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Criminal Revision Application No. 670 of 1963, decided on 9th March 1964.

, Ss. 3, 8 & 13‑Offences under Ss. 3 & 8‑Non cognizable‑Police Investigation without permission of Magistrate under S. 155 (2), Cr. P. C.‑‑Vitiates subsequent trial‑Proceedings quashed‑ Criminal Procedure Code (V of 1898), Ss. 155 (2), 4 (n) & 561‑R. Offences under sections 3 and 8 of the West Pakistan Suppression of Prostitution Ordinance, 1961, are non‑cognizable offences and though under section 13 of the Ordinance, a Gazetted police officer or a police officer not below the rank of a Sub -Inspector could, no doubt, effect the arrest of the offender, when the offence is committed in his view, but this power of arrest in law, cannot make the offences under sections 3 and 8 of the Ordinance cognizable. Where, therefore, the police investigated into the case and challaned the accused on information received without sanction of the Magistrate under section 155(2), Criminal Procedure Code, 1898, it was held that the proceedings in the case were illegal and required to be quashed under section 561‑A of the Code.

Walizar and another v. The State P L D 1960 Kar. 204 and Manu alias Menthar and others v. The State P L D 1964 Kar. 34 distinguished.

Irshad Begum acrd others v. The State P L D 1961 Lah. 882 ; Hussain Bakhsh v. The State P L D 1963 Lah. 46 and Ha,/I Mahmood Khan Doulat Khan v. Crown I L R 1942 Kar. 94 rel:

Kazi Akhtar Ahmed for Appellant.

A. K. Sheikh, Additional A.‑G. for the State:

Date of hearing : 4th March 1964.

Muhammad Rashid, son of Faiz Muhammad Sheikh, resident of 19‑A & C, Latif Abad, Hyderabad, instituted the present petition under section 561‑A, or in the alternative under section 526, Cr. P. C., for the transfer of a case from the Court of the City Magistrate, Hyderabad. This petition was laid before Abdur Rahim M. Kharl, J., on the 30th of October 1963. His Lordship directed that the two prayers could not be joined in one application, and therefore, the petitioner should file a separate application under section 526, Cr. P. C. for the transfer of the case. By the same order, the learned Judge admitted the petition under section 561, Cr. P. C. to full hearing. ‑The petitioner filed a separate transfer application on the direction of the Court (No. 24 of 1964). This transfer application was heard by me and was allowed and the case was ordered to be transferred to the Court of Mr. Taj Muhammad Samroo, Civil Judge and Additional District. Magistrate, Hyderabad, by the order dated the 4th of March 1964. The present order relates to the petition under section 561‑A, Cr. P. C.

2. Before I proceed further it is pertinent to narrate here the brief facts of the case. On the 11th of September 1963, at about 5 p.m., Kazi Muhammad Parial, a Police Head Constable, Incharge of Husri Police Station, on the receipt of a telephonic message from the Manager, Zeal Pak Cement Factory, that some outsiders in suspicious circumstances were in the quarters and caught, reached the spot and found, in ‑ the quarter of Rahmatullah No. B 3/13, in Zeal Pak Colony, at a distance of three miles from the Police Station, Mst. Amina and Nabi Bakhsh confined.

He escorted them to the police station and produced them before S. H. O. Samandur Khan, who on the report lodged by the Manager, registered a case under sections 3 and 8 of the West Pakistan Suppression of Prostitution Ordinance, 1961, (Ordinance 11 of 1961): After investigation, he challaned Muhammad Rashid petitioner and Nabi Bakhsh for having procured Mst. Amina for sexual intercourse and also having actually committed sexual intercourse with her in the quarter of Rahmatullah after Mst. Amina was procured by Khawaja Bakhsh from the shop of a tailor of Hyderabad. After they were challaned to the Court of the City Magistrate, Hyderabad, the above petition was filed by Muhammad Rashid, one of the accused persons, alone.

3. Kazi Akhtar Ahmad, Advocate, counsel for the peti tioner, and Mr. A. K. Sheikh, Additional Advocate‑General, for the State, have been heard. Counsel for the petitioner raised two contentions, namely, (1) that the offences under sections 3 and 8 of the aforesaid Ordinance, being non -cognizable, the police was not competent to investigate into them without the permission .of the Magistrate under section 155 (2), Cr. P. C., and since no such permission had been obtained from ‑a competent Magistrate, there was no ,valid case pending before the Magistrate against the petitioner and other accused, and therefore, the proceedings pending in the Court of the City Magistrate, Hyderabad were illegal, and therefore, required to be quashed under section 561‑A, Cr. P. C. Secondly that the petitioner and Nabi Bakhsh, who were alleged to have committed sexual intercourse with Mst. Amina, the alleged prostitute, had not committed an offence either under section 3 or section 8 of the Ordinance, and on that score also, the proceedings deserved to be quashed. Counsel conceded that if the allegations against Rehmatullah for allowing his residential quarter for prostitution and Khawaja Bakhsh for procuring Mst. Amina for prostitution were proved, then they committed offences under sections 3 and 8 of the Ordinance.

4. In my view, the first objection must prevail. The Additional Advocate‑General is not prepared to state at the Bar, nor is there any other document on the file of the case to show that the police had taken permission under section 155 (2) of the Code of Criminal Procedure, for the investigation of the offences under sections 3 and 8 of the Ordinance, which are admittedly non‑cognizable offences. In Irshad Begum a d others v. The State (P L D 1961 Lab. 882), it has been clearly held :‑

"Non‑cognizable offence‑Police Officer not justified in carrying out investigation of complaint, without sanction of a competent Magistrate."

It was also found that it was the abuse of the process of the law if these proceedings were allowed to linger on, and they were quashed. Similarly, in Hussain Bakhsh v. The State (P L D 1963 Lab. 46), S. Muhammad Iqbal, J., found:‑

"Police Officer investigating non‑cognizable case without order of competent Magistrate‑Proceedings in Court on police officer's report‑Held, illegal and without jurisdiction' and so quashed."

5. The learned Additional Advocate‑General relied on Walizar and another v. The State (P L D 1960 Kar. 204) and Manu alias Menthar and others v. The State (P L D 1964 Kar. 34). In the first‑mentioned case it was held that investigation by an incompetent police officer is an irregularity which does not vitiate the trial unless it had prejudiced the case. In the latter it was held that "the omission by police officer to comply fully with provisions of section 173 does not vitiate subsequent trial or proceeding." Both these cases are distinguish able, as, in the (first case, a police officer, who was not competent to investigate, had investigated the case, and in the second case, certain particulars were not filled in, of the challan which were required to be filled in under section 173, Cr. P. C. These precedents are , not, applicable to the present case, where the .question for, decision is whether a police officer is competent to investigate into a non‑cognizable offence without the permission of the Magistrate under "section 155 (2) of the Code of Criminal Procedure.

6. No doubt under section 13 of the Ordinance, a Gazetted police officer on receipt of the information was competent to arrest the offender, or a police officer not below the rank of a Sub‑Inspector could effect the arrest of the offender, when the offence was committed in his view, but this power of arrest, in law, cannot make the offences under sections 3 and 8 of the Ordinance cognizable. If any authority is needed in support of this view reference may be made with advantage to Haji Mahmood Khan Doulat Khan v. Crown (I L R 1942 Kar. 94). In this judgment it has been held :‑

"Offences, for which special authority to arrest is given to special officers are not cognizable offences within the meaning of section 4 (i) (f) of the Criminal Procedure Code, and, therefore, an offence under section 5 of the Bombay Prevention of Gambling Act is not a cognizable offence."

It is, therefore, clear that although section 13 of the Ordinance authorised a Gazetted police officer and the other officers not below the rank of Sub‑Inspectors of Police to make the arrest of the offenders for offences under this Ordinance in certain circumstances, but still the offences under the Ordinance were non‑cognizable. The police, therefore, were not competent to investigate into the case and challan the accused on the basis of such an information without the sanction under section 155 (2) of the Code of Criminal Procedure.

7. For the aforesaid reasons, it is clear that the proceedings in the case are illegal an d require to be quashed under section 561‑A, Criminal Procedure Code. The decision of thin first point renders the decision of the second point mentioned above quite unnecessary. On accepting this petition under section 561‑A, Cr. P. C., the proceedings against the petitioner and his other co‑accused are hereby quashed.

K.B.A. Proceedings quashed.

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