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Constitutional Petition No. 481 of 1975, decided on 5th October 1976.

‑‑ S. 1414) read with S. 4‑Cognizance of case‑Report of Police Officer should give material indicating a case under Act‑No specific material before Tribunal except Police report containing mere reproduction of language used in some clauses of S. 14‑Tribunal, held, cannot be said to have acted legally in taking cognizance of such case.‑[Cognizance of case].

It is obligatory that the report should be made 'in writing' by a Police Officer the possibility of an oral complaint is thus ruled out. 'Writing' presupposes some material reduced and expressed in words; and as to what should be the nature of that material, the same is indicated by use of the words 'in this behalf'. As every word used in the section is to be given its meaning, this appears to be the only possible manner of interpreting the words 'in this behalf'. Since section 4 of the Act deals with cognizance of 'a case under this Act' as stated above, the words 'in this behalf' would obviously be understood to have a limited import, of relating to a 'case under this Act' and no more. The writing contained in the report of the Police Officer has thus of necessity to give material that should indicate a case under this Act, for if anything outside its scope is stated, the Tribunal shall have no legal concern with the same. The ultimate action of the Tribunal as contemplated under the Act, is only of holding an enquiry to find out whether a person complained against is in fact respon sible for doing any of the acts specified in the 35 clauses of section 14 of the Act and, therefore, 'the case under this Act' can only mean the enquiry under section 14 of the Act' and the report must contain material in writing, which points in that direction.

The Sind Crimes Control Act places a duty on the Tribunal to supply a copy of the report to the person against whom the complaint is made. The person is not required to obtain such a copy, nor shall he have to pay for that. If this copy is to contain any particulars as specified in section 6 of the Act, the same must already exist in the original. In such circumstances to imagine of a procedure or even possibility where the prosecution could supply particulars to a Tribunal after it has taken cognizance of a case, would be imagining a state of liaison between the two, which is not known in judicial proceedings.

Now 'taking cognizance does not involve any formal action, but it takes place, as a Tribunal applies its mind to the material before it for com mencing proceedings. It is, however, always considered to be a judicial act, by which the Tribunal decides whether it should take such judicial action, preliminary to the enquiry, as may be provided in law i .e. issuing of process or recording of evidence etc. In short this action is taken with a view eventually to prosecution but preliminary to the commencement of the same. Thus taking cognizance is never an act of an investigation agency or any other such authority, but is the action of the Tribunal which applies its mind.

The Tribunal cannot be said to have acted legally in taking cognizance when there was no specific material before it and the only contents of the police report were a mere reproduction of the language used in some clauses of section 14 of the Act.

Muhammad Ishaque v. The Tribunal & A. D. M., Larkana P L D 1975 Kar. 198 and Ali Nawaz v. D. M. & Tribunal, Sukkur Constitutional Petition No. 1555 of 1975 ref.

M. M. K. A. Zai v. The District Magistrate & Tribunal. Karachi Petition No. 1150 of 1973 ; Abdul Sabur v. The District Magistrate P L D 1969 Pesh. 167 ; Manu v. Stare P L D 1964 Kar. 34 ; H. N. Rishbud and another v. The State of Delhi A I R 1955 S C 196 and Nagendra Nath Chakra barthi v. King‑Emperor A I R 1924 Cal. 476 ref.

---S. 537‑Illegality or irregularity cannot be allowed to continue on hope of its being ultimately cured.

Muhammad Ibrahim Memon for Petitioners.

Muhammad Suleman Memon, Additional Advocate‑General (Sind) for Respondent.

Date of hearing : 11th August 1976.

.‑The petitioner has by these petitions assailed proceedings, initiated separately but on the same date by the respondent No. 1, against his brother Jan Muhammad alias Janan and his cousin Ghulam Hussain, both described as detenus. As the facts and point for considera tion, involved, are common, these two petitions are disposed of by this single judgment.

As alleged by the petitioner, both the detenus were arrested by the S. H. O., Sehwan on 2‑5‑1975. and mere kept in wrongful confinement, whereafter on 3‑5‑1975 he filed two separate reports under section 14 (4) of the Sind Crimes Control Act, 1975 (hereinafter referred to as the Act) before the first respondent, which except for the names of the detenus, were both in the same words, as reproduced hereunder;

sir,

It is submitted that above Badmash has been committing offences of the following columns as under

(1) Column No. 19.‑Knowingly disposes of stolen property.

(2) Column No. 20.‑Gives shelter to decoits ; helps them in concealing stolen property and disposes of stolen property.

(3) Column No. 34.‑He is dangerous and desperate thief and Patharidar.

His remaining out would be hazardous to public in general.

Names of witnesses :

(1) Complainant on behalf of the State.

(2) Sabu son of Panhoon Solangi resident of Sehwan.

(3) Usman son of Yar Muhammad Solangi resident of Sehwan.

(Sd.) S. H. O., Sehwan P. S."

The S. H. O. also made an application under section 5 of the Act, and the 1st respondent issued non‑bailable warrants against the two detenus. On 5‑5‑1975, the detenus were produced before the 1st respondent. On the same date the S. H. O. made an application under section 8 (3) of the Act, when after examining witnesses on oath the 1st respondent passed orders under section 8 (3) (b) of the Act, as under :‑ ,

"The Respondent has been sent up to this Tribunal for proceedings against him under section 14 of the Sind Crimes Control Act, 1975, for w the following charges that he habitually receives and deals in property which he knows to be stolen. That he is by habit a thief and protects such offenders. That he is desperate and dangerous in the public.

On receipt of the complaint from the Station House Officer, Sehwan Order under section 8 (1), Sind Crimes Control Act, 1975 has been passed for holding enquiry against the respondent. The prosecution has moved an application for passing detention orders of the respondent till the conclusion of the enquiry because it is apprehended that in case the respondent is let loose he might intensify his criminal activities which might affect the prosecution case and prove hazardous to the public.

From the allegations of the prosecution I am satisfied that with a view to prevent the respondent from indulging in criminal activities It is essential that he may be detained in jail. Therefore in exercise of the powers vested in me under section 8 (3) (b) of Sind Crimes Control Act, 19751 hereby order that the respondent be detained in jail for a period of 2 months from the date on which he has been remanded to jail custody under the order of this Tribunal.

Given under my hand and seal of the Court this 5th day of May 1975."

The detenus were thereafter remanded to jail custody, but on 25‑6‑1975, this Court suspended the operation of the detention order and they were .ordered to be released on bail.

Several grounds were raised in the petitions to challenge the legality of the proceedings under the Act, but in view of the fact that the detenus were on bail, Mr. Ibrahim Memon, the learned counsel appearing in the two petitions, submitted that he would press into service only one ground i.e. the 1st respondent, Tribunal, had wrongly taken cognizance under section 4 of the Act upon the report of the S. H. O. in this case, bCCdu80 it did not comply with the requirements of section 6 of the Act‑and omitted to state;

(i) the acts with which the detenus complained against were charged, (ii) the details of time and place of such acts, and (W) the general repute of detenus complained against or such other allegations made against them.

In his submission, although the above were specified in suction 6 of the Act, they were necessarily to be given in the report under section 4 of the Act, without which a Tribunal could not take cognizance of tile case under the Act, and any action in commencing proceedings would amount to an act without lawful authority and therefore not legal. According to him, the words 'the report' used in sections 5 and 6, referred to the same report which was mentioned in section 4 (b) of the Act and therefore, of necessity, was to contain the particulars specified in the three clauses. To support his contention he referred to section 5 of the West Pakistan Control of Goondas Ordinance, 1959 (hereinafter referred to as the Ordinance), which according y to him was a statute in para materia to the Act. This Ordinance has in fact been repealed by section 27 of the Act. In order to appreciate the contention of the learned counsel, it would be necessary to examine the relevant provisions of the Act and the Ordinance, which are as under;

Cognizance of cases by Tribunal.‑(1) No Tribunal shall take cogniz ance of a case under this Ordinance unless‑

(a) (i) the person complained against resides or (ii) the acts mentioned in clause (a) to (I) of section 13 are alleged to have been committed within the local limits of its jurisdiction ; and

(b) the officer incharge of the Police Station within the jurisdiction whereof such place as aforesaid lies, or in areas which are not within the jurisdiction of any Police Station, the Extra Assistant Commissioner within whose jurisdiction such place lies or any other officer authorised in this behalf by the District Magistrate, lays information with the Tribunal under subsection (2).

(2) The Information shall be signed by the Police Officer concerned and shall briefly set out‑--

(a) the practices with which the person complained against is charged ;

(b) instances, with details of time and place of such practices ;

(c) a statement of any relevant general repute in which such person is held arid any other ground on which the Information is based ;

(d) names, other particulars of witnesses who will be produced to support the allegations contained in the information ; and

(e) prayers as regards action to be taken against him"

and

Section 4. Cognizance of cases by Tribunal.‑A Tribunal shall take cognizance of a case under this Act when‑

(a) the person complained against resides or the act complained against is alleged to have been committed, within its jurisdiction ; and

(b) a Police Officer not below the rank of Sub‑Inspector makes a report in writing in this behalf.

Section 5. Summoning of persons.‑On receipt of the report, the Tribunal shall issue a summon requiring the person complained against to appear, or, when such person is in custody, a warrant directing the officer in whose custody he is, to produce him before it ;

Provided that whenever it appears to such Tribunal, upon the report of a Police Officer or upon other information (the substance of which report or information shall be recorded by the Tribunal), that there is reason to apprehend the commission of the act complained against and that such commission of the act cannot be prevented otherwise than by the immediate arrest of such person, the Tribunal may, at any time issue a warrant for his arrest.

Section 6. Delivery of copy of report.‑‑--Every summons or warrant issued under section 5 shall be accompanied by a copy of the report and such copy shall be delivered by the officer serving or executing such summons or warrant to the person served with, or arrested under the same ;

Provided that the report shall briefly state (i) the acts with which the person complained against is charged ;

(ii) the details of time and place of such acts ;

(iii) general repute of person complained or such other allegation made against him."

Now the language used in section 5 of the Ordinance was prohibitive in nature, and created a restriction on the powers of the Tribunal to take cognizance of a case. It made it compulsory for the Police Officer to sign the report and also to set out briefly all the particular named in clause (2) of section 5 ; and unless the report gave these particulars, the Tribunal could not take cognizance of the case. The language of this section was considered by several Division Benches of this Court and it had consistently been held that non‑compliance of clause (2) by not supplying particulars and instances in the report, vitiated the very cognizance taken by the Tribunal, of a case under the Ordinance.

In Muhammad Ishaque v. The Tribunal & A. D. M., Larkana (P L D 1975 Kar. 198), it was held, "that subsection (2) of section 5 lays down the nature of and particulars to be contained in the information which is the foundation for taking cognizance against the person complained. As this was a case of non‑compliance with the mandatory provisions of section 5 (2), it was concluded, "The cognizance taken by the learned Tribunal and the pro ceedings initiated by him are, in our view, without jurisdiction and lawful authority".

Similarly it was observed in the case of Ali Nawaz v. D. M. & Tribunal, Sukkur (Constitution Petition No. 1555 of 1975):

"That such requirement is mandatory and its non‑compliance vitiates the cognizance as has been held by a D. B. in C. P. No. 764/63 and in many other petitions decided by other D. Bs. of this Court."

In this regard the learned Additional Advocate‑General referred to an order in Petition No. 1150/73, (M. M. K. A. Zai v. The District Magistrate & Tribunal, Karachi) wherein amongst others, objection was also taken against the cognizance taken upon a report which did not comply with the requirements of section 5 (2) of the Ordinance, but on an interpretation of the said provision, a different view had been taken and it was observed;

"It is true that the Ordinance has prescribed a specific mode for the initiation of proceedings upon which the Tribunal is to take cogniz ance, but the position in law is also well settled that the foundation of the jurisdiction of a Tribunal created by the Statute is not dependent just upon the mode or the manner prescribed for the presentation of the report of the complaint, and any irregularity in that behalf is not treated to be fatal so as to invalidate the proceedings before the Tribunal or the order passed thereon, if the Tribunal otherwise is properly seized of the case. The Code of Criminal Procedure has also prescribed particular mode under section 173 in which police report is to be submitted upon which cognizance is to be taken by the Court. H. T. Raymond, J., after reverting the case‑law on the subject held, in the case reported as Manu v. The State (P L D 1964 Kar. 34), that omission by a Police Officer to comply fully with the provisions of section 173, Cr. P. C. does not affect the validity of the cognizance taken by the Court, or the proceedings of the case"

In the case of Abdul Sabur v. The District Magistrate and others (P L D 1960 Pub. 167) a Division Bench of Peshawar Seat of West Pakistan High Court held that non‑observance of procedure prescribed under sections 5 and 6 of the West Pakistan Control of Goodas Ordinance, 1959, does not vitiate the proceedings before the Tribunal. The relevant passage reads :‑---

"the mere fact that the procedure was not strictly followed would not., in our view, vitiate the proceedings, which commenced after the information was laid and the Tribunal decided to hold inquiry' ; reliance was placed on Mirza Mahmood Beg v. The Commissioner, Multan Division and others, at page 707 it was observed :‑----

the irregularity, if any, in procuring the records, would not invalidate the order of the Commissioner. For analogy, the Privy Council case of Prabhu v. Emperor A I R P C 73, may be referred to. If a Tribunal is properly seized of a matter, the order passed by it, would not be vitiated by any antecedent irregularities, committed in pro-curing evidence or in securing the presence of the accused.'

The Tribunal was properly seized of the matter when the information was laid before him and detenus were produced before him, and therefore, the argument, that the information was not laid before him before notices were issued under section 6 in view of the authority cited above, has no force and the proceedings in consequence do not stand vitiated."

Obviously, the other cases relating to section 5 of the Ordinance, men tioned above, do not appear to have been brought to the notice of their Lordships who decided that petition. Moreover the order dismissing the petition proceeds on various other grounds as well, and it cannot, in all propriety, be canvassed that the question of cognizance was the sole conten tion considered or that it was decided finally by their Bench, in disposing of that petition, in limine.

However, the main question in the present petition, involves only an interpretation of the plain language used in section 4 of the Act, as this section directly relates to taking cognizance of a case under this Act. The interpretation of section 5 (2) of the Ordinance would be relevant in this context only if it is affirmatively found that the particulars specified in section 6 are necessarily to form part of a report under section 4 of the Act, and not otherwise.

Upon a simple analysis, the requirement for taking cognizance as contemplated in sub‑clauses (a) and (b) of section 4 of the tact, would be as under :‑--

(a) Either (i) the person complained against must be residing within the jurisdiction of the Tribunal, or

(ii) the act complained against must be alleged to be committed within its jurisdiction ; and

(b) (iii) a report should he made in this behalf in writing ; and

(iv) it must be by a Police Officer, not below the rank of Sub‑Inspector.

Clause (a) of this section relates only to the territorial jurisdiction of the Tribunal, while the form and substance of the report is described in clause (b). It is obligatory that the report should be made 'in writing' by a Police Officer. The possibility of an oral complaint is thus ruled out. 'Writing' presupposes some material reduced and expressed in words; and as to what should be the nature of that material, the same is indicated by use of the words 'in this behalf'. As every word used in the section is to be given it s meaning, this appears to be the only possible manner of interpreting the words 'in this behalf'. Since this section deals with cognizance of 'a case under this Act' as stated above, the words 'in this behalf' would obviously be 4 understood to have a limited import, of relating to a 'case under this Act' and no more. The writing contained in the report of the Police Officer has thus of necessity to give material that should indicate a case under this Act, for if anything outside its scope is stated, the Tribunal shall have no legal concern with the same. The ultimate action of the Tribunal as contemplated under the Act, is only of holding an enquiry to find out whether a person complained against is in fact responsible for doing any of the acts specified in the 35 clauses of section 14 of the Act and therefore 'the case under this Act' can only mean 'the enquiry under section 14 of the Act' and the report must contain material in writing, which points in that direction.

The learned Additional Advocate‑General however contended that this is a matter of form and not substance, and the object of section 4 of the Act could be satisfied even, if the words used in particular clauses of section 14, are mentioned, as in the present case, without giving the details as provided in section 6. In his submission, the use of the word 'shall' is this section, left no option with the Tribunal but to take cognizance of the case, though there be no details of the acts, given in the report. These details are required to be given to the person complained, and these, if not supplied immediately, could be made available by the prosecution even subsequent to the cognizance by the Tribunal. In his view that was merely a matter of procedure and the language used, directory in nature. This argument suffers from a patent error of interpretation; and fails to notice that a 'copy' would always mean a transcript of the original which must exactly reproduce its contents. The Act places a duty on the Tribunal to supply a copy of the report to the person against whom the complaint is made. The person is not required to obtain such. a copy, nor shall he have to pay for that. If this copy is to contain any particulars as specified in section 6 of the Act, the same must already exist in the original. In such circumstances to imagine of a procedure or even possibility where the prosecution could supply particulars to a Tribunal after it has taken cognizance of a case, would be imagining a state of liaison between the two, which is not known in judicial proceedings.

The next question that arises is whether failure to supply the particulars in the report, would render the initiation and consequent proceedings, bad in law. The learned Additional Advocate‑General has argued that it would not, as that was the requirement of section 6 only which was directory and not mandatory. For this submission, he placed reliance on the case of Manu v. State (P L D 1964 Kar. 34).

Now 'taking cognizance' does not involve any formal action, but it taken, place, as a Tribunal applies its mind to the material before it for commencing proceedings. It is, however, always considered to be a judicial act, by which the Tribunal decides whether it should take such judicial action, preliminary to the enquiry. as may be provided in law i.e. issuing of process or recording of evidence etc. In short this action is taken with a view eventually to pro secution, but preliminary to the commencement of the same.

Thus taking cognizance is never an act of an investigation agency or any other such authority, but is the action of the Tribunal which applies its mind. In the case of Manu v. State the question for consideration was whether proceedings taken upon a report under section 173 of the Cr. P. C. in which the Investigation Officer had omitted to comply fully with the provisions of that section were vitiated on account of such omission and after taking note of case‑law, the learned Judge observed at page 41:‑---

"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 print 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."

The learned Judge thereafter proceeded to observe in the light of the case law considered by him :‑--

"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 irre gularity curable under section 537, Cr. P. C. It certainly cannot have the effect of vitiating the subsequent proceedings or the subsequent trial."

A careful reading of this decision would show that it does not support the contention as put forward by the learned Additional Advocate‑General. 'Taking cognizance' was considered as an act distinct from what the Investiga tion Officer did before placing the material in Court. Since the Court had the material available to it in the shape of the F. I. R. etc. which was sufficient to enable the understanding of the facts of the case, application of the mind to that case and taking cognizance was not considered to be an illegality ; but in that context if there was any omission in conforming to a particular form or giving of details it was treated as an irregularity curable under section 537 of the Cr. P. C. In arriving at this conclusion, the learned Judge relied upon the case of H. N. Rishbud and another v. The State of Delhi (A I R 1955 S C 196) and Nagendra Nath Chakrabarthi v. King‑Emperor (A I R 1924 Cal. 476). In the first case, it was found that a defect or illegality in investigation, however, serious, has no direct bearing on the competence or the procedure relating to cognizance or trial ; and that although a police report was, under section 190, Cr. P. C., the material on which cognizance is taken it could not be maintained that a valid and legal police report is the foundation of jurisdiction of a Court to take cognizance. In the Calcutta case, it was held that a Magistrate while taking cognizance of an offence, performed a judicial act and that it will be contrary to sound principle to hold by fiction, that he exercised this judicial function on an occasion, when the question was not even present in his mind.

It may further be noted that the case Manu v. The State was a case of revision against a conviction recorded by a lower Court and that the full evidence in the case was before the Court. In the instant case which fall under the Sind Crimes Control Act. the provisions of section 537, Cr. P. C. D are not applicable, and even if such a provision was available, an illegality or irregularity cannot be allowed to continue in the hope that it will ultimately be cured. The petitioners have challenged the very taking cognizance of the case as being based on no material. The Tribunal cannot be said to have acted legally in taking cognizance when there was no specific material before it and the only contents of the police report were a mere reproduction of the language used in some clauses of section 14 of the Act. The view expressed in the case of Muhammad Ishaque v. The Tribunal & A. D. M., Larkana and Ali Nawaz v. D. M. and Tribunal, Sukkur, mentioned above, shall thus be‑fully applicable to this case.

The petitions are, therefore, allowed and the orders passed by the Tribunal taking cognizance on the basis of the police report are set aside.

.‑I agree.

S. Q. Petition allowed.