Court ought not to interfere merely on the ground that - the Military Court had not complied strictly with the rules of criminal procedure or there has been unusual delay in convening the Court Martial vide Rex v. Secretary of State for War and R. V. Jennings. It is unnecessary to multiply these cases because, it seems quite settled that if the Court Martial has tried a particular case with jurisdiction, then the ordinary Courts of superior jurisdiction will not interfere in exercise of their power of judicial review merely on the ground that some rule of procedure has not been followed." Rule 132 of the Pakistan Army Act Rules -which reads thus, also validates the proceedings if there is any deviation from the Rules: "Rule 132.-Whenever it appears that Court Martial had jurisdiction to try any person and made a finding and that there is legal evidence or a plea of guilty to justify such finding, such finding and any sentence which the court-martial had jurisdiction to pass thereon may, if confirmation is necessary, be confirmed, and shall, if so confirmed, and in all cases where confirmation is not necessary, be valid, notwithstanding any deviation from these rules . . . .?

8. The moot question in this petition is if the investigation is irregular and illegal, does it affect jurisdiction of the Court to take cognizance of the offence or the validity of proceedings of the Court ?Answer is in the negative. Irregular investigation neither prevents the Court from taking cognizance of the offence on report submitted by a Police Officer not competent to investigate the offence nor render subsequent trial illegal. In the case of Crown v. Meharali (1) investigation in the offence under section 161, P. P. C. committed by Central Government Servant was held by the Inspector of the Sind Anti-Corruption Police instead of, as maintained by the defence, by the Special Police Establishment. It was objected that trial was bad for that reason. The Federal Court, at page 109, observed :- (1) P L D 1975 S C 506 "As regards the competency of the investigation, it is by no means clear that even if it could be established that the investigation by the Sind Anti-Corruption Inspector was irregular, the result would be to deprive the Special Magistrate of jurisdiction or otherwise to affect the validity of the proceedings in the trial." In Mst. Sedan v. State (2) the investigation was conducted and arrest effected by Police Officer not competent to do so. It was held that this did not render the trial in Court illegal. At page 16, the Court said : "The investigation by the police is an antecedent proceeding. It does not serve as the foundation-stone nor as a sine qua non of a valid trial in Court. A Police Officer, who investigates an offence which he is not empowered to investigate or makes an arrest where he is not so empowered, may find .himself in difficulty during investigation if be defied or resisted, and the law may not give him any protection, or he may make himself liable to criminal or civil action in certain circumstances, but it is difficult to see why this desirability should attach itself to the proceedings in Court or prevent a Court of law from taking cognizance of the offence on a report submitted by him under clause (a) or (b) of section 19J of the Code of Criminal Procedure or prevent a Court from assessing the value of evidence placed before it in the absence of a clear enactment, express or implied, preventing the Court from doing so. There is nothing in law to prevent a police officer from making a complaint in a case of which the facts have come to his knowledge and which he cannot investigate. In any case, the jurisdiction of a Court' cannot be ousted merely because a report was submitted by a Police Officer who was not authorised to investigate." In Walizar and others v. State (3) there was irregularity of investigation held by a Police Officer below the rank of D. S. P. in contravention of section 5 of the Prevention of Corruption Act, 1947, which was held not to affect competency or jurisdiction of the Court nor the admissibility of evidence. The irregularity was held curable under section 537 of the Criminal Procedure Code. The Court at page 223, remarked : "The correct principle is that when a person accused of an offence is brought before a Court, the Court has to decide on the evidence before it whether an offence is made out against him or not and the question of irregularity in investigation of having been held by an incompetent officer is irrelevant to the question before the Court, except where it is shown that such irregularity has occasioned failure of justice. The powers to take cognizance, the competency to try and the admissibility of the evidence is not affected, and if the trial is valid and has been held in accordance with law, it can only be set aside on the ground that the irregularity has occasioned a miscarriage of justice. My conclusion, therefore, is that there is only an irregularity in the investigation of this case, which was conducted by police officers not authorised by section 5-A of the Prevention of Corruption Act, but neither the competency or jurisdiction of the Court nor the admissibility of the evidence before the Court is affected thereby. The irregularity is curable under section 337 of the Code of Criminal Procedure. It has not been shown that any failure of justice has been caused by the irregularity. I, therefore, hold that the trial held in this case is not illegal or incompetent and that the conviction based thereon cannot be set aside on the ground that the investigation conducted from beginning to end was by incompetent police officers." (1) P L D 1956 F C 108??? (2) P L D 1965 B J 12 ???? (3) P L D 1960 Kar. 204 In the case of Muhammad Rashid v. State (1) non-cognizable offence was investigated by a Police Officer without permission of the Magistrate and challaned. Single Judge held that it vitiated subsequent trial. This was not found to be correctly decided in the case of Mst. Sedan v. The State where the Division Bench at page 14, observed : "This view, we say so with great respect, is not correct, because the learned Judge has ignored section 190 of the Code of Criminal Procedure which empowers a Magistrate to take cognizance of any offence (a) upon receiving a complaint of facts which constitute such offence; (b) upon a report in writing of such facts made by any Police Officer ; and (c) upon information received from any person other than a Police Officer, or upon his own knowledge or suspicion, that such offence has been committed. A report by a Police Officer in respect of the commission of an offence, which he may have been empowered to investigate, will still fall under clause (a) or (b) of section 190 of the Code of Criminal Procedure, as has been held in so many cases." In Dost Muhammad v. State of Pakistan (2) the Court had illegally taken cognizance of the offence, and the proceedings were quashed. It is distinguishable from the present case inasmuch as the cognizance in the case was not illegally taken as M. L. O. 4 empowered Military Court to take cognizance of any offence on police report, complaint etc. So also is distinguishable the case of Abrar Beg v, State (3).

9. In the result, petition is dismissed. Petition dismissed. (1) P L D 1964 Kar. 381? (2) 1976 P Cr. L J 184 (3) P L D 1975 Lab. 685