1989 P Cr (PLP)

This application under section 561-A, Code of Criminal Procedure is with a prayer that the proceedings against the petitioner pending in the Court of City Magistrate, Peshawar, under Articles 3 and 4 of the Prohibition (Enforcement of Hadd) Order, 1979 (hereinafter referred to as the Prohibition Order), be quashed.

2. The petitioner is charged as per F.I.R. No. 633, dated 21-9-1982 for possessing three bottles of liquor during the search of his house on 21-9-1982 at 13-00 hours. The learned counsel for the petitioner Mr. Jehanzeb Rahim, Advocate contended that:- (i) The facts of the case do not attract Article 3 of the Prohibition Order; (ii) That the offence under Article 4 of the Prohibition Order, providing a maximum sentence of two years, is a non-cognizable offence; but the provisions of section 155, Code of Criminal Procedure have not been followed: (iii) That the recovery of three bottles of liquor was also against law inasmuch as provisions of section 103 Code of Criminal Procedure were grossly violated; and (iv) that not a single witness has so far been examined though the trial has been pending before the Magistrate 1st Class, Peshawar since 5-11-1983.

3. On the other hand Mr. Amjad Zia, the learned counsel for the State has conceded that the facts of the case do not fall within the purview of Article 3 of the Prohibition Order; but contended: (i) That although the offence under section 4 of the Prohibition Order is not cognizable inasmuch as under Article 16(ibid) it can only be cognizable `if committed at a public place' which is not the case in hand; yet non compliance of section 155 of the Code of Criminal Procedure, during the investigation of the case, will not necessarily follow that the subsequent trial should vitiate; (ii) that similarly while he denied non-compliance of section 103 of the Code of Criminal Procedure, in his view it is a matter which can be urged before the trial Court, and (iii) that the non-examination of any single witness cannot be wholly attributed to the prosecution and as such does not amount to an abuse of process. I have heard both the learned counsel in support of their contentions at length and have also gone through the record of the case with considerable degree of care.

5. As regards Article 3 of the Prohibition Order, that it is not applicable to the facts of the present case, an exception in this connection, on behalf of the petitioner, can be taken before the learned trial Court; and I have no doubts that the learned trial Court will give its finding on the question according to law.

6. On the question of failure of the Investigating Agency to follow the procedure provided in section 155 of the Code of Criminal Procedure and its consequential affects on the trial of the petitioner, I tend to agree with what the learned counsel for the State has submitted.

7. The learned counsel for the petitioner placed reliance on a case Karim Haider v. State given by this Court and reported in P L D 1988 Pesh.

44. I have gone through the authority relied upon by the learned counsel for the petitioner and I am constrained to observe that the learned Single Judge has not been properly assisted to decide this question and, with utmost respect, I would state that the decision is neither in conformity with the substantive law nor is m consonance with the case-law which, as I would presently show, has already set the controversy at rest.

8. Proceeding on the assumption that the Investigating Officer had no power to investigate the case in hand, being a non-cognizable case, as provided in section 155(2) of the Code of Criminal Procedure without the order of the, Magistrate 1st Class, having the power to try such case; the question that falls for consideration is whether only a valid investigation is the foundation of the validity of proceedings in a Court against an accused person and that the proceedings are to be quashed if the investigation suffers from any such irregularity. It may be pointed out that if the answer is in affirmative, it will not be a correct exposition, of law inasmuch as section 19) of the Code of Criminal Procedure empowers a Magistrate to take cognizance of an 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)

9. It may be observed that even if a Police Officer making the report to the trial Court was not duly authorized under section 155(2) Code of Criminal Procedure by the order of a Magistrate, his report nonetheless could be held to fall within the purview of section 190(l)(b) of the Code or alternatively could be accepted as a complaint under clause (a) of subsection (I) of section 190 of the Code. This view finds support by decisions in Salahuddin v. Crown P L D 1956 Lah. 87, Abdul Noor alias Noor Meah v. State P L D 1958 Dacca 145 and Sheikh Abdul Majid v. State P L D 1958 Kar. 86.

10. Again it is well-settled now that any infirmity in the investigation of a case would not render the trial of an accused person invalid. The basic authority, to my mind is a case Crown v. Nur Alam P L D 1955 Lah. 667 decided by a Division Bench of the Lahore High Court consisting of S.A. Rehman and Shabir Ahmad, JJ., who, on examination of a number of cases, arrived at a conclusion that even if investigation has not been in conformity with the legal provisions, it does not necessarily follow that the subsequent trial should be vitiated. The trial Court, will have to decide the case on the basis of evidence led before it and the mere fact that the agency which collected such evidence is m law not authorized to do so, should not introduce an inherent jurisdictional defect in the trial Court. In Wali Zar and another v. State P L D 1960 Kar. 204 and Manu alias Menthar and others v. State P L D 1964 Kar. 34 also it was held that mere irregularity in investigation, or investigation by a Police Officer not authorized to investigate particular offence, would not affect the legality of the proceedings in a Court of law.

11. The Supreme Court of Pakistan in Crown v. Mehar Ali P L D 1956 FC 100 has also set the controversy at rest by holding that it was 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.

12. The view taken by the Supreme Court of India, it may be mentioned, is not different than the one adopted by the superior Courts of Pakistan and in H.A. Rishbud and another v. State of Delhi A I R 1955 SC 196 it was held that cognizance under section 190 of the Code of Criminal Procedure on an invalid police report cannot be said to be prohibited and, therefore, a nullity. Such an invalid report may still fall either tinder clause (a) or (b) of section 190(I) of the Code of Criminal Procedure and in any case, cognizance so taken, is only in the nature of error in a proceeding antecedent to the trial. To such a situation section 537 of the Code of Criminal Procedure is attracted.

13. In my considered opinion, had attention of the learned Single Judge been drawn to the above authorities, which have laid down a settled law in the matter he would have no occasion to have taken a contrary view in the case Karim Haider v. State (supra).

14. In this context of the matter, the inescapable conclusion that one can draw is that, investigation by any Law Enforcement Agency, is a proceeding antecedent to the trial. Any illegality/irregularity during the course whereof may expose the Investigating Officer to any criminal or, as the case may be, a civil action in the circumstances of a case, but it cannot be visualised as to how this disability of his can project itself to the proceedings in a Court of law or prevent it from taking cognizance of the offence on a report purportedly made by him under clause (a) or (b) of section 190 of the Code of Criminal Procedure. Similarly if a Court is otherwise competent to take cognizance of a case and, under the law, is equipped with the jurisdiction to try the same; it is difficult to see as to how an infirmity in the pre-trial proceedings would prevent the Court from proceeding with the trial or, for that matter to quash the proceedings pending before it on this ground. I am, therefore, of the firm view that jurisdiction of a Court cannot be ousted merely because a report was submitted by a Police Officer who was not authorised to investigate.

15. In the instant case too I would hold that non-compliance of section 55(2) of the Code of Criminal Procedure will have no bearing on the trial before the learned Magistrate as he is otherwise competent to proceed with the trial and as such no case is made out to warrant action under section 561-A Code of Criminal Procedure.

16. On the question of recovery of liquor from the house of the petitioner, I have perused the record and tend to agree with the submission of the learned counsel for the State that instead of giving a finding at this level it would advisable for the petitioner to agitate the same at these trial.

17. Regarding non-examination of the witness a perusal of the record would show that only seven adjournments out of 35 were due to the absence of the P.Ws whereas all the P.Ws. did appear on quite a number of times but their statements could not be recorded for one reason of the other and mainly due to the absence of the Presiding Officer who was reportedly on his executive duties. In this context, it cannot be said with any amount of certainty that for non -examination of the witnesses, responsibility rests solely with the prosecution.

18. As a result of the foregoing discussion, I find no force in the prayer for quashing the proceedings before the learned trial Court. The petition under section 561-A Code of Criminal Procedure is hereby dismissed. I will however, direct that the record of this case may be made available to the trial Court within a week and the trial of the case should conclude within three months positively under monthly report to the Additional Registrar of this Court showing the progress of the case. M.A.K./665/P Petition dismissed.