P L D 1963 (W (PLP)

3. Even if the evidence recorded in case against Barkat Ali is taken into consideration, the conviction of the petitioner cannot be held to be justified. The only witness examined was Muhammad Iqbal, S. H. O. who had visited the spot on 8‑9‑61 and had found the road under water. His statement was thus just based on his examination of spot and his opinion that it was to fact the petitioner who was responsible for the flooding of the road. It was, therefore, necessary to examine the other witnesses in the case who had to depose to the facts and without examining them a verdict of guilty could not be returned against the petitioner.

4. I would, therefore, accept the revision and would recommend the case to the Hon'ble High Court under section 438 Cr. P. C. for quashing for the conviction and sentences of the petitioner and for ordering a retrial reasons for recom mending a retrial are that the offence is against the public and if the petitioner did commit this offence he should not to allowed to go scot free. Qazi Ahmad for A.‑G. for Petitioner. S. Irfanul Haq for Respondent. Date of hearing: 13th November 1962. This order will dispose of Criminal Revisions Nos. 1245 and 1252 of 1961. Muhammad Iqbal, Sub‑Inspector, Police Station Sadr Sialkot, appeared before the Additional District Magistrate, Sialkot, in a case registered under sections 366/377 and 363, Pakistan Penal Code, against one Rashid accused. He was ordered in that case by the Additional District Magistrate to go to village Gul Bahar Khurd. He found Sialkot‑Chaprar Road sub‑merged in water near the village, and this had made the road difficult for public use. It was alleged that Hussain Bakhsh, petitioner, with the assistance of Barkat Ali, Lambardar, had dug up a pond on the side of Sialkot‑Chaprar Road for storing rain‑water to enable Hussain Bakhsh to irrigate his land across the road. This constituted a nuisance in the opinion of this Sub‑inspector, who made an entry of incident in the daily diary at Serial No. 17 on the 8th of September 1961. He, thereafter, filed two separate complaints on the 12th of September 1961, against Hussain Bakhsh and Barkat Ali under section 290, Pakistan Penal Code, in the Court of the Additional District Magistrate, Sialkot: He cited Ch. Muhammad Yusuf, Chairman, Union Council, Ch. Sultan Ali, Member Union Council, Munshi Khan, Member, Union Council and himself as the prosecution witnesses. Both these cases were taken up by the learned Additional District Magistrate, on the 26th of September 1961. Mr. Muhammad Iqbal, Sub -Inspector, appeared as the only prosecution witness in the case. His statement was recorded in the case against Barkat Ali only and in the case of Hussain Bakhsh, a note was made that the evidence in that case was the same as the evidence in the case against Barkat Ali. Barkat Ali, Lambardar, produced Dewan Ali only in his defence.

2. The learned Additional District Magistrate, by his order dated the 26th of September 1961, held both the accused guilty under section 290, Pakistan Penal Code, in the respective complaints, against them of causing nuisance to the public and ordered each of them to pay a fine of Rs. 200'00 and in default of payment they were to undergo further simple imprisonment for two months, each.

3. The petitioners felt aggrieved by the order of conviction and both filed separate revisions petitions under section 435, Criminal Procedure Code, before the learned Sessions Judge, Sialkot. It was contended before him that in both the cases the proceedings before the learned Magistrate were vitiated, as no order for investigation, as contemplated by section 155 (2) Criminal Procedure Code, was obtained. In the case of Hussain Bakhsh, it was further contended that there had been no trial in accordance with law. The finding against Barkat Ali was assailed on the ground that it was a finding without evidence, inasmuch as Muhammad Iqbal, Sub‑Inspector, was not an eye‑witness of the fact that petitioners had committed the nuisance.

4. The learned Sessions Judge did not accept the plea raised on the basis of non‑compliance with section 155 (2), Cr. P. C. and held that the Sub‑Inspector initiated the investi gation on the orders of the Additional District Magistrate and for doing so, relied on a Report No. 17 dated the 8th of September 1961, of the daily diary of Police Station Sadr, Sialkot. In the case of Hussain Bakhsh, he, however, held that no trial in accordance with law had been conducted and further observed that in both cases the evidence of Muhammad Iqbal, Sub Inspector, was not sufficient for the conviction of the petitioners, because he had no personal knowledge of the facts of the case and his statement was nothing but hearsay. He has, therefore, reported this case under section 438, Criminal Procedure Code, for setting aside the conviction and sentence of the petitioners and for directing their retrial in accordance with the law.

5. I agree with the finding of the learned Sessions Judge, that there was no trial in the case of Hussain, Bakhsh and the evidence of Mr. Muhammad Iqbal, Sub‑Inspector could not bed relied upon for the conviction of the petitioners. The order of the learned Magistrate dated the 26th of September 1961, whereby; he convicted and sentenced the petitioners, merits to be set' aside.

6. I am, however, not in agreement with the finding of the learned Sessions Judge that the provisions of section 155 (2), Criminal Procedure Code, were complied with in the present case. He seems to have misread Report No. .17 dated the 8th of September, 1961, in daily diary of Police Station Sadr, Sialkot. The copy of the report on the record of the case, does not show at all if the Additional District Magistrate had directed the S. H. O., to investigate the case. There is no such order. Report No. 17 only contains an entry of the facts which the Sub- Inspector, Mr. Muhammad Iqbal, had observed in this village. The learned Sessions Judge seems to have been led into this misunderstanding by the opening line of the report where the reference is made to the Additional District Magistrate, but the same is not in any way pertinent to the present case. It only mentions that on the 7th of September 1961, when the Sub- Inspector appeared in the Court of the learned Additional District Magistrate, Sialkot, in connection with a case registered under section 366 etc., lie was directed by the learned Additional District Magistrate, to go to village Gul Bahar Khurd. What necessitated the direction of the learned Additional District Magistrate, referred to in this report and in what case and for what purpose it was given, is not clear from the report or the evidence of Mr. Muhammad Iqbal, Sub‑Inspector, or the record of these proceedings. There seems hardly any justification to infer that this was an order by the learned Additional District Magistrate for investigation of the present case under subsection (2) of section 155, Criminal Procedure Code. This can be properly appreciated by reference to the relevant provisions of section 155, Criminal Procedure Code, which are reproduced :‑ "(1) When information is given to an officer incharge of a police station of the commission within the limits of such station of a non‑cognizable offence, he shall enter in a book to be kept as aforesaid the substance of such information and refer the informant to the Magistrate. (2) No police officer shall investigate a non‑cognizable case without the order of a Magistrate of the First or Second Class having power to try such case or commit the same for trial." There is no information of the commission of the offence entered in any book and section 155 (2), Criminal Procedure Code, does not expressly confer power on a Magistrate to order investigation in a non‑cognizable offence as is given by section 156 (3) and section

159. The police may report for order under section 155(2) and the Magistrate can order the investigation. The Magistrate, however, has to apply his mind to the facts and before passing orders see whether there are reasonable grounds for believing that an offence has been committed. Reference in this connection may be made to the decision in Tufail Muhammad v. Crown (P L D 1954 Lah. 37), where after pointing out that the material placed before the sanctioning authority contained no reference to the facts of the case and the offence, if any, which was alleged to have bee n committed, Mr. Justice S. A. Rahman (now a Judge of the Supreme Court) observed "The question that falls for determination is the meaning to be attached to the expression "previous sanction". Does it imply just an order of sanction to be passed by the prescribed authority taking on trust a report made to it by the investigating officer? I do not think that could have been the intention of the Legislature. If that were the position then it would be a mere act of supererogation to have the im primature of the sanctioning authority added to the opinion of the investigating officer. What was obviously inten ded was that the sanctioning authority should apply its mind to the facts and circumstances of the case and although, prima facie, some offence may be revealed by the evidence collected, the authority in question would not be bound to accord sanction for the prosecution unless it came to the conclusion that it would be expedient in the interest of justice to do so. Such a conclusion could only be arrived at, after all the material facts had been considered. It is clear that this has not been done in the present case and, in my view therefore, the purported sanction to prosecute was not in accordance with law." Tufail Muhammad's case has material bearing on the question under consideration although it related to sanction for prosecution, for, in my opinion, `to prosecute' and `order to investigate' are allied subjects and should be governed by the same principles.

7. A similar decision had been taken earlier in King Emperor v. Mohan Lal (A I R 1947 All. 149). The principles governing a valid sanction to prosecute were considered and it was observed by Mulla, J., as:- "Then we find the brief order recorded by Mr. D: G. P. Anthony which does not show at all whether he applied his mind to any set of facts put before him and whether upon doing so he came to the conclusion that the applicant had committed an offence under section 6 of the Ordinance. The cryptic order recorded by Mr. Anthony makes no reference at all, to any offence. In fact, it is not even clear in this case whether Mr. Anthony was empowered by the Provincial Government to grant sanction for prosecution for any offence committed under the Ordinance. My attention was drawn by learned counsel for the Crown to a Government notification to the effect that all District Magistrates in the province were authorised by the Provincial Government to sanction prosecution under section 14 of the Ordinance and it was contended that Mr. Anthony being at the time in the position of an officiating Superintendent of Dehra Dun, must be presumed to have the power contem plated by section

14. I am not quite clear of this point, but one thing is quite clear to my mind and that is that the sanction for prosecution given in the present case was not a valid sanction as required by the law. As I have already stated, the material on the record before me does not show at all whether Mr. Anthony ever applied his mind to any set, of facts and having done so arrived at the result that any offence under section 6 of the Ordinance had been committed by the applicant. His cryptic order does not even mention any offence. Such a sanction, in my opinion, is not a valid sanction and I must, therefore, hold that the prosecution in this case failed to remove the bar placed in its way by section 14 of the Ordinance and upon that ground also it must fail."

8. The fact whether there are reasonable grounds for believing that an offence has been committed, is a very material circumstance to be taken into account in deciding whether an investigation should be ordered. A Magistrate must satisfy himself that reasonable grounds exist for believing that an offence has been committed before he orders such investigation. If he does not do so, he would be acting arbitrarily in ordering an investigation to be made. The order to investigate is an important matter and it must precede the investigation by the police officer. The Magistrate has an absolute discretion to gram or refuse order on any ground which commends itself to him. In order that he should perform the function where to give or with hold the permission to investigate, he must have, knowledge of the facts of the case. In the present case, however, there is nothing on record to show that any information, as to the commission of an offence under section 290, had been conveyed to the Magistrate or any report was submitted to him.

9. There is, therefore, no material on the record to warrant the observation of the learned Sessions Judge that permission under section 155 (2) had been given by the learned Additional District Magistrate to Mr. Muhammad Iqbal, Sub‑Inspector, to investigate into the commission of an offence under section 290, Pakistan Penal Code. The police officer took up the investigation of a non‑cognizable offence without the sanction of a competent Magistrate. The proceedings taken by him, are, therefore, illegal and vitiated. As laid down by their Lordships of the Privy Council in Nazir Ahmad v. King Emperor (AIR 1936 P C 253), it is a well recognized rule of construction that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden. On the same principle it was held in Lala Dinga Dass v. The Emperor (A I R 1943 Lah. 28) by Din Muhammad and. Blacker, JJ., that where the Magistrate authorised a police officer to investigate the case against a person, but the books seized were not demanded in connection with that case, then under that authority he could not investigate a separate non‑cognizable case in which he could require the production of the books and unless he was so authorised he could not use any powers which are vested in an officer‑in‑charge of a police station or in a police officer making an investigation as contemplated in sections 94 and‑ 165, Criminal Procedure Code. They, therefore, held that a police officer without an order of a competent Magistrate could not investigate a non‑cognizable offence and observed that the seizure of the books by the police officer in such a case, therefore, was illegal. They, therefore, ordered the return of the books under section 561‑A, Criminal Procedure Code.

10. On the grounds set forth above, I would hold that the action taken by the police in investigating the case under section 290, Pakistan Penal Code, which is a non‑cognizable offence, without the order of a competent Magistrate under section 155(2), Criminal Procedure Code, was not in accordance with law. The entire proceedings, are, therefore, illegal and without jurisdiction, and I, hereby, quash them. A. H. Proceedings quashed.