' This revision petition is directed against the order of Tehsil Criminal Court, Dudyal, dated 30-3- 1995, whereby the application of the petitioner under section 249(1) was dismissed by the said Court.
2. The succinct facts forming the background of the instant revision petition are that a case under section 341/34, A.P.C. And 15 of the Islami Tazeerati Qawanin Nafiz Act, 1974, was registered against the petitioner along with other accused persons at Police Station Dudyal. The police after concluding the investigation forwarded the petitioner to Tehsil Criminal Colin, Dudyal for facing the trial in the aforesaid offences. During the trial, the petitioner moved an application under section 249(1) of the Cr.P.C., which was dismissed by the said Court 'he instant revision petition has been filed against the order of lower Court
3. The learned counsel for the petitioner, Ch. Muhammad Sabir, argued that offence under section 341, A.P.C. Does not constitute against the petitioner, while emphasizing on this point he referred towards the site plan and explanation number one and contended, it is stated that the place of occurrence is a disputed way. The civil litigation is sub juice between the parties regarding this way, so it is yet to be decided by the Civil Court, whether the complainant is competent to use the way or he has any right on this way. Therefore, the offence under section 341, A.P.C. Does not constitute. It was further contended by the learned counsel for the petitioner that all the injuries on the person of Muhammad Iqbal have been declared simple by the doctor. He submitted that section 27 of the Islami Tazeerati Qawanin Nafiz Act, 1974 contains that the offence of the simple injuries shall be non-cognizable by the police. The police was not competent to investigate a non- cognizable case as contemplated in section 155(2) of the Cr.P.C. The entire investigation conducted by the police was unwarranted and without lawful authority. The lower Court was not competent to take the cognizance on the report submitted by the police under section 173 of the Cr.P.C. He craved that the entire proceeding may be quashed. He referred the following authorities in support of his contentions:--
(1) AIR 1963 Cal. 3;
(2) 1968 PCr.LJ 97;
(3) 1976 PCr.LJ 555.
4. While controverting the arguments of the learned counsel for the petitioner, the learned counsel for the complainant, Raja Habib Ullah Khan, argued that from the entire evidence of the prosecution, it is established that the complainant was entitled to use the way in dispute. He further maintained that from the entire evidence of the prosecution, the right of the way of complainant is established. Therefore, the offence under section 341, A.P.C. Constitutes against the petitioner. It was next contended by the learned counsel for the complainant that no doubt the offence under section 15 of Islami Tazeerati Qawanin Nafiz Act, 1974, was non-cognizable in the instant case. In this case the police has concluded the investigation and submitted the report under section 173 of Cr.P.C. The lower Court has taken the cognizance on the said report of police. This report can be treated a complaint under section 190, subsection (1-A) and .The lower Court can proceed with the case while treating the report of the police as a complaint. He referred 1980 PCr.LJ 742.
5. I have heard the learned counsel for the parties and perused the relevant record and given my passionate thoughts to the respective arguments advanced by the learned counsel for the parties.
6. As the offence under section 341, A.P.C. Is concerned. No doubt that it was cognizable by the police, but the question arises whether the offence under section 341 constitutes from the evidence proposed to be led against the petitioner. For having true perception I would like to reproduce section 341, which reads as under:-- "341. Punishment for wrongful restraint.--- Whoever wrongfully restrains any person, shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to five hundred rupees, or with both."
' Wrongly restraint has been defiled under section 339, which reads as under:-- "339. Wrongful restraint.--- Whoever voluntarily obstructs any person so as to prevent that person from proceeding in any direction in which That person has a right to proceed, is said wrongfully to restrain that person."
7. Wrongful restriction only constitutes if a person restrains any person from proceeding towards any direction in which that person has right to proceed. It is the basic duty of the prosecution to prove that the complainant has a right to proceed towards a particular direction, way however, if the right sought to be exercised is a disputed right any obstruction in its exercise would not be a offence under this section. Thus, where, the right claimed by the accused was a disputed right then the offence under section 341 will not attract. This view finds support from AIR 1963 Cal.
3.
8. In the instant case in explanation number one of the site plan it is incorporated that the right of the way between the complainant and the accused is disputed. The matter regarding the right of the way. Is sub juice before the Civil Court. Therefore, it is yet to be decided, whether the complainant has a right of way towards which he was proceeding on the day of occurrence.
Therefore, the offence under section 341 does not constitute.
9. The perusal of the medical report of Muhammad Iqbal shows that all the injuries were declared simple by the doctor. Section 27 of the Islamic Tazeerati Qawanin Nafiz Act, 1974 contains that the offences of the simple injuries shall be non-cognizable by the police. Therefore, in the instant case, the offence under section 15 was not cognizable by the police. Now the question emerges whether the police was competent to investigate a non-cognizable offence or not?
10. Section 155(2) imposes a restriction on the investigation of non-cognizable offence, which reads as under:- "(2) Investigation into non-cognizable cases.--- No Police Officer shall investigate a non- cognizable case without the order of Magistrate of the First Class or Second Class having power to try such case or send the same for trial to the Courts of Sessions."
11. The aforesaid provision of law suggests that no Police Officer will investigate the non-cognizable case without the order of the Magistrate. In the instant case, the entire investigation was conducted by the police without any order of the Magistrate.
12. Now the next question emerges whether in a non-cognizable case, the report submitted by the police under section 173 of the Cr.P.C. Can be treated as a complaint as envisaged under section 190(1-A). No doubt in Pakistan Criminal Law Journal 1980, it has been held that a report submitted by the police under section 173 on the basis of the investigation without the permission of the Magistrate in non-cognizable case can be treated as a complaint. But I am unable to agree with the aforesaid view for the following reasons:- P&L ' Section 190, Cr.P.C. Contains a scheme under which the Court can take cognizance of a complaint.
The complaint has been defined in section 4(h) of the Cr.P.C. Which reads as under:-- "(h) 'Complaint'.--- 'Complaint' means the allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person whether known or unknown has committed an offence, but it does not include the report of a Police Officer. '
13. In the aforesaid definition of the complaint it has been clarified that it does not include a report of Police Officer. Therefore, any report made by any Police Officer does not come within .The ambit of complaint, so the report submitted -by the Police Officer under section 173 of the Cr.P.C. Cannot be considered as a complaint as stated in section 190(1-A).
14.. The next question arises whether the report submitted by the police under section 173 is a report within the meanings of section 190, clause (b). This report also does not fall within the category of the clause (b). No doubt that a report submitted by the police under section 173 comes within the ambit of section 190(b), but it deals only with the report which has been submitted by the police after an authorized investigation. Where the report under' section 173, Cr.P.C. Is based on investigation of a cognizable offence or on any)investigation of a non-cognizable case with the permission of the Magistrate, only then the report submitted by the police comes. Within clause (b).
15. Now the next question arises whether the report submitted by the police can be considered an information as stated in clause (c). Clause (c) itself contains that any report received from any person other than Police Officer. Therefore, the information received from any Police Officer does not come within the ambit of clause (c). Therefore, the report submitted by the police under section 173 in the instant case cannot be considered a complaint as stated in clause 190-A, nor it can be considered a report or information as stated in clauses (b) and (c). This view finds support from 1982 PCr.LJ 795.
16. It is also pertinent to note that if a Police Officer is allowed to make investigation even into non- cognizable cases despite the express bar imposed in section 155(2), Cr.P.C., he would be free to convert any non-cognizable case into cognizable one at his own choice and in this way, there would be no absolute check on the police action with the result that undue harassment to the litigant public would follow. There appears a great wisdom in the division of offences into cognizable and non-cognizable categories and for obvious reasons; the Legislature prohibited Police Officer from investigating non-cognizable offences. If the provision relating to express bar placed on police investigation is not construed strictly, not only the purpose underlying the provision would be frustrated, but also the provision itself would be rendered nugatory. This view finds support from 1982 PCr. LJ 795 and PLD 1963 Lah..46.
17. It is pertinent to note that where a power is given to do a certain thing in a particular manner, that must be performed in the same manner. The powers have been given to the police for investigation into non-cognizable cases in the manner provided in section 155(2), Cr.P.C., but the police has failed to follow the procedure as contemplated in section 155(2), Cr.P.C. Thus, the entire investigation conducted and the report submitted by the police under section 173, Cr.P.C., is without any lawful authority and the learned Tehsil Criminal Court has also taken the cognizance on illegal report submitted by the police, therefore, the proceedings of Tehsil Criminal Court, Duala and entire investigation conducted by the police is hereby quashed.
Revision .