' S. A. NUSRAT, J.-The petitioner, who is the brother of Mst. Mena Khan, a singing and dancing girl, has filed this Petition challenging the order of the President, Summary Military Court, Sub-Sector, Karachi ' dated 29th April, 1978, convicting Meena Khan under Ss. 3, 6 and 10 of the Suppression of Prostitution Ordinance, 1961 (hereinafter referred to as the Ordinance) and other eight persons under Ss. 3 (1) (a) and 6 of the Ordinance. Mst. Meena Khan and Talib were sentenced to R. I. For nine months and the remaining 7 persons, namely, Khalida, Fauzia, Shamim, Zahida, Rubina, Mohammad Iqbal and Ghulam Rasool were all sentenced to six months' R. I. Besides all of them were further sentenced to pay fine of Rs, 5,000 each and in default to undergo R. I. Of three months.
2. The facts leading to the apprehension and conviction of the above-named persons are as follows : ' Meena Khan had her apartment for the performance of dancing and singing at Napier Road, Karachi and residence at 4-D, 8/4, Nazimabad, Karachi. On the night between 10th and 11th April, 1978, a police party, accompanied by an army officer raided her house and apprehended 19 persons on the charge that Meena Khan was running a prostitution den and others were indulging in prostitution. They all were charged with offences under West Pakistan Suppression of Prostitution Ordinance, 1961. The Police also seized two cars. A bail application was moved on behalf of the accused on 12th April 1978, before the A. C. & S. D. M., Nazimabad, Karachi, who called for a report from the S. H.
0. Concerned The accused were in the meantime kept at Nazimabad Police Station. They were produced before the S. D. M. 1, West Karachi, on 15th April 1978. According to the report of S. H. 0 dated 15th April, 1978, the Martial Law Authorities had directed that challah in the matter should be filed in a Criminal Court. The challan dated 11th April 1978, mentioned names of only six witnesses including the Magistrate of the area, Captain Iqbal, Javid Jillani, A. S. M. L. A., Sector I, retired Captain Ishrat Imtiaz. Deputy Superintendent and an Inspector of Police the Additional City Magistrate granted bail to the accused on 15th April, 1978, and a was also passed by the A. C. And S. D. M., Nazimabad, on the same date. The accused could not be enlarged on bail on that date as S. D. M.
Did not attend the Court. A Revision Application was, therefore, filed before the IlIrd Additional Sessions Judge who ordered release of the accused on bail. At the time of passing of order of release by the S. D. M. In compliance with the order of the Sessions Court, Major Qamaruzzaman A.
S, M. L. A. Appeared at the scene and produced an order of detention of the accused under M. L.
0. 12 for a period of thirty days. The custody of the accused was; therefore, handed over by the S. D.
M. To the S. H.
0., Nazimabad. Simultaneously one Captain Imtiaz produced another letter dated 16th April, 1978, before the S. D. M. Conveying the decision of the respondent transferring the case to the Summary Military Court with immediate effect. On the transfer of the case the Summary Military Court charged Meena Khan under Ss. 3, 6 and 10 of the Ordinance and the remaining persons under Ss. 3 and 6 of the Ordinance. The trial of the accused was completed between 23rd April, 1978 and 27th April, 1978, the prosecution examined seven witnesses, out of them four were from the list submitted with the challah and three were new persons. The accused were convicted and sentenced to various terms as mentioned earlier.
3. Mr. I. A. Hashmi, learned counsel for the petitioner, contended that the prosecution having submitted challan in a Court of competent criminal jurisdiction the respondent had no jurisdiction to transfer the case to Summary Military Court. He further contended that even the investigation into the case was without jurisdiction because the offences under the Ordinance were non- cognizable and the same could not be investigated by the police without the permission of the competent Magistrate as required under S. 155 (2) of the Cr. P. C. The said initial defect, according to the learned counsel, continued to attach to the proceedings even after the transfer of the case to the Summary Military Court and as such the trial and conviction of the accused was without lawful authority. The further contention of the learned counsel was that the Summary Military Court had no authority to examine witnesses whose names did not appear in the Challan, and by doing so, the complexion of the case was changed setting up a new case. On the merits of the case, it was contended that the evidence against all the accused being one and the same was indivisible and since ten of them were acquitted, the other nine could not be convicted on the same set of evidence. It was lastly contended, that in any case the sentences of fine of Rs, 5,000 were not warranted under the provisions of the Ordinance.
4. The first contention of the learned counsel with regard to the transfer of the case to the Summary Military Court has no substance because under Paragraph-1 of M. L.
0. 4, as re-constituted by M. L.
0. 37, a Summary Military Court is vested with the jurisdiction to try and punish any person of offences not only under Martial Law Regulations and Orders but also under any other law for the time being in force. Under Paragraph 3 of the said M. L. 0 the Martial Law Administrator is authorized to transfer any case from any ordinary Criminal Court to a Military Court and deal with the same.
' The next contention of the learned counsel with regard to lack of sanction by a Magistrate under S. 155 (2) of the Cr. P. C. Has no force in view of the provisions of M. L.
0. 4 as re-constituted by M. L.
0.
37. The relevant paragraph 2 of M. L.
0. 4, is as under :- 2.-(1) A Military Court shall have power and jurisdiction to try and punish any person for an offence under any of the Martial Law Regulations or orders or under any other law for the time being in force.
(2) A Military Court may, for purpose of sub-paragraph (1) take cognizance of an 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 or any officer of.The Armed Forces.
(c) Upon information received from any person other than a Polic Officer or an officer of the Armed Forces, or upon its own knowledge or suspicion that such offence has been committed.
' From the above it is clear that Military Courts have jurisdiction to try offences under any law for the time being in force upon receipt of reports in writing regarding offences not only from Police Officers, Officers of the Armed Forces, but also upon information received from any other person and even upon their own knowledge or suspicion that such offence had been committed. As such the restriction contemplated under S. 155 (2) of the Cr. P. C. Is not attracted in cases which are tribal by the Summary Military Courts. The learned Additional Advocate-General produced the record of the Summary Military Court containing an order of the Deputy Commissioner and District Magistrate, Karachi, West bearing No DOW/RDR/3400/74 dated 10th April, 1978, which authorized the Sub-Divisional Officer, site Nazimabad, to enter the house of Meena Khan and search the same under the supervision of Mr. Ahmed Ali Khokhar Magistrate. The letter mentions that the District Magistrate was led to believe on information laid before him, that house No, 4/D18, Nazimabad, was being used as a prostitution den in contravention of provisions of Suppression of Prostitution Ordinance. The direction contained in the letter sufficiently authorized the police to investigate into the case, as rightly contended by the learned Additional Advocate-General. Even otherwise any defect or illegality in investigation, however serious, has no direct bearing on the competence or the procedure relating to cognizance or trial of offences. Police report which results from an investigation is provided in section 190, Cr. P. C. As the material on which cognizance is taken but it cannot be maintained that a valid and legal police report is the foundation of the jurisdiction of the Court to take cognizance. Section 190, Cr. P. C. Falls in the group of sections under the heading "Conditions requisite for initiation of proceedings" and the language of the section bears a marked contrast with D the language used in other sections of the group under the same heading i,e,, sections 193 and 195 to 199. The latter sections regulate the come tense of the Court and bar its jurisdiction in certain cases except in compliance therewith, but section 190 does not. If, therefore, cognizance is, in fact, taken on a police report, even though the same may be vitiated E on account of infraction of any provision relating to investigation, the result of the trial, which follows it, cannot be set aside unless the illegality in the investigation could be shown to have resulted in grave miscarriage of justice. It is well settled that an illegality committed in the course of investigation does not affect the competence and jurisdiction of the Court for trial.
5. The contention that the Summary Military Court had examined certain witnesses outside the list mentioned in the Challan has not impressed us. Under S. 540, Cr. P. C. Any Court may, at any stage of any enquiry, trial or other proceedings under the Code has authority to summon any person as a witness, or examine any person in attendance, though not summoned as a witness and such power can all the more b not denied to the Summary Military Courts if properly seized of the jurisdiction in a matter. It has not been shown that the witnesses were rank outsiders and persons unconcerned with the matter. They resided in locality and, therefore, could generally depose to the affairs taking place in the vicinity of their houses. As regards the commission of the main offence, the prosecution had relied upon the testimony of other four witnesses, whose names appeared in the Challan.
6. As regards the contention of the learned counsel wilt regard to indivisibility of evidence is concerned, the same is a question which requires investigation into facts and having held that the Summary Military Court was properly seized of the jurisdiction it is not open to us to examine the evidence in order to find out the circumstances which prevailed upon the Summary Military Court to convict one set of persons and acquit the others.
7. This brings us to the question of the jurisdiction of the Summary Military Court with regard to imposition of fine of Rs, 5,000 in addition to the sentences passed against them. It was not disputed by the learned Additional Advocate-General that the offences in question squarely fell within the preview of West Pakistan Suppression of Prostitution Ordinance, 1961, and as such only those sentences could be awarded as are provided in the Ordinance. The punishment is provided in section 3 of the Ordinance which is as under :- "3. Punishment for keeping a brothel or allowing any place to be used as a brothel.-(1) Whoever-
(a) keeps or manages or acts or knowingly finances or takes part in the financing of or, assists in, the management of a brothel, or
(b) being a tenant, lessee, occupier or person in charge of any premises, knowingly permits such premises or any part thereof to be used as a brothel, or
(c) being a lessor or landlord of any premises, or the agent of such lessor or landlord, lets the same or any part thereof with the knowledge that it is intended to be used as a brothel, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, which may extend to one thousand rupees, or with both.
(2) Where, in any prosecution of a tenant, lessee, occupier or person incharge of any premises under this section, it is found that such premises or any part thereof have been used as brothel, it shall be presumed, unless the contrary is proved, that he knowingly permitted such use.
From the above section it is clear that punishment of imprison-1 ment of either description may extend to two years and fine of Rs, 1,000 or both. Although the Summary Military Court is authorised to pass sentences of death or amputation of hands or imprisonment for life or rigorous imprisonment exceeding one year or whipping exceeding 15 stripes or fine exceeding Rs, 5,000 under paragraph 7 of M. L.
0. 4, the offence being one under the Prostitution Ordinance, the power of the Summary Military Court did not extend to imposition of maximum fine authorised by the M. L. O. The learned Additional Advocate-General fairly conceded that the imposition of fine of Rs, 5,000 was without jurisdiction. In the circumstances, the fine will have to be restricted to Rs, 1,000 only except in the case of Meena Khan who was charged on two counts and will have to pay fine of Rs, 2,000.
9. For the aforesaid reasons, petition is dismissed subject to the limit of payment of fine by the accused, as indicated above.
' AGHA HUI HYDER, J.-I agree with the conclusions.