JUDGMENT IFTIKHAR MUHAMMAD CHAUDHARY, J.- Appellant Dad Muhammad son of Shambay and Muhammad Hanif son of Dad Muhammad, being father and son respectively have been convicted and sentenced under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979, to suffer two years R.I. And to pay fine of Rs. 10,000/- and in default to further suffer three months S.I. Each, by the Sessions Judge, Mekran Division at Turbat, vide Judgment dated 20th August, 1995, as such, instant appeal has been filed challenging the conviction and sentence with the prayer of their acquittal.
2. It is the case of prosecution that on 11th September, 1992, at 3.45 p.m. PW-Dr. Aftab Ahmad, A.S.P.
Gwadar lodged an FIR (Ex, PW/3-B) that in pursuance of a secret information against appellants about their indulging in the business of wine a raid under the supervision of S.D.M. Gwadar Dr. Tanveer Ahmad Qureshi and Tehsildar Muhammad Khan and public witness Muhammad Ghafoor son of Washdil was conducted in the residential house of appellants, fromwhere, vide recovery memo. Ex.PW/1-A, following quantity of liquor/wine was recovered:- J*l?l(Claymore) J}492(Helaeken) 3)
On completion of investigation appellants were challaned in the Court of Sessions Judge to answer the charge. As they did not plead guilty therefore, prosecution to substantiate the accusation examined Fazlur Rehman, Noor Bakhsh, Mir Bilal, Dr. Aftab Ahmed, Liaquat and Moula Bakhsh.
Thereafter statements of both the appellants under sections-342 and 340 (2) Cr.P.C, were recorded, wherein they alleged their false involvement in the commission of offence.
3. On the conclusion of trial, vide impugned Judgment appellants were convicted and sentenced as it has been specified here in above.
4. Mr. Tahir Muhammad Khan Advocate,appeared on behalf of appellants whereas Mr. Ali Ahmad, Advocate, represented the State.
5. Appellant's counsel contended that prosecution allegedly recovered whisky and beer from the house of appellants which was not a public place therefore, it being a non-cognizable offence, according to Article-16 of the Hadd Order, 1979, police was not competent to take cognizance of offence and also to register case under Articles-3 and 4 of the Hadd Order 1979. Thus, the trial is also liable to be vitiated, as it is held in 1988 P.Cr.L.J. 591 and 1984 SCM R-695.
6. The State Counsel stated that the trial court was competent to proceed against the appellants therefore, on account of a procedural defect in the investigation of case, whole trial cannot be vitiated. He also contended that S.D.M, and Tehsildar of the area were present duririg the raid by police in the house of appellants therefore, it would be presumed that search in their house was conducted with the permission of Magistrate, as it is provided under Article-22 of the Hadd Order,1979 and in the circumstances there was no necessity of obtaining search warrants by police before entering the house of appellants.
7. According to prosecution raid was conducted by police under the supervision of SDM and Thesildar in the house of appellants. It is an admitted fact that dcwelling house is not a public place as it has been defined under Article 2(L) of Prohibition (Enforcement of Hadd Order 1979).
However the presence of Magistrate indicates that police entered in the house with their prior permission and there was no necessity to obtain formal warrants of search from Magistrate.
Additionally such defect in investigation is curable under section-537, Cr.P.C. This aspect can also be examined from another angle i.e. At the best it can be presumed that prosecution has violated sub-section (2) of section-155 Cr.P.C, as the investigation in a non-cognizable case was conducted without obtaining orders from a Magistrate, but the trial of a case for this reason alone cannot be held to be void, because in such situation, the report/challan submitted by police before the Sessions Judge, competent to try the case would be treated as a complaint falling within the mischief of section-190 (1) Cr.P.C. Since there is no objection on the jurisdiction of Sessions Judge to try the case under Articles-3/4 of the Prohibition (Enforcement of Hadd) Order, 1979, in respect of an offence committed by them, at a place which does not fall within the definition of a public place, therefore, the argument raised by learned counsel has no force.
8. In forming above view I am fortified with AIR 1995 SC 196, relevant para therefrom is reproduced hereinbelow:- "The question then requires to be considered whether and to what extent the trial which follows such investigation is vitiated. Now, trial (Iftikhar Muhammad Chaudhary, J) follows cognizance and cognizance is preceded by investigation. This is undoubtedly the basic scheme of the Code in respect of cognizable cases. But it does not necessarily follow that an invalid investigation nullifies the cognizance or trial based thereon. Here we are not concerned with the effect of the breach of a mandatory provision regulating the competence or procedure of the Court as regards cognizance or trial. It is only with reference to such a breach that the question as to whether it constitutes an illegality vitiating the proceedings or a mere irregularity arises.
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 legaj police report is the foundation of the jurisdiction of the court to take cognizance.. Section 190, Cr.P.C.Is one out 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. t These latter sections rcgulate 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) (b) 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 an invalid report may still fall either under Clause (a) or (b) of Section 190(1). (Whether it is the one or the other we need not pause to consider) and in any case cognizance so taken is only in the nature of error in a proceeding antecedent to the trial. To such a situation Section 537, Cr.P.C, which is in the following terms is attracted: "Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered on appeal or revision on account of any error, omission or irregularity in the complaint, summons, warrant, charge, proclamation order, judgement or other proceedings before or during trial t>r in any enquiry or other proceedings under this Code, unless such error, omission or irregularity, has in fact occasioned a failure of justice."
If, therefore, cognizance is in fact taken, on a police report vitiated by the breach of a mandatory provision relating to investigation, there can be no doubt that the result of the trial which follows it cannot be set aside unless the illegality in the investigation can be shown to have brought about a miscarriage of justice.That an illegality committed in the course of investigation does not affect the competence and the jurisdiction of the Court for trial is well settled as appears from- the cases in- 'Prabhu v. Emperor', AIR 1944 PC 73 (C) and-Lumberdar Zutshi v. The King, AIR 1950 PC 26 (D).
These, no doubt relate to the illegality of arrest in the course of investigation while we are concerned in the present cases with the illegality with reference to the machinery for the collection of the evidence.This distinction may have a bearing on the question of prejudice or miscarriage of justice, but both the cases clearly show that invalidity of the investigation has no relation to the competence of the Court. We are, therefore, clearly, also, of the opinion that where the cognizance of the case has in fact been taken and the case has proceeded to termination, the invalidity of the precedent investigation does not vitiate the result, unless miscarriage of justice has been caused thereby."
Thus in view of above discussion the Judgment cited by Mr. Tahir Muhammad Khan Advocate (1984 SCM R 695) is distinguishable from the facts of the case in hand. It is to be noted that Hon'ble Supreme Court actually examined the implications of rule-6 of Punjab Prohibition (Enforcement of Hadd) Rules, 1979, keeping in view the offences committed under Articles-11 and 12 Prohibition (Enforcement of Hadd) Order, 1979. Whereas in the case of Mukhtar alias Karo Vs. The State (1988 P.Cr.L.J.591) the learned Single Judge in Lahore High Court, with utmost respect, had not taken into consideration the effect of section 155 (2) Cr.P.C, concerning the investigation conducted by police in a non-cognizable case. It was also not considered in the said judgment that on a report by police into non-cognizable offence court having jurisdiction to try the case can treat it as a complaint. Thus it was also held that merely for the reasons that police was not empowered to investigate the matter, accused involved in a criminal case cannot be exonerated from the charge therefore, for these reasons, the rule discussed in the cited judgment cannot be made applicable on this case. It was also contended by Mr. Tahir Muhammad Khan Advocate, that assuming offence was cognizable, then without obtaining search warrants under Article 22 of the Hadd Order, 1979, the raid conducted by police in the house of appellant was illegal.
9. Suffice it to observe that in the instant case,with a view to preserve the privacy of inmates of the house PW-Aftab Ahmad, A.S.P, stated that the raid was conducted in the house in presence of Dr. Tanveer Qureshi SDM and (Iftikhar Muhammad Chaudhary, J)
Muhammad Khan, Tehsildar, Gwadar. From where a huge quantity of liquor was recovered, therefore, in my opinion due to presence of a Magistrate, nonobtaining of search warrants from the Illaqa Magistrate was not fatal in the circumstances of case.
10. Learned counsel Mr.Tahir Muhammad Khan next contended that alleged recovered articles were not sealed at the spot, in order to despatch them for the report of Chemical Analyser, therefore, in view of 1986 P.Cr.L.J, 1506, the appellants are entitled for acquittal.
11. Learned State counsel stated that Chemical Analyser has submitted report Ex.PW/6-B, which indicates that five bottles were sent to him which were found containing alcohol. Therefore, no benefit in this behalf can be extended to appellants.
12. First of all it is to be seen that under Article 59 of the Qanoon-e- Shahadat Order, 1984, the Court is empowered to seek Expert's opinion when it has to form an opinion upon the point of foreign law, or of Science or Art or as to identity of hand writing or finger impression to determine the question of relevant fact. In the instant case, during cross-examination on the statement of prosecution witnesses particularly PW-Fazlur Rehman, Noor Bakhsh and Dr. Aftab Ahmad, it has not been disputed that liquor was not recovered from the house of appellants. Additionally as per the contents of recovery memo Ex.PW/1-A recovered articles were sealed at the spot by the SHO, but prosecution could not produce SHO Muhammad Hussan because during trial he got paralysed therefore, to identify his signatures PW-Murad AS1 who worked with him was examined.
13. The Chemical Analyser's report indicates that five bottles of whisky of different trade mark were sent for his report. However, it is not indicative from the contents of report whether samples sent to him were separately sealed or otherwise. Therefore, on account of this discrepancy, it is not safe to rely upon the said report. Since the prosecution had brought on record the report of Chemical Analyser which would mean that assistance of Expert's opinion in this behalf was necessary, irrespective of the act that defence had not alleged that liquor was not recovered from the possession of appellant. But as per the contents of recovery memo fact remains that recovered articles were sealed at the spot therefore, in my opinion it would be in the interest of justice to remand the case to trial court for obtaining report of Chemical Analyser on arranging to send him sealed samples at least five bottles from each kind of liquor and thereafter on receiving the report appellants will also be examined under section 342, Cr.P.C, to confront them with the contents of report with opportunity to them for making statements on oath and also to lead evidence in defence, if desired by them.
14. For the foregoing reasons, the impugned Judgment is set aside, case is remanded to trial court to the extent of recording fresh evidence of Chemical Analyser after obtaining his expert opinion, in view of the observations made herein-above and then to re-write the judgment.
15. The appellants shall be at liberty to move application for their release on bail, if so desired by them before the trial court. If such application is moved, that shall be dealt with independently without having been influenced from the observations made hereinabove.