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Petitioner: MASOOD AHMAD VS Respondent: THE STATE
Court Name: Federal Shariat Court Judge(s): Ali Hussain Qazilbash, Aftab Hussain, Ch. Muhammad Siddiq Title: MASOOD AHMAD vs THE STATE Case No.: Criminal Appeal No, 63/1 of 1982 Date of Judgment:1982-10-09 Reported As: PLD 1983 Federal Shariat Court 94 Result: Appeal dismissed
JUDGMENT
JUDGMENT ' AFTAB HUSSAIN, C. J.-By his order dated 13.5-1982 Syed Tasaddaq Hussain Bokhari, Magistrate First Class, Faisalabad convicted the appellant under section 11 of the Prohibition (Enforcement of Hudood) Order, 1979 and sentenced him to three years rigorous imprisonment and ten stripes. 2. Hence this appeal. 3, The prosecution case is that on the night between 11th and 12th of February, 1980 when Muhammad Arif, Constable, P. W. 1 and Sikandar Hayat, Constable, P. W. 3 were on duty in Fawara Chowk, Faisalabad, they found the appellant at about 12-00 or 12-15 p. m. In a state of intoxication. They took him with them in a bid to go to the police station. At Satiana Road Gate they met Abdul Rahim, Head Constable who was later promoted as Assistant Sub-Inspector and appeared in the Court as P. W. 5. Abdul Rahim sent the appellant with Muhammad Arif P. W. 1 and Nawaz Constable to the hospital for his medical examination. The appellant was examined by Dr. Imtiaz Ahmad Gil who found him smelling of liquor. He observed that his face was red and he was talking excessively. He took his urine, blood and the stomach wash and sent them to the Chemical Examiner for analysis. The Chemical Examiner's report Exh. P. E, is positive to the extent that he detected Alcohol in the urine and blood only. 4. In support of the prosecution case Muhammad Arif, P. W. 1 Walter Masib, A. S. 1. P. W. 2 Sikandar Hayat, Constable, P. W. 3, and Dr. Imtiaz Ahmed Gil p. W. 4 were produced. Abdul Rahim A. S. I. Appeared as Investigating Officer. The evidence of Walter Masih, P. W. 2 is only formal since he had written the First Information Report Exh. P. A./1 on receipt of the complaint Exh. P. A. At about 1-25 a. m. The same night.
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5. Muhammad Arif P. W. 1 and Sikandar Hayat, P. W. 3 proved the facts as stated above regarding the presence of the appellant in a state of intoxication at the place where they were on duty. Muhammad Arif further stated that he took the appellant to the doctor who after his medical examination gave him a sealed envelope and three sealed phials which he gave to Abdul Rahim, P. W. 5 who took them in possession, vide Exh. P. 5, on the 12th of February, 1980. He took these articles to the office of the chemical Examiner and handed them there. They were not tampered with for so long as they remained in his possession. In his cross-examination he stated that the house of the appellant was at a distance of about 1 Kilometer from that place and the appellant had made no effort to escape. He asked .For a match box and at that time it was discovered that he had taken liquor. He denied that there was any quarrel between the constable and the appellant. Sikandar Hayat, P. W. 3 in his cross-examination stated that the appellant tried to escape on seeing the constables. Imtiaz Ahmad Gil, supported his medical examination report Exh. P. C. Abdul Rahim, P. W. 5 supported the version of Muhammad Arif, P. W. 1. He denied that there was any quarrel between the police constables and the appellant. 6. The appellant denied that he was drunk. He admitted that Muhammad Arif and Sikandar Hayat, Constables had taken him with them but said that he was not produced before the doctor. He, however, admitted that his blood, urine and stomach wash was taken. He explained that there was a quarrel between him and these constables who had involved him in this false case. 7. He produced Padri Samual Shah, Principal, Saint Johns Mission High School, D. W. 1 and Nazir Ahmad an owner of a Printing Press, D. W. 2. Both of them stated that they never heard of any complaint of drinking against the appellant. 8. The learned counsel for the appellant urged that the evidence of P. W. 1 and 3 was discrepant in as far as P. W. 1 stated that the appellant did not try to escape while according to P. W. 3 he did attempt to escape. P. Ws. 1 stated that he discovered that the appellant was drunk when the latter asked for a match box. Sikandar Hayat said that Masood Ahmad was making noise in a state of intoxication. Nothing turns upon these discrepancies in view of the admission of the appellant that he was taken with him by these two constables, and the evidence of Dr. Imtiaz Gil which is supported by the report of the Chemical Examiner. It is proved beyond any shadow of doubt that the appellant was drunk on the night between 11th 'and 12th of February, 1980. 9. The learned counsel raised certain technical preliminary objections which according to him vitiated the trial and entitled the appellant to acquittal. He raised the following objections :- (1) Article 16 of the Prohibition Order provides that an offence inter alia under Article 11 is congizable only if it is committed at a public place. In the present case there is no evidence that the appellant had taken liquor at a public place. It was threfore. a non-cognizable offence and the police had neither the right to arrest the appellant without warrant nor the right to investigate the matter without specific permission from a Magistrate as provided in section 155, Criminal Procedure Code, (2) Rule 6 of the Punjab Rules framed under the Order provides for a procedure of taking an accused to the Prohibition Officer who only had the right to submit a report under section 173, Cr. P. C. To enable the Magistrate concerned to take cognizance of the case under section 190 of the Code. This procedure was not complied with and in view of the mandatory nature of the rule as held in 1982 NLR (Criminal) 212 the appellant cannot be punished and is therefore, entitled to acquittal. (3) The Head Constable or the Constable had no right to arrest the appellant in view of section 12 of the Prohibition Order. 10. The first and third point may be taken together. Clause 1 of Article 16 of the Order provides that the following offences shall be cognizable, namely :- 16 (1) (a) (b) an offence punishable under Article 4, Article 8 or Article 11, if committed at a public place.
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11. Article 12 is as follows :- 12. Arrest on suspicion of violation of Article 8 or Article 11.-(1) No police officer shall detain or arrest any person on suspicion that he has taken an intoxicant in violation of Article 8 or Article 11 unless he has asked such person to accompany him to an authorized medical officer for examination and such person either refuses to so accompany him or, having been examined by the medical practitioner, is certified by him to have taken an intoxicant. (2) Whoever contravenes the provisions of clause (1) shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to five hundred rupees, or with both. 12. It appears clear that an offence under Article 11 shall be cognizable if committed at a public place. The expression 'cognizable offence' is not defined in the Order but by virtue of section 22 which applies the provision of Criminal Procedure Code mutatis mutandis to cases under this Order, the definition of that expression in the Code is relevant. The definition is to the effect that a cognizable offence is an offence in which a police officer may in accordance with the second schedule or under any law for the time being in force arrest without warrant. 13. The procedure to be followed on information is provided in sections 154, 155 and 156 of the Code. Section 154 provides that every information relating to the commission of a cognizable offence if given orally to an officer in charge of a police station, shall be reduced into writing by him or under his direction and be read over to the informant ; and every such information will be given in writing or reduced to writing as aforesaid shall be signed by the person giving it, and the substance thereof shall be entered in a book by such an officer to be maintained in such form as the Provincial Government may prescribe in this behalf. The form of the first, information report Exh. P. A./1 is the form of a report under this section. 14 Section 155 provides that on receiving the information in a nonmnizable case, the officer in pillow of the police station, shall enter ill a book to be kept as aforesaid the substance of such information and refer the informant to the Judicial Magistrate. No Police Officer shall investigate a non- cognizable case without order of a Magistrate of the first or second class having power to try such case or send the same for trial to the Court of Session. Any Police Officer receiving such order may exercise the same powers in respect of the investigation except the power to arrest without warrant as an officer in charge of a police station in a cognizable case. 15. Section 156 authorises the officer in charge of a police station without the order of a Magistrate to investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such police station would have power to inquire into or try under the provisions of Chapter XV relating to the place of inquiry or trial. No proceeding however of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate. Any Magistrate empowered under section 190 may order such an investigation as above mentioned. However, the investigation of a case under section 497 or 498 cannot be made except upon a complaint made by the husband of the woman, or, by some person who had the care of such woman on his behalf at the time when such offence was committed. 16. The suns and substance of these provisions is that in a cognizable case the police officer has the right to arrest and investigate the case without seeking the specific order of a Magistrate or an order from him but in a non-cognizable case the police cannot arrest a person without warrant nor can investigate without the order of the Magistrate. The act of a police officer who is not an officer described in sections 154 to 156 is however, validated by providing that it shall not be called in question at any stage that the case was one which such officer was not empowered under this section to investigate.
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17. Article 12 of the Order, however, provides for a different procedure in a case inter alia under section 11 where a person is guilty of drinking which is not liable to Had or for which proof in either of the form mentioned in Article 9 is not available. It provides for collection of the medical evidence by a police officer and for arrest of the accused by him without making any reference to the Magistrate or seeking his permission. Investigation under the Code of Criminal Procedure [section 2 (1)] includes all proceedings for collection of evidence conducted by a police officer. Article 12 therefore, authorizes a police officer to collect at least specified evidence. 18. Article 12 of the Order, no doubt, prohibits a police officer from detaining or arresting any person on a mere suspicion of his having taken intoxicant which power he can exercise under section 54, Code of Criminal Procedure. But it allows him to arrest the accused after collecting evidence, of an authorized medical officer in the form of a certificate issued by him that the accused had taken intoxicant. This is a case of arrest after investigation. It also allows him to arrest the accused in case of his refusal to accompany him to an authorized Medical Officer which is clearly a case of A arrest prior to investigation since the intention appears to be that in case of refusal the accused would be first arrested and then taken by force to this authorized Medical Officer for examination to enable him to collect evidence against the accused. 19. The duty of the Court is to attempt to reconcile such self-contradictory provision as of Articles 12 and 16. This reconciliation is possible by holding that where a police officer suspects the commission of offences under Article 8 or 11, he shall have to act according to the provisions of Article 12. I other cases where he has to proceed not on his own suspicion but on a specific complaint before him as contemplated by section 155 Cr. P. C., unless inte alia the offence under article 8 or article 11 is omitted at a public place he shall secure a warrant of arrest from the Magistrate and seek his perinissio for investigation. In order to protect persons from illegal detention an undue bar assent, it is provided in clause 2 of Article 12 that a person contravening the provision of clause 1 shall be punishable with imprisonment which may extend to six months, five hundred rupees as fine or with both. 20. In the case of Mst. Mumtaz Begum it was held that notwithstanding the qualified power given to certain police officer in the West Pakistan Suppression of Prostitution Ordinance, II of 1961, the offences under the Ordinance could not be treated to be cognizable. Reliance was placed for this proposition on Raghunath v. Emperor , Hiwan-Htin v. King-Emperor , Bhairo Murad Jagirani v. Crown, Haji Mahmood Khan v. Crown . This view was repeated by the Karachi Bench of the High Court of West Pakistan in Muhammad Rashid v. State . A different view was taken in Queen. Empress v. Deodhar Singh and another , Emperor v. Fernard , Emperor v. Abas Bhai and Emperor v. Ismail 21. All the cases whether pro or con are distinguishable. Non- cognoscibility affects or to be more precise restricts the power of arrest and investigation. But section 12 permits both. The collection of medical evidence amounts to collection of evidence which conclusively proves the charge of drinking in section 11 of the Order. A case falling under. Section 12 8 cannot be said to be non- cognizable. 22. The Head Constable who was a Police -Officer, therefore, acted in due discharge of his duties by sending the appellant to the Madical Officer, obtaining his certificate as proof of drinking and then arresting the appellant. 23. In support of the proposition that if the Police Officer investigated without permission of the Magistrate his report under section 173, Cr. P. C. Would not authorise the Magistrate to take cognizance of the matter under section 190 of the Code, the learned counsel relied upon the case of Mst. Mumtaz Begum v. The State , Haider v. The State and Muhammad Rasheed v. The State . 24. In all the three cases it was held that the Magistrate cannot take cognizance under section 190 Cr. P. C. On a report under section 173 Cr. P. C. Made in a non-cognizable case in which the1 2 3 4 5 6 7 8 9 10 11 12
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investigation is carried out by a Police Officer without seeking the permission of the Magistrate. Some case-law is discussed in the case of Mst. Mumtaz Begum v. The State. 1 is, however, important to note that all these cases were decided before the amendment of section 537, Ordinance XII of 1972. Previous to that section 537 was as follows :- "537. Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be' reversed or altered under Chapter XXVII, or on appeal or revision on account- (a) of any error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or-other proceedings under this Code, or (b) (c) of the omission to revise any list of jurors or assessors in accordance with section 324, or (d) of any misdirection in any charge to a jury unless such error, omission, irregularity, or misdirection has in fact occasioned a failure of justice. ' Explanation-In determining whether any error, omission or irregularity in any proceeding under this Code has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings. 25. The amended section is now as follows :- "Funding or sentence when reversible by reason or error or omission in charge or other proceedings.-Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered under Chapter XXVII or on appeal or revision on account- (a) of any error, omission or irregularity in the complaint, report by Police Officer under section 173, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceeding under this Code, or (b) of any error, omission or irregularity in the mode of trial including any misjoinder of charges, unless, such error, omission or irregularity has in fact occasioned a failure of justice. ' Explanation.-1n determing whether any error, omission or irregularity in any proceedings under this Code has occasioned a failure Of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in prcceedings." 26. The main distinction relevant for or purpose is that originally any error, omission or irregularity in the report of a Police Officer under section 173, was not curable but now like the case of error, omission or irregularity in a complaint any error. Omission or irregularity in the report of a Police Officer under section 173, is also made curable and does not allow the finding; sentence or order of a competent Court to be reversed or altered. 27. The learned counsel however relied on Nurman Shah v. The State , Rehmat v. The State and Zabitey Khan v. The State . We checked another case Noor Muhammad v. The State . These cases are however, distinguishable. In the Peshawar case as well as in Noor Muhammad v. The State the evidence of one case was copied in another which was a serious breach of the mandatory provisions of law as well as principle that each case should be decided on its own evidence. Such cases are therefore, cases in which the procedure adopted by the Court should have been held' to have vitiated the proceedings. In any case the trial should be held to have occasioned failure of justice also since it cannot be said that if the witnesses had made separate statements their statements would have been substantially the same without any material discrepancy on the basis of which benefit of doubt would have been admissible to the accused. 28. In Zabitey Khan v. The State the public servant was tried without any sanction of the appropriate Government which was necessary to give jurisdiction to the Court to try the case. It was, therefore, a case of absolute lack of jurisdiction.13 14 15 16
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29. In the case of Ramat the cognizance of the offence was taken by the Magistrate against a person not challaned by the police and though cognizance against those persons fell under class (c) of section 191, he proceeded to try them without giving a warning under section 191. 30. The principle of section 191, Cr. P. C. Is that no person should be a Judge in his own case and no Judge should be allowed to act in bias on the basis of his pre-conceived opinion as to the guilt of the accused person. It is on account of the possibility of bias that it is necessary for him to inform the accused of his right to be tried by another Magistrate if he so liked. This is a right noncompliance of which does not brook any concept of error, omission or irregularity in the mode of trial. All these cases therefore, are distinguishable. 31. In some cases the ground for non-applicability of section 537, is that it does not apply to a case of infringement of statutory requirements. In fact, the distinction between legality and irregularity sometimes is too fine. In some cases for example Aziz Shah v. Crown , the expression 'patent irregularity' was used for something which was incurable, although according to this concept the word 'illegality' should have been used. In another category of cases for example Noor Hussain v. The State , for something which was curable the word 'illegality' was used. Similarly the mere fact that the provision is couched in a mandatory form is not a good or sufficient criterion for excluding it from the ambit of section 537 because almost all provisions non-compliance of which has held to be curable are statutory provisions couched in that form. 32. In Kotaya v. Emperor , the following criterion was laid down: "In their Lordships' opinion this argument is based on too narrow a view of the operation of section 537. When a trial is conducted in a manner different from that prescribed by the Code as in 28 I A 257, the trial is bad, and no question of curing an irregularity arises; but if the trial is conducted substantially in the manner prescribed by the Code, but some irregularity occurs in the course of such conduct, the irregularity can be cured under section 537, and none the less so because the irregularity involves, as must nearly always be the case, a breach of one or more of the very comprehensive provisions of the Code. The distinction drawn in many of the cases in India between an illegality and an irregularity is one of degree rather than of kind. This view finds support in the decision of their Lordships Board in 5 Rang. 53, where failure to comply with section 360, Criminal P. C., was held to be cured by sections 535 ' and 537. The present case falls under section 537, and their Lordships hold the trial valid notwithstanding the breach of section 162." ' While discussing this criterion Kayani C. J. Observed in Ibrahim and another v. The State at p. 746 : "1 submit, with respect, that it is difficult to draw a line in all cases, since almost all provisions as to the trial of offences are expressed in mandatory language, and that it would not be safe to say, as their Lordships pointed out in Kottaya v. Emperor, that the difference between the two cases is one of degree. The difference is in the manner of trial. If it substantially follows the manner prescribed by the Code, any omission in the observance of detail is an irregularity, and it can be cured." 33. The judgment of Kayani C. J. Was on a reference necessitated on account of difference of opinion between the two members of the Division Bench on the applicability of section 537. In his judgment Shabbir Ahmad, J. Who was one of the members of the Division Bench observed that: "It appears to me that all omissions made curable by section 537, of the Code of Criminal Procedure must be omissions to carry out mandatory provisions of that Code. If a provision of law which has not been followed is not mandatory in character, it cannot be said that an omission has occurred because if discretion has been given to a Court to follow a certain procedure or not with regard to a matter, its omission to follow that procedure cannot amount to an omission of which the law will take notice. All omissions by Courts, however, cannot be considered to be illegalities vitiating all that followed them in the proceedings. For instance, if a Magistrate were to only initial a document which the law requires him to sign, it will be difficult to hold that the omission was one17 18 19 20
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which is not curable under section 537 of the Code of Criminal Procedure, and many examples of this type could be cited." 34. In a case of Dacca, Abdul Subhan and others v. The State , it was held that almost all the provisions are of mandatory nature and the real test was whether the error goes to the root of the trial, for example where the Court assumes jurisdiction which it does not possess or where it has broken the vital rule of procedure. The following quotation is important in this respect:- "The test that may be applied in considering whether a particular infringement of the provisions of the Code of Criminal Procedure does not fall within the purview of section 537 appears to be whether the error goes to the whole root of the trial, whether it vitiates the proceedings, whether the Court assumed jurisdiction which it does not possess, and whether it has broken the vital rules of procedure. In this connection a distinction should be made between a positive enactment by the Code that a certain trial shall not take place and a positive enactment that in the course of such a trial certain detailed procedure should be followed. Both are imperative provisions. But still the one is a different thing from the other. In the former case an infringement of the enactment amounts to an assumption of jurisdiction and vitiates the trial from the very beginning. In the latter case, an infringement merely amounts to an error, omission or ' irregularity in the procedure adopted in the course of the trial, and this is curable under…
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