1. Being aggrieved by the judgment dated 13th June, 1981 of the Sessions Judge, Sukkur, the petitioner Peero son of Jiand Katpar has come to this Court in revision petition under section 435/439, Cr. P. C.
2. The facts of the case are that the complainant Shah Bux lodged F.I.R. Which was investigated by Police Station, Bubar and as a result of the investigations, the petitioner alongwith three others were put on trial in the Court of Civil Judge and F. C. M. Rohri, under section 323/324, P. P. C. While acquitting the three co-accused, the learned trial Court convicted the petitioner under section 324, P. P. C. He challenged his conviction in appeal before the Sessions Judge, Sukkur, who while maintaining the trial Court's judgment altered the conviction from under section 324, s P. P. C. To under section 323, P. P. C. And consequently reduced the sentence from six months to three months.
3. Mr. Abdul Ghani Shaikh who appeared on behalf of the petitioner contended that in view of the medical evidence, the offence allegedly committed by the petitioner fell under section 323, P. P. C.
4. Which being non-cognizance offence, Police had no power to make investigation in the case without prior permission of the Magistrate concerned. There is no dispute about the offence involved in the case being non-cognizable. The learned State counsel concedes that as disclosed in the statement of the medical officer the only injury on the person of complainant was lacerated wound caused by blunt substance. Thus it is admitted even by the prosecution that the offence attributed to accused fell under section 323, P. P. C. Which is a non-cognizable offence. The learned Assistant Advocate-General, however, submitted that the challan produced by the police could be treated as a complaint within the meaning of clause (a) or information under clause (c) of subsection (1) of section 150, Cr. P. C.
5. In order to appreciate the respective arguments of the learned counsel, it may be useful to reproduce subsection (2) of section 155, Cr. P. C. It reads as follows "(2) Investigation into non-cognizable cases. No Police Officer shall investigate a non-cognizable case without the order of a Magistrate of first or second class having power to try such case or send the same for trial to the Court of Session."
6. It would be noticed that Police Officer is prohibited from making investigation into non-cognizable case unless he is armed with the order of the Magistrate of First or Second Class having jurisdiction in the case. The learned counsel for the petitioner has placed reliance on number of precedent cases in which above provision of law had been interpreted. The first in the series is Hussain Shah v.
7. State (PLD 1963 Lab. 46). In this case it was observed by Sardar Iqbal, J :-- "The Police Officer took up the investigation of a non-cognizable offence without the sanction of the competent Magistrate. The proceedings taken by him are, therefore, illegal and vitiated .............On the grounds set forth above, I would hold that the action taken by the police in investigating the case under section 290, P. P. C. Which is non-cognizable offence, without the order of the competent Magistrate under section 155 (2), Cr. P. C. Was not in accordance with law. The entire proceedings are therefore illegal and without jurisdiction and I hereby quash them."
8. While recording these findings, his Lordship had kept in view the principle enunciated by the Privy Council in the case reported as AIR 1936 P C 253, which may be reproduced as under : "It is a well-recognized rule of construction that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden."
9. The next case referred to on behalf of the petitioner is 1968 P Cr. L J 97. In this case too the judgment was delivered by Sardar Muhammad Iqbal, J. Of Lahore High Court. The relevant portion of the judgment is to the following effect: "Complaint is defined in section 4 (1) (b) of the Code of Criminal Procedure to mean the allegation made orally or in writing to a Magistrate with a view to his taking action under this Code, that some person, whether known or unknown has committed an offence but it does not include the report of a Police Officer. It will thus be clear that the report of a Police Officer can never be a complaint. If a Police Officer wants to file a complaint, he should make it clear that it was not his report as a Police Officer. He should moreover, submit it directly to the Magistrate as a complaint.".
10. Similar view was taken in the cases reported as PLD 1961 Lab. 882, PLD 1963 Lab. 269, PLD 1964 Kar. 381, 1969 P Cr. L J 598, and 1978 P Cr. L J 812. I am in respectful agreement with the view taken in these cases. In the instant case the offence attributed to the petitioner fell under section 323, P. P. C.
11. Which is not cognizable by Police. The investigation made by the Police was admittedly without permission of the Magistrate concerned. Such investigation was therefore a nullity and could not form valid basis of the report submitted to the Magistrate. Consequently, the learned trial Court had no jurisdiction to take cognizance of a case on such defective report.
12. The learned State counsel, however, referred me to the authority reported as, 1980 P Cr. L J 742. It is a Single Bench case of Lahore High Court. It is therefore not binding on me. I regret my inability to endorse the line of action adopted in this case. The authorities relied upon in this case are either distinguishable from the facts of the instant case or are not binding on me. If the view taken in this case is followed, I am afraid, it would lead to serious complications. In other words of a Police Officer is permitted to make investigation even into non-cognizable cases despite-the express bar imposed by subsection (2) of section 155, Cr. P. C., he would be free to convert any non-cognizable case into cognizable one at his choice and in this way there would be absolutely A no check on police actions with the result that undue harassment to the litigant public would follow. 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 offences. If the provision relating to express bar placed on police investigations is not construed strictly, I am afraid, not only the purpose underlying the provision would be frustrated but also the pro--vision 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. The report referred to in this clause is prepared in accordance with section 173, Cr. P. C. In the light of the investigations made by Police. 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 definition of complaint given in section 4 (1) (b), Cr. P. C. Expressly excludes the report of Police Officer. Thus police challan (report) submitted under clause (b) above cannot be treated as complaint. Similarly clause (c) speaks of information received from a person other than a Police Officer and therefore Police challan submitted under clause (b) cannot be converted and received as information within the meaning of clause (c).
13. For above reasons I am convinced that cognizance taken by the Civil Judge & F. C. M . On the police challan which was unauthorised was without jurisdiction and consequently the proceedings taken thereon were absolutely illegal. The proceedings are hereby quashed and the conviction and sentence of the petitioner stand set aside. The petitioner is on bail and his bail bond is cancelled.
14. Fine if realised shall be refunded to the petitioner.