' The appellant was convicted by the learned Sessions Judge, Kasur, under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979, vide his order dated the 27th of June, 1988, and sentenced to two years' R.I., with whipping numbering ten stripes and a fine of Rs,2,000. In default of payment of fine he was to suffer three months' R.I. Further. He has challenged the conviction and the sentences through the present appeal.
2. The occurrence took place on the 6th of October, 1987 at 8-00 a.m. The complainant Ghulam Bari, S.H.O. P.W.1 along with police officials and Muhammad Jamal Din, Excise Inspector were present at Chowk Shaheedan, Kasur, when the present appellant while under arrest disclosed that he had placed some more heroin in his `Khata' of power loom and that the same he could get recovered. Consequently, he took the police and the Excise party to the stated place where he got recovered from small window a polythene envelope containing 12 grams of heroin. A sample of two grams was taken for chemical analysis and the two quantities were sealed into separate parcels.
Subsequently, the sample parcel was sent to the Chemical Examiner whose result thereon Exh.P.D.
Was that it contained heroin. A case was registered on the day of occurrence at 6-45 p.m. By Imdad Hussain, M.H.C. P.W.2 on a report lodged by Ghulam Bari, P.W.1.
3. The prosecution produced at the trial five witnesses in support of its case, Imdad Hussain, M.H.C.
P.W.2 deposed that he recorded the first information report on the complaint received by him and also kept parcels in his safe custody. Pervaiz Iqbal, Foot Constable, P.W.5 deposed that he received the sample parcel from Imdad Hussain, M.H.C. P.W.2 and took it to the Chemical Examiner. On merit the case of the prosecution is supported by Ghulam Bari, S.H.O. P.W.1, Niaz Ahmad A.S.I. P.W.3 and Jamal Din, Excise Inspector, P.W.4. They were all members of the raiding party. They had heard the appellant volunteer to get recovered the contraband material and later did so in their presence.
4. The appellant in his statement under section 342, Cr.P.C. Denied the allegation made against him and stated that he was innocent and involved due to enmity. He, however, did not explain the same. He also produced three defence witnesses. All the D.Ws. Stated that the appellant did not own any power looms at the time of occurrence. It was further stated that he was a person of good character.
5. The learned counsel has taken me through the entire evidence on the record but is not in a position to point out any conflict, contradiction or discrepancy which might help his client. He then raised a technical objection saying that as the offence under Article 4 was not cognizable by the police when committed at a place which is not public, the investigation, prosecution as well as the conviction is bad in law. He relied on 1983 P Cr. L J 102 and 1968 P Cr. L J 97 in support of his case.
6. In Mst. Mumtaz Begum and 4 others v. The State 1968 P Cr. L J 97 where the trial was being conducted by a Magistrate on a complaint by a Police Officer in respect of a non-cognizable case, a learned Single Judge of the High Court quashed the proceedings. The view expressed was that the investigation done by the Sub-Inspector, without obtaining permission of the Magistrate could not be the basis of a report, and could neither be called a complaint under clause (a) of section 190, Cr.P.C. Another learned Single Judge in Hussain Javeri v. The State 1983 P Cr. L J 102 also quashed the proceedings lodged under Article 4 of the Sind Prohibition Ordinance, 1978. It will be seen that one of these cases had matured in conviction and was yet at the trial stage so as to cure the illegality. A similar view was taken in Muhammad Rashid v. The State PLD 1964 (W.P.) Kar. 381 by another learned Single Judge. In all the above cases the proceedings were before the trial Courts which he were quashed.
7. The other view taken by a Division Bench in Mst. Sadan v. The State PLD 1965 B.J. 12 is as under:- "The investigation by the police is an antecedent proceeding. It does not serve as the foundation stone not as a sine qua non of a valid trial in Court. A Police Officer, who investigates an offence which 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 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."
8. A learned Single Judge of the High Court in Muhammad Aslam v. The State 1980 P Cr. L J 742 after surveying almost the entire case-law on the point, made the following observations:-- "I now turn to the submissions made by the learned counsel for the petitioner and the State as regards the question whether the investigation of a non-cognizable offence by a Police Officer not authorised under section 155(2), Cr.P.C. To do so, prevents the Court from taking cognizance of the offence on the report submitted by such officer or renders the subsequent trial illegal. I need not labour on those questions as they have been decided by a Division Bench judgment of the High Court of West Pakistan in Mst. Sadan v. The State PLD 1965 B.J. 12, which judgment is binding on me.
In this authority, it was held that a police report in a non-cognizable offence, which the Police Officer had not been duly ordered by a Magistrate to investigate could be treated as a report falling under clause (b) of subsection (1) of section 190 of the Criminal Procedure Code or, in the alternative, as a complaint, falling under clause (a) of subsection (1) of the same section. It was also held in this case that the mere irregularity in the investigation of the case by the Police Officer who was not authorised to investigate the same did not affect the legality of the trial. The Crown v.
Mehar Ali PLD FSC 106 was also followed in this respect. The two rulings cited by the learned counsel for the petitioner, namely Mst. Razia v. The State 1977 P Cr. L J 328(1) and Muhammad Yaqub v. The State 1978 P Cr. L J 812, do not, therefore, correctly lay down the law. In Mst. Razia's case, which is a Single Bench judgment of this Court, the attention of the learned Judge was not drawn to Mst. Sadan's case. Likewise in Muhammad Yaqoob's case, which is a Single Bench decisions of the Sind High Court, the attention of the learned Judge was not drawn either to Mst.
Sadan's case or to the other decisions of that Court e.g. Shah Abdul Majid v. The State PLD 1958 Kar. 86, Walizad v. The State PLD 1960 Kar. 244 and Manu v. The State PLD 1964 Kar.
34. Therefore, following the view taken in Mst. Sadan's case, I hold that the challan by the Police Officer per the present case can be treated both as a report of a Police Officer or a complaint under clause (b) or clause (a) of subsection (1) of section 190 of the Criminal Procedure Code and that the cognizance of the same by the Magistrate cannot vitiate the trial before him."
9. The Indian Courts also, on the same point, have taken the same view in AIR 1959 All.
82. Relying on AIR 1955 SC 1% it was held that even if the investigation is defective or illegal, cognizance could still be taken by the Magistrate under section 190 of the Code of Criminal Procedure. The observations of the Supreme Court relied upon were as under:-- "A defect or illegality in investigation, however serious, has no direct bearing on the competence or the procedure relating to cognizance or trial. No doubt a 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."
' Again, in AIR 1964 SC 231, the Court observed that though no Police Officer of the rank of Deputy Superintendent of Police should investigate under section 5(a), yet if there was conviction the irregularity or illegality in the matter of investigation could be relied upon if it was shown that any prejudice had been caused to the accused in his defence.
10. I am in respectful agreement with the D.B. View taken in the case of Sadan referred to in para. 7 above. The fact whether an offence is cognizable or not is directly concerned with the source of power authorising the police to investigate or to refrain from it. So if a Police Officer investgiated a non-cognizable case without an order from a Magistrate etc., he commits an illegality which may expose him to offences like trespass, assault, illegal confinement etc. Again, his report to the Magistrate does not oblige the Magistrate to take cognizance. A Magistrate, on the other hand, has other basis also as given in section 190 to take cognizance of a case and, therefore, to proceed to try the case not on basis of a police report or the facts of investigation but the sworn testimony before him of the witnesses. Thus it was rightly held in the case of Mst. Sadan and Muhammad Aslam that investigation has nothing to do with the jurisdiction or the authority of the competent trial Court to decide a criminal case. But if it is shown that the accused was in any way prejudiced in the circumstances of a case because of that illegal investigation an interference will be justified.
The higher Courts may also in appropriate cases interfere at the trial stage to correct any illegality or irregularity which might prejudice the rights of the accused.
11. The learned counsel referred to section 103, Cr.P.C. And stated that as its requirements were not fulfilled the conviction is bad in law. Undoubtedly, section 103 provides a very important safeguard for the accused persons against the possible chicanery and concoction on the part of delinquent Investigation Officers but according to the established position of law mere non-compliance of it does not vitiate the proceedings. A Division Bench of the Lahore High Court in Mala etc. v. The State PLD 1964 (W.P.) Lah. 58 held that the mere fact that the recovery witnesses did not belong to the locality would not vitiate the trial. Thus the defence in order to succeed must show that there was either miscarriage of justice or the accused was prejudiced in his trial or defence.
12. In the case in hand the Khata' was not searched by the police. The evidence on the record rather is that the accused himself recovered the contraband material from a window of his house and produced it before the P.Ws. Who had accompanied him. No contradiction or discrepancy in the statements of the P.Ws. Is there. In this view of the matter, no interference is called for.
13. The result is that there is no merit in this appeal and the same is, therefore, dismissed.