SAHIB and 3 others vs THE STATEOpponent

' By the present petition filed under section 561-A, Cr.P.C., applicants Sahib and others seek the quashment of the proceedings pending against them in the Court of Resident Magistrate, Kandiaro, under paragraph 30 of the Land Reforms Regulation, 1972 (M.L.R. 115)

2. On 3-8-1986, Mr. Shah Nawaz Soomro, Mukhtarkar Kandiaro made a report to S.H.O. Mohabbat Dero P.S., against the applicants for the offence under paragraph 30 of the Land Reforms Regulation, 1972, which was registered as Crime No,77 of 1986, and after usual investigation the applicants were sent up to stand trial for the said offence.

3. There is no doubt that the proceedings in this case which are non-cognizable in nature, had commenced with the registration of F.I.R. Followed by investigation and arrest of the applicants. At the conclusion of the investigation the applicants were challaned in the Court of R.M. Kandiaro, who took cognizance in complete disregard of the provisions of paragraph 31 of the Land Reforms Regulation, 1972, which lays down as follows:- "No Courts shall take cognizance of an offence under this Regulation except on a complaint in writing made by order of, or under authority from, the Commission."

4. From a bare perusal of this paragraph it is obvious that it creates clog in taking of cognizance which can be removed only by making complaint in writing B' "by order of, or under authority from, the Commission". The statute which makes inroads upon the liberty of individuals is to be subjected to rule of strict construction and all conditions mentioned in it for taking cognizance or exercising C jurisdiction by the Court must be shown to exist at the time when the cognizance is taken or jurisdiction exercised.

5. The word "complaint" used in paragraph 31 again means a "complaint" as defined in the Code of Criminal Procedure, 1898, and it does not include the report of a police officer. If any authority is needed reference may be had to cases D reported as Moulana Dost Muhammad v. The State 1976 P Cr.L J 184, M.Afsar Khan and 2 others v. The State and another PLD 1985 Pesh. 103 and Moinuddin v. The State 1986 P Cr.L J 1158. In the last cited authority Munawwar Ali Khan, J. (as he then was) observed as follows:-- "In view of what has been stated above, 'police report' remains as police report and under no circumstances it can be regarded as a 'complaint' which is altogether a different expression with a different meaning from which police report has been expressly excluded."

6. It is well settled that when the law requires a particular act to be done in a particular manner, then all other ways of performance of that act are forbidden. In the present case the very registration of a non-cognizable case by the police followed by investigation was contrary to the provisions of law. The super structure built on this illegal foundation, therefore, must fall on the ground. While summing up the case of Moinuddin referred to above, the learned Judge observed:- - "The scheme envisaged by section 190(1) here in above clearly indicates as to how and in what circumstances the Claud will exercise its jurisdiction. If by special enactment the Courts are restricted to taking cognizance only on 'complaint', they cannot be permitted to take cognizance on other motions such as police report or information received by the Court or the Court's own knowledge. Doing so would mean upsetting the whole scheme as contained in the above section.

As a result there would be widespread confusion and no one would be bound by any legal discipline. Moreover, when reference is made to complaint or police report as basis for taking cognizance, it must be realized that in each case a totally different procedure is to be followed.

'Police report' is preceded by a full-dress investigation made by the police in accordance with the relevant provisions of Cr.P.C. During investigation police enjoy certain powers which inter alia include the powers of arrest of the accused who invariably remains at the mercy of the police until completion of the investigation. On the other hand in case of complaint, the question of police arresting the accused or in any way dealing with him does not arise. Even if the Court entrusts the complaint to the police for preliminary enquiry, the police cannot arrest the accused even though prima facie offence is made out against him during the enquiry. It is the Court where complaint is lodged who has to decide about issuing of a process about arrest of the accused. Thus, the liberty of the accused is linked with the mode of taking cognizance of the offence by the Court. If cognizance is taken on police report, the accused can lose his liberty and can be put under arrest by the police during investigation of the case. On the other hand if cognizance is to be taken on complaint, the accused has no fear of his freedom being cut short or being apprehended until after completion of preliminary enquiry. Even after that stage it is not necessary that the Court will order for arrest of the accused. Invariably on taking cognizance on complaint the Court issues bailable warrant for arrest of the accused except in rare cases in which non-bailable warrant cannotbe avoided.

' In view "of the above, it can be well-appreciated why different modes of taking cognizance are prescribed. Therefore, Courts are bound to exercise their jurisdiction in accordance with the prescribed mode. Any deviation by the Courts from such mode, will render all their actions illegal.

Accordingly, in the instant case, since the Court has taken cognizance on a police report instead of upon a complaint as enjoined by the law, the whole trial of the accused was without jurisdiction and hence void ab initio."

' I am in respectful agreement with the view taken in the above case.

7. Accordingly, this petition succeeds and is allowed. Resultantly, the proceedings pending against the applicants for the offence under paragraph 30 of the Land Reforms Regulation, 1972 (M.L.R.115)