ORDER OF REFERENCE Charge :-Under section 10 of the West Pakistan Suppression of Prostitution Order, 1961.
The accused, have been charged by Sheikh Ikramul-Haque exercising the powers of a Magistrate of the 1st Class, in the District, was sentenced by Order, dated 16-8-1965, under section 10 of the West Pakistan Suppression of Prostitution Ordinance, 1961.
The facts of this case are as follows :- Mst. Bano P. W. 2 made a complaint before Abdul Was S. I. Railway Police Station, Lahore P. W. 3, making certain allegations against Azim Khan petitioner and one Faqiria disclosing offences under sections 363, 376 and 342, P. P. C. T1 case was investigated by Mr. Muhammad Shafi Salim, S.H.O. P.
W. 5 P. S. Saddar, Montgomery, and he submitted the final report under section 173, Cr. P. C. To the Additional District Magistrate Montgomery, with a charge under sections 376 and 366, P. P. C.
Against Azim Khan and Allah Nur petitioners. The learned Magistrate after recording the evidence of prosecution witnesses framed a charge under section 10 of the West Pakistan Suppression of Prostitution Ordinance, 1961 (hereinafter referred to as the Ordinance) against both the petitioners and also refused to transfer the case to some other Magistrate in accordance with section 191 of the Code of Criminal Procedure. They have approached this Court under section 435 read with section 438, Cr. P. C. With a prayer that the case be recommended to the High Court for quashing the proceedings on the ground that the learned Magistrate has acted illegally.
The proceedings are forwarded for revision on the following grounds :- In the case of Muhammad Rashid v. The State PLD 1964 Kar. 381, it has been held that offences under the Ordinance are non-cognizable. It is, therefore, not , necessary for me to state the reasons for holding the view that a police officer cannot investigate a case under the Ordinance without the orders of the Magistrate under section 155 (2) of the Code of Criminal Procedure. Section 13 of the Ordinance also places a bar on investigation by the police officer in an, offence under section 10' of the Ordinance except under certain circumstances, which do not exist in the case under reference.
In this view of the matter, the learned Magistrate, when he took cognizance of offence under the Ordinance did not do so on a police report as contemplated by section 190(1)(6) of the Code of Criminal Procedure. It was after recording the evidence that the learned Magistrate came to the conclusion that prima facie there was case against the petitioners under section 10 of the Ordinance. He shall, therefore, be deemed to have taken cognizance under clause (e) of section 190(1) of the Code of Criminal Procedure. In that case, the learned Magistrate was bound to observe the provisions of section 191 of the Code of Criminal 'Procedure, which make it incumbent upon him to inform the petitioners that they are entitled to have the case tried by another Court.
The record shows that in spite of the f4ct that the learned Magistrate did not inform the petitioners in accordance with the provisions of section 191, Cr: P. C., the petitioners made an application praying that the case be tried by some other Magistrate, but the prayer was rejected:
2. In my view, the learned Additional District Magistrate has committed an illegality in taking cognizance of offence under section 10 of the Ordinance himself and then ignoring the mandatory provisions of section 191 of the Code of Criminal Procedure. If such a course is allowed to be adopted, then a police officer will have ample powers to investigate a case under section 10 of the Ordinance, submit a challan under some pro--visions of the P. P. C. And then secure a conviction under the Ordinance. Such an interpretation on the statute would lead to abuse of the process of the Court and since the statute is a penal one, its interpretation shall have to be made for the benefit of the subject and not in favour of the State.
3. 1n the circumstances stated above; the case in forwarded to the High Court with the recommendation that the learned Additional District Magistrate be directed to transfer the case to some other Magistrate of competent jurisdiction in accordance with provisions of section 191 of the Code of Criminal Procedure.
ORDER OF THE HIGH COURT This case was reported by the learned Additional Sessions Judge vide his order, dated 22-4-1966, with the recommendation that the Criminal Case pending against Azim Khan and Allah Nur petitioners (hereinafter called the petitioners) before him in the Court of the A. D. M. Montgomery (Now Sahiwal) in which charge had been framed under section 10 of the West Pakistan Suppression of Prostitution Ordinance, 1961, be transferred to some other Court of competent jurisdiction.
2. The short background of the case is that on the 10th of July 1965, one Mst. Bano, a young girl from Swat State, made a complaint before, S. I. Abdul Wasil of Railway Police Station, Lahore on the basis of which a case under sections 342/376, P. P. C. Was registered against the aforesaid petitioners at Sadar Police Station, Montgomery. The case was investigated by S.I. Muhammad Shafi Salim P. W. 5 who submitted the challan under. Sections 366 and 376, P. P. C. After recording statements of five P.
Ws., the learned A. D. M. Appears to have come to the conclusion -that no offence under sections 376 and 366, P. P. C. Was made out against the petitioners for which they were originally sent, but instead the evidence disclosed prima fade an offence under section 10 of the West Pakistan Suppression of Prostitution Ordinance. The petitioners moved an application before the learned A.
D. M. Seeking transfer of the case from his Court under section 191, Cr. P. C., which was dismissed by him. Feeling aggrieved, they invoked the revisional jurisdiction of the learned Additional Sessions Judge which resulted in the order. Of reference under section 438, Cr. P. ,C. It is contended on behalf of the petitioners that since an offence under section 10 of the Ordinance was non-cognizable, the Investigating Officer could not take up the investigation without having obtained the prior 'permission of the Magistrate and as such the entire proceedings before the learned A. D. M.
Culminating in the framing of charge under section 10 of the Ordinance stood vitiated. Reliance is placed in this regard on Ramzan Bibi v. Muzaffar Hussain (PLD 1967 Lah. 186) and Mumtaz Begum v. State (1968 P Cr. L J 97).
3. The contention raised by the learned counsel is patently devoid of force. In the instant proceedings the case was register--ed against the petitioners under sections 342 and 376 of the P.
P. C. And on the completion of the investigation challan was submitted under sections 366 and 376, P. P. C. And as such to start with the learned A. D. M. May be deemed to have taken cognizance under section 190 (1)(b) of the Cr. P. C. On a police report in respect of offences under the P. P. C.
There was, nothing wrong therefore with'this part of the proceedings. It was, however, at the time of the framing of charge that he came to the conclusion that the evidence on the record did not disclose the commission of any offence under the P. P. C. As alleged, but, prima facie it amounted to an offence under section 10 of the West Pakistan Suppression of Prostitution Ordinance, 1961. In the circumstances, therefore, it could be reasonably stated that cognizance of the offence under section 10 of the Ordinance had been -taken by the learned A. D. M. Not on the basis of police report but on the basis of his own knowledge, -in turn, obtained through the testimony of the prosecution witnesses examined by him. As such the proceedings conducted by the learned A. D.
M. Were neither without jurisdiction nor stood vitiated. Even other--wise, it does not stand to reason that if in respect of non-cogniz--able offences under the Suppression of Prostitution Ordinance cognizance could be taken with the permission of the Magistrate, a senior Magistrate of the rank of an A. D. M. Would not 'be' competent to take cognizance himself in the circumstances. Ramzan Bihi v. Muzaffar Hussain and Mumtaz Begum v: State relied upon by the learned counsel for the petitioner proceed on entirely different and distinguishable facts: In both these: cases, the police had initiated proceedings under the Suppression of Prostitution Ordinance without having filed a complaint before the Magistrate in the first instance. In the circumstances, therefore, there is no escape from the position that the learned A. D. M. Had taken cognizance for an offence under section 10 of the Ordinance in exercise of the powers vesting in him under section 190(1)(c) of the Cr. P. C. From this it would inevitably) follow, therefore, that the learned A. D. M. May under a legal obligation to offer the petitioners a choice of trial before another Court as required under section 191, Cr. P. C. Not only, did he fail to do so but he also rejected the petitioners application moved before him for the transfer of the case. The inevitable consequence of the discussion, therefore, is that the recommenda--tion made by the learned, Additional Sessions Judge must be accepted. It is directed accordingly.
4. Unfortunately it is almost three years since the aforesaid, recommendation was made to this Court and in all probability the learned A. D. M. Would have been transferred by now render--ing this petty matter infructuous as in that event the object of section 191, Cr. P. C. Would have been achieved without the transfer of the case and the successor A. D. M. Would be fully competent to try the case. This aspect of the matter should be brought to the notice of my learned brother M.
Jamil Asghar, J., incharge of Criminal Revisions.
5. The record may be immediately returned to the Court of the Successor A. D. M. Who should expeditiously proceed with the trial afresh.