S.A. RABBANI, J.---The applicants are facing trial before 1st Judicial Magistrate, Hyderabad that was initiated on the basis of F.1.R. No,52 of 1998 registered at Cantonment Police Station Hyderabad on 18-4-1998 on the report of complainant Altaf Hussain. The F.I.R. Was registered in respect of the offences falling under sections 504, 506(i) and 427/34, P.P.C.
2. The learned Magistrate framed charge against the applicants/accused for offences under sections 504, 506(1) and 427/34, P.P.C. The Trial Court has recorded evidence of four prosecution witnesses and it is stated that only two prosecution witnesses, including the Investigating Officer, remain to be examined.
3. Applications for acquittal of accused under section 249-A, Cr.P.C., were filed in the Trial Court at different stages of the trial, but the plea was not accepted. The last which application was dismissed by the Trial Court on 30-6-1999 with the observation that prosecution witnesses have been examined with the exception of one or two and the case is close to final disposal. The learned Magistrate ordered that the case shall be decided on merits and the point relating the offence under section 506(1), P.P.C., being non-cognizable, shall be considered at the final hearing stage.
4. The applicants/accused then filed this application for quashment of the proceedings under section 561(A), Cr.P.C., on the grounds that the charge is groundless, and the Police Investigated in case without permission of the Magistrate although all the alleged offences were non-cognizable.
5. Mr. Abdus Sattar Shaikh; learned counsel for the applicants has given the background of the ease. It is that the complainant Altaf Hussain, who lodged FIR., is tenant of the applicant Abdus Samad and the former has made some additions and alterations in the property let out to him, without permission, which is the cause of the dispute. According to FIR., this incident occurred on 16-4-1998. Civil Suit No,25 of 1998 was filed on 17-4-1998 with regard to the dispute about this property and this F.I.R. Was lodged on 18-4-1998. Mr. Shaikh submits that there are other cases also, about this dispute for damages and ejectment.
6. Mr. Abdus Sattar Shaikh has challenged the validity of the proceedings before the Trial Court on two grounds, first that there is no probability of conviction of the accused/applicants on the charge, and secondly, there was violation of section 155(2), Cr.P.C., as the investigation was conducted without permission of the Magistrate in respect of non-cognizable offence.
7. With regard to the probability of conviction, Mr. Shaikh referred to two days' delay in lodging the F.I.R. And inadequacy of the explanation that the complainant first preferred to approach elder of the accused/applicants, who incidentally happens to be Mr. Abdus Sattar Shaikh himself; interest of witnesses, due to their relationship with the complainant; and weaknesses and contradictions in prosecution evidence. For support, he placed reliance upon the decisions in the cases of Syed Manzoor Hussain Shah v. Syed Agha Hussain Naqvi and another (1983 SCMR 775), Asif Ali Zardari v.
The State and another (1992 PCr.LJ 58), and Muhammad Khalid Mukhtar v. The State (PLD 1997 SC 275).
8. On this point on the other hand, Mr.. Faiz Muhammad Qureshi, learned counsel for the complainant in the case, contended that the applicants want to stifle the prosecution and deflection from normal procedure when the case is near completion. He submitted that appreciation of evidence in such proceedings at this stage has been discouraged by the superior Courts. He submitted that most of the prosecution evidence has been recorded and the Trial Court may be allowed to conclude the case and a direction may be issued to conclude it early. In support of his contention, Mr. Qureshi cited the cases of 'Khawaja Fazal Karim v. The State and another (PLD 1976 Supreme Court 461), that reported in PLD 1967 Supreme Court 317 and Mehboob Alam, etc. v. The State (1996 PCr.LJ 366).
9. The cumulative thrust of all the case-law cited above is that the Courts should be reluctant to interfere in such-cases in exercise of powers under section 561(A), Cr.P.C., and allow the Trial Court to conclude the proceedings, unless there are facts for an inference that the proceedings tantamount to abuse of process of Court.
10. On the other point, Mr. Abdus Sattar Shaikh contended that all the offences, about which F.I.R., was lodged and charged was framed are non-cognizable offences and the investigation was conducted without permission of the Magistrate in violation of section 155(2), Cr.P.C.
11. There is no dispute in this case about the following facts:
(i) F.I.R. Was registered for offences under sections 504, 506(1) and 427/34, P.P.C.
(ii) The applicants/accused were challaned before the Judicial Magistrate-I Hyderabad for trial for commission of offences punishable under sections 504, 506(1) and 427/34, P.P.C., read with section 34, P.P.C.
(iii) The Trial Court framed charge for offences under sections 504, 506(1)/34 and 427/34, P.P.C.
(iv) The Investigation was conducted without permission of the Magistrate. The Investigating Officer, S.I.P. Sardar Khan has admitted before the Trial Court, in his evidence, that he has not obtained any permission from any Magistrate for investigation of this crime.
There is, also, no cavil at the non-cognizability of the offences falling under sections 504 and 427, P P.C. A difference of opinion was, however, expressed about the offence covered by first part of section 506, P.P.C.
12. Mr. Faiz Muhammad Qureshi, learned counsel for the complainant, submitted that the offence under section 506(1), P.P.C., is cognizable, and, in support of his opinion, he presented more than one books containing the next of Criminal Procedure Code, published in 1999 and past years, which, in Column 3 of Tabular Statement of Offences in Schedule H, provide the entry as "May arrest without warrant" against first part of section 506.
13. Agha Khuda Bux, learned A.A.-G., also submitted, though without any documentary support that the offence falling in part one of section 506, P.P.C., is cognizable.
14. Mr. Abdus Sattar Shaikh submitted that initially this offence was non-cognizable but, in 1969, the Government of West Pakistan made it cognizable, through a notification, in exercise of powers under Criminal Law Amendment Act, 1932, and again, in 1973, Criminal Law (Amendment) Act, 1973 (Act VI of 1973) made it non-cognizable.
15. Section 3 of Act VI of 1973 relates to amendment of Code of Criminal Procedure, 1898 and section 3(ii)(e) provides as under: "(e) for the entries in columns 3 and 7 relating to section 506 as applicable to 'Criminal intimidation'
(first paragraph) the entries 'shall not arrest without warrant' and ' imprisonment of either description for 2 years of fine, or both' shall, respectively, be substituted."
16. This amendment made the offence under section 506(i) non-cognizable and most of the books, which have incorporated it, have cited the Amending Act in the footnote, but many books being used have not incorporated this amendment and they, also, do not give a reference of 1969 amendment, or any other later amendment, if any on the basis of which they give an entry "May arrest without warrant".
17. Despite efforts no amendment of this provision after Act VI of 1973 could be found, but many books containing text of Code of Criminal Procedure are in the field which mention a wrong entry, and this is not a solitary instance of wrong version, of law being used before the Courts. It would, therefore, be advisable, in the interest of preventing injustice for the Law and Justice Division of Government of Pakistan, and with regards to the Provincial subjects and those covered by the Concurrent List for the Provincial Law Departments, to evolve a mechanism to check publication of incorrect laws. In the present case, there are texts with contradictory entries and, definitely, one is incorrect. Since no amendment in the provision, made after Act VI of 1973 could be found the factual position is that the offence mentioned in first paragraph of section 506, P.P.C., is non- cognizable.
18. Since all the offences in this case were non-cognizable compliance with the procedure given in section 155, Cr.P.C., was mandatory. The Police Officer concerned ought to have made entry of substance of the information in the book and have referred the informant to the Magistrate.
19. In view of the prohibition provided by subsection (2) of section 155, Cr.P.C., the Police Officer was not authorized to conduct investigation without an order of the Magistrate and, thus, the investigation conducted in this case is illegal and of no consequence. The whole proceedings before the Trial Court, being based on illegal foundation, are void ab initio. Consequently, this is a case of abuse of legal process. The application is, therefore, allowed and the proceedings before the Court of Judicial Magistrate-I, Hyderabad in Criminal Case No,141 of 1998 (State v. Abdus Samad Shaikh and others) are quashed.