' AFTAB HUSSAIN, C. J.-By his order dated 13.5-1982 Syed Tasaddaq Hussain Bokhari, Magistrate First Class, Faisalabad convicted the appellant under section 11 of the Prohibition (Enforcement of Hudood) Order, 1979 and sentenced him to three years rigorous imprisonment and ten stripes.
2. Hence this appeal.
3, The prosecution case is that on the night between 11th and 12th of February, 1980 when Muhammad Arif, Constable, P. W. 1 and Sikandar Hayat, Constable, P. W. 3 were on duty in Fawara Chowk, Faisalabad, they found the appellant at about 12-00 or 12-15 p. m. In a state of intoxication.
They took him with them in a bid to go to the police station. At Satiana Road Gate they met Abdul Rahim, Head Constable who was later promoted as Assistant Sub-Inspector and appeared in the Court as P. W.
5. Abdul Rahim sent the appellant with Muhammad Arif P. W. 1 and Nawaz Constable to the hospital for his medical examination. The appellant was examined by Dr. Imtiaz Ahmad Gil who found him smelling of liquor. He observed that his face was red and he was talking excessively. He took his urine, blood and the stomach wash and sent them to the Chemical Examiner for analysis. The Chemical Examiner's report Exh. P. E, is positive to the extent that he detected Alcohol in the urine and blood only.
4. In support of the prosecution case Muhammad Arif, P. W. 1 Walter Masib, A. S.
1. P. W. 2 Sikandar Hayat, Constable, P. W. 3, and Dr. Imtiaz Ahmed Gil p. W. 4 were produced. Abdul Rahim A. S. I. Appeared as Investigating Officer. The evidence of Walter Masih, P. W. 2 is only formal since he had written the First Information Report Exh. P. A./1 on receipt of the complaint Exh. P. A. At about 1-25 a. m. The same night.
5. Muhammad Arif P. W. 1 and Sikandar Hayat, P. W. 3 proved the facts as stated above regarding the presence of the appellant in a state of intoxication at the place where they were on duty.
Muhammad Arif further stated that he took the appellant to the doctor who after his medical examination gave him a sealed envelope and three sealed phials which he gave to Abdul Rahim, P.
W. 5 who took them in possession, vide Exh. P. 5, on the 12th of February, 1980. He took these articles to the office of the chemical Examiner and handed them there. They were not tampered with for so long as they remained in his possession. In his cross-examination he stated that the house of the appellant was at a distance of about 1 Kilometer from that place and the appellant had made no effort to escape. He asked .For a match box and at that time it was discovered that he had taken liquor. He denied that there was any quarrel between the constable and the appellant. Sikandar Hayat, P. W. 3 in his cross-examination stated that the appellant tried to escape on seeing the constables. Imtiaz Ahmad Gil, supported his medical examination report Exh. P. C. Abdul Rahim, P.
W. 5 supported the version of Muhammad Arif, P. W.
1. He denied that there was any quarrel between the police constables and the appellant.
6. The appellant denied that he was drunk. He admitted that Muhammad Arif and Sikandar Hayat, Constables had taken him with them but said that he was not produced before the doctor. He, however, admitted that his blood, urine and stomach wash was taken. He explained that there was a quarrel between him and these constables who had involved him in this false case.
7. He produced Padri Samual Shah, Principal, Saint Johns Mission High School, D. W. 1 and Nazir Ahmad an owner of a Printing Press, D. W.
2. Both of them stated that they never heard of any complaint of drinking against the appellant.
8. The learned counsel for the appellant urged that the evidence of P. W. 1 and 3 was discrepant in as far as P. W. 1 stated that the appellant did not try to escape while according to P. W. 3 he did attempt to escape. P. Ws. 1 stated that he discovered that the appellant was drunk when the latter asked for a match box. Sikandar Hayat said that Masood Ahmad was making noise in a state of intoxication. Nothing turns upon these discrepancies in view of the admission of the appellant that he was taken with him by these two constables, and the evidence of Dr. Imtiaz Gil which is supported by the report of the Chemical Examiner. It is proved beyond any shadow of doubt that the appellant was drunk on the night between 11th 'and 12th of February, 1980.
9. The learned counsel raised certain technical preliminary objections which according to him vitiated the trial and entitled the appellant to acquittal. He raised the following objections :-
(1) Article 16 of the Prohibition Order provides that an offence inter alia under Article 11 is congizable only if it is committed at a public place. In the present case there is no evidence that the appellant had taken liquor at a public place. It was threfore. a non-cognizable offence and the police had neither the right to arrest the appellant without warrant nor the right to investigate the matter without specific permission from a Magistrate as provided in section 155, Criminal Procedure Code,
(2) Rule 6 of the Punjab Rules framed under the Order provides for a procedure of taking an accused to the Prohibition Officer who only had the right to submit a report under section 173, Cr. P.
C. To enable the Magistrate concerned to take cognizance of the case under section 190 of the Code. This procedure was not complied with and in view of the mandatory nature of the rule as held in 1982 NLR (Criminal) 212 the appellant cannot be punished and is therefore, entitled to acquittal.
(3) The Head Constable or the Constable had no right to arrest the appellant in view of section 12 of the Prohibition Order.
10. The first and third point may be taken together. Clause 1 of Article 16 of the Order provides that the following offences shall be cognizable, namely :- 16 (1) (a)
(b) an offence punishable under Article 4, Article 8 or Article 11, if committed at a public place.
11. Article 12 is as follows :-
12. Arrest on suspicion of violation of Article 8 or Article 11.-(1) No police officer shall detain or arrest any person on suspicion that he has taken an intoxicant in violation of Article 8 or Article 11 unless he has asked such person to accompany him to an authorized medical officer for examination and such person either refuses to so accompany him or, having been examined by the medical practitioner, is certified by him to have taken an intoxicant.
(2) Whoever contravenes the provisions of clause (1) shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to five hundred rupees, or with both.
12. It appears clear that an offence under Article 11 shall be cognizable if committed at a public place. The expression 'cognizable offence' is not defined in the Order but by virtue of section 22 which applies the provision of Criminal Procedure Code mutatis mutandis to cases under this Order, the definition of that expression in the Code is relevant. The definition is to the effect that a cognizable offence is an offence in which a police officer may in accordance with the second schedule or under any law for the time being in force arrest without warrant.
13. The procedure to be followed on information is provided in sections 154, 155 and 156 of the Code.
Section 154 provides that every information relating to the commission of a cognizable offence if given orally to an officer in charge of a police station, shall be reduced into writing by him or under his direction and be read over to the informant ; and every such information will be given in writing or reduced to writing as aforesaid shall be signed by the person giving it, and the substance thereof shall be entered in a book by such an officer to be maintained in such form as the Provincial Government may prescribe in this behalf. The form of the first, information report Exh. P.
A./1 is the form of a report under this section.
14 Section 155 provides that on receiving the information in a nonmnizable case, the officer in pillow of the police station, shall enter ill a book to be kept as aforesaid the substance of such information and refer the informant to the Judicial Magistrate. No Police Officer shall investigate a non- cognizable case without order of a Magistrate of the first or second class having power to try such case or send the same for trial to the Court of Session. Any Police Officer receiving such order may exercise the same powers in respect of the investigation except the power to arrest without warrant as an officer in charge of a police station in a cognizable case.
15. Section 156 authorises the officer in charge of a police station without the order of a Magistrate to investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such police station would have power to inquire into or try under the provisions of Chapter XV relating to the place of inquiry or trial. No proceeding however of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate. Any Magistrate empowered under section 190 may order such an investigation as above mentioned. However, the investigation of a case under section 497 or 498 cannot be made except upon a complaint made by the husband of the woman, or, by some person who had the care of such woman on his behalf at the time when such offence was committed.
16. The suns and substance of these provisions is that in a cognizable case the police officer has the right to arrest and investigate the case without seeking the specific order of a Magistrate or an order from him but in a non-cognizable case the police cannot arrest a person without warrant nor can investigate without the order of the Magistrate. The act of a police officer who is not an officer described in sections 154 to 156 is however, validated by providing that it shall not be called in question at any stage that the case was one which such officer was not empowered under this section to investigate.
17. Article 12 of the Order, however, provides for a different procedure in a case inter alia under section 11 where a person is guilty of drinking which is not liable to Had or for which proof in either of the form mentioned in Article 9 is not available. It provides for collection of the medical evidence by a police officer and for arrest of the accused by him without making any reference to the Magistrate or seeking his permission. Investigation under the Code of Criminal Procedure [section 2 (1)] includes all proceedings for collection of evidence conducted by a police officer. Article 12 therefore, authorizes a police officer to collect at least specified evidence.
18. Article 12 of the Order, no doubt, prohibits a police officer from detaining or arresting any person on a mere suspicion of his having taken intoxicant which power he can exercise under section 54, Code of Criminal Procedure. But it allows him to arrest the accused after collecting evidence, of an authorized medical officer in the form of a certificate issued by him that the accused had taken intoxicant. This is a case of arrest after investigation. It also allows him to arrest the accused in case of his refusal to accompany him to an authorized Medical Officer which is clearly a case of A arrest prior to investigation since the intention appears to be that in case of refusal the accused would be first arrested and then taken by force to this authorized Medical Officer for examination to enable him to collect evidence against the accused.
19. The duty of the Court is to attempt to reconcile such self-contradictory provision as of Articles 12 and 16. This reconciliation is possible by holding that where a police officer suspects the commission of offences under Article 8 or 11, he shall have to act according to the provisions of Article 12. I other cases where he has to proceed not on his own suspicion but on a specific complaint before him as contemplated by section 155 Cr. P. C., unless inte alia the offence under article 8 or article 11 is omitted at a public place he shall secure a warrant of arrest from the Magistrate and seek his perinissio for investigation. In order to protect persons from illegal detention an undue bar assent, it is provided in clause 2 of Article 12 that a person contravening the provision of clause 1 shall be punishable with imprisonment which may extend to six months, five hundred rupees as fine or with both.
20. In the case of Mst. Mumtaz Begum it was held that notwithstanding the qualified power given to certain police officer in the West Pakistan Suppression of Prostitution Ordinance, II of 1961, the offences under the Ordinance could not be treated to be cognizable. Reliance was placed for this proposition on Raghunath v. Emperor , Hiwan-Htin v. King-Emperor , Bhairo Murad Jagirani v.
Crown, Haji Mahmood Khan v. Crown . This view was repeated by the Karachi Bench of the High Court of West Pakistan in Muhammad Rashid v. State . A different view was taken in Queen.
Empress v. Deodhar Singh and another , Emperor v. Fernard , Emperor v. Abas Bhai and Emperor v. Ismail
21. All the cases whether pro or con are distinguishable. Non- cognoscibility affects or to be more precise restricts the power of arrest and investigation. But section 12 permits both. The collection of medical evidence amounts to collection of evidence which conclusively proves the charge of drinking in section 11 of the Order. A case falling under. Section 12 8 cannot be said to be non- cognizable.
22. The Head Constable who was a Police -Officer, therefore, acted in due discharge of his duties by sending the appellant to the Madical Officer, obtaining his certificate as proof of drinking and then arresting the appellant.
23. In support of the proposition that if the Police Officer investigated without permission of the Magistrate his report under section 173, Cr. P. C. Would not authorise the Magistrate to take cognizance of the matter under section 190 of the Code, the learned counsel relied upon the case of Mst. Mumtaz Begum v. The State , Haider v. The State and Muhammad Rasheed v. The State .
24. In all the three cases it was held that the Magistrate cannot take cognizance under section 190 Cr. P. C. On a report under section 173 Cr. P. C. Made in a non-cognizable case in which the1 2 3 4 5 6 7 8 9 10 11 12 investigation is carried out by a Police Officer without seeking the permission of the Magistrate.
Some case-law is discussed in the case of Mst. Mumtaz Begum v. The State. 1 is, however, important to note that all these cases were decided before the amendment of section 537, Ordinance XII of 1972. Previous to that section 537 was as follows :- "537. Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be' reversed or altered under Chapter XXVII, or on appeal or revision on account-
(a) of any error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or-other proceedings under this Code, or (b)
(c) of the omission to revise any list of jurors or assessors in accordance with section 324, or
(d) of any misdirection in any charge to a jury unless such error, omission, irregularity, or misdirection has in fact occasioned a failure of justice.
' Explanation-In determining whether any error, omission or irregularity in any proceeding under this Code has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings.
25. The amended section is now as follows :- "Funding or sentence when reversible by reason or error or omission in charge or other proceedings.-Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered under Chapter XXVII or on appeal or revision on account-
(a) of any error, omission or irregularity in the complaint, report by Police Officer under section 173, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceeding under this Code, or
(b) of any error, omission or irregularity in the mode of trial including any misjoinder of charges, unless, such error, omission or irregularity has in fact occasioned a failure of justice.
' Explanation.-1n determing whether any error, omission or irregularity in any proceedings under this Code has occasioned a failure Of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in prcceedings."
26. The main distinction relevant for or purpose is that originally any error, omission or irregularity in the report of a Police Officer under section 173, was not curable but now like the case of error, omission or irregularity in a complaint any error. Omission or irregularity in the report of a Police Officer under section 173, is also made curable and does not allow the finding; sentence or order of a competent Court to be reversed or altered.
27. The learned counsel however relied on Nurman Shah v. The State , Rehmat v. The State and Zabitey Khan v. The State . We checked another case Noor Muhammad v. The State . These cases are however, distinguishable. In the Peshawar case as well as in Noor Muhammad v. The State the evidence of one case was copied in another which was a serious breach of the mandatory provisions of law as well as principle that each case should be decided on its own evidence. Such cases are therefore, cases in which the procedure adopted by the Court should have been held' to have vitiated the proceedings. In any case the trial should be held to have occasioned failure of justice also since it cannot be said that if the witnesses had made separate statements their statements would have been substantially the same without any material discrepancy on the basis of which benefit of doubt would have been admissible to the accused.
28. In Zabitey Khan v. The State the public servant was tried without any sanction of the appropriate Government which was necessary to give jurisdiction to the Court to try the case. It was, therefore, a case of absolute lack of jurisdiction.13 14 15 16
29. In the case of Ramat the cognizance of the offence was taken by the Magistrate against a person not challaned by the police and though cognizance against those persons fell under class
(c) of section 191, he proceeded to try them without giving a warning under section 191.
30. The principle of section 191, Cr. P. C. Is that no person should be a Judge in his own case and no Judge should be allowed to act in bias on the basis of his pre-conceived opinion as to the guilt of the accused person. It is on account of the possibility of bias that it is necessary for him to inform the accused of his right to be tried by another Magistrate if he so liked. This is a right noncompliance of which does not brook any concept of error, omission or irregularity in the mode of trial. All these cases therefore, are distinguishable.
31. In some cases the ground for non-applicability of section 537, is that it does not apply to a case of infringement of statutory requirements. In fact, the distinction between legality and irregularity sometimes is too fine. In some cases for example Aziz Shah v. Crown , the expression 'patent irregularity' was used for something which was incurable, although according to this concept the word 'illegality' should have been used. In another category of cases for example Noor Hussain v.
The State , for something which was curable the word 'illegality' was used. Similarly the mere fact that the provision is couched in a mandatory form is not a good or sufficient criterion for excluding it from the ambit of section 537 because almost all provisions non-compliance of which has held to be curable are statutory provisions couched in that form.
32. In Kotaya v. Emperor , the following criterion was laid down: "In their Lordships' opinion this argument is based on too narrow a view of the operation of section
537. When a trial is conducted in a manner different from that prescribed by the Code as in 28 I A 257, the trial is bad, and no question of curing an irregularity arises; but if the trial is conducted substantially in the manner prescribed by the Code, but some irregularity occurs in the course of such conduct, the irregularity can be cured under section 537, and none the less so because the irregularity involves, as must nearly always be the case, a breach of one or more of the very comprehensive provisions of the Code. The distinction drawn in many of the cases in India between an illegality and an irregularity is one of degree rather than of kind. This view finds support in the decision of their Lordships Board in 5 Rang. 53, where failure to comply with section 360, Criminal P. C., was held to be cured by sections 535 ' and 537. The present case falls under section 537, and their Lordships hold the trial valid notwithstanding the breach of section 162."
' While discussing this criterion Kayani C. J. Observed in Ibrahim and another v. The State at p.
746 : "1 submit, with respect, that it is difficult to draw a line in all cases, since almost all provisions as to the trial of offences are expressed in mandatory language, and that it would not be safe to say, as their Lordships pointed out in Kottaya v. Emperor, that the difference between the two cases is one of degree. The difference is in the manner of trial. If it substantially follows the manner prescribed by the Code, any omission in the observance of detail is an irregularity, and it can be cured."
33. The judgment of Kayani C. J. Was on a reference necessitated on account of difference of opinion between the two members of the Division Bench on the applicability of section 537. In his judgment Shabbir Ahmad, J. Who was one of the members of the Division Bench observed that: "It appears to me that all omissions made curable by section 537, of the Code of Criminal Procedure must be omissions to carry out mandatory provisions of that Code. If a provision of law which has not been followed is not mandatory in character, it cannot be said that an omission has occurred because if discretion has been given to a Court to follow a certain procedure or not with regard to a matter, its omission to follow that procedure cannot amount to an omission of which the law will take notice. All omissions by Courts, however, cannot be considered to be illegalities vitiating all that followed them in the proceedings. For instance, if a Magistrate were to only initial a document which the law requires him to sign, it will be difficult to hold that the omission was one17 18 19 20 which is not curable under section 537 of the Code of Criminal Procedure, and many examples of this type could be cited."
34. In a case of Dacca, Abdul Subhan and others v. The State , it was held that almost all the provisions are of mandatory nature and the real test was whether the error goes to the root of the trial, for example where the Court assumes jurisdiction which it does not possess or where it has broken the vital rule of procedure. The following quotation is important in this respect:- "The test that may be applied in considering whether a particular infringement of the provisions of the Code of Criminal Procedure does not fall within the purview of section 537 appears to be whether the error goes to the whole root of the trial, whether it vitiates the proceedings, whether the Court assumed jurisdiction which it does not possess, and whether it has broken the vital rules of procedure. In this connection a distinction should be made between a positive enactment by the Code that a certain trial shall not take place and a positive enactment that in the course of such a trial certain detailed procedure should be followed. Both are imperative provisions. But still the one is a different thing from the other. In the former case an infringement of the enactment amounts to an assumption of jurisdiction and vitiates the trial from the very beginning. In the latter case, an infringement merely amounts to an error, omission or ' irregularity in the procedure adopted in the course of the trial, and this is curable under section 537, Cr. P. C. The crucial test to be applied is whether the accused had a fair trial in spite of the transgression of the prescribed rule of procedure. Even if there is an illegality the High Court will not interfere except in case of failure of justice."
35. Section 200, of the Criminal Procedure Code provides that a Magistrate taking cognizance of an offence on complaint shall at once examine the complainant upon oath. In Shamim v. The State etc. , the complainant was not examined and without complying with the above provision of section 200, the process was issued to the accused person. It was held to be a curable irregularity though the language of the section is mandatory.
36. The Supreme Court endorsed the observations made in Hasham Haji Sharif v. Mir Khan Jan , that one of the main objects of section 200, Cr. P. C. Was to protect the public against, false, frivolous or vexatious complaints filed against them in Criminal Courts and that Magistrates must not lightly accept written, complaints and proceed to issue processes until they had thoroughly sifted the allegations made against the accused and were satisfied that a prima facie case had been made out against those who were accused of criminal offences.
37. In Zulfiqar Ali Bhutto v. The State , distinction was made between substance and technicalities as will be clear from the following portion in the High Court Judgment (which was appealed against in the. Supreme Court) and which was cited by the Supreme Court with approval: "It will thus be seen that in determining whether an omission, error or irregularity in the conduct of the trial, using the phrase so as to embrace all aspects thereof, has vitiated the trial in any manner, the Court must look to the substance and not to technicalities; and if the accused has had a fair trial, and has not been prejudiced in his defence, the error, omission or irregularity would stand cured under the provisions of section 537 of the Code. And as the distinction between an illegality and an irregularity is, to borrow the words of Sir John Beaumont of the Privy Council (in AIR 1947 P C 67), only one of degree rather than of kind, nothing turns on this distinction for the purposes of the application of this curative section."
38. Coming to the question whether a violation of section 155, Cr. P. C. Invalidates the report under section 173, submitted by him to the Magistrate under clause (a) of section 190, and would affect the jurisdiction of the Magistrate, reference may be made first to two other sections of the Criminal Procedure Code namely sections 529 and 530 which will be helpful in understanding the scope of the words added by Ordinance XII, of 1972, to section 537, making any irregularity, omission or error curable inter alio in a report by Police Officer under section 173.21 22 23 24
39. Section 529, deals with irregularities which do not vitiate the proceedings and provides in its clause (e) that if any Magistrate not empowered to take cognizance of an offence under section 190, subsection (1), clause (a) or clause (b) erroneously in good faith takes cognizance of it, his proceedings shall not be set aside merely on the ground of his not being so empowered. Section 530, enumerates irregularities which vitiate proceedings (9) PLD 1960 SC 265 and one of such irregularities is taking cognizance under section 190, subsection (I), clause (c) of an offence. It would therefore, follow that where a Magistrate is held not to be empowered by law to take cognizance of an offence under section 190, subsection (1), clause (a) but he takes cognizance of it erroneously in good faith, his proceedings shall not be set aside merely on the ground of his not being so empowered.
40. Unfortunately in the case cited by the learned counsel Mst. Mumtaz Begum v. The State , even this section which appears to be a complete answer to the finding in that case has not been taken into consideration and the judgment is based on a non-statutory proposition of law that where a power is given to do a certain thing in a certain way it must be done in that way or not at all, which obviously is not applicable to a case which is covered by definite curative provisions of the Code of Criminal Procedure in its Chapter XLV. It was for this reason that in Shafiq Ahmad v. The State , it was held that if any Magistrate not empowered by law to take cognizance of an offence under section 190 subsection (1), clause (a) or (b) does so erroneously but in good faith his proceedings are not to be set aside merely on the ground of his not being so empowered. The proceedings did not, therefore, become invalid on the mere ground that the Magistrate took cognizance of the case under section 191 (a) of the Cr. P. C. On receipt of a police report of a non-cognizable offence in which the Magistrate's permission for investigation was not obtained. It was further held that in any case the report could be treated as a complaint under section 191 (b).
41. This view is supported by Emperor v. Wali Muhammad , in which it was held that where a Magistrate takes cognizance under section 190 1)(a) or (b) of a non-cognizable offence without jurisdiction the proceedings are validated if he acts in good faith. The same view was also taken by a Full Bench of the Madras High Court in Public Prosecutor v. Ratna Welu Shetty . Unfortunately none of these cases were considered by the West Pakistan High Court in the case of Mst. Mumtaz Begum.
42. In Aziz Masih v. The State , it was held that the cognizance of a case by a Magistrate in which investigation was conducted by a Sub-Inspector of police without obtaining specific order from the Magistrate first class does not vitiate the trial since the irregularity is curable under-section 537, Cr.
P. C. In support of this proposition a reference was made to Abdul lVoor v. The State , Walizar v.
The State and Rishpud v. The State of Delhi , in which the same view had been taken. It may be stated that this question was raised in State v. Muhammad Hussain , but the Supreme Court left the matter open because the appeal before it was dismissed as incompetent. However a reference to the other three cases was made in that judgment.
43. Sections 529 and 530 are not exhaustive in relation to irregularities which vitiate or do not vitiate the trial in view of other sections like sections 531, 535 and 537 in the Code of Criminal Procedure.
The words, error, omission or irregularity in a police officer's report under section 173 are wide enough to cover cases in which the report under section 173 is bad on account of the violation of the provision of section 155. It is clear that this' amendment was necessitated because of the extremely technical view taken by some Courts about the invalidity of a report under section 173 submitted in a non-cognizable case by a police officer who investigated without permission of a competent Magistrate. Section 529 is one of the sections which validates in its clause (e) cognizance of such a case taken by a D Magistrate erroneously in good faith which means that the cognizance of such a case is based on error. There is no reason why the word error or irregularity in section 537 should be interpreted in a narrow sense. The only distinction between the two sections25 26 27 28 29 30 31 32 33 is that while section 529 is limited to cases of cognizance by an incompetent Magistrate in good faith, section 537 is much wider in impact and protects all trials based inter alia on such a defective report by a Magistrate having jurisdiction to try the offence.
44. This can be further substantiated by reference to cases of error, omission or irregularity in the complaint in which pre-trial proceedings even though defective and not in accordance with the provisions of Chapter XVI were held to be curable. Notice has already been taken of Shamim v. The State etc. In which notwithstanding the mandatory provisions of section 200 about examination of the complaint, the Supreme Court held the defect of non-examination to be curable. Similarly it was held in PLD 1949 Bal. 16 that a complaint by a police officer instead of by an Executive Officer as required by section 154 of the Quetta Municipality Act was protected by section 537, Cr. P. C. It was no doubt a case of confession but if the complaint did not confer any jurisdiction upon the Magistrate, the jurisdiction could not be conferred by a confession or agreement of the parties before the Court.
45. Another case is the case of Anwar Mahmood and others v. Rashiduz-Zaman , in which it was held that : "Ordinarily the Magistrate has to accept the statement of the complainant made on oath, but if he disbelieves the statement of the complainant altogether or comes to the conclusion that no offence is made out, it is his duty to dismiss the complaint under section 203 of the Code. But if, on the other hand, he has got some doubt about the truth of the accusation made by the complainant it is open to him to postpone the issue of process pending further inquiry as contemplated by section 202, and in such an eventuality he has got to record his reasons for postponing the issue of process. The provision for recording reasons is for the benefit of the complaint ; the accused has nothing to do with it. The omission to record such reasons, however, is curable irregularity."
46. It was also held in the case of Mst. Mumtaz Begum that the report of the police officer in a non- cognizable case could not be held to be a complaint. I entertain the highest respect for the learned judge who decided that case but I have not been able to appreciate the logic behind this finding. It has already been noticed in the case of Shafiq Ahmad v. The State a case on all fours on facts with the case of Mst. Mumtaz Begum that it was held that the report of the police officer could be treated to be a complaint. There are two other cases. One is Muhammad Nawaz Khan v. Noor Muhammad and others , and the other is Falak Sher and another v. The State . Both are cases of identical nature. In both cases the police in ' the report under section 173 submitted that no case was made out against the accused. It was held by the High Court as well as the Supreme Court that the report was not binding on the Magistrate and since he was bound to act under section 190, Cr. P. C. He could treat the report as a complaint under section 190(1) clause (b). The Magistrate's cognizance of the case was not held to be without jurisdiction. This principle can be applied to the present case too.
47. The objection is really only a technical one which does not affect the trial which is based upon the evidence produced before the Court and the weight given to it. It does not affect the merits of the case. It is an objection relating to something in the pretrial investigation proceedings. If the proceedings or investigation are not properly conducted and the evidence E collected in that exercise is unreliable, on that account for some reason, the matter can be considered at the trial as well as on the appeal by weighing the evidence but it is really incomprehensible how this defect would vitiate the proceedings in all cases. It is obviously for this reason that section 529 provided against the vitiation of the proceeding before a Magistrate started on such an invalid report under section 537. There is no reason why for the purpose of section 537 the defect should be treated as absolutely incurable and vitiating the trial.34 35 36
48. In the present case however the trial is based really on the conclusive evidence of the doctor and the report of the Chemical Examiner. It is a much stronger case than a case which is based only on the testimony of eye-witnesses who may or may not be believed.
49. These arguments are sufficient answer to the second point of the learned counsel also in which objection is taken regarding the role which ought to have been played by the Prohibition Officer. It may be stated that according to Article 23 of the Prohibition Order the position of the Prohibition Officer is that of an Incharge of police station who can file a report under section 537. All other matters described in rule 6 also pertain to pre-trial investigation proceedings. Even if further investigation is assumed to be illegally held and the report under section 173, Cr. P. C. To be illegally submitted by a police officer other than the Prohibition Officer, the defect is curable under section 529 or 537. In any case the Magistrate could treat the report as a complaint.
50. Rule 6 however, has been omitted by Notification No, S.0. Excise VI-2/79(P) dated 1-11-1981. The learned counsel argued that this omission would not be effective against the trial and about the investigation made when the rule was enforced. This objection ignores that this omission was of a procedural rule. Such a question arose in a case before the Supreme Court of Pakistan in which Act XVIII of 1964, a procedural law, came into force during the pendency of appeal. It was held after discussing the law of retrospectively of procedural statutes that the High Court should have given effect to it and applied section 537 to the case. Muhammad Abdullah v. Imdad Ali . The factum of omission of the rule and its effect on pending proceedings was taken note of by the Peshawar High Court in Muhammad Nawaz Khan v. The State .
51. There are two Single Bench authorities of the Lahore High Court on the effect of rule 6 of the Punjab Prohibition (Enforcement of Hald) rules 1979. Before dealing with these authorities it may be worthwhile to give a resume of some of the relevant rules. Rule 3(2) provides that the ' Excise and Taxation Officer shall exercise within the district of his posting the power of Prohibition Officer under the Order. By virtue of rule 4(4) he is given the power of a police officer under Chapter XIV of the Cr.
P. C. While conducting investigation in a cognizable offence under the Order. Then rule 6 is as follows :- "Rule 6.-When any person is arrested by any competent officer, if he is not a Prohibition Officer, he shall forward him to the Prohibition Officer of the area with a report containing the facts relating to his arrest and if the Prohibition Officer is satisfied on the basis of the material and facts placed before hint that a prima facie case is made out against the accused and the accused is not released on bail he may be sent to the police station of the area where the offence has been committed for custody and formal registration of the case."
52. Thereafter rule 8 provides that the officer in charge of a police station shall take charge of and keep him in safe custody, pending the orders of a Magistrate or a Prohibition Officer, and all articles seized under the Order which may be delivered to him and shall allow the Prohibition Officer to affix his seal to such articles and to take samples therefrom.
53. In Asghar All v. The State , a petition under section 561-(A) of the Code of Criminal Procedure was made for quashment of proceedings of a trial under Article 4 of the Prohibition Order of 1979 inter alia on the ground of violation of rule 6. The learned Single Judge after dealing with Articles 16, 21 and 27 of the Order held that since an offence envisaged by Article 3(1) and Article 4 were declared by section 16 to be cognizable offences and Article 27 kept the power of the Police Officer to register and investigate cases and to take property into possession and to submit challan in the Court intact, the above rule could not be allowed to override the parent legislation and could not be interpreted so as to deprive the Police officers of the powers which the Order specifically provides for them.
54. The question against cropped up in State v. Abdul Majeed , and a number of similar other appeals against acquittal. In all those cases the accused had been acquitted for reason of non-37 38 39 40 complidnce with the provision of rule 6. The appeals were dismissed on the ground that "violation of either Article 11 of the Order or for that matter of even rule 6 cannot be taken to be a mere irregularity"' The point of the irregularity bang curable was also taken before the High Court but the Court did not agree with it. I have already dealt with this question that this is at most a curable irregularity and no more need be said about it. But the other question whether rule itself was justified by the Order or applied to the present case remains to be considered since this point was urged before us also by the learned counsel for the appellant on the basis of this last authority.
55. Prohibition Officer as defined in Article 2(k) means the Collector or any officer appointed or invested with powers under Article 21.
56. Article 21 is reproduced for facility of reference : "21. Appointment of Officers.-The Provincial Government may, from time to time, by notification in the official Gazette,-
(a) appoint an officer to exercise all the powers of a Collector under this Order in any area specified in the notification and to have the ' control of the administration of the provisions of this Order in such area 4b) appoint officers with such designations, powers and duties as the Provincial Government may think fit to assist the Collector or other Prohibition Officer ; and
(c) delegate to any Prohibition Officer all or any of its powers under this Order."
A joint reading of Article 2 clauses (c) and (k) and Article 21 leads to the conclusion that while the Collector is to exercise powers of a Collector under the Order he may also be a Prohibition Officer or some other person may be invested in the name of Prohibition Officer with powers under Article 21.
The Provincial Government has the power to appoint Collector who as stated above is a Prohibition Officer and the power of the Provincial Government may also be delegated to the Prohibition Officer.
57. The next question is as to what are the powers of a Prohibition Officer under the Order. The first power is that where a person is to be penally proceeded against for breach of condition of a licence granted to him by the Provincial Government or the Collector. Under Article 17 the prosecution can be launched under Article 16(2) (b) only on a complaint made by or under the authority of a Prohibition Officer. Such a complaint is necessary by this specified authority only in a prosecution under section 20.
58. The next point is that the Prohibition Officer inter alia may issue search warrant on receiving information and after such inquiry as he thinks necessary if he has reasons to believe that any offence under Article 3, Article 4, Article 8 or Article 11 has been committed. Such warrants shall be for the search of any intoxicant, material, still, utensil, implement or apparatus in respect of which the alleged offence has been committed. Clause 2 of Article 22 provides for the execution of such warrants by the person entrusted with it and also confers upon the latter the power not only to search but also to detain any person or subject to the provision of clause (1) of Article 12, arrest any, person found in the place searched if he has reason to believe such person to be guilty of an offence under either of the above Articles in respect of which the search warrant was issued. Article 23 confers upon the Prohibition Officer the powers conferred on the Officer Incharge of a Police Station while conducting an investigation into a cognizable offence. The reference may now be made to Article 13 which was mainly relied upon in the later judgment of the Lahore High Court as well as by the learned counsel for the appellant before us in support of the plea that in every case in which arrest is made under section 12 the accused must be produced before the Prohibition Officer who is the only person entitled to submit a report under section 173, Cr. P. C. After investigation.
59. It is important to note that section 13 which is worded in the following manner : "Punishment for vexatious delay.-Any officer or person exercising powers under this Order who vexatiously and unnecessarily delays forwarding to a Prohibition Officer any person arrested or any article seized under this Order shall be punishable with fine which may extend to one thousand rupees." ' provides for punishment of a person or Officer exercising power under this Order if he vexatiously and unnecessarily delays forwarding to a Prohibition Officer inter alia any person arrested.
60. In order to interpret this section it is necessary to find out in the parent legislation any provision regarding the circumstances in which any arrested person is to be produced before the Prohibition Officer. The provision of section 13 otherwise will be extremely ambiguous and even anomalous.
61. Now the only provision which allows the Prohibition Officer to take initiative or action is the provision of Article 22(2) under which a person entrusted with the execution of a search warrant issued by a Prohibition Officer is also invested with the powers of arrest subject to the provision of section 12(1). It follows without any possibility of doubt that the report of execution of the search warrants as well as the person so arrested must be produced before the person issuing the warrant whose future responsibility and future action is guaranteed by the conferment on him by Article 23 of powers of an In charge of police station regarding investigation of a cognizable offence. Naturally in such circumstances the report under section 173 shall be sent by the Prohibition Officer to the competent Magistrate either for, trial of the matter himself or, in case of the jurisdiction of the Sessions Court being exclusive, to transfer the case for trial to that Court. It is in this sense only that the provision of rule 6 could be justified. Even in the absence of that rule the procedure in a case in which the warrant under section 22 is issued either by a Collector (since he is also a Prohibition Officer) or by the Prohibition Officer, the procedure will be the same. This is actually the power which is sought to be clarified in the rules to be framed under section 31.
62. In view of what has been stated rule 6, even if in existence would not have been applicable to the present case in which the arrest was not the result of a search warrant. However, if it is given an extended meaning to include this category of cases also it would be ultra vires of the Order in view of the provision of Article 27 which applies the provisions of the Code of Criminal Procedure mutatis mutandis in respect of cases under the Order because in such a situation,' except in case of arrest which is the result of issue of the search warrants, in all other cases the powers of the officer in charge of a police station remain intact to be exercised as contemplated by sections 54, 154 and 155 of Cr. P. C.
63. This disposes of all the objections of ,the learned counsel for the appellant. The result is that the conviction is maintained.
64. The learned Magistrate has given the maximum sentence of imprisonment i,e, three years R. I.
This appears to be excessive in the circumstances of this case. The appellant shall suffer imprisonment of one year R.
1. And 30 stripes. As ordered by the learned Magistrate the sentence of stripes shall be executed at the Iqbal Stadium, Faisalabad. . Sentence reduced. 1968 P Cr. L J 97 AIR 1932 Born. 610 I L R 13 Rang. 130 I L R 142 Kar. 94 PLD 1964 Kar. 381 1 L R 27 Cal. 144 I L R 31 Born. 438 I L R 50 Born. 344 A 1 R 1930 Bom. 491 2 3 4 5 6 7 8 9 1968 P Cr. L J 97 1969 P Cr. L J 598 PLD 1964 Kar. 381 PLD 1967 Pesh. 191 1968 P Cr. L J 1935 1969 P Cr. L J 789 PLD 1981 Lah. 60 PLD 1952 Bal. 5 PLD 1961 Lah. 175 AIR 1947 P C 67 PLD 1959 Lab. 715 1968 P Cr. L J 263 PLD 1966 SC 178 PLD 1950 Bal. 7 PLD 1979 SC 741 1968 P Cr. L J 97 PLD 1959 Lah. 851 AIR 1928 Lah. 66 AIR 1920 Mad. 865 PLD 1976 Lah. 53 PLD 1958 Dacca 165 PLD 1960 Kar. 204 AIR 1955 SC 196 PLD 1960 SC 265 PLD 1959 Lah. 186 PLD 1967 Lab. 176 PLD 1967 SC 425 1972 SCMR 173 1982 P Cr. L 131 PLD 1981 Lah. 448 NLR 1982 Criminal 212