P L D 1961 (W (PLP)

M. A. Bhuttar for Petitioners. Shaukat Hussain Qureshi for Respondent. Date of hearing: 19th June 1961. This is a petition under sections 526 and 561‑A, Criminal Procedure Code, for quashing the proceedings under section 290, Pakistan Penal Code, pending against the petitioners in the Court of Additional District Magistrate, Dera Ghazi Khan, or in the alternative for the transfer of the case to some other District. The petitioners are the wives of Sh. Muhammad Anwar, son of Seth Kanshi Ram, Sheikh Muhammad Anwar was a tenant in a house in Pathar Bazar Block No. 8 Dera Ghazi Khan owned by Haji Muhammad Bakhsh. The petitioners were living along with their husband in this house. The relations between the landlord and the tenant became strained. Conse quently, on 14th of May 1960, the landlord Haji Muhammad Bakhsh filed an application under section 13 (2) of the Rent Restriction Ordinance, 1959, in the Court of the Rent Controller, Dera Ghazi Khan, for the ejectment of Sh. Muhammad Anwar. While the case was pending in the civil Court, a complaint, dated 6th of June 1960, signed by Haji of Muhammad Bakhsh and several others, ostensibly, at the instance Haji Muhammad Bakhsh, was sent under registered post to the Superintendent of Police. In the complaint it was mentioned that Sh. Muhammad Anwar was living in the house in Pathar Bazar Block No. 8 belonging to Haji Muhammad Bakhsh and that Sh. Muhammad Anwar was keeping two women in the house representing them to be his wives, that the two women were of immoral character and that a large number of men and women of immoral character assemble in this house and thus put, the petitioners to a lot of inconvenience. That Sh. Muhammad Anwar had no ostensible means of living and consequently his stay in the city was very dangerous to the public. It was finally prayed that Sh. Muhammad Anwar be turned out of the house, so that the honour of the petitioners might be saved. The Superintendent of Police marked this complaint to the City Police Station with the endorsement bemurad karwi zabta thana city jawe. Bashir Ahmad, Assistant Sub‑Inspector took up the investigations and recorded the statement of Haji Muhammad Bakhsh and several other persons. He ultimately sent all these papers to the Court of the Additional District Magistrate, with a request that the petitioners be tried for an offence tinder section 290, Pakistan Penal Code. The learned Additional District Magistrate thereupon issued summons to the petitioners. In the report by the police, Sh. Muhammad Anwar was not cited as an accused and nor was he summoned by the learned Additional District Magistrate. Aggrieved by this order, the petitioners have put in this petition.

2. An offence under section 290 is not cognizable consequently, the Assistant Sub‑Inspector was not at all justified carrying out an investigation without an order of a Magistrate of 1st Class or Second Class having power to try this case. A Since there was nothing on the record to indicate whether an such permission had been obtained, I enquired from the learned Additional District Magistrate, by my order, dated 6th of Marc 1961, whether the police had obtained any sanction of a competent Magistrate before taking up the investigation of this case. The learned Additional District Magistrate reported on 31st of March 1961, that no permission of any Magistrate for investigation of this case was obtained. He further remarked that the pro ceedings in this case were instituted by the police under section 24 of the police Act and that a Station House Officer was empowered to submit a report even in non‑cognizable cases and in that event though not strictly a challan the report was a complaint. The learned Additional District Magistrate has cited 31 Criminal Journal page 5i in support of his contention.

3. The learned counsel for the petitioners has urged that although in non‑cognizable cases under section 24 of the Police Act, a Station House. Officer can submit a report to a competent Magistrate but the Police Officer had no authority to conduct any investigation without the previous sanction of a competent Magistrate. This contention of the learned counsel is quite correct. Section 155 of the Criminal Procedure Code is very clear on this point. Lala Durgadays v. Emperor (A I R 1943 Lah. 28), is an authority on this proposition. As soon as an information is given to an officer incharge of a police station of the com mission within the limits of station of a non‑cognizable offence, it is the duty of the police officer to enter in a book the substance of such information and refer the informant to the Magistrate. The prayer in the complaint sent by Haji Muhammad Bakhsh and other was simply for the ejectment of Sh. Muhammad Anwar. From the facts narrated in the complaint, an offence under section 290 was not clearly made out. But if after perusing the complaint, the police officer was of the view that an offence under section 290, Pakistan Penal Code, had been committed, he should have obtained the permission of a competent Magistrate before taking up the investigation. The law does not permit a police officer to enter into an investigation and ultimately put in a report in the Court and then take up the plea that he acted under section 24 of the Police Act. Section 24 enacts: --‑ "It shall be lawful for any police officer to lay any informa tion before a Magistrate, and to apply for a summons; warrant, search‑warrant, or such other legal process as may be by law issue against any person committing an offence." The combined effect of section 24 of the Police Act and section 155, Criminal Procedure Code is that the police officer is competent either to lay the information of the commission of a non- cognizable offence himself before the Magistrate or to refer the C. information to a Magistrate. But the law is absolutely clear that in no case the police officer can take up the investigation of the complaint of a non‑cognizable offence made to him without the sanction of a competent Magistrate. A perusal of the complaint indicates that while civil litigation about the ejectment from the house in dispute was pending between Haji Muhammad Bakhsh and Sh. Muhammad Anwar, Haji Muhammad Bakhsh took up a short cut in making a complaint with the police asking them to throw out Sh. Muhammad Anwar from the house in dispute. The police officer finding himself incompetent to throw out Sh. Muhammad, Anwar from the house, illegally investigated the complaint and then put up a report before a Magistrate which is almost in the form of a regular challan, so much so that about a dozen persons have been cited as prosecution witnesses.

4. The learned Rent Controller vide his order, dated 13th of January 1961, has ordered the ejectment of Sh. Muhammad Anwar from the house and it has been stated at the bar by the learned counsel for the petitioners that Sh. Muhammad Anwar has already been ejected from the house in dispute and that the order of ejectment has not been contested by Sh. Muhammad Anwar and has become final. The purpose for which Haji Muhammad Bakhsh put in a complaint has already been served. A plain reading of the complaint, dated the 6th June of 1960, does not make out a case under section 290, Pakistan Penal Code, against the petitioners. It will be sheer abuse of the process of the law if these proceedings are permitted to linger on. I would, therefore, order that these proceedings be quashed. K. B. A. Proceedings quashed.