RANA BHAGWAN DAS, J.---Leave to appeal is sought against the judgment of High Court dated 14-9- 1999 quashing proceedings of a criminal case State v. Abdul Samad and others under sections 504, 506(1), 427/34, P.P.C. In exercise of the powers under section 561-A, Cr.P.C.
2. Respondents Abdul Samad, Muhammad Sharique and Muhammad Arif were facing trial on the abovesaid charge on the basis of Crime No.52 of 1998 registered at Cantonment Police Station, Hyderabad, on the complaint of petitioner Altaf Hussain in the Court of Judicial Magistrate-I, Hyderabad. After framing of charge and examination of four prosecution witnesses respondents moved an application for their acquittal in terms of section 249-A, Cr.P.C. But the same was dismissed by the trial Court. Accordingly, they invoked inherent powers of the High Court through a criminal miscellaneous application which after notice to State as well as the petitioner was allowed vide the impugned judgment on the premises that an offence under section 506, P.P.C. Being non-cognizable in view of the prohibition contained in section 155(2), Cr.P.C., the police officer was not authorized to conduct investigation without an order of the Magistrate; that the investigation conducted was illegal and of no consequence thus the whole proceedings before the trial Court were void ab initio amounting to abuse of process of law.
3. Notice of the petition was issued to the respondents which was sent by registered post well in time but they have not cared to appear before this Court or to intimate their absence. We, therefore, proceeded to hear Mr. M. Ilyas Khan, Advocate Supreme Court for the petitioner and Mr. M. Sarwar Khan, learned Additional Advocate-General on behalf of the State.
4. Learned Single Judge in the High Court has traced the legislative history of section 506, P.P.C. Which was initially non-cognizable offence and a police officer was not competent to arrest a person accused of such offence without a warrant of arrest. It seems that in 1968 erstwhile Government of West Pakistan, in exercise of powers conferred under the Criminal Law (Amendment) Act, 1932, through a notification declared this offence as cognizable but again in 1973, by virtue of section 3 of Criminal Law (Amendment) Act, 1973 (Act VI of 1973) first part of the offence was made non-cognizable whereas second part of the offence continued to remain cognizable. Irrespective of printing mistakes in various textbooks relating to this amendment the position in law remained intact and an offence falling under second part of section 506 remained cognizable as before but this aspect of the matter escaped notice of the learned High Court who was not properly assisted at the Bar.
5. Learned counsel for the petitioner referred to us the averments made in the F.I.R. Registered on 18-4- 1998 tending to show that the complainant was threatened by the respondents with dire consequences extending threat to his life. He vehemently urged that in fact the offence disclosed in the F.I.R. Fell under second part of section 506, P.P.C. And not under first part of section 506 as evidently misunderstood by the respondents and the learned High Court. Alternatively learned counsel submitted that even if it be accepted that offence alleged against the respondents was non- cognizable, failure to seek permission from the Magistrate in terms of section 155(2), Cr.P.C. Was a mere irregularity curable under the provisions of section 537, Cr.P.C. And did not amount to an illegality as held by the learned High Court. Mr. Muhammad Ilyas Khan, learned counsel for the petitioner submitted that the defect of investigation, if at all any, did not vitiate the trial before a competent Court of law which did not result in any prejudice to the accused. According to the learned counsel, by any stretch of reasoning trial of the respondents before a Court of law was neither vitiated nor invalid as irregularity, if any, stood cured when a competent Court of law took cognizance of offence in terms of section 190(1)(b), Cr.P.C.
6. Entries in Schedule II to the Code of Criminal Procedure, 1898 relating to an offence under section 506, P.P.C. Presently incorporated read asunder:- 1 2 3 4 5 6 7 8 SectionOffence Whether the police may arrest without warrant or notWhether a warrant or a summons shall ordinarily issue in the first instanceWhether bailable or notWhether compoundable or notPunishment under the Pakistan Penal CodeBy what Court triable 506 Criminal intimidationShall not arrest without warrantWarrant Bailable Compoundable Imprisonment of either description for two years or fine or bothMagistrate of the first or second class If threat be to cause death or grievous hurt etcMay arrest without warrantDitto Non- bailableNon- compoundableImprisonment of either description for 7 years or fine or bothCourt of Session or Magistrate of first class.
7. It may be observed that amendment introduced by section 3 of Act VI of 1973 to the Code of Criminal Procedure, 1898 reads 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, or fine, or bothshall respectively be substituted."
8. In order to fully comprehend the object and implications of the amendment introduced by the Legislature, provision of section 506 may be reproduced hereunder for ready reference:-- "506. Punishment for criminal intimidation.--Whoever commits the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both: If threat be to cause death or grievous hurt, etc.--And if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or.
Imprisonment for life, or with imprisonment for, a term which may extend to seven years, or to impute un chastity to a woman shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both."
9. It would be seen that amendment introduced by the Legislature expressed the intention of the legislative body that in case the ingredients of the offence of criminal intimidation fall within the ambit of first paragraph, the offence would remain non-cognizable and punishable with maximum imprisonment of either description for two years, or fine, or both, whereas offence covered by second paragraph of section 506, P.P.C. Would continue to remain cognizable and non-bailable as amended by the Legislature in 1969.
10. A glance at the averments of the F.I.R. Evidently suggests that the complainant was confronted with danger to his life including a threat to cause grievous hurt which would, prima facie, bring the case within the purview of second paragraph of section 506, P.P.C. Wrongly mentioned in the F.I.R. By the Investigating Officer as section 506(1), P.P.C. Having held above, controversy stands resolved in the sense that since offence was cognizable, police officer who investigated the crime was not required to obtain permission from a Magistrate as found by the learned High Court. _
11. Alternatively, assuming that the offence alleged fell under first. Paragraph of section 506, P.P.C. And thus non-cognizable, in our view, in the absence of any serious prejudice caused to the accused/respondents, irregularity and defect of investigation, if any, stands cured under the provisions of section 537, Cr.P.C. There is a plethora of decided cases on the point and a reference to some of the cases would suffice at the moment.
12. In State v. Bashir (PLD 1997 SC 408) a Full Bench dealing with the power of CIA Police, Karachi to in vesigate a cognizable offence expressed the view that subsection (2) of section 156, Cr.P.C. Expressly provides that "no proceedings of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate". Ajmal Mian, J. (as his lordship then was) speaking for the Bench held that the violation of section 156(1) of the Cr.P.C. May not vitiate trial if no serious prejudice has been caused to the accused person concerned resulting in miscarriage of justice in view of above subsection (2) of section 156, Cr.P.C., but it does not mean that the C.I.A. Personnel should knowingly violate the above provision of the Cr.P.C. On the contrary, they are legally duty bound to ensure the supremacy of law".
Earlier, in Sadan v. State (PLD 1965 Baghadul-Jadid 12) a Division Bench of the erstwhile West Pakistan High Court expressed a similar view with regard to the effect of investigation of a non-cognizable offence by a police officer without the permission of a Magistrate. This view was reiterated in Muhammad Aslam v. State (1980 PCr.LJ 742), by the Lahore High Court. In Muhammad Ashiq v. Martial Law Administrator, Zone C', 1980 PCr.LJ 97, a Division Bench of the Sindh High Court dealing with the power of the Court to take cognizance of a police report in terms of section 190, Cr.P.C. And the restriction on investigation of offences contemplated by section 155(2), Cr.P.C. Went to the extent of holding that if cognizance is in fact taken on a police report, even then the same may be vitiated on account of infraction of any provisions relating to investigation, the result of the trial which follows it, cannot be set aside unless the illegality in the investigation could be shown to have resulted in grave miscarriage of justice. High Court further observed that it is well-settled that an illegality committed in the course of investigation does not affect the competence and jurisdiction of the Court for trial. (See 1980 PCr.LJ 97). Same view was taken by Full Bench of Madras High Court in the Public Prosecutor v, Ratuavelu Chetty (ILR 49 Madras 525).
13. A resume of the aforesaid facts and case-law leads to the conclusion that generally speaking police officers are not competent to investigate an offence which is non-cognizable and requires permission from a competent Magistrate before the commencement of investigation. However, if through bona fide error or misconception of facts and law a police officer has undertaken investigation of a crime in which he is not authorised to arrest an accused without a warrant from a Magistrate and a case is taken to a Court competent to try it in terms of section 190 (1) (a) and (b), Cr.P.C. Cognizance taken may not be altogether bad in law and vitiated unless the trial has caused serious prejudice to the accused resulting in miscarriage of justice. It may be fully understood that there is no blanket for the acts committed dishonestly or mala fide by police officers who inherently are otherwise not empowered to submit reports for trial in non-cognizable offences and Courts should not normally encourage the acts of police agencies without proper scrutiny. Yet in appropriate cases, if a Court otherwise competent has taken cognizance of an offence and proceeded with the trial of the accused, the same may not be vitiated in the absence of any miscarriage of justice or grave prejudice to the accused. Indeed, on the one hand police officers are duty bound to ensure the rule of law whereas on the other hand Courts can exercise jurisdiction only subject to law and the assumption of jurisdiction which otherwise is barred can hardly be justified on the plea of bona fide cognizance of a case or lack of prejudice to the accused.
14. Mr. Muhammad Ilyas Khan, learned counsel for the petitioner was at pains to persuade us that by quashing criminal proceedings against the private respondents High Court acted against the settled norms and principles laid down by this Court for quashment of case. He relied upon Ghulam Muhammad v. Muzammal Khan (PLD 1967 SC 317) expressing the view that the inherent jurisdiction given by section 561-A, Cr.P.C. Is not an alternative jurisdiction or an additional jurisdiction but it is a jurisdiction preserved in the interest of justice to redress grievances for which no other procedure is available or has been provided by the Code itself. This Court observed that the power given by this section can certainly not be so utilized as to interrupt or divert the ordinary course of criminal procedure as laid down in the procedural statute. This case has been followed in subsequent cases laying down the principles for quashment of proceedings in exercise of the powers conferred on the High Court under section 561-A, Cr.P.C. Similar view was expressed in Fazal Karim v. State (PLD 1976 SC 461), Mahmood Saeed v. Amir Nawaz Khan (1996 SCM R 839) and State v. Asif Ali Zardari (1994 SCM R 798).
15. For the aforesaid facts and reasons we are of the considered view that the High Court judgment cannot be sustained at law and must be set aside. Accordingly, we convert this petition into appeal and allow the same with the further observations that the case against the private respondents shall be deemed to be pending on the file of the Judicial Magistrate, Hyderabad, which shall take steps to secure attendance of the respondents and conclude the trial with utmost expedition.