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Criminal Miscellaneous No. 4610 of 1968, decided on 11th February 1970.
---Ss. 3, 4 to 8 read with Criminal Procedure Code (V of 1898), S. 155(2)-Offences under Ss. 3, 4 & 8 of Ordinance-Not cogniz able offences-Petitioners hauled up for running brothel and investigation carried out without obtaining permission from Ilaqa Magistrate under subsection (2) of S. 155, Cr. P. C. Entire proceedings, held, illegal and report submitted to Court could not be made basis of any penal action against petitioners Proceedings quashed-Criminal Procedure Code (V of 1898), S.561-A.
Mst. Mumtaz Begum etc. v. State 1968 P Cr: L J 97 ref.
Agha Abdul Ali for Petitioners.
A. R. Shabab Mufti for the State.
Date of hearing: 11th February 1970.
A case under sections 3, 4 and 8 of the Suppression of Prostitution Ordinance, 11 of 1961 is pending against the two petitioners in the Court of A. D. M., Jhelum, and on the admission of the present petition under section 561-A of the Code of Criminal Procedure the proceedings were stayed by order of this Court on the 5th of September 1968. Petitioner No.1 is the husband of petitioner No 2 and both of them were accused of running a brothel in their house No. B/117, Gali Munshi Karam Din, Mohallah Shumali, Jhelum City. It was alleged that on some secret information Mumtaz Ali S: H. O. raided the house of the petitioners on the 14th of May 1968, and found Capt. Muhammad Sharif Jan P. W. present inside one of the rooms talking to petitioner No. 2 where Mst. Akhtar (a respondent in another case filed in the same Court) was also present. On an inquiry the aforesaid Captain told the S. H. O. that he was called in by petitioner No. 2 and offered the enjoyment of the company of Mst. Akhtar on payment of some cash but he had spurned the offer telling her that he was not a man of that type. Wajid Ali Shah, another P. W. in the case, stated that Mst. Akhtar had also given a gesture to him to attract his attention for the purpose of prostitution when he was passing beside the house shortly before this raid. In the meanwhile petitioner No. 1 arrived there and his personal search is alleged to have yielded a knife and a half bottle of liquor which was later found to be illicit and he was separately prosecuted under section 61 of the Excise Act.
Petitioner No. I was convicted in the excise case on the 11th of August 1969, by the A. D. M., Jhelum, but was acquitted :on appeal by the Sessions Judge on the 13th of January 1970.
The two petitioners have sought the quashment of the proceedings on the grounds that the prosecution was malicious on account of personal enmity with Raja Mumtaz Ali, S. H. O. of Illaqa and even otherwise the offences under sections 3, 4 and 8 of the West Pakistan Suppression of Prostitution Ordinance II, 1961, being non-cognizable no action could be taken against them without obtaining permission from the Illaqa Magistrate under clause (2) of section 155 of the Cr. P. C. to investigate the case so the entire proceedings were illegal and the report submitted to the Court by him cannot be made the basis for any penal action against them as held in Mst. Mumtaz Begum etc. v. State (1968 PCr.LJ97).
3. I have heard the learned counsel for the parties who have also taken me through the record of the case and find that this assertion of the petitioners was correct and the learned counsel for the State conceded that the case did suffer from this legal infirmity but urged that even if the said police officer had carried out the investigation in this case without the permission of the Illaqa Magistrate under section 155 (2) read with section 4(1)(f) of the Code of Criminal Procedure it did not affect the jurisdiction of the Court to take cognizance of such an offence on the report submitted by him but these contention cannot hold ground in view of the pronouncement made by my-learned brother Sardar Muhammad Iqbal, J., in the above noted case after an elaborate discussion on all these aspect with which I agree. The facts of this case are quite similar to the facts of the above reported case, I, therefore, accept this petition as it will be an abuse of the process of the Court and will not serve any ends of justice if the case against the petitioners is permitted to proceed and quash the proceeding pending against them in the Court of A. D. M., Jhelum.
Petition accepted.
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