' This judgment will dispose of the present petition as well as the connected petition (Criminal Miscellaneous 43-Q of 1991 tiled by Maqbool Ahmad, real brother of the petitioner) as common questions of law and facts are involved in both the petitions.
2. The petitioner seeks quashment of F.I.R. No,40, dated 21-1-1990 under Article 4 of Prohibition (Enforcement of Hadd) Order, 1979 registered at Police Station City Khanewal and the proceedings in the trial Court. The above case was registered against the petitioner on the allegation of recovery of 50 grams of heroin from his residential house bearing No,89, Block No,5, Khanewal. The recovery was witnessed by the police employees and not by any person of the locality.
3. The petitioner's learned counsel urged that the present case was concocted against the petitioner and his younger brother Maqbool Hussain with mala fide intentions so that they may not follow up the cases against the police officials who had tortured their real brother Shabbir Ahmad to death. He submitted that the offence being non-cognizable, no proceedings on the police report could be taken by the learned Magistrate. Lastly, he submitted that there was no possibility of the petitioner's conviction because the alleged recovery was made in violation of the provisions of section 103 of the Cr.P.C. Inasmuch as no person from the locality was cited as a recovery witness.
In support of his contentions the learned counsel placed reliance on the following judgments:--
(1) Haji Mahmood Khan Doulat Khan v. Emperor AIR 1942 Sindh 106 = 1942 IC Sindh 681.
(2) The Attorney-General of Saskatchewan v. The Attorney-General of Canada and others AIR (36)
1949 PC 190.
(3) Irshad Begum and others v. The State PLD 1961 (W.P.) Lah.
882.
(4) Bahadur v. Mudhai PLD 1963 (W.P.) Lah.
269.
(5) Hussain Bakhsh v. State PLD 1963 (WY.) Lah.
46.
(6) Muhammad Rashid v. The State PLD 1964 (W.P.) Kar.
381.
(7) Mst. Mumtaz Begum and 4 others v. The State 1968 P Cr. L J 97.
(8) Haider and 13 others v. The State 1969 P Cr. L J 598.
(9) Muhammad Yaqub v. State 1978 P Cr. L J 812.
(10) Hussain Javeri v. The State 1983 P Cr. L J 102.
(11) Mukhtar alias Karoo v. The State 1988 P Cr. L J 591.
(12) Muhammad Yameen v. State 1987 P Cr. L J 1576.
(13) Muhammad Bashir alias Doba v. The State PLD 1988 Lah.
574.
(14) Ghulam Haider Shah v. State PLD 1988 FSC 38.
4. On the other hand, the learned A.A.-G. Urged that the trial Court had the jurisdiction to try the petitioner. He placed reliance on the following judgments:--
(1) Mst. Sadan v, The State PLD 1965 BJ 12.
(2) Noor-ul-Islam v. The State 1986 SCMR 1836.
(3) Syed Jamal Shah v. The State 1989 P Cr. L J 209.
(4) Shah Jehan v. The State 1989 P Cr. LJ 2078.
5. I have carefully considered the contentions raised by the learned counsel for the parties. The first question to be examined is as to whether the offence alleged against the petitioner is cognizable or non-cognizable. In this connection the relevant provision is Article 16 of Order IV of 1979 which is reproduced below:-- "Cognizance of certain offences.-(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.
(2) No Court shall take cognizance of an offence punishable under:--
(a) Article 12 or Article 13, save on complaint made by the person in respect of whom the offence has been committed; and
(b) Article 20, save on a complaint made by, or under the authority of a Prohibition Officer.
6. A bare reading of the above provision of law clearly shows that offences under Article 4, 8 or 11 are cognizable only if committed at a public place. The argument that the expression 'if committed at a public place' used in sub-Article 1(b) of Article 16 is relatable to an offence under Article 11 has no force. Had the framers of law intended to make the offences under Articles 4 and 8 as cognizable, then those must have been mentioned under sub-Article 1(a) of Article 16. Under sub- Article 1(a) the only offence mentioned is the one under Article 3 of the Order. The offences under Articles 4, 8 and 11 mentioned in sub-Article 1(b) of the Order are cognizable only if committed at a public place. In the present case, the offence of possession of heroin (if any) was committed in a residential house which was a 'place' as defined under Article 2(j) of the Order but not a 'public place' as defmed under Article 2(1) of the Order. Hence, it was non-cognizable offence and the police had no authority to arrest the appellant without issuance of warrants by a competent Court/authority. Likewise the police was debarred to conduct investigation into the offence without the order of a Magistrate as provided under section 155(2) of the Cr.P.C. It is a settled principle of law that when law requires a thing to be done in a particular manner, it ought to be done in that manner or not at all. The provisions of section 155(2) of the Cr.P.C. Are mandatory in nature. By virtue of Article 27 of the Order, the provisions of the Code of the Criminal Procedure apply, mutatis mutandis, in respect of cases under the Order, unless a different provision is made in the Order. In the matter of search and arrest of a person the Order has made a special provision which is embodied in Article 22 and reads as under:--
22. Issue of search warrants.--- (1) If any Collector, Prohibition Officer or Magistrate, upon information obtained and after such inquiry as he thinks necessary, has reason to believe that an offence under Article 3, Article 4, Article 8 or Article 11 has been committed, he may issue a warrant for the search for any intoxicant, material, still utensil, implement or apparatus in respect of which the alleged offence has been committed.
(2) Any person who has been entrusted with the execution of such a warrant may detain and search and, if he thinks proper, but subject to the provisions 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 Article 3, Article 4, Article 8 or Article 11.
7. Thus, it is evident that in cases relating to offences under Article 3 (which are cognizable) and Articles 4, 8 and 11 (which are non-cognizable) search of a place can be made only if search- warrants are issued by any Collector, Prohibition Officer or a Magistrate upon information received and after such inquiry as he thinks necessary. It is only the person entrusted with the execution of search-warrants who may arrest any person found in the place searched, if he has reason to believe that such person was guilty of the offence under the above-referred Articles. Thus, the intention of the law is clear that a police officer on receipt of an information regarding commission of an offence under Articles 3, 4, 8 and 11 cannot search a place without search-warrants issued by a competent officer and cannot take in hand the investigation of the case in non-cognizable offences under Articles 4, 8 and 11 as provided under section 155(2) of the Cr.P.C. The object of the law is to protect the citizens from the police excesses. If the police is given the liberty to start investigation in non-cognizable offences, to arrest, the accused persons and submit a challan in the Court for trial of the accused then the distinction in cognizable and non- cognizable offences would disappear and the citizens would be exposed to all kinds of police excesses and exploitation even in non-cognizable offences. So far as the offences under Articles 4, 8 and 11 under the Prohibition Order are concerned, search-warrants for any intoxicant, material, still, utensil, implement or apparatus in respect of which the offence had been committed may be issued by a Magistrate and the other authorities specified in Article 22 of the Order. If the provisions of Article 22 are not complied with, then all actions taken by the police including recovery of prohibited articles, arrest of accused persons and investigation of the case shall be nullity in the eye of law and could not form basis of a report under section 173 of the Cr.P.C. On such a report alone, a Magistrate cannot take cognizance of the offence and try the accused persons. In Haji Mahmood Khan, Doulat Khan's case a Sub-Inspector of Police arrested the accused persons for offence under the Bombay Prevention of Gambling Act of 1887. The offences under the said Act were non-cognizable. The Police Officer raided three houses on the verbal order of the Magistrate and actually got warrants to raid two houses on the next day. He was not given the warrants in respect of the third house. On a complaint made by one Chandi Ram regarding his illegal arrest in a non-cognizable offence the Sub-Inspector was convicted for the offence under section 342 of Penal Code, and ultimately awarded sentence of imprisonment for one day. The view that a police officer has no authority to arrest a person in a non-cognizance offence without warrants issued by a competent Magistrate and to take in hand investigation of the case and submit a report to a Court finds support from the judgments in the case of Irshad Begum and others v. The State PLD 1961 (W.P.) Lah. 882, Bahadur v.
Mudhai PLD 1963 (W.P.) Lah. 269, Hussain Bakhsh v. The State PLD 1963 (W.P.) Lah. 46, Muhammad Rashid v. The State PLD 1964 (W.P.) Kar. 381, Mst. Mumtaz Begum and 4 others v. The State 1968 P Cr.
L J 97, Haider and 13 others v. The State 1969 P Cr. L J 598, Malik Zakaud Din v. The State 1971 P Cr. L J 152, Muhammad Yaqub v. State 1978 P Cr. L J 812, Muhammad Bashir alias Doba v. The State PLD 1988 Lah. 574 and Mukhtar alias Karoo v. The State 1988 P Cr. L J 591. I respectfully follow the view expressed in the above-referred judgments and hold that the arrest of the accused persons, the investigation conducted by the police and submission of report/challan in the trial Court are wholly without jurisdiction and the proceedings initiated in routine before the Court on such investigation and police report are clearly an abuse of the process of Court.
8. Even if it is conceded that a Magistrate can take cognizance of the offence on a police report relating to a non-cognizable offence, the proceedings in the present case deserve to be quashed on the ground of mala fides as well. The facts of the present case show that the petitioner has been maliciously involved in the cases to prevent him from agitating the matter regarding murder of his real brother Bashir Ahmad through police torture. In the F.I.R. It has been shown that Aziz-ur- Rehman, Inspector C.I.A. Was present in House No,89, Block No,5, Khanewal which belonged to the petitioner. It is not understandable as to how the police happened to be present inside the house.
The very entry of the police officer in the residential house of the petitioner is against the provisions of Article 22 of the Order and, also violative of the Qur'anic Injunction {{URDU TEXT}} (27 and 28 Alnoor). Apart from the above illegalities the police further failed to observe the provisions of section 103 of the Cr.P.C. Which requires that before making a search the police officer shall call upon two or more respectable inhabitants of the locality in which the place to be searched is situated to witness the search. As mentioned above, in the present case, the recovery was witnessed only by the police officers who illegally entered the petitioner's house and had a motive to rope him in the case maliciously. The action of the police appears to be tainted with mala fides. The alleged recovery of heroin, in the circumstances of the present case, cannot be legally proved through evidence of the police officers who had apparently acted with ulterior motives and mala fide intentions.
9. In Ghulam Haider Shah's case the F.S.C. Had (sic) of a person and observed that it was violative of the Queanic Injunctions. It was further held that recovery of `Charas' could not be proved without compliance of the provisions of section 103 of the Cr.P.C. In Muhammad Yameen's case the F.S.C.
Had held that the trial conducted on a police report submitted in respect of a non-cognizable offence was vitiated. A different note was struck in the case of Shah Jehan v. The State 1989 P Cr. L J 2078. It is for the Federal Shariat Court to resolve its own contradictory judgments. I have followed the view expressed in the cases of Ghulam Haider Shah (decided by the two Judges of the F.S.C.
Including its Chief Justice Mr. Justice Gul Muhammad Khan who had delivered judgment in Shah Jehan's case) and that of Muhammad Yameen which too, was decided by the two Judges of the Federal Shariat Court, which appears to be in accord with the statutory provisions, the principles of law and the Qur'anic Injunctions. In Qayyum Iqbal's case relied upon by the learned AA.-G. The Honourable Supreme Court has merely granted leave to appeal, inter alia, to consider the question as to whether an offence which is not a cognizable one can be investigated into by the police without permission of a Magistrate. Noor-ul-Islam's case relied upon by the learned A.A.-G. Is also distinguishable because in that case the offence was committed at a public place i,e. Bengali Para behind Jhoppra Hotel Block V, Federal B Area, Karachi. The accused was reportedly selling heroin at the said place, was apprehended by the police and on personal search heroin weighing 15 grams was recovered from him. These facts are given in the judgment of the Karachi High Court which is reported as 1986 P Cr. L J 1818. The question whether in a non-cognizable offence the police can arrest the accused, conduct investigation and submit challan in the Court was not involved in the precedent case. The only objection to the investigation in the said case was that it was conducted by a Police Officer who was not one of the designated officers for the purpose of clause (b) of Article 21 of the Prohibition (Enforcement of Hadd) Order, 1979. The objection was repelled by the Honourable Supreme Court by holding that an illegality committed in the course of investigation did not affect the competence and jurisdiction of the Court.
10. For the foregoing discussion, I accept this petition, quash the F.I.R. Registered against the petitioner as well as the criminal proceedings pending against him in the trial Court.