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Criminal Miscellaneous No. 4857 of 1968, heard on 27th May 1976.

‑‑ S. 3/4 read with Criminal Procedure Code (V of 1898), Ss. 155(2) & 190‑Arrest in non‑cognizable offences‑Cognizance- Petitioners hauled up from a house on ground of making love, in violation of provisions contained in Ss. 3 & 4 of Ordinance -Contention that offences under Ordinance being non‑cognizable, Police‑Officer could not investigate such offences without obtaining prior permission of Magistrate under S. 155(2) nor Magistrate was competent to take cognizance‑Contention, held, correct and action without lawful authority, in circumstances.

Arif Iqbal Hussain Bhatti for Petitioner.

Kh. Shaukat Ali for A: G. for the State.

Date of hearing: 27th May 1976.

Shamim Ara and two others petitioners have applied for the quashment of the proceedings pending against them before a local Magistrate for the offence under section 3/4 of the West Pakistan Supression of Prostitution Ordinance 1961.

2. Briefly, the facts of the case are that Shamim Ara, Sheerin Sultan and Bakht Zaminan petitioners were found making love to their co‑accused in the house of one Ghulam Qadar situated in Bazar Sheikhupurian in the vicinity of Police Station Tibbi, Lahore. The Sub‑Inspector rounded them up and took them to the police station. He made an entry of these facts in the Daily Diary and submitted his report to the Magistrate and the Magistrate then took cognizance of the matter.

3. Learned counsel for the petitioners contended that the offences under section 3/4 were not cognizable offences and the police officer could not investigate them unless prior permission was obtained under section 155 subsection (2) of the Code of Criminal Procedure from a Magistrate. The action being without lawful authority, the proceedings were, therefore, a nullity and the Court could not take cognizance under section 190, Cr. F. C. It was next contended that without prior permission of the Superintendent of Police, the Sub‑Inspector could not arrest the accused without warrant. Reliance was placed in this regard on Mst. Mumtaz Begum and 4 others v. The State (1968 P Cr. L J 97). It has been laid down in the cited case 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."

In view of the principle laid down in the cited case, this petition is accepted and the proceedings against the petitioners are quashed.

Petition allowed.

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