JUDGMENTGUL MUHAMMAD KHAN, CJ.--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.L, with whipping numbering ten stripes and a fine of Rs. 2,000/-.In defauIt of payment of fine he was to suffer three months'RJ., further. He has chalIneged the conviction and th$ 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 herkw < I 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 get recovered from small window a polythene envelope containing 12 grams of heroinA sample of two grams was taken for chemical analysis and the two quantities were sealed into separte parcels. Subsequently, the sample-parcel was sent to the Chemical Examiner whose resuIt thereon Ex.PD, was that it contained heroin. A case was registered on the day of occurrence at 6.45 P.M., by Imdad Hussain, MHC, P.W.2 on a report lodged by Ghulam Bari, PW.1.
3. The prosecution procduced at the trial five witnesses in support of its case. Imdad hussain, MHC, PW.2 deposed that he recorded the first information report on the complaint received by him and also kept parcels in his safe custod\. Pervaiz Iqbal. Foot Constable, P.W3 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., PW.1, Niaz Ahmad, A.S.L, P.W.3 and Jamal Din Excise Inspector, PWA. 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 theirpresence.
4. The appellant in his statement under set ion 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 helpt 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 isnot public, the investigation, prosecution as ewll as the conviction is bad in law. He relied on 1983 P.Cr. LJ 102 and 1968 P.Cr. LJ. 97 in support of pis case.
6. In Mst. Mumtaz Begum and 4 others Vs. 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-congnizable case, a learned single Judge of the High Court queshed the proceedings. The view expressed was that the investigation done by the Sub-Inspector, without obtaining permissin of the Magistrate could not be the basis of a report, and could neither he cafied a complaint under clause (a) of section 190 Cr.P.C. Another learned single Judge in Hussain Javeri Vs. The State ( 1983 P.Cr. LJ.
102)also queshed the proceedings lodged under Article 4 of the Sind Prohibition Ordinance 1978. It will be semi that one of these cases had matured in conviction and were yet at the trial stage so as to cure the illegality. A similar view was taken m Muhammad Unhid Vs. The State ( PLD 1964 (FW)
Kar. 381 by another learned single Judge. In all the above cases the proceedings were before the trial Courts which were quashed.
7. The other view taken bya Division Bench in Mst. Sadan Vs. The State ( PLD 1965 Bagbdad-UWadid 12 is as undert- 1116 investigation by the police is an antecedent proceeding.
It dose not serve as the foundation-stone not as a sine que nonof a valid trial in Court A Police Officer, who investigates mi offence which hw is not empowered fo investigate or makes an arrest where he is not st> empowered may find himself in difficuIty during investigation if he is defied or resisted, and the law may not give him any protection, or he ay make himself lible to criminal or civil action in certain circum-stances, but k is difficuIt to see why this disability should attach kesif to the proceedings in Court prevent a Court of law from taking cognizance of the offence on a report submitted by hum under clause (a) or (b) of section 190 of dm Code of Criminal Procedure or prevent a Court from assessing &e value of evidence placed before k in the absence of atiOar canctment, express or implied, preventing the Court from doing so.Theere isnothiag 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 outsed 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 Vs. The State (1980 P.Cr.LJ. 742) after surveying almost the entire case law on the point, made the following observations:- "I now tum 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 question as they have been decidedby a Dicision Bench judgment of the High Courtof west Oakistan in Mst. Sadan vs. The State (1), 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 couls be treated as a report falling under clause (b) of sub-section (1) of section 190 of the Criminal procedure Code or, in the aIternative, as a complaint, falling under clause (a) of subsection 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 effect the legality of the trial. The Crown v. Mehar Ali(2) was also followed in this respect. The two rulings cited by the learned counsel for the petitioner, namely, Mst. Razia v. The tate and Muhammad Yaqub v. The State (3), do not, therefore, correctly lay down the law, In Mst. Raziz's case, which is a Single-Bench judgment of this Court, the attention of the learned Judge was not deawn to Mst. Sadan.s case. Likweise, in Muhammad Yaqoob^ case, which is a Single Bench decision of the Sind High Court, the attention of the learned judge was not drawn either to Mst. Sadan's case or to the other decision of that Court e.g., Shah Abdul Majid v. The State (4), Walizad v. State (5) and Mami V. The State (6). Therefore, following the view taken in Mst.Sadan's case, I hold that the challan by the police officer in the present case can be treated both, as a report of a police officer or a complaint under clause (b) or clause (a) of sub-section (1) of section 190 of the Criminal procedur Code and that the cognizance of the same by the Magistrate cannot viriate the trial before him."
9. The Indian Court also, on the same point, have taken the same view in AIR 1959 Allahbad 82.
Relying on A.I.R 1955 S.C. 196 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 on direct bearing on the competence or the procedure relating to cognizance or trial. Nodoubt a police report which resuIt from an investigation is provised 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 S.C. 231, the COurt observed that though no police Officer at the rank of Deputy Superintendent of police should investigate under section 5 (a), yet if there was a 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.o.View taken in the case of Sadan referred to in para 7 above The fact whether an offence is cognizanle 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 investigated a non-cognisable case without an order from a Magistrates etc. The commits an illegality which may expose him to offences like trespass, assauIt, illegal confinement etc. Again, his report tothe Magistrate dose not oblige the Magistrate to take cognisance. A Magistrate, on the other hand, has other basis also as given in section 190 to take cognisance 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 compent 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 mil be justified. The higher Courts may also in appropriate cases interfere at the trial stage to correct any illegality or irregujarity which might prejudice the rights of the accused.
11. The learned counsel the 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 te possible chicanery and concoction ont he 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. Vs. 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 sefence.
12. In the case in hand the 'khata' was not serached by the police. The evidence on the record rather is that the accused himself recovers the contraband material from a window of his that and produced it before the PWs who had accompanied him. No. Contradiction discrepancy in the statements of the PEs is there. In this view of the matter, on interefer is called for.
13. The resuIt isthat there is no merit in this appeal and the same is, therefore, dismissed.