PLJ 2021 AJ&K 33
[Shariat Appellate Bench]
Present: Raja Sajjad Ahmad Khan, J.
SAQIB HUSSAIN and another--Petitioners
versus
STATION HOUSE OFFICER, POLICE STATION, DHIRKOT and 2 others--Respondents
Misc. Crl. P. No. 132 of 2019, decided on 9.7.2020.
AJ&K Prohibition (Enforcement of Hadd) Act, 1985--
----S. 16-2(L)--"Public place" means a street, road, thoroughfare, park, garden or other place to which the public have free access and includes a hotel, restaurant, motel, mess and club, but does include the residential room of a hotel in the occupation of some person."
[P. 35] A
AJ&K Prohibition (Enforcement of Hadd) Act, 1985--
----Ss. 3, 4, 8 & 11--Criminal Procedure Code, Ss. 155 & 561-A--Allegation of recovery of bottle of alcohol--Quashment of criminal proceedings--Jurisdiction--Challenge to--Violation of mandatory provision--If it is admitted correct even then it does not prove that a bottle of Alcohol was recovered from a public place--Alleged offence was committed in a room of rest house which was not a public place, therefore, is not cognizable--Police have violated mandatory Provision of Section 155, Cr.P.C. and was not competent to take cognizance of non-cognizable offence--In facts and circumstances, on account of material defect in investigation, charge and trial of accused petitioners is without jurisdiction and without lawful authority, which is illegal and perverse. [P. 36] B
Criminal Procedure Code, 1898 (V of 1898)--
----Ss. 561A & 249--Quashment of criminal proceedings--Exercise of powers--Alternate remedy--Maintainability--Jurisdiction--High Court has wide powers which can be exercised in proper cases without waiting for trial Court to pass order under Section 249-A, Cr.P.C. if facts of case so warrant to prevent abuse of process of any Court or otherwise to secure ends of justice. [P. 37] C
1983 PCr.LJ 102 and 2009 SCMR 141 ref.
Sardar Bilal Shakeel, Advocate for Petitioners.
Sardar Javid Naz, A.A.G. for State.
Date of hearing: 9.7.2020.
Judgment
This petition under Section 561-A, Cr.P.C, is filed for quashment of proceedings pending before Tehsil Court of Criminal Jurisdiction, Dhirkot in a case Challan No. 22/2019 in offence under Section 4 of The Prohibition (Enforcement of Hadd) Act, 1985 "The Prohibition Act".
2. Facts of the case are that Complainant Mohammad Akhlaq, S.I/SHO, lodged a report at Police Station, Dhirkot stating therein that on 20.04.2019 he received an information that two persons having Alcohol were present at Forest Rest House Dhirkot. At about 10.00 a.m. he along with other police employees arrived at the place of occurrence and found two persons in a room of rest house who told their names as Saqib Hussain and Mohammad Waseem. During search of their room, one bottle of Alcohol was found near their bed, they were apprehended and FIR No. 76/2019 in offences under Sections 3/4 of The Prohibition Act was registered. After usual investigation Section 3 of The Prohibition Act was deleted and challan in offence under Section 4 of The Prohibition Act before the trial Court.
3 Sardar Bilal Shakeel, the learned counsel for petitioners submits that impugned FIR has been registered against the petitioners with mala fide intention. He argued that it is admitted from the record that on prior information police raided the rest house and recovered one bottle of Alcohol from the room of rest house which is not a public place and under Section 16 of The Prohibition Act, offences under Sections 3, 4, 8 and 11 are not cognizable if not committed at public place. He further added that under Section 22 of The Prohibition Act it was enjoined upon the Police to obtain a search warrant and then apprehend the accused or recover intoxicant but in the case in hand despite prior information police did not comply with the mandatory provision of The Prohibition Act, hence registration of FIR and further proceedings are without lawful authority which are liable to be quashed. In support of his contention he placed reliance on Sections 16 and 22 of The Prohibition Act. He also referred to and relied upon 2005 YLR 3193, 2018 YLR 2532, 2011 PCr.LJ 1153, 2006 PCr.LJ 263, 2009 SCMR 141 and PLD 1988 Lahore 574.
4. On the other hand, learned Additional Advocate General controverted the arguments advanced on behalf of petitioners and argued that challan has been filed against the petitioners before the concerned Court, therefore, they have an alternate remedy under Section 249-A, Cr.P.C. before the trial Court, hence instant petition is liable to be dismissed.
5. I have heard the learned counsel for petitioners and learned Additional Advocate General and gone through the record.
6. According to Section 16 of The Prohibition Act, Sections 3, 4, 8 and 11 are cognizable only if committed at a public place. For proper appreciation Section 16 is reproduced herein below:-
(16) Cognizance of certain offences:- The following offences shall be cognizable, namely:-
(a) an offence punishable under Section 3; and
(b) an offence punishable under Section 4, Section 8 or Section 11, if committed at a public place.
(2) --------------------------------
The public place has been defined as follows in Section 2(L):
"Public place" means a street, road, thoroughfare, park, garden or other place to which the public have free access and includes a hotel, restaurant, motel, mess and club, but does include the residential room of a hotel in the occupation of some person."
In Section 2(J) "Place" has been defined as under:-
"Place" includes a house, shed, enclosure, building, shop, tent, vehicle, vessel and aircraft;
It is also proper to reproduce Section 22 of The Prohibition Act.
22. Issue of search warrants.--(1) If any Collector, Prohibition Officer, Magistrate, or Qazi, upon information obtained and after such inquiry as he thinks necessary, has reason to believe that an offence under Section 3, Section 4, Section 8 and Section 11 has been committed, he may issue a warrant for the search for any intoxicant, material, still, utensil, implement or apparatus in respect of which the alleged offence has been committed.
A perusal of abovementioned Provisions of The Prohibition Act makes its crystal clear that offences under Sections 3, 4, 8 and 11 of The Prohibition Act, shall not be cognizable if committed at a private place for which warrant from Collector, Magistrate, Prohibition Officer or Qazi, under Section 22 is necessary and Section 155(2), Cr.P.C. will come into play.
In a case titled "Mussarrat Shah v. The State" [PLD 1990 Peshawar 158], Hon'ble Peshawar High Court while placing reliance upon cases reported in PLD 1988 Lahore 574 and 1988 PCr.LJ 591 has held that in view of Article 16 of The Prohibition Act, 1979, Articles 3, 4, 8 and 11 are not cognizable if committed at a private place.
In another case titled "Mst. Iqbal Bibi v. The State" [1995 PCr.LJ 1472] it has been held that all the offences under Articles 3, 4, 8 and 11 of the Order due to the conjunction "and" used between Article 16(1)(a) and Article 16(1)(b) are not cognizable offences unless committed at a public place.
The same view was expressed in case titled "Hussain Javeri v. The State" [1983 PCr.LJ 102] and it was observed as under:
10. I see great force in the above contention of the learned Advocate for the petitioner, which is also supported by the learned Advocate for the State. I have gone through provisions of Section 9(2)(b) of the Sindh Prohibition Ordinance, 1978 and find that since the liquor in question was recovered from the bed room of the petitioner, the offence, if any, committed by him would not be a cognizable offence and as such police had authority to conduct the inquiry and the learned Magistrate has no jurisdiction to take cognizance on the basis of the FIR in question, as the provisions of Section 155(2), Cr.P.C. were not complied with in respect of present case.
In the instant case, according to FIR and Challan the petitioners were arrested from a room of rest house and one bottle of Alcohol was recovered from the same room. If it is admitted correct even then it does not prove that a bottle of Alcohol was recovered from a public place. The alleged offence was committed in a room of rest house which was not a public place, therefore, is not cognizable. The Police have violated the mandatory Provision of Section 155, Cr.P.C. and was not competent to take cognizance of non-cognizable offence. In the facts and circumstances, on account of material defect in the investigation, the charge and the trial of the accused petitioners is without jurisdiction and without lawful authority, which is illegal and perverse.
7. The objection raised by learned Additional Advocate General regarding maintainability of this petition that petitioners have an alternate remedy for redressal of their grievance in shape of Section 249-A, Cr.P.C. before the trial Court has no substance as this Court has wide powers under Section 561-A, Cr.P.C. to pass proper orders to prevent the abuse of process of Court. For proper appreciation it is useful to reproduce here Section 561-A, Cr.P.C. which is as under:-
“561-A Nothing in this Code shall be deemed to limit or affect the inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.”
From bare reading of aforesaid Provision of law it reveals that this Court has wide powers which can be exercised in proper cases without waiting for trial Court to pass order under Section 249-A, Cr.P.C. if the facts of the case so warrant to prevent abuse of the process of any Court or otherwise to secure the ends of justice. In case titled "Mohammad Aslam (Amir Aslam) and others v. District Police Officer, Rawalpindi" [2009 SCMR 141] it has been held as under:
"Section 561-A--Quashing of proceedings--Framing of charge--Effect--Framing of charge in the case by trial Court does not debar burying of the proceedings by way of quashment. No invariable rule of law existed in this regard and it depended on the facts of each case whether to allow the proceedings to continue or to nip the same in the bud."
In case titled "Hussain Javeri v. The State" [1983 PCr.LJ 102], while resolving the similar proposition Hon'ble Sindh High Court, quashed the FIR and observed as under:
9. The provisions of Section 9(2)(b) of the Sindh Prohibition Ordinance, 1978 are very clear, that the offence with which the present petitioner is charged is a non-cognizance offence and as such the police had no right to conduct the inquiry and arrest the petitioner, without complying with the provisions of Section 155(2), Cr.P.C., which was admittedly not done. In view of this admitted position, the learned Magistrate had no jurisdiction to take cognizance on the basis of the police report (FIR) in questioned consequently the contention of the learned Advocate for the petitioner, that the cognizance taken by the learned Magistrate in question, being without lawful authority, amounted to abuse of the process of the said learned trial Court, and therefore, the proceedings in question are liable to be set aside on the basis of the authorities, which he has cited, has great force.
In view of the above, this petition is allowed and proceedings pending against the petitioners before Tehsil Court of Criminal Jurisdiction, Dhirkot in offence under Section 4 of The Prohibition Act are quashed and the petitioners are acquitted of the charge.
(M.M.R.) Petition allowed
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