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Criminal Revision No. 74 of 1962, decided on 19th June 1963.

, S. 439‑Powers of High Court in revision : powers of appellate Court‑One of three pieces of evidence, on which person was convicted by lower Court, found to be inadmissible‑Re‑assessment of remaining evidence by High Court to see whether conviction could not be upheld after excluding inadmissible evidence.

, Ss. 173 & 190 (i) (b)‑Omission by police officer to comply fully with pro vision of S. 173‑Does not vitiate subsequent trial or proceeding--- Word "shall" in S. 173 (I)‑Directory and not mandatory‑

[Walizar and another v. The State P L D 1960 Kar. 204 recon sidered and dissented from].

Walizar and another v, The State P L D 1960 Kar. 204: H. N. Rishbud and another Y. The State of Delhi A I R 1955 S C 196; Crown v. Mehar Ali P L D 1956 F C 106: Cammander M. S. K. Ibrat v. The Federation of Pakistan and others P L D 1956 S C (Pak.) 264; Narayan Rao v, The State of Andhra Pradesh A I R 1957 S C 737; A I R 1948 Bom. 163; A I R 1922 Cal. 538; A I R 1924 Cal. 476; A I R 1930 Mad. 191; 1 L R 26 Bom. 150; A 1 R 1927 Bom. 440; A I R 1940 Pesh. 41 and Chittaranjan Das v. The State of West Bengal and others A I. R 1963 Cal. 191 ref.

‑‑Decision of Single Bench of High Court‑Can he dissented from by same Single Bench.

Bashir Ahmed and others v. The State P L D 1960 Lab. 687 at p. 694 ref:

Aftab Akhund for Applicants.

A. K. Shaikh, A. A.‑G. assisted by Jamaluddin Ahmed for Respondent.

Dates of hearing : 19th, 29th. April and 13th May 1963

This judgment will be read in continuation of' my previous judgment dated 20‑8‑1962 in this very matter. In that judgment after setting out the details of the convictions and sentences in respect of each of the six applicants I had dealt with the only point of law then urged, namely, that one of the three piece of evidence taken into consideration by the two Courts below against the applicants thereby forming one of the bases of their conviction was clearly inadmissible in law and, therefore, the conviction of these applicants had been vitiated and should be set aside. I then reached the conclusion that although one of the three pieces of evidence held against the applicants was plainly inadmissible in law, yet, in as much as sitting in Revision I was not divested of my powers as an Appellate Judge of this High Court,. I could a sess the remaining evidence available on the record of this case against the applicants after excluding the inadmissible piece of evidence and decide whether the conviction of these applicants could be upheld on this remaining evidence. I then directed that a full paper‑book be prepared by the office in this matter containing all the evidence recorded at the trial. This was done and thereafter I have heard fresh arguments in this matter of Mr. Aftab Ahmed Akhund the learned Advocate appearing on behalf of the applicants and Mr. Abdul Kadir Shaikh Asst. A. G. for the State and hence the necessity for this second or further judgment in this same Criminal Revision Application.

2. Now, the remaining evidence available on the record of this case after excluding the inadmissible piece of evidence consists of (i) the oral testimony of the three eye‑witnesses, Tayab P. W. 1, Anat P. W. 4 and Chutto P. W. 5 and (ii) the motive for which the applicants have been involved in this case. Considering first the evidence of the three eye‑witnesses I find that this evidence clearly involves the present applicants and shows that they are responsible for the injuries sustained by the injured, Tayab. The evidence of the injured Tayab is that on 15‑2‑1960 he left his village at about noon time and proceeded to the village of Anat Jakhro P. W. 4 to borrow a pair of bullocks from him. There he learnt that Anat had left for Narija village where Tayab went and met him. Anat promised to send the bullocks the next morning and he and Tayab then proceeded to the shop of Siddique barber situated in the village of Sahibdino Hajjam where Anar stayed back for a shave whereas Tayab proceeded towards his own village. He hart barely covered two or three furlongs and come near the Jam Minor when the present applicants armed with hatchets and lathis accosted and surrounded him. They enquired of him as to why he had not shifted from the village where he had taken lands near their houses despite the fact that they had filed a criminal case against him which was then pending and in which he was then on bail. They then attacked Tayab and knocked him down unconscious. They then dragged him for about two furlongs up to a water course in which they dipped him. On the cries raised by Tayab, P. Ws. Anat and Chutto along with Osso and Allahdino were attracted to the scene and they witnessed the incident. The evidence of Anat P. W. 4 and Chuito P. W. 5 strongly corroborates the story of the injured Tayab. P. W. Anat's name is mentioned in the F. I. R. and although the name of P. W. Chutto is not so mentioned, yet, it is on record that he is a Beldar in the service of the P. W. D. and that this fight took place within his beat. Thus, the evidence of P. W. Tayab supported by P. Ws. Anat and Chutto clearly establishes the guilt of the present applicants. In addition to these three eye‑witnesses there were also two further eye‑witnesses namely Osso and Allahdino but as they were related to Tayab the prosecution did not examine them in the trial Court.

3. Besides the evidence of these three eye‑witnesses there is on record the further piece of evidence against these applicants that they were incensed with the injured Tayab because he had refused to comply with their wishes and to shift from the village where he had taken lands near the houses of these applicants. They had also filed a case against him which was pending at the time of this incident and in which he had been released on bail. The applicant Manthar was the complainant in that case against the injured Tayab. As against this applicant Manthar there is also the further piece of evidence that he had filed an F. I. R. in respect of this very incident which amounts to an admission of his presence at the scene of this fight.

4. It now remains for me to consider a further argument advanced at the re‑hearing of this Revision Application by the learned Advocate appearing on behalf of the applicants. This argument was that inasmuch as the challan in this case did not disclose in its column VII the substance of the information or allegations against the applicants but only contains the four sections, namely, 148, 325, 342 and 114, P. P. C., the trial Magistrate had illegally taken cognizance of this case and, therefore, the further proceedings in this matter in his Court were illegal and should be quashed. In support of this argument the learned Advocate placed reliance upon a previous ruling of mine in the case of Abdullah Shah and others v. The State (P L D 1962 Kar. 633). In that case a similar point had been urged by the Advocate appearing on behalf of the applicants who then place before me three reported cases of High Courts in India, namely, A I R 1930 Bom. 372, A I R 1952 Tripura 14 and A I R 1955 Bhopal 20. In each of these cases it had been held that where the charge‑sheet under section 173, Cr. P. C. fails to set out the statement of facts which would constitute the offence with which the accused is being charged, it is not a valid report under section 190 (1) (b), Cr. P. C. and, therefore, the cognizance taken by the Magistrate on such a report was illegal and ultra vires. The legal defect was such as could not be cured by section 537, Cr. P. C. I must mention here that in this reported case this argument urged on behalf of the applicants was not repelled at all by the learned Advocate appearing on behalf of the State. On the contrary, the learned Advocate appearing on behalf of the applicants in that reported case. But, now in the instant case, Mr. Abdul Kadir Sheikh the Assistant Advocate‑General appearing on behalf of the State has stoutly resisted this argument and has invited my attention to a wealth of Case‑Law in support of his proposition that the jurisdiction of a Court to try a case cannot be adversely effected by any illegality that may have occurred in the course of the investigation of that case or that may have preceded the placing of that case in Court. I would now proceed to discuss these cases individually.

5. The first of these cases on which reliance has been placed by the learned Assistant Advocate‑General in the case of Walizar and another v. The State (P L D 1960 Kar. 204). That was a case under the Prevention of Corruption Act (II of 1947) which had been investigated by a police officer below the rank of a D. S. P. in contravention of section 5‑A of that Act. It was held by S. A. Mahmood, J., in that case that investigation by an incom petent police officer cannot affect the jurisdiction of the Special Judge to try the case or the trial itself. It was a mere irregu larity curable under section 537, Cr. P. C. and that neither the competency of the jurisdiction of the Court nor the admissibi lity of evidence was adversely affected thereby. It was further remarked in this case that the jurisdiction to try an accused is conferred upon the Special Judge by section 4 of the Pakistan Criminal Law Amendment Act (XIX of 1948) which provides that cognizance of an offence triable under the Act can be taken on the report op any police officer. The jurisdiction to try is not dependent upon the report of a competent police officer. Cognizance is an act entirely different from investigation and a defect in investigation cannot originally attach itself to the validity of the cognizance taken by the Court.

6. Relying upon this case the learned Assistant Advocate -General contended that section 4 of Act XL of 1958 has borrowed the language of section 190 (1) (b), Cr. P. C. in so far as it uses the words

upon a report in writing of such facts made by any police officer.

In the reported case, he contended that Mahmood, J., had held that the jurisdiction to try is not dependent upon the report of a competent police officer : similarly, the A. A. G. submitted that in the instant case the jurisdiction in the trial Magistrate to try the case is not dependent upon a valid report in writing of such facts made by any police officer. He argued that the challan and the F. I. R. together constitute the report mentioned in section 190 (1) (b), Cr. P. C. and, therefore, even if no facts are given in the challan it would make no difference because they are already contained in the F. I. R. I do appreciate this argument of the learned Assistant Advocate‑General that just as pointed out by Mahmood, J., the jurisdiction to try is not dependent upon the report of a competent police officer, similarly, the jurisdiction of the trial Magistrate in the instant case to try the applicants was not dependent upon a valid report in writing of such facts made by a police officer. Taking cognizance of an offence and/or jurisdiction to try that offence are matters wholly different from the investigation of that offence and from anything that ma have preceded the placing of that matter in Court. As was held by the Supreme Court of India in the case of H. N. Rishbud and another v. The State of Delhi (A I R 1955 S C 196), though a police report is provided in section 190, Cr. P. C. as the material on which cognizance is taken, it cannot be maintained that a valid and legal report is the foundation of the jurisdiction of a Court to take cognizance.

7. The second case referred to by the learned Assistant Advocate‑General is the case of the Crown v. Mehar Ali (P L D 1956 F C 106). This was also a corruption case tried under the Pakistan Criminal Law Amendment Act (XIX of 1948) which was investi gated by an Inspector of the Sind Anti‑Corruption Police Force instead of by the Special Police Establishment. It was held by their Lordships of the Federal Court that it was by no means clear that even if it could be established .that the investigation by the Sind Anti‑Corruption Inspector was irregular, the result would be to deprive the Special Magistrate of jurisdiction or otherwise to affect the validity of the proceedings in the trial. Similarly, in the case of Commander M. S. K. Ibrat v. The Federation of Pakistan and others (3), it was held that the mere fact that a person has been arrested in an unauthorized manner does not, generally, affect the jurisdiction of the Tribunal before which he is brought for trial. In this case their Lordships quoted the well known words of Lord Cockburn, C. J. in his charge to the jury in The Queen v. Nelson and Brand:

If he were brought here for trial, it would not be plea to the jurisdiction of the Court that he had escaped from justice and that by some illegal means he had been brought back. It would be said Nay you are here : you are charged with having committed a crime and you must stand for trial.

8. The learned Assistant Advocate‑General next referred me to section 173, Cr. P. C., as it exists today in India conse quent upon the Amending Act of 1955 By this amendment in India two more subsections have been added to section 173, Cr. P. C. and one of these namely subsection (4) provides that the officer incharge of a police station shall, before the com mencement of the enquiry or trial, furnish or cause to be furnished to the accused, free of cost, a copy of the report forwarded under subsection (1) and of the F. 1. R. recorded under section 154 and of all other documents and relevant extracts thereof on which the prosecution proposes to rely including the statements and confessions, if any, recorded under section 164, Cr. P. C. and the statements recorded under sub section (P L D 1956 S C (Pak.) 264) of section 161, Cr. P. C., of all the persons whom the prosecution proposes to examine as its witnesses. The learned A. A.‑G. then referred me to the case of Narayan Rao v. The State of Andhra Pradesh (A I R 1957 SC 737), in which this provision of section 173 (4), Cr. P. C., had not been complied with. It was held by their Lordships in that case that non‑compliance with the provisions of section 173 (4), Cr. P. C., did not have the result of vitiating those proceedings and the subsequent trial. Their Lordships went on to say that the word "shall" occurring both in subsection (4) of section 173 anti in subsection (3) of section 207‑A, Cr. P. C, is not mandatory but only directory because an omission by a police officer to fully comply with the provisions of section 173, Cr. P. C. should not be allowed to have such a far‑reaching effect as to render the proceeding: including the trial before the Court of Sessions wholly ineffective. On the basis of this ruling the learned Assistant Advocate- General submitted that non‑compliance in the instant case with the provisions of section 173, Cr. P. C. by submitting a police report in the form prescribed by the Provincial Government but with no particulars in column VII as required by section 173 (1) (a), Cr. P. C. would not serve to vitiate the subsequent trial or subsequent proceedings in this case. Now, although this amendment to section 173, Cr. P. C. brought about in India by Act XXVI of 1955 has no application to cases in Pakistan, yet, by parity of reasoning, it may well be argued that failure to comply with a provision of section 173, Cr. P. C. as it obtains in Pakistan would not amount to vitiate the subsequent trial or subsequent proceedings. The word "shall" used in section 173 (I), Cr. P. C. is merely directory and not mandatory.

9. The learned Assistant Advocate‑General concluded his argument on this aspect of the matter by referring to two more Indian cases reported in A I R 1955 S C (Ind.) 196 and A I R 1948. Bom. 163. The first of these cases being the case of H. N. Rishbud and another v. The State of Delhi has already been noticed above. In this case it was held that 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 legal police report is the foundation of the jurisdiction of the Court to take cognizance. It was pointed out in this case by their Lordships of the Supreme Court of India that‑---

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.

These latter sections regulate the competence of the Court and bar its jurisdiction in certain cases excepting in compli ance 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 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), and in any case cognizance so taken is only in the nature of an error in a proceeding antecedent to the trial. To such a situation section 537, Cr. P. C. is attracted.

Finally, their Lordships concluded this point with these words

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.

In the Bombay case of Rustom Ardeshir Banaji v. The Emperor (A I R 1948 Bom. 163), it was held that an irregularity in investigation and in the arrest of the accused cannot prejudicially affect the charge‑sheet which can be treated either as a report made in writing by a police officer within the meaning of section 19J (1) (b) or as a complaint within the meaning of section 4 (1) (h) falling under section 190 (1) (a) so that in either case the Magistrate has jurisdiction to take cognizance of the offence.

10. Replying to these arguments of the learned A. A.‑G, Mr. Aftab Ahmed Akhund submitted that all the rulings quoted by him relate to irregularities in the course of the investigation and are, therefore, not on all fours with the facts of the instant case. He contended that an incomplete report under section 173, Cr. P. C. is not an irregularity in the course of the investigation of an offence. The report under section 173, Cr. P. C. is made after the investigation is over and finished. This report under section 173, Cr. P. C. is a request to the Magistrate to proceed with the case against the persons mentioned therein. It is a document complete by itself and the F. I. R. cannot be con sidered as a part and parcel of this document. The learned Defence Advocate said that the F. I. R. merely sets the ball of investigation into motion whereas the charge‑sheet is an information to the Magistrate containing the result of the investigation or enquiry made by the police. In support of these contentions Mr. Akhund relied upon the three cases mentioned in my judgment in P L D 1962 Kar. 633, and he also quoted a few more reported cases such as A I R 1922 Cal. .538, A I R 1924 Cal. 476, A I R 1930 Mad. 191, I L R 26 Born. 150, A I R 1927 Bom. 440 and A I R 1940 Pesh. 41. I have perused each of these reported cases and I find that they are not very much in point. For example, in the case of Parmananda Agarwala v. Emperor (A I R 1922 Cal. 538) the police report consisted of a short statement against the accused and it was held that this short report failed to make out a prima facie case in respect of the offence, described in this section with the result that the pro ceedings based on the report were liable to be quashed. Simi larly, in A I R 1930 Mad. 191 there is a judgment of a Single Judge of only a few lines upholding the new form of charge‑sheet prescribed by the Madras Government although it required less details to be given than the form previously prescribed. The two Bombay cases reported in I L R 26 Bom. 150 and A I R 1927 Born. 440 do not deal specifically with the point now at issue and the same can also be said of the case reported in A I R 1940 Pesh. 41. The only case which may be said to touch the point now at issue is the case reported in A I R 1924 Cal. 476 in which it was held that when a Legislature takes cognizance of an offence under section 190, Cr. P. C. he performs a judicial act and that it would be contrary to sound principle to hold by a fiction that he exercised this judicial function on an occasion when the question was not even present in his mind. It was also pointed out that the expression "police report" had been replaced by the non‑technical expression "report made by any police officer" and that this report must state the facts which constitute the offence and that this is a requisite of fundamental importance. It was further observed by their Lordships in this case that‑

No facts were stated which if proved would constitute offences under sections 400 and 401, Indian Penal Code, and assertions that offences under those sections have been committed could not be regarded as compliance with the letter or the spirit of the law.

11. The above case relied upon by the learned Advocate appearing on behalf of the applicants strongly puts forth the opposite view to that urged by the Assistant Advocate‑General. It goes so far as to state that a Magistrate taking cognizance of an offence under section 190. Cr. P. C. performs a judicial act and that this judicial function cannot be exercised by him when the full facts of the case are not before him and, therefore, "the question was not even present in his mind". It seems to me that the true distinction between these two opposite views rests on the question whether the error or omission in the charge‑sheet is so vital as to amount to an illegality or to be a mere irregularity curable under section 537, Cr. P. C. An illegality in the mode of trial is an illegality which vitiates the trial : but in the cases referred to by the Assistant Advocate General and discussed above instances have been seen of a breach of some positive provision relating to investigation in which it has authoritatively been held that such breach did not affect the validity of the cognizance taken by the Court or the subsequent trial. In the instant case there has been a breach in the filling up column VII of the challan. The heading of this column is in these words :‑

"Charge or information. Name of offence and circumstances connected with it in concise details and under what section of law charged."

No information as to the name or nature of the offence charged or of the circumstances connected with it has been given in column VII. Only the figures 148, 325, 342 and 114, P. P. C. are mentioned in this column. The important point for consideration is whether this breach amounts to an illegality vitiating the subsequent proceedings or whether it is a mere irregularity curable under section 537, Cr. P. C.

12. In deciding this all important question it is imperative to look at the substance of the matter and not to the mere form. At the same time it must also be borne in mind that the jurisdiction of the Court is independent and cannot be adversely affected by anything that may have preceded the placing of that matter in Court. The trial Court having before it a charge‑sheet with the connected police papers, F. I. R., etc. sufficient to enable the Magistrate to comprehend and understand the facts of the case may well proceed to apply its mind to that case and thereby take cognizance of the case. If any particular form or detail has not been observed such an omission will be a mere irregularity curable under section 537, Cr. P. C. It certainly cannot have the effect of vitiating the subsequent proceed ings or the subsequent trial. In the case of Chittaranjan Das v. The State of West Bengal and others (A I R 1963 Cal. 191), it was pointed out that‑

"the question of form is not material when the com plaint contains all the information required by section 173, Cr. P. C."

and again,

"the omission to use the prescribed form is only an irregularity that does not affect the question of jurisdiction".

It was also observed by their Lordships in this case that the submission of the police report by a person other than the officer incharge of the police station of the beat is, at the worst, an irregularity, and a failure to observe the strict form.

13. In this view, then the omission to mention in column VII of the charge‑sheet the name of the offence and the circumstances connected therewith in concise detail is a mere breach of a particular provision which could at worst amount to an irregularity curable under section 537, Cr. P. C. It cannon affect the validity of the cognizance taken by the Court in the subsequent trial because it is not an illegality that can have such a far reaching effect. It is a matter of form and not o: substance and, therefore, undue weight or importance should not be attached to it. Being a breach of form and not of substance it amounts to an irregularity curable under section 537. Cr. P. C. and not to an illegality vitiating the subsequent proceedings. I am conscious that in taking this view I am going counter to the view already expressed by me in Abdullah Shah and others v. The State, but, as explained in para. 4 above, that view was reached by me because of the concession and admission then made by the State Counsel in that case. That a Judge sitting singly is empowered in a latter case, to revise an opinion on a point of law previously expressed by him after re‑considering the same question and all the case law pertinent thereto, is admitted on both sides at the Bar, and if authority were needed for this proposition it is to be found in Bashiri Ahmed and others v. The State (P L D 1960 Lah. 687, 694).

14. The evidence discussed in paras. 2 and 3 above is, in my opinion, sufficient to establish the guilt of the present applicants. They have been convicted by the Sub‑Judge and F. C. M., Thatta of offences under sections 325, 148 and 147 read with section 149, P. P. C. and were sentenced to undergo various terms of imprisonment the maximum being ten months R. I. This conviction was recorded on 30‑8‑1961 after which an appeal was preferred on their behalf before the Sessions Judge, Hyderabad, who, on 19‑12‑1961, dismissed their appeal and remanded them to custody. They remained in custody for almost three months until released on bail by this High Court on 6‑3‑1962. The medical evidence shows that the injuries sustained by Tayab were all contusions of small dimensions and the only grievous injury was a cracked fracture of the left parietal bone. In view, then, of the facts that the incident in this case is now almost three and a half years old, that the applicants are all members of one and the same family the comparatively minor injuries sustained by Tayab and the fact that the applicants have remained in jail for more than three months in all, while dismissing this Revision Application and confirming the convictions, I do not propose to send the appli cants back to jail but would reduce the sentences imposed upon them to the period of imprisonment already undergone by each of them. However, the sentence of fine and the period of imprisonment provided in default of payment thereof will stand. With this modification in the sentences, this revision application is dismissed.

R. B. A. Petition dismissed with certain modifications.

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