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Criminal Revision No. 391 of 1963, decided on 31st October 1968.

S. 155‑Cognizance of offence‑Magistrate has no jurisdiction to take cognizance of case on a report submitted by police in non‑cognizable offence.

Irshad Begum and another v. The State P L D 1961 Lab. 882; Bahadur v. Madhai P L D 1903 Lab. 269 ; Muhammad Rashid v. The State P L D 1964 Kar. 381 and Mst. Mumtaz Begum v. The State 1968 P Cr. L J 97 Tel.

The accused, on conviction by Ch. Muhammad Zafar Yasin, P. C. S., exercising the powers of a Magistrate of the Ist Class in the D. G. Khan District, was sentenced, by Order, dated 31st August 1962 under sections 268 and 290 of the Pakistan Penal .Code to pay a fine of rupees fifty each or in default to undergo two months' simple imprisonment.

The facts of this case are as follows :‑

The above revision petition under sections 435 and 438 of the Cr. P. C. against an order of conviction dated 31st August 1962 passed by Ch. Muhammad War Yasin, Magistrate Ist Class, Dera Ghazi Khan, convicting the fourteen accused‑appellants under sections 268 and 290, P. P. C. and sentencing them to pay a fine of R. 50.00 each or in default to undergo two months' simple imprisonment, arises out of the following facts :‑

2. The accused‑appellants are the residents of Chah Dhal Bhattiwala in the area of mauza Chabri Bala, tehsil Dera Ghazi Khan, and they own lands surrounding Basti Hajana. 7 he accused‑appellants cultivate their fields which surround Basti Hajana and in order to protect their crops from the cattle of the residents of Basti Hajana they fix up hedges and fences around their fields. Since the accused‑appellants have to irrigate their fields, sometimes the passages used by the residents of Basti Hajana become muddy on account of an over‑flow of the water channels of the accused‑appellants. The residents of Basti Hajana also face some inconvenience on account of the cultivation of the surrounding fields and the hedges and fences fixed up by the accused‑appellants. This led to some dispute between the residents of Basti Hajana and the accused‑appellants and one Allan, who is a resident of Basti Hajana, one day made a report to Allahdad P. W., a detective Foot Constable, who was on patrol duty complaining about the nuisance caused by the accused‑appellants. On the basis of the above report, an investigation was taken up by the Police and as a result of the investigation held by Muhammad Ahmad A. S. I. P. W. a case was reported against the accused‑appellants under sections 268 and 290, P. P. C. On the basis of the above police report, Ch. Muhammad Zafar Yasin, M. I. C., D. G. Khan took the cognizance of the case and the accused‑appellants were tried to face a trial under sections 268 and 290, P. P. C. The prosecu tion produced six witnesses in support of its case in order to establish that the accused‑appellants were causing public nuisance to the residents of Basti Hajana. The accused‑appellants pleaded not guilty to the charges and produced three witnesses in defence. The learned Magistrate after considering the material before him found all the fourteen accused‑appellants guilty under sections 268 and 290, P. P. C. and sentenced them to pay a fine of rupees fifty each, or in default to undergo two months' simple imprisonment.

3. The accused‑appellants have come to this Court by means of the above revision petition and have prayed that the case be recommended to the High Court for quashing the proceedings and acquitting the accused‑appellants as the Magistrate had no jurisdiction to take the cognizance of the case against the accused‑appellants on the report submitted by the police officer in respect of a non‑cognizable offence. I have heard the appellants' counsel in the presence of the public prosecutor for the State and the appellants, counsel has supported his contention by drawing my attention to Irshad Begum and another v. The State (P L D 1961 Lah. 882) and Hussain Bakhsh v. The State (P L D 1963 Lah. 46) to the affect that police officer investigating non‑cognizable case (offence of nuisance under section 290, P. P. C. ) without order of competent Magistrate and proceedings in Court police officer's report would be illegal and without jurisdiction. It stands admitted in the evidence of the prosecution itself that the investigating officer had not investigated this case under the order or with the sanction of the Magistrate. The public prosecutor has not been able to draw my attention to any material on the record which may show that the Magistrate had jurisdiction to proceed with the case on the report filed by the police officer for the commission of a non‑cognizable offence which had been investigated by the police officer without the sanction of the Magistrate. I, therefore, hold that it is a fit case which should be recommended to the High Court with the recommendation that the proceedings against the accused‑appel lants be quashed and the order of conviction be set aside. The record of the case is consequently submitted to the High Court with the above recommendation. It is pointed out by the counsel of the accused‑appellants that the fine has already been deposited by the accused‑appellants in the lower Court and consequently the question of suspending the order of conviction and sentence is set aside and the accused‑appellants are acquitted, they will be entitled to the refund of the fine deposited by them.

Announced.

Abid Butter for the State.

‑On the 18th of July 1967, at about 7‑00 a.m. Allah Dad P. W. alongwith two other constables was on beat duty. Haji Alan met them near Chah Bhattiwala. F. C. Allah Dad reduced the report (Bxh. P. A) of Haji Alan in writing, which was to the effect that the accused were residents of Chah Dhal Bhattiwala in the area of mouza Chhabriwala, Tehsil Dera Ghazi Khan and they owned land surrounding the Basti Hajana, that the accused‑petitioners cultivate their fields surrounding Basti Hajana and in order to protect their crop from the cattle of the residents of Basti Hajana they fixed up hedges and fences around their fields. Since the accused‑petitioners had to irrigate their fields, sometimes the passage used by the residents of Basti Hajana became muddy on account of the overflow of the water channels of the accused petitioners. The residents of Basti Hajana faced some inconvenience on account of the cultivation of the surrounding fields and the hedges and fences fixed up by the accused‑peti tioners. At this Haji Alan and others were aggrieved. This report was sent to the police station with the endorsement of F. C. Allah Dad that the statement of Haji Alan did not disclose the commission of any cognizable offence, nor it disclosed any immediate apprehension of the branch of the peace and so this statement of Haji Alan, be entered in the roznamcha. This statement of Haji Alan, it appears, was recorded in the roznamcha at serial No. 7 dated the 19th of July, of 1962 of Police Station Sadar and on the same day A. S. I. Muhammad Ahmad on its basis draft a complaint under section 268/290, P.P.C against the petitioners Hyder and thirteen others and forwarded the same to the Ilaqa Magistrate on the same day. The Ilaqa Magistrate received this and on the 24th of July 1962 ordered that the accused should appear on the 1st of August 1962. The Magistrate charged all the accused on the said charges and finding them guilty of the offence under sections 268/290, P. P. C. sentenced each of them to pay a fine of Rs. 50 each or in default to undergo two months' simple imprisonment.

2. The accused‑petitioners went up in revision against this order to the Court of Sessions Judge, D. G. Khan. The learned Sessions Judge, vide his order dated the 21st of March 1963, recommended the case to this Court for the quashment of the proceedings on the ground that the Magistrate had no jurisdic tion to take the cognizance of the case against the accused petitioners on the report submitted by the police in respect of a non‑cognizable offence. The learned Sessions Judge relied on It‑shad Begum and another v. The State (P L D 1961 Lah. 882) and Bahadur v. Madhai (P L D .1963 Lah. 269). The learned counsel for the State in support of the reference also sought support on the same proposition of law from Muhammad Rashid v. The State (P L D 1964 Kar. 381) and Mst. Mumtaz Begum v. The State (1968 P Cr. L J 97) Lahore, wherein it has been observed in headnotes (b) and (c) :‑

S. 155(2) read with S. 4(1)(f )‑Investigation by police in non‑cognizable case, without permission of a Magistrate, is a nullity and cannot be the basis of a report‑Thing required by law to be done in a certain way must be done in that way or not at all.

It was held :‑

"It is now a well‑settled proposition of law that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all. Other methods of performance of that act are necessarily forbidden. The entire investigation done by the Sub‑Inspector, where he had not obtained permission of the Magistrate, was a nullity and could not be the basis of a report."

S. 190(a)(b) read with Ss. 4(i)(h), 155(2), 173 & 561‑A‑Police Officer's report under S. 173 to a Magistrate can never be treated as a complaint‑Police report under S. 173 in non cognizable case‑Magistrate not legally competent to take cognizance of case‑Proceedings quashed under S. 561‑A.

The report of a police officer can never be a complaint. If a police officer wants to file a complaint, he should make it clear that it was not his report as a police officer. He should, moreover, submit it directly to the Magistrate as complaint.

Since it was not competent for the police to make investiga tion in the case, they could not validly submit a report, nor could the Magistrate legally take cognizance of the case.

The proceedings of the case, merited to be quashed on the ground that they were not validly initiated inasmuch as the Magistrate could not take cognizance under section 190, Cr. P. C. because there was no complaint made to him under clause (a) of section 190, and the report submitted to him by the police was not valid because the case was non‑cognizable one. The Magistrate, therefore, had no jurisdiction to take cognizance of it under section 190(i)(b).

3. I, therefore, hold that the Magistrate had no jurisdiction to take cognizance of the case against the petitioners on the report submitted to him by the police officer in a non‑cognizable offence. The proceedings of the case against the petitioner are, therefore, quashed and their conviction and sentences are set aside. The fine, if realised, should be refunded to the petitioners.

Proceedings quashed.

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