P L D 1965 Baghdad﷓ul﷓Jadid 12 (PLP)

S. A. MAHMOOD, J.‑This petition under section 561‑A of the Code of Criminal Procedure by Mst. Sadan is for quashing the proceedings pending against her and two others in the Court of Mr. Muhammad Amir Ansari, Magistrate 1st Class, Hasilpur, in which she has been charged under section 4 of the West Pakistan Suppression of Prostitution Ordinance (11 of 1961) (hereinafter called the Ordinance) on a report recorded at the instance of Mukhtar Husain Shali by S. 1. Ikram‑ul‑Haq, Officer‑in‑Charge of Police Station, Hasilpur, who has been authorised by the Superintendent of Police to effect an arrest under the Ordinance, The Sub‑Inspector of Police arrested the petitioner and two others and produced them before the trial Court on 17th June 1964, when prosecution evidence was recorded and a charge was framed against them on 20th June 1964. The prayer for quashing the proceedings is based on the judgment of Muhammad Daud Khan, J., to Muhammad Rashid v. The State (P L D 1964 Kar. 381). It was held in this case that offences under sections 3 and 8 of the Ordinance were non‑cognizable, and reliance was placed on Haji Mahboob Khan Daulat Khan v. Crown (I L R 1942 Kar. 94), holding that as the police were not competent to investigate into the case and challan the accused on the basis of such an offence without the sanction of a Magistrate under section 155 (2) of the Code of Criminal Procedure, the proceedings pending against the accused in the Court were illegal and were required to be quashed under section 561‑A of the Code of Criminal Procedure. Before the learned Judge the learned Additional Advocate‑General relied on Walizar v. The State (P L D 1960 Kar. 204) and Manu alias Menthar and others v. The State (P L D 1964 Kar. 34), but the learned Judge relied on Mst. It‑shad Begtun and another v. The State (P L D 1961 Lah. 882), as he was of the view that the first two cases were distinguishable. The learned Judge also referred to Husain Bakhsh v. The State (P L D 1963 Lah. 46). 2. The petitioner was arrested and has been charged under section 4 of the Ordinance. The terms "cognizable offence" and "cognizable case" have been defined in clause (f) of section 3 of the Code of Criminal Procedure, the former as an offence for which, and the latter case in which, a Police Officer may, in accordance with the Second Schedule, or under any law for the time being in force, arrest without warrant. Under the Second Schedule, the offences under the other laws are cognizable if they are punishable with imprisonment for three years or more. Soliciting, under section 4 of the Ordinance, as a first offence, is punishable with imprisonment which may extend to six months, or with fine, which may extend to two hundred rupees, or with ` both, and, therefore, the offence is not cognizable. Section 13 of the Ordinance, however, provides that if a complaint is made to any gazetted Police Officer about the commission of any offence punishable under sections 3 to 10 of the Ordinance, or if any such offence is committed in the view of any Police Officer, not below the rank of Sub‑Inspector, specially authorised in writing in this behalf by the Superintendent of Police, such police officer may arrest without warrant any person accused of the commission of such offence. As the power of arrest vesting in a police officer is conditioned by the two circumstances enumerated above, there is no general power in the police to arrest. We will, therefore, assume for the purposes of this case that the offence under section 4 of the Ordinance is non‑cognizable and S. I. Ikramul Haq had no power to arrest her, as it is contended by the learned counsel for the petitioner that the offence was not committed in the view of S. 1. Ikram‑ul‑Haq. 3. Assuming, therefore, that the offence with which the petitioner is charged is non‑cognizable, the question arises whether the proceedings pending in Court against her should be quashed on the ground that S. I. Ikram‑ul‑Haq had no power to arrest the petitioner, or that he had no power to investigate a non‑cognizable case as provided in section 155 (2) of the Code of Criminal Procedure without the order of a Magistrate of the First or Second Class having power to try such case or commit the same for trial. The learned Judge (Daud Khan, J.) came to the conclusion that the proceedings to a case in Court are illegal simply because its investigation has been conducted by a police officer in a non -cognizable case, which he was not competent to investigate. There is, however, abundance of authority against the view taken by the learned Single Judge. The learned Judge has assumed that a valid investigation is the foundation of the validity of proceedings in a Court against an accused person and that the proceedings ought to be quashed if the investigation suffers from any such irregularity. 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 not 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. This question has been considered by a Division Bench of the Lahore High Court consisting of S. A. Rahman and Shabir Ahmad, JJ., in Crown v. Nur Alam (P L D 1955 Lah. 667). The learned Judges came to the conclusion, on an examination of a number of cases, that even if investigation had not been inconformity with the legal provisions, it did 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 was in law not authorised to do so, should not introduce an inherent jurisdictional defect in the trying Court. If, of course, the intention could be read into a law that the jurisdiction of the Court would itself be barred when an un-authorised police officer conducts the investigation, then the position might be different, but presuming that the police officer making the report was not duly authorised by the order of a Magistrate, his report could still be held to fall within the purview of section 190 (1) (b) of the Code, or, in the alternative, could be accepted as a complaint within subsection (1) (a) of that section. The learned Judges mentioned that there was a conflict of opinion as to whether the words "police report of such facts" occurring in clause (b) of subsection (1) of this section, as it stood before the amendment of 1923 would include reports in cases which the police had no authority to investigate under Chapter XIV of the Code, but after the amendment, and with the omission of the word "police" as qualifying the word "report" in this clause, the preponderance of authority had veered round to the view that even a police report in a non‑cognizable offence, which the police had not been duly ordered by a Magistrate to investigate, would be included in the word "report". In the alternative, there is no reason even if such a report is not regarded as a police report, not to accept it as a complaint within the meaning of clause (a) of subsection (1) of section 190 of the Code of Criminal Procedure. The same view was taken by a Division Bench of the Dacca High Court in Abdul Nur alias Nur Meah v. The State (P L D 1958 Dacca 145). Sharif, J. in Salah‑ud‑Din v. Crown (P L D 1956 Lah. 87) and Lari, J. in Sh. Abdul Majid v. The State (P L D 1958 Kar. 86), also held that a mere irregularity in investigation, i.e., investigation by a police officer not authorised to investigate a particular offence, did not affect the legality of the proceedings in a Court of law. The same view was taken by one of us in Walizar and another v. The State. It may also be pointed out that the Supreme Court of Pakistan has held in The Crown v. Mehar Ali (P L D 1956 F C 106) 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. This decision sets the controversy at rest, and it was not possible for the learned Judge to take a contrary view. It may be mentioned that a similar view has been taken by the Supreme Court of India in H. A. Rishbud and another v. The State of Delhi (AIR 1955 S C 196). It was held in this case 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 under clause (a) or (b) of section 190 (1), 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. The same view was taken in State of Madhya Pradesh v. Veereshwar Rao Agnihotra (AIR 1957 S C 592) and Din Dayal Sharma v. State of U. P. (AIR 1959 S C 831). 4. With regard to illegality of arrest not affecting the jurisdiction of the Court, we have the decision of our Supreme Court in the case of (Commander) M. S. K. Ibrat v. Commander‑in Chief, Royal Pakistan Navy and others (P L D 1956 S C 264) and of the Privy Council in Prabha v. Emperor (AIR 1944 P C 73). 5. 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 he is 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 disability 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 190 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 lie 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. 6. The two cases on which the learned Judge relied are clearly distinguishable. Irshad Begum and another v. The State, decided by one of us, is a case in which it was held that no case under section 290, P. P. C. was made out against the petitioners, and it would be a sheer abuse of process of the law if proceedings were allowed to linger on. It was also pointed out that the purpose for which Haji Muhammad Bakhsh had made the complaint had been served. The case was one in which the police had taken up investigation while civil litigation for ejectment from the house in dispute was pending between the parties and the respondent had made a report to the police to short‑circuit the proceedings with a view to take possession of the house. In this context it was pointed out that the investigation by the police was wholly un-authorised and that the combined effect of section 24 of the Police Act and section 155 of the Code of Criminal Procedure was that the police officer was incompetent either to lay the information of the commission of the non‑cognizable offence before the Magistrate or to refer the information to a Magistrate. The proceedings were, in substance, quashed on the ground that no case under section 290, P. P. C. was made out. In the second case, Sardar Muhammad Iqbal, J. did hold that the investigation by the police into an offence under section 290, P. P. C., which is a non‑cognizable offence, being without the sanction of a competent Magistrate, the proceedings taken by the Court were illegal and were vitiated, and reliance was placed on the decision of the Judicial Committee in Nazir Ahmad v. Emperor (A I R 1936 P C 253), but we must observe, with all respect to the learned Judge, that no notice was taken of section 190 of the Code of Criminal Procedure, and in vice of the large number of decisions, already referred to, the case has not been correctly decided. The proceedings in Court arc not vitiated as a result of an irregular investigation that was conducted by a Police Officer not competent to investigate. We, therefore, hold that Muhammad Rashid v. The State is not correctly decided. 7. The learned counsel for the petitioner has also contended that the petitioner was not supplied with copies of the statements of the witnesses recorded by the police which is a contravention of section 251‑A of the Code of Criminal Procedure introduced by the Code of Criminal Procedure (West Pakistan) (Amendment) Act, 1964, which came into force on 1st of April 1964. The learned counsel appearing for the State contends that the provision is only directory and not mandatory and relies on the decision of the Supreme Court of India in Narayan Rao v. State of Andhra Pradesh (AIR 1957 S C 737), but the case is still pending in Court, and even if the provision is directory, it is necessary for the Court to comply with it. We, therefore, direct the learned Magistrate to supply copies of the police statements of the witnesses to the petitioner and to afford her an opportunity to cross‑examine them in the light of those statements. 8. While we give the above direction, we find no force in prayer for quashing the proceedings, which is dismissed. K. B. A. Petition dismissed.