1988 P Cr (PLP)

'In my opinion, therefore, the police report submitted by the authorized police officer would sufficiently satisfy the requirements of law for the purpose of taking cognizance under section 185‑A. However, the 'report of police officer' as mentioned in section 4(h) of the Code of Criminal Procedure means a report which a police officer is authorized to make under section

173. It has been held in Barkat v. Emperor AIR 1945 All. 6 that the term 'complaint' as defined in section 4(1)(h), Cr.P.C. has the meaning therein given, unless a different intention appears from the subject or context and that obviously the term 'complaint' in section 195(1)(a) is not used in the technical sense in which it is defined in section 4 .' With due respect I regret my inability to persuade myself to subscribe to the views expressed in the above authority. It is noteworthy that in the Code of Criminal Procedure, "complaint" and "police report" have not only been assigned separate definitions but also "police report" has been expressly excluded from the definition of "complaint". In view of such clear distinction made between the two by the Legislature, it would not be within competence of Courts to convert 'police report' in to 'complaint' and vice versa as and when the circumstances of the case so demand. This, in my opinion, will be tantamount to assuming the power of amending the law which obviously lies within the domain of Legislature. The power of Judiciary is restricted to only interpreting the law. The question of interpretation arises when the Courts are facing a situation of ambiguity. Then of course it is their duty to intervene anti assign appropriate meaning to the words and phrases used in the statute. No such situation is confronted in the present case. On the contrary the two expressions that concern the Court have been assigned definite meanings and one expression namely 'police report' has been excluded by express language from the meaning of the other expression namely 'complaint'. In this way the intention of the Legislature is very clear that both these expressions are to be understood to convey different senses. As against this to hold the said expressions to be interchangeable would be apt to create confusion and set the clear piece of legislation at naught. If the law intends not to include 'police report' within the ambit of 'complaint' but treat both the expressions separate from each other, it is not within the power of Court to ignore such intention and give its own meanings to them so as to regard 'police report' as 'complaint' to suit the circumstances of the case. In the case reported as R.V. Inhabitants of Great Bolton (1828) 8 B & C 71(74), Lord Tenterden observed: 'where the Legislature, in the same sentence uses different words, we must presume they were used in order to express different ideas'. Similarly, in the case of Gibson v. Skibs A/S Marina and Orkla Grobe A/B and Smith Coggins, Ltd. (1966) 2 All ER 476 (478), Cantley J. expressed as follows: 'One would expect that when two different words, although practically synonymous in ordinary use, are employed in different parts of the same regulation dealing with the same kind of topic, they are intended to have some different meaning. In view of what has been stated above, 'police report' remains as police report and under no circumstances it can be regarded as a 'complaint' which is altogether a different expression with a different meaning from which police report has been expressly excluded. Having arrived at the above conclusion, the next point to be considered is whether cognizance taken by Court on police report in violation of section 24(6) of the Ordinance which requires the Court to take cognizance on complaint is a nullity vitiating the whole trial of the accused or is mere an irregularity curable under section 537, Cr.P.C. It was vehemently urged by the learned counsel for the accused that the learned trial Judge has exercised jurisdiction which was not vested in him and as such the trial was entirely illegal. On the other hand the learned A.A.‑G. argued that even if 'police report' submitted by the Assistant Director in the trial Court is not treated as complaint, yet cognizance taken by the said Court on the police report was at the worst an irregularity curable under section 537, Cr.P.C. According to him the Court which was to take cognizance was same and the F.I.A. Officer who was authorized to move the Court for taking cognizance was also same and, therefore, merely because the said officer instead of lodging complaint submitted challan, the trial was not rendered illegal, and being without jurisdiction. In order to appreciate the arguments advanced by both sides, it will be advantageous to examine the authorities cited in course of their arguments. In the case of E.A. Even referred to above, the Supreme Court was pleased to observe: If a doing of a particular thing is made lawful, the doing of something which is in conflict with that, will be unlawful. In the light of this authority cognizance taken by the trial Court on 'police report' though it was required to take cognizance on 'complaint' was obviously illegal and not curable as a merely irregularity. The next case referred in this connection is of The State v. Syed Sardar Shah Bukhari P L D 1975 Lah. 1407, in which complaint for offences under sections 199, 463 and 471 allegedly committed by a party to the proceedings in the Supreme Court was lodged by Registrar, Supreme Court on oral direction of the Chief. Justice, though it was required to be signed by Presiding Officer of the said Court. It was held by the D.B. of the High Court:‑‑ 'Section 195, Cr.P.C. relates to the competency of the Court and bars its jurisdiction in cases where compliance with its provision is not made. The question of prejudice contemplated by section 537, Cr.P.C. is quite apart from the question of jurisdiction. Where there is complete lack. of jurisdiction the whole proceedings are vitiated and the defect is not curable under section 537, Cr.P.C. See Zabtey Khan v. The State, PLD 1972 Lah.

196. As the Court cannot assume jurisdiction to try a case where it is necessary that a complaint in writing signed by the Presiding Officer of the Court (in terms of sections 195 and 476, Cr.P.C., is forwarded to the Magistrate concerned, all proceedings taken in pursuance of a complaint which is not submitted in the manner aforesaid, are without jurisdiction and void'. The third case on the same point is reported as Ch. Muhammad Roshan v. The State P L D 1978 Lah. 307 wherein it was observed:‑‑ 'As regards the other objection based on non‑compliance of section 195, Cr.P.C., it is to be noted that cognizance of the case against the petitioner and his co‑accused had been taken upon the challan received from the police under section 173, Cr.P.C. and not upon a complaint directly received from the civil Court. Of the offences cited, those falling under sections 193, 468 and 471, Cr.P.C. attract the provisions of section 195, Cr.P.C. and in respect of the same a formal complaint as prescribed under section 4(1)(4) was necessary. There are numerous authorities to support the view that the Magistrate cannot take cognizance of a case in respect of such offences except upon a complaint made by the civil Court'. In the Lahore case of Ch. Muhammad Roshan, reliance was placed on Crown v. Wazir Muhammad P L D 1953 Pesh. 21 wherein it was held:‑‑ 'In the definition of the complaint as given above, the complaint has got to be made to a Magistrate, it shall not satisfy the provision of law, u a complaint is made to the police officer, who in turn makes a report, or submits a complaint to the Court of the Magistrate concerned It would be seen from the wording of section 195, Cr.P.C. that a Magistrate cannot take cognizance of a case under the sections mentioned therein until and unless there is a complaint before him made by certain specified persons. If no complaint is made to the Magistrate, there is no jurisdiction conferred on a Magistrate to take cognisance of the offence under that particular section. It is, therefore, not a case of mere error, omission or irregularity in the complaint but it is a case of complete absence of jurisdiction of the Magistrate concerned to take cognisance of the offence under these particular sections. I am, therefore, of the opinion that section 537, Cr..P.C. is not meant to cover a case of complete absence of jurisdiction'. In the case of Khatija v. The State and another P L D 1978 Kar. 348 an application was made to the Martial Law Authorities alleging that four persons mentioned therein had committed offences under sections 420 and 406 read with section 109, P:P.C. The application was endorsed to the Superintendent of Police who forwarded to the S. H .O. for registration of the case on that basis. Accordingly the investigation was made in which the C.I.A. also took part. Although the C.I.A. recommended that the case be challaned under section 420, P.P.C. the S.P. did not agree with the said recommendation. He however, moved the S.D.M. for issue of "C class summary" on the ground that the case was of a civil nature. Despite that the S.D.M. after examining two of the witnesses, took cognizance and issued process against all the four accused under sections 406, 420, P.P.C. Tufail Ali A. Rahman, C.J. (as he then was) of this Court took the view that cognizance taken by the S.D.M. was illegal as the case did not fall under any of the three clauses of section 190, Cr.P.C. Accordingly he quashed the proceedings. The next case is Supreme Court reported as the State v. Hamtho 1971 S C M R 686 in which the respondent was tried and convicted under section 167(81) Sea Customs Act on a challan submitted by police, although the procedure for trial of such offences as provided in section 7(2) Land Customs Act 1924, required that the Land Customs Officer should make a complaint to a Magistrate. By amendment of section 9 of Land Customs Act by Customs Act (Amendment) Ordinance, 1962, police officers could be notified as Land Custom Officers. It was contended that the said amendment gave to the police officer powers to send up persons for trial even in respect of offences alleged to have been committed under Land Customs Act in the ordinary manner prescribed under the Criminal Procedure Code and that section 7 of the Land Customs Act had not altered that procedure. It was held:‑‑ 'Having examined the relevant provisions of the Land Customs Act and Sea Customs Act, we are unable to agree with the contention. It is now well‑settled that where a statute has created a special offence and lays down a special procedure for the trial of such offence, it is that procedure that must be followed and not the ordinary procedure. The learned counsel has not been able to show us any provision in the Sea Customs Act authorizing police officers to send up persons accused of contravention of the provisions of the Sea Customs Act, for trial under a challan under Criminal Procedure Code". Reference may also be made to another Supreme Court case of Atta Muhammad Qureshi v. The Settlement Commissioner Lahore PLD 1971 S C 61 wherein it was held:‑‑ "One other principle which has been enunciated in this behalf is that as a general rule, statutes which enable persons to take legal proceedings under certain specified circumstances; demand that those circumstances must be accurately obeyed, notwithstanding the fact that the provisions thereof are expressed in merely affirmative language'. Lastly is that case of Peero v. The State 1982 P Cr. L J 795 in which after reviewing some important proceedings, I had expressed my views which are reproduced as under:‑‑ 'There appears great wisdom in the division of offences into cognizable and non‑cognizable categories and for obvious reasons the Legislature prohibited police officer from investigating non‑cognizable offence. If the provision relating to express bar placed on police investigation is not construed strictly, I am afraid, not only the purpose underlying the provision would be frustrated but also the provision itself would be rendered nugatory. Again section 190, Cr.P.C. envisages a scheme under which Court can take cognizance on police report only when it is submitted under clause (b) of subsection (1) of section 190, Cr.P.C .In other words clause (b) above refers to a report resulting from police investigations. Such report can neither be accepted as complaint under clause (a) nor information under clause (c) of subsection (1) of section 190, Cr.P.C.'. The ratio of the above authorities is that if the law requires cognizance of the case to be taken on 'complaint', but 'the same has been taken on the basis of 'police report' in contravention of the legal requirement, the said contravention would be an illegality rendering all the proceedings following the taking of cognizance void as being without jurisdiction and not merely an irregularity curable under section 537, Cr. P . C . I am in respectful agreement with the above view. It is not without purpose that the Legislature has enacted section 190, Cr.P.C. which deals with taking of cognizance of offence. Subsection (1) of section 190, Cr.P.C. which is relevant for the case reads as under:‑ -- '190(1) Except as hereinafter provided any District Magistrate or Sub‑Divisional Magistrate and any other Magistrate specially empowered in this behalf, may 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; (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.' The Scheme envisaged by section 190(1) hereinabove clearly indicates as to how and in what circumstances the Court will exercise its jurisdiction. If by special enactment the Courts are restricted to taking cognizance only on 'complaint', they cannot be permitted to take cognizance on other motions such as police report or information 'received by the Court or the Court's own knowledge doing so would mean upsetting the whole scheme as contained in the above section. As a result there would be widespread confusion and no one would be bound by any legal discipline. Moreover, when reference is made to complaint or police report as basis for taking cognizance, it must be realised that in each case a totally different procedure is to be followed. 'Police report' is proceeded by a full‑dress investigation made by the police in accordance with the relevant provisions of Cr.P.C. During investigation police enjoy certain powers which inter alia include the powers of arrest of the accused who invariably remains at the mercy of the police until completion of the investigation. On the other hand case of complaint the question of police arresting the accused or in any way dealing with him does not arise. Even if the Court entrusts the complaint to the police for preliminary enquiry, the police cannot arrest the accused even though prima facie offence is made out against him during the enquiry. It is the Court where complaint is lodged who has to decide about issuing of a process about arrest of the accused. Thus, the liberty of the accused is linked with the mode of taking cognizance of the offence by the Court. If cognizance is taken on police report, the accused can lose his liberty and can be put under arrest by the police during investigation of the case. On the other hand if cognizance is to be taken on complaint, the accused has no fear of his freedom being cut short or being apprehended until after completion of preliminary enquiry. Even after that stage it is not necessary that the Court will order for arrest of the accused. Invariably on taking cognizance on complaint the Court issues bailable warrant for arrest of the accused except in rare cases in which non‑bailable warrant cannot be avoided. In view of the above, it can be well‑appreciated why different modes of taking cognizance are prescribed. Therefore, Courts are bound to exercise their jurisdiction in accordance with the prescribed mode. Any deviation by the Courts from such mode, will render all their actions illegal. Accordingly, in the instant case, since the Court has taken cognizance on a police report instead of upon a complaint as enjoined by the law, the whole trial of the accused was without jurisdiction and hence void ab initio." The next point involved in this case is that whether there is any proof for evidence against the applicant that he transferred foreign exchange from Pakistan. In challan summary of evidence has been given. It is stated that original documents shows that accused Shamim Ahmed Kashmirwala is owner of property in London and his wife Seema Shamim and Nasim Ahmed Kashmirwala are still residing in the property which has been mortgaged by accused to Muslim Commercial Bank. The other allegation against Shamim Ahmed Kashmirwala is that he purchased Ticketing Agency under the name M/s. Harrow Travels Ltd. and appointed his wife Chairman and Managing Director and State Bank of Pakistan has not given any permission for opening the business abroad. It is also alleged that documents on record show that Shamim Ahmed Kashmirwala managed flight of foreign exchange over U.K. Pounds 35,000 for the payment of liabilities of 'Harrow Travels Ltd. It is also alleged 'that Shamim Ahmed Kashmirwala by way of underhand dealing in his ticketing business and invisible means provided U.K. E 35, 000 to his on by way of pay order dated 23‑4‑1980 of Midland Bank issued in favour of Muslim Commercial Bank, London. There are number of Pakistanis' doing business out of Pakistan and earning foreign exchange. Those Pakistanis who are residing in U.K. has been authorised to keep duel nationality. On this I may refer section 14 of Pakistan Citizenship Act, 1951 as under:‑‑ "

14. Duel citizenship or nationality not permitted. (1) Subject to the provisions of this section if any person is a citizen of Pakistan under the provisions of this Act and is at the same time a citizen or national of any other country, he shall unless he makes a declaration according to the laws of that other country renouncing his status as citizen or national thereof, cease to be a citizen of Pakistan. (1‑A) Nothing in subsection (1) applies to person who has not attained twenty‑one years. of his age. (2) Nothing in subsection (1) shall apply to any person who is a subject of an Acceding State so far as concerns his being a subject of that State. (3) Nothing in subsection (1) shall apply, or shall be deemed ever to have applied at any stage, to a person who being, or having at any time being, a citizen of Pakistan, is also the citizen of the United Kingdom and Colonies or of such other country as the Federal Government may, by notification in the official Gazette, specify in this behalf." In the comments by Assistant Director Legal F.I.A. dated 21‑1‑1982 he observed as under (These documents are on record). "As regard the fact that accused Shamim Kashmirwala had been sending money abroad unauthorisedly, some persons on the point that accused has his dependent family settled in London and that the family has no source of income and that family expenses are being born .by the accused may also be cited as witness." It is an admitted fact that wife of Shamim Ahmed Kashmirwala is running Harrow Agency and carrying on the business and they are travel agents of Muslim Commercial Bank, London. Mr. Zahid Hussain A.D. Legal in his comments dated 31‑5‑1982 stated as under:‑‑ "During investigation it transpired that two sons one of whom is Nasim Ahmed and his wife Seems Shamim have been residing since long and Naseem Ahmed is entitled to open account in his name so is the case of Seema Shamim. The allegation the main accused Shamim Ahmed Kashmirwala that he had bank account in U.K. without the permission of State Bank of Pakistan." From the above circumstances it is clear that accused and .his family has got his business and on the perusal of these documents there appears that this is no documentary evidence that applicant has been sending foreign exchange from Pakistan by illegal means. In F.I.R. complainant M. Saleemuddin has stated that on receipt of a petition from A.M. Malik against M. Shamim Ahmad Kashmirwala an enquiry was registered and endorsed to the undersigned and during enquiry he received letter from Islamabad through he contacted the source. On this I referred to a case .of Aziz Khan and three others v. The State reported in 1974 P Cr. L J 367 where it has been held that F.I.R. recorded after spot inspection and making some investigation is defective and of no evident value and there are number of authorities on this point. In this case enquiry was conducted before F.I.R. that application of A.M. Malik not incorporated in the F.I.R. Therefore, the investigation /enquiry before registration of case of cognizable offence is defective. The enquiry as contemplated in complaint cases in non‑cognizable offence without order of Magistrate is not allowed. p As such on, both the accounts the investigation is defective. It is the case of prosecution that son and wife of applicant are running Travel Agency Harrow Travels in London and living there since long. In business they must have accounts in Banks and dealing in money matters and there was possibility that they might purchased house in name of petitioner from the foreign exchange earned from their source' of income. They have not been made accused. For the reasons stated above I am of the opinion that this is a fit case for quashment. I, therefore, allowed the application and quash the proceedings pending against the petitioner. M.Y.H./S‑119/K Proceedings quashed.