' IBADAT YAR KHAN, J.---This is an appeal against acquittal filed by the State against five respondents, who were prosecuted by the police of Toba Tek Singh for offences under Articles 3, 4 and 11 of Prohibition (Enforcement of Hadd) Order, 1979 (hereinafter referred to as the said Order) and were sent up for trial to the Additional Sessions Judge, Toba Tek Singh. The learned Judge has acquitted them without recording any evidence on the ground that the investigation of the case and prosecution of respondents by the police was unauthorised and illegal, because in the circumstances of the case the offences alleged to have been committed by them were non- cognizable and as such could not be investigated by the police. This order of acquittal was passed under section 265-K, Cr.P.C. We have to examine in this appeal whether this order of acquittal is based on a proper interpretation of the relevant provisions of law. But before we could proceed to examine the merits of this order a preliminary point has been raised that no appeal lies to this Court against an order of acquittal. In support of this contention proviso (2) of Article 27 of the said Order has been relied upon. This proviso runs as under:-- "Provided further that an offence punishable under Article 8 shall be triable by a Court of Session and not by a Magistrate authorised under section 30 of the said Code and an appeal from an order under that Article or from an order under any other provision of this Order which imposes a sentence of imprisonment for a term exceeding two years shall lie to the Federal Shariat Court."
2. It was contended that unless an order of conviction imposing a sentence of imprisonment for a term exceeding two years is recorded, no appeal should lie to the Federal Shariat Court. This argument overlooks the basic fact that this Court is a creation of not any statute but of the Constitution and the powers of review conferred on this Court by Article 203-DD of the Constitution to review cases falling under the purview of the Hudood laws are extensive and without any fetters.
For ready reference this Article may be reproduced below:- "203-DD.(1) The Court may call for and examine the record of any case decided by any Criminal Court under any law relating to the enforcement of Hudood for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed by, and as to the regularity of any proceedings of, such Court and may, when calling for such record, direct that the execution of any sentence be suspended and, if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record."
' Further, power of enhancement of the sentence has also been conferred on the Court by clause
(2) of this Article subject, of course, to a notice to the person concerned to show cause against such enhancement.
The objection regarding the jurisdiction of the Court to entertain the revision has no merit and we now proceed to examine the impugned order on merits.
3. Before examining the technical merits it is better to have a look on the broad facts of the case.
4. On receiving information that the respondents were dealing in the sale of narcotics and for this purpose were using a car No, 4270/LHE owned by one of them; and on the day of occurrence they had gone to purchase large quantity of charas and heroin from District Jhang, the S.H.O. Police Station City, Toba Tek Singh registered a Case No, 25/88 and proceeded to arrange a `nakabandi' in the area of Chak No, 325/JB. At about 4.45 P.M. While the police party was anxiously waiting at the place of occurrence the five accused were seen coming from Jhang in the car. The car was stopped. Muhammad Azam respondent was driving the car and his four companions were occupying four different seats in the car.- On checking these persons and the car recovery of one kilo charas and 400 grams of heroin was made by the police party. It is further alleged that all the five respondents were under the influence of intoxicant at the time when they were apprehended.
After following usual formalities, which it is not necessary to elaborately describe here, the police party finding them culpable under Articles 3, 4 and 11 of the said Order challaned them and sent them up for trial to the learned Additional Sessions Judge, Toba Tek Singh.
5. Before recording of the evidence began an objection was raised before the Court that the recovery has been made from a car and a police officer could not take cognizance of any offence without applying for and obtaining permission from a "Collector, Prohibition Officer or a Magistrate" authorising him to carry out a search for recovery of the narcotic. In support of this contention Article 16 was relied upon to show that offences falling under Articles 3, 4, 8 and 11 of the said Order would be cognizable offences only if committed at a 'public place'. It was contended that motor car being a vehicle has been described as a 'place' in the definition clause 2(j) of the said Order and as such would not be a 'public place' within the meaning of Article 2 clause (1) of the said Order. It would be profitable to reproduce the relevant portion of Article 16 of the said Order:--- "16(1) The following offences shall be cognizable, namely:
(a) an offence punishable under Article 3; and
(b) an offence punishable under Article 4, Article 8 or Article 11, if committed at a public place."
' It was urged that car (vehicle) falls under clause 2(j) and it is to be termed as a "place and not a "public place". As such the offence would be non-cognizable. The police had no jurisdiction to conduct any investigation. It was further contended that the Court could not proceed to entertain the case and conduct the trial on the basis of an illegal investigation. This argument carried favour with the learned Judge and he acquitted the accused giving rise to a grievance to the State resulting in this appeal against acquittal. Relevant portion of the impugned order is reproduced below:- "All the accused were found in possession of intoxicant while they were travelling in a car. They were found under the influence of intoxicant when they were present in the car, which was only a place and not a public place. So the offences committed by the accused were non-cognizable as laid down in section 16 of Offence of Prohibition (Enforcement of Hadd) Order 1979 and no investigation could be done in the case and for that reason all the proceedings against the accused are nullity as held in the judgment referred above. As a consequence the application filed on behalf of the accused for their acquittal under section 265-K, Cr.P.C. Is accepted because in view of the above legal position there is no probability of conviction of the accused even if whole the prosecution case is admitted."
6. Syed Iftikhar Hussain Shah, learned counsel for the State has called in question the validity of this order. His first contention is that Article 16(1) of the said Order consists of two parts (a) and (h).
According to the learned counsel the rider of recovery from a 'public place' is applicable to the offences falling under clause (b) and not to those under clause (a) of the Article.
7. There seems to be a force in the contention of the learned counsel, because if the intention of the legislature was to cover up Article 3 also under the rider of recovery from a 'public place' then there was no rationale for keeping Article 3 under an independent clause (a). It is apparent that all the four Articles mentioned in the two parts of Article 16 are cognizable. The split of Article 16(1) into (a) and (b) must be meaningful. The only reason appears to be that while portion (a) of Article 16(1) is free from any fetters, portion (b) is subjected to a rider "if committed at a public place".
8. Secondly the plain facts of the present case as disclosed in the FIR are that the raid was arranged and the accused were apprehended on a public road in the area of Chak No 325/JB. It would be preposterous to contend that if the I) accused is brought down from the car, the recovery from his body search would be legal, but if he remains perched in the vehicle parked in the Bazar or on the highway he would enjoy immunity from arrest, because a vehicle has been mentioned as a 'place' in the definition clause. In our opinion it is the location of the place of occurrence and not the abode on which the accused may be found perching himself which would be deciding factor.
9. Moreover, if Article 3 is closely examined it would become apparent that it primarily deals with classes of persons involved in the trade of narcotics. Search and recovery of the narcotics are of secondary considerations. It applies to the cases of improrters, exporters, transporters, manufacturers, bottlers and sellers of the narcotics and those who are trafficking in opium, coca- leaf or derivaties of these narcotics. These offenders can be arrested and prosecuted although they may not be in possession of an ounce of the narcotics or may not be present at the places or in vicinity from where the recoveries are made. If the proof of their involvement as importers, exporters, traffickers of nacotics is forthcoming through documents or other incriminating evidence they would surely be answerable in law and subject to the penal consequences postulated in Article 3 of the said Order.
10. The above considerations apart, there is another aspect of the matter, Which needs to be considered. The jurisdiction of Court to conduct an inquiry is different from the duties of a police officer conducting an investigation. The duties of the police officer to investigate are covered in the hunch of sections falling in Part V of Chapter XIV of the Cr.P.C. On the other hand the jurisdiction of a Court to conduct an inquiry is covered by Part VI of Chapter XV of the Cr.P.C. Under section 190 Cr.P.C. It is enjoined upon a Court to take cognizance of offence: "(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a report in writing of such facts made by any police officer;
(c) upon information received from any person other than a police officer, or upon his own knowledge or suspicion that such offence has been committed."
' The Court on receiving a complaint either direct from a complainant or on a report from a police officer is hound to take cognizance and cannot shirk its responsibility by refusing to proceed with the case according to the procedure prescribed. In other words the defects in the investigation or incompetency of investigating agency to enquire into the offence would not absolve the Court from its statutory obligations of taking cognizance as enjoined by section 190 Cr.P.C. The facts of the case and the material brought before the Court through whatsoever source would he basis for the trial and not how and by whom it is brought. Unfortunately this aspect of the case remained clouded before the learned trial Judge on account of some case-law, which was produced before him and which has been relied upon in the judgment. One such case is reported in PLD 1988 Kar.
485. In this case learned single Judge of the High Court of Sindh allowing accused to be released on bail made the following observations:-- "In the instant case the applicant has been arrested as well as recovery has been made from the vehicle which has been held not to be a public place. The challan has also been submitted for the offence punishable under Article 4 of the Order, which as pointed above, is cognizable, only if committed at a public place."
' The other case is reported in 1988 P.Cr.L.J.
591. Here again the view taken was erroneous. Relevant portion is quoted hereunder:-- "In this case, the still was found working in the courtyard of the house of the petitioner which is not a public place, therefore, the raiding party could not enter the premises much less to have entered there for searching any intoxicant, material, still, utensils, etc. Or for arresting the persons found present there. To my mind, therefore, the search of the house of the petitioner without warrant was illegal and consequently the utensils seized and arrests made from there were automatically vitiated. It may be further observed that the facts of the case did not constitute a cognizable offence, therefore, it could not be investigated without obtaining permission of a Magistrate, as enjoined by section 155(2) Cr.P.C. The proceedings initiated on the basis of illegal investigation are further found to be nullity in the eye of law. For the foregoing reasons this petition is accepted, conviction and sentence of the petitioner is set aside and he is acquitted."
11. It is a pity that in none of these cases the attention of the Court was drawn to a chain of authorities of the superior Courts both in India and Pakistan where the view taken in these judgments has not been approved. The latest case in the series is a judgment from the Peshawar High Court in the case of Syed Jamal Shah v. The State, reported in 1989 P.Cr.L.J.
209. This was a case under Articles 3 and 4 of Prohibition (Enforcement of Hadd) Order, 1979, and the petitioner had applied for quashment of the pending proceedings under section 561-A Cr.P.C.
On the ground that the offence under Article 4 of the said Order were non-cognizable offence and could not be investigated by a police officer without obtaining permission of a Magistrate as prescribed by subsection (2) of section 155 Cr.P.C. There was also a bar of Article 16 of the said Order in which offence under Article 4 was classified as cognizable offence only if it was committed at a public place. Repelling these arguments the learned Judge held as under:-- "Proceeding on the assumption that the Investigating Officer had no power to investigate the case in hand, being a non-cognizable case, as provided in section 155(2) of the Code of Criminal Procedure without the order of the Magistrate 1st Class, having the power to try such case; the question that falls for consideration is whether only a valid investigation is the foundation of the validity of proceedings in a Court against an accused person and that the proceedings are to be quashed if the investigation suffers from any such irregularity. It may be pointed out that if the answer is in affirmative, it will not be a correct exposition of law inasmuch as section 190 of the Code of Criminal Procedure empowers a Magistrate to take cognisance of an offence (a) upon receiving a complaint of facts which constitute such offence; (b) upon a report in writing of such facts made by any police officer."
' It was further held:-- "Again it is well settled now that any infirmity in the investigation of a case would not render the trial of an accused person invalid. The trial Court will have to decide the case on the basis of evidence led before it and the mere fact that the agency which collected such evidence is in law not authorised to do so, should not introduce an inherent jurisdictional defect in the trial Court."
' The case of Karim Haider v. State PLD 1988 Pesh. 44 holding contrary view was dissented from.
12. The above view is supported by the following cases:-- "PLD 1955 Lah. 667; PLD 1960 Kar. (W.P) 204; AIR 1955 SC (India) 196; PLD 1956 FC 106 and PLD 1964 Kar.
34."
13. In the first case of Crown v. Nur Alam PLD 1955 Lah. 667, S.A. Rahman, J. As he then was, observed as under:-- "Even if the investigation has not been in conformity with the legal provisions of the proviso to section 3 of the Prevention of Corruption Act, it does not necessarily follow that the subsequent trial should be vitiated. The trial Court will have to decide the case on the basis of evidence led before it, and the mere fact that the agency which collected such evidence was in law not authorised to do so, should not introduce an inherent jurisdictional defect in the trying Court."
' It was further held that:-- "Presuming that the officer making the report was not duly authorised by the order of a Magistrate, his report could still he held to fall within the purview of section 190(1) (h) of the Code or, in the alternative, can be accepted as a complaint within sub-section (1) (a) of that section."
Further;-- "On this view too it is difficult to see why the jurisdiction of the trial Court should be ousted merely because the report was submitted by a police officer who was not authorised to investigate, under the proviso to section 3 of the Prevention of Corruption Act."
14. In the second case of Walizar v. The State PLD 1960 (W.P) Kar. 204, SA. Mahmud, J., expressed the following views:- "When a person accused of the commission of an offence is brought before a competent Court it is not a plea to the jurisdiction of the Court that he had been brought before it by some illegal means.
Likewise it is not a jurisdictional defect in the trial if the investigation is conducted by an incompetent officer or the matter is brought to the notice of the Court in an irregular manner. The Court is concerned with the evidence produced before it, and not how it was procured."
15. In the third case of H.N. Rishbud and another v. The State of Delhi AIR 1955 SC 196, which is a case from Indian jurisdiction, the Supreme Court of India held that:-- "A defect or illegality in investigation, however serious, has no direct bearing on the competence of 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. Section 190, Cr.P.C. Is one of a group of sections under the heading "Conditions requisite for initiation of proceedings". The language of this section is in marked contrast with that of the other sections of the group under the same heading i.e, sections 193 and 195 to 199. These latter sections regulate the competence of the Court and bar its jurisdiction in certain cases excepting in compliance therewith. But section 190 does not. While no doubt, in one sense, clauses (a), (h) and (c) of, section 190(1) are conditions requisite for taking of cognizance, it is not possible to say that cognizance on an invalid police report is prohibited and is therefore a nullity. Such invalid report may still fall either under clause (a) or (b) of section 190."
16. In the case of Crown v. Mehar Ali PLD 1956 Federal Court 106, decided by a strong Bench of the Federal Court of Pakistan, A.R. Cornelius, J., held:- "As regards the competency of the investigation, it is by no means clear that even if it could be established that the investigation by the Sindh Anti-Corruption Inspector was irregular, the result would be to deprive the Special Magistrate of jurisdiction or otherwise to affect the validity of the proceedings in the trial."
17. In the case of Manu alias Menthar and others v. The State PLD 1964 (W.P) Kar. 34, H.T. Raymond, J., reviewing a large number of cases finally came to the conclusion that omission of police officer to comply fully with provisions of section 173 does not vitiate subsequent trial or proceedings. "The jurisdiction to try is not dependent upon the report of a competent police officer. Cognizance is an act entirely different from investigation and a defect in investigation cannot originally attach itself to the validity of the cognizance taken by the Court."
18. To sum up, the position in law is that lack of authority in the investigating agency may at the most provide a cause of action to the aggrieved party against the police officer concerned, it would have no bearing so far as the trial is concerned. The trial would proceed according to law on the basis of the evidence placed before the Court for adjudication.
19. In the result this appeal is allowed and the case is remanded to the learned Additional Sessions Judge, Toba Tek Singh, for disposal on merits. The accused/respondents shall remain on bail.
However, they shall furnish fresh bonds before the trial Court.