1. The applicants have filed application under section 561-A, Cr.P.C. For quashment of proceedings of Sessions case No,517 of 2003, State v. Mukhtiar Ali, pending in the Court of Sessions Judge, Larkana. The facts giving rise to the present application are that Sessions Judge Larkana on an application under section 491, Cr.P.C. Ordered for the production of Mst. Farzana, D/o complainant Mehboob Ali.
2. During the said proceedings, a Nikahnama was produced which was alleged to be forged therefore, while disposing of the said application the learned Sessions Judge directed the S.H.O. P.S. Civil Line, Larkana to register F.I.R. Of the complainant if he gave information of a cognizable offence. In pursuance of said order the complainant Mehboob Ali went to P.S. Civil Line, where he lodged the report. The S.H.O. Recorded the F.I.R. Under sections 465, 468, 469, 466, 209, 470, 34, P.P.C.
3. All the offences were non-cognizable. However, the police conducted the investigation and submitted challan before the Court of Magistrate, where he took cognizance and sent up the case to the Court of Session. The applicants moved an application under section 265-K, Cr.P.C. For their acquittal but the same was dismissed on 30-12-2004, under the impugned order.Hence the present application. In this connection it is pointed out that the order of Sessions Judge can be challenged under revisional jurisdiction of this Court therefore, the application under section 561-A, Cr.P.C. Appears to be not maintainable. When this fact was brought to the notice of the learned advocate for the applicants, he requested that the application may be converted into revision application and same may be decided in accordance with law. Learned Addl.A.-G. Raised no objection to the said conversion. Hence it is ordered that the application be treated as revision application.
4. The emphasise of the learned advocate for the applicants is that the police had no power to register a non-cognizable case and investigate the case without the permission of the Magistrate as provided under section 155(2), Cr.P.C. Therefore, the proceedings before the trial Court are vitiated. In his support he has relied upon the cases of Abdul Samad v. State 2000 MLD 655, Peero v.
5. State 1982 PCr.LJ 795. The learned A.A.-G. Has stated that the non-cognizable case cannot be investigated by the police without the order of Magistrate; that the police did not obtain the order of the Magistrate therefore, the Magistrate was not competent to take cognizance. As such further proceedings are illegal, they are required to be quashed and the applicants may be acquitted. I have given due consideration to the arguments, gone through the material available on the record and case laws cited at the bar. I have also gone through the case law on the subject and found that there is difference of opinion on the proposition as to whether or not the Magistrate is competent to take cognizance on a report submitted by the police officer after conducting the investigation in a non-cognizable offence without the order of Magistrate. One view is that the Magistrate has no power to take cognizance therefore, the further proceedings before the Court are held to be illegal. The said view is supported by the authorities referred to by the advocate for the applicants and in the following cases:-- Hussain Bakhsh v. The State PLD 1963 Lah. 46; Mumtaz Begum v. The State 1968 PCr.LJ 97; Irshad Begum v. The State PLD 1961 Lah. 882; 269; Muhammad Rashid v. The State PLD 1964 Kar. 381;Haider v. The State 1969 PCr.LJ 598; Muhammad Yaqoob v. The State 1978 PCr.LJ 812; Muhammad Aslam v.
6. The State 1980 PCr.LJ 742; The other view is that Magistrate can take cognizance on the report submitted by police officer in the case of non-cognizable offence which was investigated by him without the permission of Magistrate and the proceedings pending before the Court would not be vitiated. This view has been taken by the Federal Shariat Court in the case of Shah Jehan v. State PLD 1989 FSC 17, and in the case of Muhammad v. The State 1989 PCr.LJ 834; Jamal Shah v. State 1989 PCr.LJ 209. Some of the High Courts of Pakistan and India also hold the said view. The Honourable Privy Counsel Supreme Courts of Pakistan and India formed the opinion that if the investigation officer is not authorized by Magistrate to conduct the investigation and submit the report before the Court then it will not vitiate the trial before the Court as after taking cognizance the illegality in the investigation is cured. The said authorities are reported in State v. Basheer PLD 1997 SC 408; State of Uttar Pradesh v. Bhagwant Kishore AIR 1964 SC 221; M.P. State v. Veereshwar Rao, AIR 1957 SC 592; H.N. Rshbud v. State of Delhi AIR 1955 SC 196; Muhammad Nazir v.
7. Superintendent of Police 1992 PCr.LJ 227; Mst. Sadan v. State PLD 1965 Baghadad-ul-Jadeed 12. In the case of Muhammad (supra) the police had recorded F.I.R. / in non-cognizable offence under Article 4 of Prohibition (Enforcement of Hadd) Order, 1979. The police investigated the case. The accused was convicted and he filed an appeal before the Federal Shariat Court where the arguments were advanced that as offence under Article 4 of the said order was non-cognizable therefore, the trial had vitiated. The arguments were repealed and it was observed as under:-- "5. It is now too late in the day to contend that a valid investigation is the foundation of the validity of proceedings in a Court against the accused person. The preponderance of authority has 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) or subsection (i) of section 190 of Code of Criminal Procedure.
8. We are, therefore, of the view that even if investigation had not been in conformity with the legal provision, it does not necessarily follow that the subsequent trial would be vitiated. The trial Court will have to decide; the case on the basis of the evidence led before it and the mere fact that the agency which collected such evidence was in law not authorized to do so, should not introduce an inherent jurisdictional defect in the trying Court. The error in the proceedings antecedent to the trial is cured under section 537, Cr.P,C." In forming such opinion, the Federal Shariat Court relied upon various authorities of the Supreme Court of India, Federal Shariat Court, High Courts of Dacca and Lahore. In another case of Federal Shariat Court, in the case of Shahjahan (supra) at page 20 it has been observed as under:- "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 of 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 he 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 authorized to investigate." The above decisions of Federal Shairat Court are directly on the subject which involves in this present case. No further discussion is required on the subject in view of above decision as a decision, of Federal Shariat Court is binding on High Court and subordinate Courts under Article 203-GG of the Constitution of Islamic Republic of Pakistan, 1973. In the case of Abdul Waheed v.
9. Asma Jehangir PLD 2004 SC 219, it has been observed that meaning of word "decision" used in Article 203-GG of the Constitution will be applicable to judgment, order or sentences if any passed by Federal Shariat Court and the decision of these will remain binding on the High Court and Courts subordinate to the High Court. After decision of the Federal Shariat Court this controversy should have been come to an end. But it appears, that the controversy is still going on. However, the main objection of the advocate for the appellant is that the police officer did not obtain permission from the Magistrate for investigating the case, therefore, the actions were illegal and the proceedings vitiated. The Honourable Supreme Court of Pakistan in the case of State v.
10. Basheer (supra) clearly observed that the CIA personnel were not authorized to take cognizance of any cognizable offence and investigate the same but if the CIA personnel investigate such case illegally and irregularly, it would not vitiate the trial if no serious prejudice is caused resulting in miscarriage of justice. Supreme Court of India in the above mentioned authorities also took the similar view. Thus if the investigation is conducted by an officer who is not authorized by the law or permitted by Magistrate then it would not vitiate the trial if no prejudice is caused to the accused persons. The word investigation has been examined by Supreme Court of India in the case of H.N. Rishbud (supra). It has been observed that the investigation consists of several steps which are as under:- "under the Code investigation consists generally of the following steps: (1) Proceeding to the spot,
(2) Ascertainment of the facts and circumstances of the case, (3) Discovery and arrest of the suspected offender, (4) collection of evidence relating to the commission of the offence which may consist of (a) the examination of various (persons including the accused) and the reduction of their statements into writing, if the officer thinks fit, (b) the search of places or seizure of things considered necessary for the investigation and to be produced at the trial, and (5) formation of the opinion as to whether on the material collected there is a case to place the accused before a Magistrate for trial and if so taking the necessary steps for the same by filing of a charge-sheet under S.173." The expression "take cognizance of any offence" appearing in section 190(1) has not been defined in the Cr.P.C. In its broad and literal sense it means taking notice of an offence and would include intention of initiation of judicial proceedings against the offender in respect of that offence. Thus the investigation and cognizable are two different steps. Difference between cognizable and non- cognizable offence is that the police in cognizance offence have authority to investigate the case without the permission of Magistrate and arrest the accused without warrant. Whereas the such powers are not given to the police officer in non-cognizable offence by virtue of section 155(2) and 3rd column of schedule II, attached to the Criminal Procedure Code. If the police officer arrest any person in non-cognizable offence then he will expose himself for prosecution under section 220, P.P.C. And if the police officer investigates the case of non-cognizable offence without the permission of the Magistrate then he will violate the direction of law as provided under section 155(2), Cr.P.C. Therefore, he will expose himself for prosecution under section 166, P.P.C. Which is a scheduled offence of Pakistan Criminal Law Amendment Act, 1958 and triable by Special Judge Anti-Corruption Court. As such the law protects the commission of illegality committed by police officer, hence any police officer commits such illegality and if it is brought to the notice of the Court or Magistrate then the Court or Magistrate must act and send such police officer for prosecution before competent Court of law so that it may serve an eye-opener for all the other concerned officers who violate the direction and mandatory provision of law.
11. However it will not affect the powers of Magistrate to take cognizable, because the cognizance is taken under section 190(1), Cr.P.C. Either on complaint which constitute an offence or on a report of such facts made by any police officer or on information received from any person other than a police officer, or upon suspension or information of the Magistrate. Such powers have been given to the Magistrate keeping in view the scheme of criminal justice system that no offence should go unchecked and no offender should go unpunished.
12. It will be noticed that when a case is investigated and after collecting the evidence the police officer forms an opinion that no evidence is found against accused then he is required to release the accused under section 169, Cr.P.C. And if he finds that the sufficient evidence has been collected against the accused then under section 170, Cr.P.C. He is required to submit a police report to the Magistrate. In both the cases either exercising his powers under section 169 or 170, Cr.P.C. The police officer is required to submit a police report under section 173, Cr.P.C. Before the Magistrate for taking cognizance or passing order under section 173(3), Cr.P.C. It will be noticed that in sections 170 and 173, Cr.P.C. The words "police-reports" are mentioned.
13. Furthermore under section 173, Cr.P.C. The said "police report" is to be forwarded to the Magistrate by officer incharge of a police station only, through public prosecutor. Before the year, 1923, under section 190(1)(b), Cr.P.C. The Magistrate was required to taken cognizance upon the "police report" of facts which constitute offence. Original section 190(1), Cr.P.C. Is as under:-- "190. (1) Except as hereinafter provided, any Presidency Magistrate, District Magistrate or Sub- Divisional Magistrate, and any other Magistrate specially empowered in this behalf, may taken cognizance of any offence:--
(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a police report of such facts;
(c) upon information received from any person other than a police officer, or upon his own knowledge or suspicion."
14. The words "police report" appearing in the original section 190(b) are the same words which are used in sections 170 and 173, Cr.P.C. As such, the Magistrate was required to take cognizance under section 190(b), Cr.P.C. Only on police report that too submitted by officer of police station only. Thus the powers of the Magistrate were limited and restricted to the above extent. These restricted powers of the Magistrate were not fully meeting all the situations therefore, it was creating hurdles in the criminal \justice system. As such necessity arose to extend the powers of the Magistrate to meet all the situations so that no offence should go unchecked. To meet within said situation, section 190(1), Cr.P.C. Was amended by Act XVIII of 1923, now the said provision reads as under:--
190. Cognizance of offences by Magistrate.--All Magistrates, of first class, or any other Magistrate specially empowered by the Provincial Government on the recommendation of the High Court 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. It will be noticed, that in original section words "police report" mentioned in section 190(b), Cr.P.C.
15. Have been changed as the word "police" has been taken out from it. Now their remains word "report" which is very significant and meaningful that clearly demonstrates the intention of law makers in making such amendment. The intention of making such amendment made by the law makers makes it clear, to give wide definition to the word "report" instead of confining the definition of "report" only to the extent of "police report". It will be further noticed that under section 173, Cr.P.C.
16. It is the In charge of a police station who is required to forward a "police report" to the Magistrate through public prosecutor. However, after amendment in section 190(b), Cr.P.C. Any police officer can submit a simple "report" to the Magistrate to take cognizance. It would be further noticed that the Magistrate is empowered to take cognizance upon a "report" which also includes "police report".
17. The said report should be in writing containing facts which constitute offence and made by any police officer. The restriction earlier imposed by old provision, that only officer-in-charge of police station can forward such report has also been removed. As under section 173, Cr.P.C. The "police report" is required to be forwarded by officer-in charge of police station only but the said hurdle has been removed from section 190(b), Cr.P.C. As such any police officer has been authorized to make a report in writing of facts which constitute the offence to the Magistrate and then the Magistrate is empowered to take cognizance on such report. Thus the word "report" under section 190(b), Cr.P.C. Has been given very wide definition which indicates that such "report" can be forwarded by any police officer to the Magistrate and not necessary it should be forwarded by officer in charge of a police station only. Thus after the amendment of section 190(b), Cr.P.C. Through Act XVIII of 1923, very wide powers have been entrusted to the Magistrate to take cognizance on any report made by any police officer subject to the condition that the report should be in writing containing facts which constitute offence, so that no offence should go unchecked.
18. Thus if the situation is viewed in, this manner then the Magistrate can take cognizance on any report in writing but the said report should constitute the facts of offence and should also be made by any police officer. If the case is examined after examination of old and new section 190(b), Cr.P.C. Then it will be clear that the report submitted by the police officer in this case is coming within the scope of "report" as mentioned in section 190(b), Cr.P.C. Because the said report is in writing, contains the facts which are constituting offences and the same has been filed by a police officer. As such the Magistrate has jurisdiction to take cognizance on the said report. I am conscious of the facts, that the police officer in this case was neither competent to register the F.I.R. Of a non-cognizable offence in 154, Cr.P.C. Book but he should have mentioned the facts in the station diary, nor he was authorized by the Magistrate to conduct the investigation without the permission of Magistrate, there fore, he has exposed himself for prosecution under sections 166 and 220, P.P.C. It has been noticed that the police are violating the direction of law openly and this tendency of the police is increasing day by day therefore, it should be checked before it goes out of control so that in future no police officer should dare to violate or disobey the direction of law. As such the Magistrate who took the cognizance in the matter should take adequate steps for prosecution of the delinquent police officer for offences punishable under sections 166 and 220, P.P.C. By taking appropriate steps of filing the complaint before competent Court of law by him or through any of his subordinate staff so that it should serve an eye-opener for all the concerned officers.
19. After considering the material available on the record and case- . Law cited above and relying upon decisions of the Federal Shariat Court and the Honourable Supreme Court of Pakistan I hold that the Magistrate had rightly taken the cognizance in the matter and the proceedings before the trial Court are not vitiated. The application is dismissed in the above terms. A copy of the order be sent to the Sessions Judge for sending the same to the concerned Magistrate for compliance of the order. The compliance reports, by the Sessions Judge, and Judicial Magistrate should be submitted to the Additional Registrar of this Court within a period of 15 days after receipt of the order.