' By the present petition a case which is pending against the petitioner under section 124-A., P. P. C.
In the Court of the District Magistrate Nawabshah is sought to be quashed. The petitioner who is in custody has been represented before me by Mr. S. Rashid Ahmed and the State has been represented by Mr. Mumtaz Hussain.
2. The facts of the prosecution case briefly are that the petitioner is a Pesh Imam of Kabir Masjid in Nawabshah. It is alleged that on the 8th June 1973, he delivered a speech at the Juma prayer. This speech is according to the prosecution violative of the provisions of section 124-A, P. P. C. The speech as re-produced in the first information report is to the following effect :- "We had asked President Bhutto to enforce divine law of religion and then rule the country for the whole life. It means that there is dishonesty and fraud in your heart. If you are true then now and today enforce the Islamic Law. Why do not you enforce Constitution. We have liters, be curse upon them has stated that there would be a confederation among Pakistan, India, Afghanistan and Iran.
It is matter of shame. You are bent upon to disintergrate Pakistan. Pakistan is a Islamic country. We will not allow you to disintegrate it. You fired bullets at students and libourers, killed Dr. Nazir, pulled the beard of Maulana Tufail Muhammad, that is going on, come into senses. The power is a transitory affair. You brought scorpions in bags and buried them on public gathering, and you did not allow public meeting. In the public meetings of Gujranwala, Wazirabad and Lahore you made murderous attempt upon the leaders of U. D. F. The Deputy Commissioner Gujranwala says that the crackers were blasted in the public meeting. Be curse upon you. You speak lie You preach for Jewism, you mock at Islam. This is a despotic regime. We demanded that the President of Pakistan should resign. Otherwise there would be Civil War, and the country would go into pieces. Enforce Islamic Laws. The country is not any one's ancestors. We have sacrificed. We are not of afraid going to jail. We have grinded flour in the Lahore Jail. Do not come in the tricks of goondas and drunkards else you would meet the (ate same as of Ayub."
' Some resolutions were also passed and slogans were raised and in those slogans it was stated "Islam Zindabad, Pakistan Zindabad, Taf-e...Takhat Khatam Arabuwat Zinda bad."
3. The Government of Sind in the Home Department accorded sanction/authority to the Superintendent of Police, Nawbshah for filing a complaint under section 124-A, P. P. C. This sanction/authority reads as follows :- "Government of Sind (Home Department) Karachi dated the 16th July 1913. ' a complaint under section 124-A, P. P. C. Against the said Moulana Dost Muhammad.
' No, P13/1543 of 1973 (Sd.)
Muhammad Khan Junejo Secretary to Government of ' Dt. 26-7-1973 Sind Home Department."
' The Superintendent of Police Nawabshah on receiving the above letter of the Government of Sind dated 16th July 1973, wrote a letter to the Station House Officer, Nawabshah Town, informing the Subordinate Police Officer that the Government had sanctioned prosecution of the petitioner and a case should be registered against the petitioner under section 124-A, P. P. C. And further legal action in the matter should be taken immediately and compliance should be reported to the Superintendent of Police Nawabshah.
4. On receiving such a letter from the Superintendent of Police, Nawabshah, Mr. Noor Hussain, Station House Officer of Nawabshah Police Station registered a case against the present petitioner under section 124-A, P. P. C. On 26th July 1973. In the nature of the case no fanner investigation was necessary so that on the succeeding day viz. On 27th July 1973, the petitioner was produced in the Court of District Magistrate, Nawabshah and a challan purported to be one under section 173, Cr. P.
C. Was submitted. This challan was accompanied by the first information report. The petitioner was also produced and he was remanded to custody.
5. A bail application was preferred before the District Magistrate Nawabshah, who rejected the same and thereafter an application under section 498, Cr. P. C., which was also for bail, was made before the Sessions Judge, Nawabshah, and the same had also been rejected.
' The petitioner has thereafter Pled this quashment application and along-with the quashment application he had filed an application for bail and also for stay of proceedings. This matter came up before me on 10th September 1973, and the learned Advocate for the petitioner did not raise any argument as regards the factual aspect of the case. It was not contended before me that the petitioner had not made such a speech or that the speech did not fall within the purview of section 124-A, P. P. C. However, the learned Advocate for the petitioner had argued the case mainly on the point of maintainability of the case itself and under these circumstances Mr. Mut-raze Hussain, the learned State counsel, submitted that the decision on the point as to maintainability of the case itself would decide the main petition and therefore it would be fit and proper if the main petition itself is based at an early date. Since Mr. Rashid Ahmed also agreed, I had ordered that the main petition may be fixed for hearing within a fortnight.
6. At the time of hearing of this petition Mr. Rashid Ahmed did not canvass before me on the (actual aspect of the case. It was not his case that the petitioner had not delivered such a speech and he candidly conceded that a speech of this nature may fall within the purview of section 124-A, P. P. C. His arguments were as follows :-
(1) That the offence under section 124-A, P. P. C. Was not a cognizable offence but in the instant case it had been treated as if it was a cognizable offence and had been investigated.
(ii) That no complaint has been filed, instead the police has submitted a charge-sheet which may 1 w considered to hg either wader, ' Cr. P. C. Or 173 Cr. P. C. Or even as a report under section 190(b), Cr. P. C. But it could not be treated as a complaint. --
(iii) That the arrest of the petitioner was illegal because arrest in non-cognizable offence can be effected only by process of a Court and here in fact the police had registered the case and arrested the petitioner.
(iv) That the authorised officer to file the complaint was the Superintendent of Police but the proceedings in this case has been initiated not by the officer concerned but by the Station House Officer.
' The above questions can fairly be divided into two categories ; the first relating to the authority of the person who has initiated the proceedings and the second in regard to the maintainability of the proceedings that have been imitated.
7. Section 124-A, P. P. C. Creates an offence which is not cognizable. What is more that under section 196, Cr. P. C. a Court cannot take cognizance of an offence under section 124-A, P. P. C.
Unless upon a complaint made by order of or under authority from the Central Government or the Provincial Government or some other officer empowered in this behalf by either of the two Governments. It would thus appear that not only the investigation into an offence under section 124-A, P. P. C. Is barred but even the Court can take cognizance only after a competent authority files a complaint. The significant words in section 196, Cr. P. C. Are "upon complaint made by order of, or under authority from". These words may signify and indeed signify that the Central Government or the Provincial Government or some officer empowered in this behalf by either of the two Governments could order the filing of the complaint or authorise the filing of the same.
' The learned Advocate for the petitioner has argued that the phrase "by order of, or under authority from" is applicable only to Central Government or the Provincial Government but is not applicable to officers empowered in this behalf by either of the two Governments. In other words his contention is that while the Central Government and the Provincial Government concerned could order a person or authorise a person to file a complaint the officer who has been empowered in this behalf could not further delegate this power of filing of complaint. No case law was cited before me on that point and all that Mr. Rashid Ahmed stated was that a delegate could not further delegate his power. Whether such doctrine of delegation can be imported for interpretation of section 196, Cr. P. C. Is again a different question but it will be seen that the power to order or authorise prosecution Can be exercised by three authorities, namely, the Central Government or the Provincial Government concerned or some officer specially empowered.
Section 196, Cr. P. Code creates a clog on the taking of cognizance which can be removed only by the making of a complaint "by order of, or under authority from, the Central Government or the Provincial Government concerned, or some Officer empowered in this behalf by either of the two Governments." The use of words "in this behalf" is indeed significant and bears relation to the earlier words conferring the power of ordering or authorising the filing of the complaint. This would imply that the "officer empowered" in the last clause of the section should be an officer who may have been authorised by either of the two Governments to order or authorise the filing of complaint. It cannot be construed to include an officer who has been ordered or authorised to file the complaint. The question then is whether the Superintendent of Police, Nawabshah, had been ordered to file a complaint or the authority extended even to the extent of his further ordering the institution of proceedings by someone else. In this regard the letter of the Secretary to Government of Sind, Home Department provides sufficient means of arriving at conclusions. This letter clearly states that the Home Secretary in such capacity of functionary of the Provincial Government had in exercise of the powers under section 196, Cr. P. C. Authorised the Superintendent of Police, Nawabshah to file a complaint.
' There is another angle of view in the matter which also points to the same conclusion. The latter part of section 196, Cr. P. C. Enumerates the authorities competent to order or authorise filing of complaints. With regard to the identity of the Central and Provincial Government as authorities competent to order or authorise filing of the complaint there can be no doubt. But in regard to the third category among the authorities viz. Some officer empowered in this behalf by either of the two Governments ; two possible interpretations could be invoked. The first that such officer has been empowered to order or authorise filing of the complaint or that the authorisation has to proceed from either Government and executed by some officer. In that regard it is very plain that the Superintendent of Police, Nawabshah has no general power conferred upon him as would constitute him an authority parallel or equal in position to the Government to order or authorise the filing of a complaint. Moreover, if such power vested in the Superintendent of Police himself, no order of the Home Secretary was necessary for filing of complaint. The present order of the Home Secretary would then appear to be superfluous and incongruous in the circumstances because it would then appear as if an authority was ordering an equal authority to perform a duty. What is more that the order of the Home Secretary was a limited order confined to the filing of a single case against the petitioner and words of the order read that the Superintendent of Police was being authorised "to file a complaint". The filing of a complaint is distinct from ordering or authorising the filing of a complaint. In the present case the Superintendent of Police has misconstrued the order by directing the Station House Officer, Nawabshah, to register a case and take further legal action in the matter". Such an order could not be made by the Superintendent because he had to file the complaint himself and had no power to direct registration of a case, by the Station House Officer.
' It seems the learned Sessions Judge while dealing with the bail application of the petitioner was invited to examine this aspect of the case and he in that context adverted to the endorsement of the Superintendent of Police ; where the S. H.
0. Had been asked to register a case and take further action. The learned Sessions Judge then expressed himself in these words "It appears that the endorsement of the Superintendent of Police has been treated as a complaint on which cognizance has been taken by the learned District Magistrate."
' I would say that such expression of the Sessions Judge betrays a lurking doubt in the mind of the Sessions Judge in regard to the validity in the method of filing of complaint. However, the learned Sessions Judge proceeded to reproduce the definition of "complaint" as stated in section 49(b) of the Criminal Procedure Code and concluded that no particular form having been prescribed for a complaint, the charge-sheet, which I presume is under section 173, Cr. P. C. Accompanying a copy of the First Information Report which had earlier been drawn up by the S. H.
0. Under the orders of the Superintendent of Police ; was a proper complaint. This was s completely erroneous view in law.
At this stage I may as well consider whether the charge-sheet and the first information report could be considered to be a "complaint" within the meaning of section 4(h), Cr. P. C. Section 4(h) of the Code of Criminal Procedure reads as follows :- "Complaint means the allegation made orally or in writing to a Magistrate, with a view to his taking action under title Code, that some person whether known or unknown, has committed an offence, but it does not include the report of a police officer."
' It is patent that a complaint may be in writing or oral. If this report is considered to be a complaint in writing then the record in the case does not show that the same was signed by the Superintendent of Police. On the other hand it cannot be said to be an oral complaint, more so when the Superintendent of Police did not appear in Court. What is more than a complaint is made within a view to attract action by the Magistrate under the Code. The action that a Magistrate has to take on a complaint is to start with the issuance of process. In this case no process was issued by the District Magistrate but what had happened was that the petitioner had already b..-1 arrested by the S. H.
0. After recording a First Information Report. In fact the petitioner was produced in Court on the next day in custody. This would show that the report filed by the S. H 0. Was not within a view to invite the District Magistrate for taking action under the Code. In any case the last clause of section 4(h), Cr.
P. Code specifically states that a complaint "does not include the report of a police officer." In the present case what was produced before the District Magistrate was nothing other than a report of the S. H.
0. And for that reason also the proceedings before the District Magistrate would not be termed or deemed to be a complaint.
' On the other hand a police report has not been defined in the Code of Criminal Procedure but section 113, Cr. P. C. Does indicate as to what is the actual import or significance of such report.
Section 173(1)(a) reads as follows :- "Forward to a Magistrate empowered to take cognizance of the offence on a police-report, a report in the form prescribed by the Provincial Government, setting forth the names of the parties, the nature of the information and the names of the persons who appear to be acquainted with the circumstances of the case, and stating whether the accused (if arrested) has been forwarded in custody or has been released on his hand, and, if so, whether with or without securities."
' It would appear that neither section 4(h) nor section 173(I)(a), Cr. P. C. Speaks of an offence being cognizable or non-cognizable, but by a reference to section 155, Cr. P. C. It would appear that section 173(1)far) makes a reference to cognizable which the police could investigate.
8. It would further be a different question when the police on its own starts investigation into an offence which is non-cognizable and does not even seek permission of the Magistrate for investigation into that offence and thereafter to submit a report in the Court under section 179(1)
(a), Cr. P. C. The question that then arises is whether on such report being made the Magistrate should take action or not? There is considerable case law on the subject and for the present I may only quote a passage from the Treaties on the Code of Criminal-Procedure by B. B. Mitra (1949 Edition), at page 30, Column 2. It reads as follows :- "In K. E v. Sada 26 Born. 150 (t 57), it was held that although the word "report" was not defined in the Code, still the Legislature studiously attached the expression "police report" a peculiar meaning whenever that expression occurred, that the words "report of a Police Officer" in section (4) ( f ) and the "police report" in sections 157, 173 and 190(0 were confined to reports in cognizable cases only, and that if the Police Officer went beyond his duties and made of his own motion a report of an information of a non-cognizable case (e.g., if he laid an information of a non-cognizable offence under section 51 of the Bombay District Police Act) it was not a report but an information or rather a "complaint" within the meaning of section (4) (b). This view was also taken in Chidranburan 32 Mad. 3 (10) ; Ghulam 25, Cr. L 1 1961 ; Hardhar, 23 C W N 481 ; and Khushaldas, 6 SIR 82)".
' The above paragraph quoted from Mitra would show that even in cases of unauthorised investigation by police in non-cognizable cases and consequent reports, the proceedings or the trial would not be vitiated and the same report which is submitted by the police may be treated as a complaint. In that context I may also refer directly to a case from the Bombay High Court viz. Rustom Ardeshir Banaji v. Emperor (1). In this case of the Bombay High Court, earlier cases from the same High Court viz. Emperor v. Bhiraswami (2); Emperor v. Sada (3) and the case of Emperor v.
Banghunath (4) were referred to and considered in detail and the learned Judges while summing up their own conclusions expressed as follows :- "We, therefore, hold that even if the petitioner had been right in contending that the investigation of the present offence and the arrest of the petitioner are illegal, and that for that reason the present case does not fall under section 190(I)(b), it would not have followed that the Magistrate would have no jurisdiction to try the case. If the case had not fallen under section 190(1)(b), would have held that it falls under section 190(1)(a)."
9. In my humble view the above cases do not come near the situation existing in the present case.
Then present case does not pose a problem of defective or unauthorised investigation. In fact section 124-A, P. P. C. Being a non-cognizable offence investigation by Police cannot be done. On the other hand section 196, Cr. P. C. Impose a specific bar to the taking of cognizance unless it be on a complaint and at the instance of the prescribed authority and by a prescribed person. The non-compliance in the initiation of proceedings goes to the root of the entire matter. It is needless to restate that when law requires a particular act to be done in a particular manner all other words of performance are forbidden.
10. Mr. Murtaza Hussain for the State has however, contended that the Police report may be considered to be a report under section 190(1)(a), Cr. P. C. According to me the contention is fallacious in view of the discussion of the matter in preceding paragraphs.
11. My attention has however, been drawn to some Single Judge decisions where the point that has been decided is with regard to the validity {{FOT NOTE}}
(1) A 1 R 1948 Born. 163 (2) AIR 1927 Boni. 449
(3) AIR 1926 Bom. 150 (4) AIR 1932 Bom. 610 {{FOT NOTE}} ' of investigation inasmuch as that the investigation was made by a Police Officer lower in rank than the Police Officer prescribed in law. One of such cases was a case of Crown v. All Gohar (1) in which case a Head Constable of Police had investigated; a case under the Prevention of Corruption Act when under the 14w a Deputy Superintendent of Police should have investigated such a case.
The learned Judges of the Division Bench came to the conclusion relying on two Indian cases reported as Shivbhat Manjunathbait Hattangadi v. Emperor (2) and The State v. Madan Lal (3) that if the investigation was by an officer not authorised to investigate the offence the same would vitiate the proceedings itself. However, the point was very controversial and in the case of The Crown v. Mehar Ali (4) a doubt was expressed by the Supreme Court as to whether defective investigation by reason of an Officer not authorised to investigate would vitiate the trial itself. All the case law on the point was considered by Mr. Justice S. A. Mahmud in the case of Walizar v. The State (5) and the learned Judge came to the conclusion that defective investigation would never vitiate trial. The learned Judge expressed himself as follows :- "When a person accused of an offence is brought before a Court, the Court has to decide on the evidence before it whether an offence is made out against him or not, and the question of irregularity in investigation, having been held by an incompetent officer, is irrelevant to the question before the Court, except where it is shown that such irregularity has occasioned failure of justice. The power to take cognizance, the competency to try and the admissibility of the evidence is not effected, and if the trial is valid and has been held in accordance with law, it can only be set aside on the ground that the irregularity has occasioned a miscarriage of justice."
12. However, this argument is slightly beside the point. The question here is not with regard to validity, or irregularity or defect in investigation. The question in the present case is whether the report that has been submitted by the Station House Officer, Nawabshah before the District Magistrate at Nawabshah against the petitioner could be termed as a complaint. On that point again there is some case-law which merits consideration. The first case would be considered is the case of Hussain Bakhsh v. The State (6). In this case the accused was sent up to stand trial under section 290, P. P. C. And he was convicted. The offence was not cognizable and the point that was taken was that the Police Officer had taken up investigation in the case of nuisance which is not cognizable without the order of competent Court. Sardar Muhammad Iqbal J., the present Chief Justice of Lahore High Court, came to the conclusion that the proceedings should be quashed. The reason that the learned Judge (as he then was) gave was, that the Code provided for permission for investigation into non cognizable offence and the reasons of the law are that the Magistrate who gives such permission should first satisfy himself that there are reasonable grounds for belie gang that an offence has been committed and it is only on such satisfaction that he could order investigation. On that premises the learned Judge came to the conclusion that since no permission of the Magistrate for investigation had been obtained the entire proceedings were invalid. On the same point, there is another case of nuisance which is reported in Maijuddin {{FOT NOTE}}
(I) PLD 1964 Sind 208 (3) AIR 1954 Pb. 43
(5) PLD 1960 Kar. 204 (2) AIR 1953 Cal. 226
(4) PLD 1956 SC (Pak.) 106
(6) PLD 1963 Lah. 46 {{FOT NOTE}} ' Lasker v. Nurunnabi (1). This too is a Single Bench decision. The next case on the same point is a case of Muhammad Rashid v. State (2). In this case which was one under the West Pakistan Suppression of Prostitution Ordinance, 1961, investigation had been made without any permission of the Magistrate. The case of Walizar v. State was brought to the notice of his Lordship and he distinguished that case. However, the proceedings were quashed in this case also on the ground that the Police Officer was not competent to investigate into the case and challan the accused on the basis of information without obtaining sanction under section 155, Cr. P. C. The words "challaned the accused" are indeed significant. I so state because in this case there could be no controversy that the Provincial Government had actually authorised the Superintendent of Police to file a complaint against the present petitioner. The next case again is a judgment of Mr. Justice Sardar Muhammad Iqbal in the case of Mumtaz Begum v. State (3). This too was a case under the West Pakistan Suppression of Prostitution Ordinance and investigation was done by a Police Officer without obtaining permission of the Magistrate. However, in this case the provisions of section 4(h) and section 190(1) (b), Cr. P. C. In conjunction with section 173. Cr. P. Code were considered. The learned Judge who is now the Chief Justice of the Lahore High Court expressed that section 4(h) of the Code of Criminal Procedure expressly stated that complaint does not include the report of a Police Officer. On that premises the learned Judge came to the conclusion that a report of a Police Officer can never be a complaint and that if a Police Officer wants to file a complaint he should make it clear that it was not his report as a Police Officer.
13. On consideration of all the aspects of the above case I am clearly of the view that the proper procedure under the law had not been followed. The Superintendent of Police had to file a complaint in the case as was ordered by the Provincial Government and the submission of the charge-sheet or the drawing up of a first information report was illegal. The District Magistrate has illegally taken cognizance of the case. In the result I quash the pending proceeding in the case of State v. Maulana Dost Muhammad under section 124-A, P. P. C. Pending in the Court of the District Magistrate, Nawabshah.
14. I would however, make it abundantly clear that since this order is not one on merits of the case, it would still be open to the concerned authorities to proceed against the petitioner but only in accordance with the orders of the Provincial Government and the requirements of section 196, Cr. P.
Code. {{FOT NOTE}}
(1) PLD 1965 Dacca 421 (2) PLD 1964 Kar. 381
(3) 1968 P Cr. L J 97