HUSSAIN JAVERI vs THE STATE

Petitioner above named has filed the above petition, for quashment of proceedings pending against him, under section 4 of Sind Prohibition Ordinance, 1978 and under section 43 (3) of Abkari Act, in the Court of learned Magistrate, Artillery Maidan, Karachi on the following facts and grounds :-

2. The brief facts of the case are that on 3rd February, 1979, the Artillery Maidan Police, while investigating a case under section 420/ 406/468 P.P.C. Pertaining to F.I.R. No. 21/79 searched the premises of 282, Abdullah Haroon Road, and are alleged to have recovered two and half bottles of wine.

3. The S. H. O. Artillery Maidan Police Station registered a case under section 4 of the Prohibition Ordinance and challaned the same in Court.

4. The learned Advocate in support of the above petition submitted, that the F. I. R. Against the petitioner was only under section 4 of the Prohibition Ordinance 1978, but while submitting challan the prosecution added section 43 (3), Abkari Act, in order to overcome mandatory requirements of laws, relating to non-cognizable cases. The learned Advocate for the petitioner submitted, that petitioner could not have been charged under two substantive laws, specially after the promulgation of the Sind Prohibition Ordinance, 1978, by virtue of section 21 of the said Ordinance, under which the said Ordinance was to override other existing laws in this connection.

5. The learned Advocate for the petitioner further submitted, that it is very clear, that the facts as disclosed in the F. I. R. Does not bring the offence, if any, committed by the petitioner under section 92 (2) (b) of the Sind Prohibition Ordinance, 1978, as the alleged recovery is from the bedroom and, therefore, the said offence, if any, committed by the petitioner would be a non-cognizable offence and, therefore, the police could not have investigated the case and arrested the present petitioner and challaned him before the learned trial Court without complying with the procedure laid down under section 155 (2), Cr. P. C., which was not done and consequently the cognizance taken by the learned Magistrate was without jurisdiction and as such the entire proceedings are liable to be quashed. In support of this contention the learned Advocate for the petitioner relied upon cases reported in 1968 P Cr. L J 97, 1978 P Cr. L J 812, 1969 P Cr. L J 598, PLD 1963 Lah. 46 and PLD 1964 Kar.

381.

6. The learned Advocate appearing for the State submitted, that he supports the above application for quasbment, as the cognizance taken by the learned Magistrate was without jurisdiction, as submitted by the learned Advocate for the petitioner.

7. I have carefully considered the above submissions made before me by the learned Advocate for the petitioner and have gone through the F. I. R. Challan as well as authorities cited by the learned Advocate for the petitioner.

8. The original F.I.R. Against the present petitioner is under section 4 of the Sind Prohibition Ordinance, 1978. However, in the charge-sheet submitted to the Court, section 43 (3) of the Abkari Act has been added, in spite of provisions of section 21 of the Sind Prohibition Ordinance, 1978. 1n this connection the contention of the learned Advocate for the petitioner, that the petitioner could not have been charged under two substantive act for the same offence has great force and further more since Sind Prohibition Ordinance, 1978 is special act, it would otherwise also override the provisions of Sind Abkari Act. In view of this the challan against the petitioner under section 43 (3) of Sind Abkari Act was miscon--ceived and as such cannot be taken iato consideration, while disposing off the present petition.

9. The provisions of section 9 (2) (b) of the Sind Prohibition Ordi--nance, 1978 are very clear, that the offence with which the present peti--tioner 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 (F.

1. R.) e 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 be has cited, has great force.

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 the provisions of section 9 (2)(b) of the Sind Prohibition Ordinance, 1978 and find that since the liquor in question was recovered from the bedroom of the petitioner, the offence, if any, commit--ted by him would not be a cognizable offence and as such police had authority to conduct the inquiry and the learned Magistrate has no juris--diction to take cognizance on the basis of the F. I. R. In question, as the provisions of section 155 (2), Cr. P. C. Were not complied with in respect of present case.

11. Therefore, I allow the above petition and quash the proceedings pending against the petitioner under section 4 of the Sind Prohibition Ordinance 1978 and section 43 (4) of Sind Abkari Act. In the Court of learned A. C. M. Artillary Maidan, Karachi and discharge the bail bonds executed by the petitioner. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.