P L D 1965 Dacca 421 (PLP)

Six witnesses were examined on the side of the prosecution. The learned Magistrate, on a consideration of the evidence, held the accused persons guilty under section 290 of the Pakistan Penal Code and sentenced each of them to pay a fine of Rs. 50 in default to simple imprisonment for one month each. The accused persons filed a Motion before the Sessions Judge for reference to this Court to set aside this order of conviction and sentence. The learned Sessions Judge rejected the Motion. The accused persons have now approached this Court in the exercise of its criminal revisional jurisdiction for setting aside this order of conviction and sentence under section 290 of the Pakistan Penal Code. Mr. Latifur Rahman, the learned Advocate appearing on behalf of the petitioners has contended that the proceeding is vitiated as the learned Magistrate took cognizance of the case relating to a non‑cognizable offence on the basis of a report for prosecutor, after investigation by the officer‑in‑charge, Jhenidah Police Station without any order from a competent Magistrate as required under section 155 (2) of the Code of Criminal Procedure. Section 155(2) of the Code of Criminal Procedure runs as fallows:‑ "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, or of a Presidency Magistrate." In this case Maulana Nurunnabi (P. W.) filed a petition to the Officer‑in‑charge Jhenidah on 6‑7‑1962 with the allegation that the accused persons were propagating against the principles of Islam although professing that they were Muslims. There was no mention in the petition of any particular occurrence on any particular date. On receipt of this report, the Officer‑in charge, Jhenaidah Police Station arrested the accused persons under section 54 of the Code of Criminal Procedure and forwarded them to the Sub‑divisional Officer. The petition filed by Maulana Nurunnabi was also forwarded to the Sub‑Divisional Officer with the report that the Officer‑in‑charge would prosecute the accused persons under section 290 of the Pakistan Penal Code after holding enquiry. Thereafter on 27‑7‑1962 he submitted a report for prosecution of the accused persons under section 290 of the Pakistan Penal Code, after examination and enquiry. This indicates that the officer‑in‑charge of the Jhenaidah Police Station held investigation. The learned Magistrate, after perusal of the report, passed order on 28‑7‑1962 for prosecution of the accused persons under section 290 of the Pakistan Penal Code. Cognizance of non‑cognizable offence by a Magistrate on the report for prosecution after investigation by a police officer without order from a competent Magistrate vitiates the entire proceeding. This view finds support in the case of Hussain Bakhsh v. The State (P L D 1963 Lah. 46). In that case it has been laid down that when a police officer takes up investigation of a non-cognizable offence without the order of a competent Magistrate the proceeding is vitiated. In the present case, the officer‑in‑charge) Jhenaidah Police Station on receipt of the petition from Maulana Nurunnabi (P. W. 1) held investigation and thereafter submitted B a report for prosecution of the accused persons under section 290 of the Pakistan Penal Code. The learned Magistrate passed the order for prosecution on the basis of that report. So, the entire proceeding is vitiated. The trying Magistrate relying on the case of Dr. Kazi Habibul Islam v. The State (10 D L R 152) held that the Magistrate had jurisdiction under section 190 (b) of the Code of Criminal Procedure to take cognizance of a non‑cognizable offence on the basis of a Police report and that as such the proceeding was not vitiated. But the facts of that case are distinguishable. In that case, the police sub mitted report for prosecution without investigation. But in this case the officer‑in‑charge, Jhenaidah Police Station held enquiry, i.e. investigation and thereafter he submitted the report for prosecution. The learned Sessions Judge also erred in holding that there was prosecution report without investigation. It has been next urged that the conviction under section 290 of the Pakistan Penal Code cannot be maintained as the evidence was not sufficient to establish commission of public nuisance by the accused persons. The learned Advocate took me through the evidence of P. Ws. The evidence does not appear to be sufficient to establish that the accused persons committed public nuisance. Maulana Nurunnabi (P. W. 1) stated that accused persons sang and that two female accused sat on the laps of two male accused. Attention of this witness was drawn to the statement in the petition filed by him before the Officer‑in‑Charge, Jenaidah on 6‑7‑1962. He admitted in this petition there was no mention of the fact that two female accused sat on the lap of two male accused. The learned Magistrate did not consider the legal effect of this material omission. The learned Magistrate also did not make any note of the statement of Erad Ali Molla (P. W. 2) made in the examination -in‑chief. He merely noted so far as the examination‑in‑chief of Erad Ali is concerned "corroborated". It is difficult to appreciate what was his actual evidence in his examination‑in‑chief Maulana Hatem Ali (P. W. 3) is not an eye‑witness of the acts of the accused persons. He merely stated that P. W. 1 Maulana Nurunnabi reported to him about the occurrence. But he did not state what was that occurrence about which Maulana Nurunnabi reported to him. Abdul Ghani (P. W. 4) stated about seeing congregation of some Fakirs and some females without veils, Abed Ali (P. W. 6) also stated about seeing a congregation of Fakirs and distribution of betel leaves by two Fakirnis. Amir Ali (P. W. 5) is the Officer‑in‑Charge of Jhenaidah Police Station who "enquired . . . . . . into the case and submitted C. S. "There are 14 accused. Maulana Nurunnabi (P. W. 1) identified only five of the accused persons. The other witnesses did not identify any of the accused persons. The evidence against each of the accused as to who had done what act was not considered separately. In the circumstances, the contention that there is no sufficient evidence to show that the accused persons committed public nuisance is to be accepted. It has been further contended that there is no finding by the learned Magistrate that petitioners committed public nuisance. Section 268 of the Pakistan Penal Code defines public nuisance as follows:‑ "A person is guilty of a public nuisance who does any act or is guilty of an illegal omission which causes any common injury, danger or annoyance to the public or to the people in general who dwell or occupy property in the vicinity, or which must necessarily cause injury, obstruction, danger or annoyance to persons who may have occasion to use any public right. A common nuisance is not excused on the ground that it causes some convenience or advantage." There is no finding by the learned Magistrate that the acts of the accused caused common injury, danger or annoyance, to the public or the people in general who dwell or occupy any property in the vicinity. The finding of the learned Magistrate. is this:‑ "Their propagation of free love and public demonstration of licentious revelry as revealed in the evidence were certainly c acts of indecency which tended to degrade public morals." This does not amount to a finding that the acts of the accused caused injury, danger or annoyance to the public or to the people in general. For all these reasons stated above, the order of conviction and sentence passed against the petitioners under section 290 of the Pakistan Penal Code is liable to be set aside. The rule is made absolute. The conviction and sentence passed against the petitioners under section 290 of the Pakistan Penal Code are set aside. S. Q. Rule made absolute.