P L D 1959 (W (PLP)

Date of hearing : 15th July 1959. This is a petition for revision of the order of Mr. Bashir Ahmad Mirza, Additional Sessions Judge, Lahore, dated the 22nd of December 1958, maintaining the conviction of the petitioner, who was convicted under section 509 P. P. C. by a Magistrate of the 1st Class, Lahore, but reducing his sentence from that of six months' rigorous imprisonment to a fine of Rs. 200 with four months' rigorous imprisonment in default of payment.

2. The case first came up before Masood Ahmad J. who, while admitting it, directed notice to issue to the petitioner to show cause why, in the event of his conviction not being set aside, his sentence should not be enhanced.

3. The prosecution case briefly is that at about 2‑30 p.m. on the 15th of February 1958, Mst. Taheer Jahan Begurn (P. W. 4) was carrying tea to her father, Karrar Hussain (P. W. 1), and Muhammad Hadi (P. W. 2) in Karrar Hussain's house when the petitioner, who was standing in the courtyard of his own house, facing that of Karrar Hussain, called out to her to look in his direction. She did so, and saw him standing holding up his shirt, his pajama lying loose about his feet. She cried out to her father and he and Muhammad Hadi ran into the room and also saw the petitioner, who was further observed by Khwaja Azhar (P. W. 3) who had gone to the house and been called in by Karrar Hussain. On seeing the witnesses the petitioner ran away, and Karrar Hussain reported the matter to the police.

4. The petitioner pleaded not guilty and put forward an alibi, in support of which he produced Muhammad Asghar (D. W. 2) and Muhammad Riaz (D. W. 3). These witnesses state that the petitioner is a student of the National College of Arts, Lahore, and had been marked present on the day of the occurence. The remaining witness, Qamar Din (D. W. 1), and Muhammad Riaz give the petitioner a good character. The Court itself also examined three witnesses, Mr. M. R. Sponenburgh Principal of the College, Muhammad Hussain, a clerk, and Shakir Ali, a professor, who deposed that the petitioner was marked present at both the morning and the afternoon sessions of the College on the day in question.

5. Three material irregularities have been committed in this case, one by the trial Court and two by the learned Additional Sessions Judge in appeal. They relate to the question of sentence. The error committed by the learned trial Magistrate is that although section 509 P. P. C. provides for only simple imprison ment, that awarded by him to the petitioner was rigorous. The errors of which the learned Additional Sessions Judge has been guilty are that while converting the punishment imposed by the trial Court into one of fine, he directed that in default of payment four months rigorous imprisonment should be imposed. In the first place, section 65 of the Penal Code lays down that the term for which the Court directs the offender to be imprisoned in default of payment of a fine shall not exceed one‑fourth of the term of imprisonment which is the maximum fixed for the offence. The maximum term of imprisonment that can be awarded under section 509 P. P. C. is one year and the learned Additional Sessions Judge had, therefore, no jurisdiction to impose a term exceeding three months in default of payment of the fine. Moreover, section 66 of the Code lays down that the imprisonment which the Court imposes in default of payment of a fine may be of any description to which the offender might have been sentenced for the offence. Since section 509 of the Code e only provide for simple imprisonment, the learned Additional Sessions Judge was not competent to award rigorous imprisonment in default of payment of the fine.

6. Mr. Barkat Ali Saleemi for the petitioner further con tended that the whole proceedings in the Court of the learned trial Magistrate were without jurisdiction, the Magistrate having failed to take cognizance of the case in the manner provided by law. In order to appreciate his argument, it must be stated that Karrar Hussain's report was recorded by Sher Muhammad, Head Constable (P. W. 5) on the 15th of February 1958, a report being submitted to the learned Magistrate on the 12th of March 1958, by Muhammad Yaqub, Prosecuting Inspector. In view of the interval elapsing between the two dates, it appears clear that the police must have carried out some investigation, which under section 155 (2) of the Criminal Procedure Code they were not competent to do without the order of a Magistrate of the first or second class having power to try such case, an offence under section 509 P. P. C. being non‑congnizable. Clause (a) of para. 3 of the petition, challenging the proceedings, runs‑

"That there was no complaint before the Court. The offence was non‑cognizable and as such the proceedings against the petitioner could not be taken out on the report of a police officer." Section 190 of the Criminal Procedure Code lays down three ways in which a Magistrate can take cognizance of an offence, namely (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. No complaint was made to the Magistrate within the meaning of (a) above, while (c) expressly excludes information received from a police officer. The action of the Magistrate in taking cognizance of the offence can therefore, only be justified if (b) is applicable.

7. The question of whether a report of a non‑cognizable offence falls within the orbit of clause (b) of subsection (1) of section 190, Criminal Procedure Code, has given rise to a con siderable diversity of judicial opinion, but the view of the former Lahore High Court is well settled. In Emperor v. Wali Muhammad (A I R 1928 Lah. 66) it was held by a Division Bench of that Court that where a Magistrate takes cognizance under section 190 (a) or (b) of a non‑cognizable offence without jurisdiction, the proceedings are validated if he acts in good faith. This view follows a Full Bench ruling of the Madras High Court, Public Prosecutor v. Ratnawelu Chetty (A I R 1926 Mad. 865) from which the following passages may with advantage be cited :‑ (1) "Mr. Justice Waller was averse to putting a narrow construction on the word ` report' in section 190 (1) (b) as including only reports of cognizable offence. We consider the latter view (that of Mr. Justice Waller) to be more correct. While the section itself speaks of ` any offence', we think that an attempt to limit its application to one particular class of offence is not warranted by the language used," (2) "The law only requires that the Magistrate, who takes cognizance of an offence under section 190, subsection (1), clause (a) or (b), without having jurisdiction, should act in good faith though erroneously to make his proceedings valid." The second of the observations cited above is based on section 529 (e) Cr. P. C., which provides that if any Magistrate not empowered by law to take cognizance of an offence under section 190, subsection (1), clause (a) or (b) does so erroneously but in good faith, his proceedings shall not be set aside merely on the ground of his not being so empowered.

8. With the greatest respect, I agree with the above view the law, and hold that the proceedings do not become invalid on the mere ground that the learned Magistrate took cognizance of the case under section 190 (1) (b) of the Code of Criminal Proce dure on receipt of a police report of a non‑cognizable offence.

9. As already pointed out, the sentences imposed both by the learned Magistrate and by the learned Additional Sessions Judge are illegal, and must be set aside, but on the merits I consider that the conviction of the petitioner was fully justified by the evi dence on the record, and see no reason to interfere.

10. The only question remaining is that of the sentence to be imposed. In my opinion, even had the sentence passed by the learned Additional Sessions Judge in appeal been legal, it would have been grossly inadequate for an offence of this nature. I accordingly restore the sentence imposed by the learned Magistrate, with the important difference that the class of imprison ment is altered from rigorous to simple as required by law. The Sentence of fine imposed by the learned Additional Sessions Judge is unnecessary and is set aside. K. B. A./A. H. Sentence enhanced.