' ALI MUHAMMAD V. AKHUND, J.--Brief facts of the case are that on January 10, 1978, Rana Muhammad Shafi, Inspector, Anti-CorruptionEstablishment, Hyderabad, alongwith Major Muhammad Ilyas, raided store of petitioner in Bakra Mandi, Hyderabad, Sind, and took samples of oil from a tin and a drum, which were sent- for test and analysis to Messrs Wazir All Industries Limited, a unit of Ghee Corporation of Pakistan Limited, and which were found to be adulterated with mineral oil.
2. On March 2!, 1978, petitioner was tried by the Summary Military Court No, 2, Hyderabad, which framed charge against him under section 6 read with section 23 of the West Pakistan Pure Focd Ordinance, 1960, and after recording evidence of Anti-Corruption Inspector Rana Muhammad Shafi, Major Mohammad Ilyas who had raided the store of the petitioner and secured samples, and of one Muhammad Hussain-jee-Manager Wazir Ali Industies who produced result of the laboratory examination of the samples which proved to be adulterated and contained unsapenifiable matter injurious to human health, sentenced him (petitioner) to rigorous imprisonment for one year and fine of Rs, 1,00,000 and in default of payment of fine suffer R. I. For one year.
3. On March 24, 1979, the petitioner brought this Constitutional Petition under Article 199 of the Constitution to declare that search of the store of the petitioner and seizure of the samples was done without lawful authority, and trial and conviction of the petitioner was unlawful and liable to be set aside.
4. Part III of the West Pakistan Pure Food Ordinance, 1960, provides for the method how the food, which there is reason to suspect is injuries to health, unwholesome, or unfit for human consumption is to be seized and analysed. It is only the power of Inspector appointed under section 16 of the Ordinance, or a public servant under the direction of the Government appointed under section 22 thereof, who has general power under section 17 to detain and search any vehicle or package of food if he has reason to suspect that food contained therein may be injuries to health, unwholesome or unfit for human consumption. Under section 18, the inspector is given power to purchase samples for the purpose of analysis. Section 20 provides for the method of taking samples, that is to say, the Inspector will divide sample of food in three parts to be then and there separated, and each part to be marked, sealed and fastened, one of which is to be delivered to the person from whom it is purchased, the other part to be retained for future comparison and the third part to be sent to Public Analyst. Under section 21, the Public Analyst will send result of his analysis of the sample in a certificate to the Inspector. As provided by section 32, cognizance of an offence under the West Pakistan Pure Food Ordinance, 1960, shall only be taken on the result in writing of the facts constituting the offence made by a Health Officer of a Local Authority or Inspector authorised in this behalf by general or special order of the Director, Health Services, or the Government.
5. In this case, oil from the store of the petitioner was seized by Inspector of Anti-Corruption Establishment Rana Muhammad Shafi and Major Muhammad IIyas. Both of them were not inspectors appointed under section 16 of the Ordiance. There is nothing to show that these two Public Servants were directed by Government under section 22 of the Ordinance to procure for analysis sample of bil from the petitioner or any one else. Rana Muhammad Shafi, Inspector Anti- Corruption Establishment under the West Pakistan Anti-Corruption Establishment Ordinance, 1961: is competent only to investigate offences named in the Schedule to the Ordinance. The Schedule specifies offences only under the Pakistan Penal Code and the Prevention of Corruption Act, 1947.
The Schedule does not make mention of the offence under the West Pakistan Pure Food Ordinance, 1960. It follows, therefore, that Rana Muhammad Shafi and/or Captain Muhammad Ilyas were not under any law authorised to seize samples of oil and to send them for analysis. The action of these officers seizing samples of oil and sending them for the analysis was, therefore, without lawful authority.
6. Under Article 5 of the Laws Continuance in Force Order, 1977, subject to the order of the President, Martial Law Regulation or Martial Law Order, all laws shall continue in force until altered, amended or repealed by competent authority. Martial Law Order No, 4 sets. Up Special Military Courts and Summary Military Courts which have the power and jurisdiction to try and punish any person for an offence under the Martial Law Regulations or Orders or under any other law for the time being in force. It follows that Military Courts are competent to try offences under West Pakistan Pure Food Ordinance, 1960. Under clause (2) of Article 2 of Martial Law Order No,
4. Military Court may take cognizance of an offence in one of the followings ways :- ' Upon receiving complaint of facts which constitute such offence ; ' Upon a report in writing of such facts made by any Public Officer or any officer of Armed Forces ; ' Upon information received from any person other than a Police Officer or an officer of the Armed Forces, or upon its own knowledge or suspicion that such offence has been committed.
' Here, the Summary Military Court, Hyderabad, took cognizance of the offence under the West Pakistan Pure Food Ordinance, 1960, under clauses (a) and (h) above when charge-sheet against petitioner was submitted to it. Facts given in the charge-sheet constitute an offence under section 6 read with section 23 of the West Pakistan Pure Food Ordinance. Rana Muhammad Shafi an Inpector intellegence Cell, Anti-Corruption Establishment, Hyderabad is a Police Officer for all purposes, and report in writing of the facts constitution the offence in the charge-sheet is enough for the Summary Military) Court to take cognizance of the offence. The provisions in section 32 of the Pure Food Ordinance that offences under the Ordinance can only be taken-cognizance of on the report of Health Officer of Local Auhority or an authorized Inspector, shall when the offence is taken cognizance of by a Military Court stand altered by clause (2) of Article 2 of M. L.
0.
4. The fact that a report in writing was not made by Health Officer or Inspector, would not debar the Military Court from taking cognizance of the offence under the Pure Food Ordinance, when taken in accordance with clause (2) of Article 2 of M. L. O.
4. The cognizance of the offence committed by the petitioner under the West Pakistan Pure Food Ordinance, was thus taken legally.
7. Under clause (7) of Martial Law Order 4, Summary Military Court shall exercise the same powers and follow the same procedure as a Summary Court Martial held under the Pakistan Army Act, 1952, and the provisions of the Act and rules made thereunder shall apply to and govern such proceedings. The Rules 90 to I 16 of the Pakistan Army Act Rules deal with the procedure before the Summary Military Court. It was contended by the petitioner's counsel that the Summary Military Court violated the provisions of rules 13, 23(1), 24(1),
113. Rule 13 will not be applicable to the case of the petitioner, as it deals with the power of Commanding Officer to hear the charge against a person subject to Army Act, before his case is referred to Military Authorities. Petitioner is not subject to the Army Act and rule 13 will not be attracted in his case. Rule 23 deals with the right of accused to prepare defence. The record of the proceedings shows that petitioner was asked if he intended to call any witness in defence, but he replied in the negative. He did not avail of the opportunity to call defence witnesses. Rule 24 deals with the information of charge and delivery of the list of officers of the Court to the accused. Although under proviso (b) of Article 7 of M.L.O. 4, the Summary Military Court is not required to frame a formal charge, yet charge-sheet was framed against the petitioner and he was informed of the Officer of the Court. Under rule 113. Petitioner could have a person to assist him during the trial, whether a Legal Adviser or any other person.
There is nothing on record to show that there was any Legal Adviser or other person to assist the petitioner available whom the President Officer of the Summary Military Court refused to allow to assist the petitioner. Even in the petition there is no allegation that petitioner was refused assistance of Legal Adviser. There is no provision of law that Legai Adviser to the petitioner was to be provided by the Military Court. The petitioner had an apportunity to cross examine all the witnesses, which he availed of. Provisions of rules 90 to 116 of the Pakistan Army Act Rules have been complied with. There is no breach of any provision of the Pakistan Army Act Rules. Since the Summary Military Court has tried the case against petitioner within jurisdiction, this 8 Court will not interfere on the ground that some rules of procedure were not followed. In this connection reference is made to the following observation of the Supreme Court in the case of F. B. Ali v. State
(1) at page 541 :- "The learned Attorney-General has also referred us to a number of decisions from the English jurisdiction to support his contention that if a Court Martial has jurisdiction to try and hear a case then the High Court ought not to interfere merely on the ground that the Military Court had not complied strictly with the rules of criminal procedure or there has been unusual delay in convening the Court Martial vide Rex v. Secretary of State for War and R. V. Jennings."
(1) PLD 1975 SC 506 ' It is unnecessary to multiply these cases because, it seems quite settled that if the Court Martial has tried a particular case with jurisdiction, then the ordinary Courts of superior jurisdiction will not interfere in exercise of their power of judicial review merely on the ground that some rule of procedure has not been followed."
' Rule 132 of the Pakistan Army Act Rules which read thus, also validates the proceedings if there is any deviation from the Rules "Rule 132.-Whenever it appears that Court Martial had jurisdiction to try any person and made a finding and that there is legal evidence or a plea of guilty to justify such finding, such finding and any sentence which the Court-Martial had jurisdiction to pass thereon may, if confirmation is necessary, be confirmed, and shall, if so confirmed, and in all cases where confirmation is not necessary, be valid, notwithstanding any deviation from these rules.
8. The moot question in this petition is if the investigation is irregular and illegal, does it affect jurisdiction of the Court to take cognizance of the offence or the validity of proceedings of the Court? Answer is in the negative. Irregular investigation neither prevents the Court from taking cognizance of the offence on report submitted by a Police Officer not competent to investigate the offence nor render subsequent trial illegal. In the case of Crown v. Meharali (1), investigation in the offence under section 161, P. P. C. Committed by Central Government Servant was held by the Inspector of the Sind Anti-Corruption Police instead of, as maintained by the defence, by the Special Police Establishment. It was objected that trial was bad for that reason. The Federal Court, at page 109 observed:- "As regards the competency of the investigation, it is by no means clear that even if it could be established that the investigation by the Sind Anti-Corruption Inspector was irregular, the result would be to deprive the Special Magistrate of jurisdiction or otherwise to affect the validity of the proceedings in the trial."
' In Mst. Sudan v. State (2) the investigation was conducted and arrest effected by Police Officer not competent to do so. It was held that this did not render the trial in Court illegal. At page 16, the Court said:- "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 or 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
(1) PLD 1956 FC 108 (2) PLD 1965 B 112 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 authorised to investigate."
' In Walizar and others v. State (1), there was irregularity of investigation held by a Police Officer below the rank of D. S. P. In contravention of section 5 of the Prevention of Corruption Act, 1947, which was held not to affect competency or jurisdiction of the Court nor the admissibility of evidence. The irregularity was held curable under section 537 of the Criminal Procedure Code. The Court at page 223, remarked ;- "The correct principle is that when a person accused of an effence is brought before a Court, the Court has to decide on the evidence before it whether an offence is made out against him or not and the question of irregularity in investigation of having been held by an incompetent officer is irrelevent to the question before the Court, except where it is shown that such irregularity has occasioned failure of justice. The powers to take cognizance, the competency to try and the admissibility of the evidence is not affected, and if the trial is valid and has been held in accordance with law, it can only be set aside on the ground that the irregularity has occasioned a miscarriage of justice. My conclusion, therefore, is that there is only an irregularity in the investigation of this case, which was conducted by Police Officers not authorised by section 5-A of the Prevention of Corruption Act, but neither the competency cr jurisdiction of the Court nor the admissibility of the evidence before Court is affected thereby. The irregularity is curable under section 537 of the Code of Criminal Procedure. It has not been shown that any failure of justice has been caused by the irregularity. I, therefore, hold that the trial held in this case is not illegal or incompetent and that the conviction based thereon cannot be set aside on the ground that the imestigation conducted from beginning to end was by incompetent Police Officers."
' In the case of Mohammad Rashid v. State (2), non-cognizable offence was investigated by a Police Officer without permission of the Magistrate and challaned. Single Judge held that it vitiated subsequent trial. This was not found to be correctly decided in the case of Mst. Saadan v. The State, where the Division Bench at page 14, observed :- "This view, we say so with great respect, is not correct, because the learned Judge has ignored ,section 190 of the Code of Criminal Procedure which empowers a Magistrate to 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 ; 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. A report by a Police Officer in respect of the commission of an offence, which he may have been empowered to investigate, will still fall under. Clause (a) or (b) of -section 190 of the Code of Criminal Procedure, as has been held in so many cases."
' In Dost Mohammad v. State (3), the Court had illegally taken cognizance
(1) p L-D 1960 Kar. 204 (2) PLD 1964 Kar. 381
(3) 1976 P Cr. L J 184 of the offence, and the proceedings were quashed. It is distinguishable from the present case inasmuch as the cognizance in the case was not illegally taken as M. L.
0. 4 empowered Military Court to take cognizance of any offence on police report, complaint etc. In.
So also is distinguishable the case o f Abrar Beg v. State (1).
9. In the result, petition is dismissed.
(1) Law Notes 1975 Lahore 685