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Criminal Reference No. 47 of 1967, decided on 10th April 1968.

---Ss. 3 (1) (a) & 18-Words "save as otherwise provided hereinafter" in S. 3 (1) (a)-Provide exception to generality of rule contained in S. 3-Cognizable case after investigation taken by Police before Magistrate-Section 18 gives discretion to Magistrate either to refer such case to Conciliation Court or try it himself-Jurisdiction of Criminal Court in such cases held, not ousted.-[Muhammad Yaqub Khan and others v. Government of Azad J & K P L D 1967 Azad J & K 4 dissented from].

The words such Court may, if it thinks fit, direct that it be referred to conciliation under this Act' clearly give a discretion to the Court to which a cognizable case is taken by the Police after investigation, either to refer it to Conciliation Court or not. If the Criminal Court does not deem it proper to refer the matter then it will be perfectly within its jurisdiction to do so and it can, in such cases, proceed to try the case itself. The provisions of section 3(1)(a) would not stand in its way because clause (a) of subsection (1) of section 3 by using the words save as otherwise provided, hereinafter' provides exception to the generality of the rule contained in that section.

If a cognizable case included in Part I of the Schedule, after investigation by Police is taken before the Magistrate, such a case is left out of the scope of clause (a) of subsection (1) of section 3 because of the words save as otherwise provided, herein after', and the jurisdiction of the Criminal Court, in such cases, is not ousted.

Badar Din v. The State P L D 1967 Lah. 962 and Muhammad Iqbal and others v. Fazal-ur-Rahman P L D 1967 Lab. 65 fol. Muhammad Yaqub Khan and others v. Government of Azad J & K P L D 1967 Azad J & K 4 dissented from].

S. 18-Complaint for offences under Ss. 447, 323 & 325 read with S. 34, Penal Code, allegedly committed in one and same transac tion - (Offence under S. 325 not cognizable by Conciliation Court) Magistrate asking Police to put up separate challan for offences under Ss. 447 & 323 for reference to Conciliation Court -Order of Magistrate, held, not justified as separate trials in such a case would lead to multiplicity of proceedings and hinder justice.

M. A. Hafeez for the State.

Zain-ul-Abadin Shah for Respondents.

- This is a reference made by the learned Sessions Judge, Muzaffarabad, at the instance of the P. D. S. P. in a criminal case recommending that the order of the A. D. M., Muzaffarabad, dated 8-9-1967 and proceedings subsequently taken by him be quashed and the A. D. M. be directed to proceed to try the case against the non-petitioners under all the sections mentioned in the challan.

The facts necessary for the disposal of this revision petition may briefly be stated as follows: -

Police Station Ghari Duppatta after investigation of file No. 12 of 1967 of Thana Ghari presented a challan in the Court of the A. D. M., Muzaffarabad, against Jamad Ali and others non-petitioners, five in number, for offences under sections 447, 323 and 325 read with section 34, A. P. C. The learned A. D. M. Muzaffarabad, made an order on 8-9-1967 to the effect that the offences under sections 447 and 323, A. P. C., being exclusively triable by the Conciliation Court he as such has no jurisdiction to try them. Accordingly he directed the Court Sub-Inspector to present a separate challan against the non-petitioners under sections 447 and 323, A. P. C. so that the same may be sent to a Conciliation Court having jurisdiction in the matter and himself proceeded to bear the case so far it related to the offence under section 325, A. P. C., by examining the non-applicants under the provisions of section 342, Cr. P. C.

The learned Sessions Judge relying on Badar Din v. The State P L D 1967 Lab. 962 and Muhammad Iqbal and others v. Fazal-ur-Rah man (2) hold that the jurisdiction of the Magistrate in such cases is not ousted by the provisions of section 3 P L D 1967 Lab. 962 (a) of Azad Jammu and Kashmir Conciliation Courts Act, 1962. He also called an explanation of the Magistrate who passed the impugned order. The A. D. M. in his explanation relying on a Single Bench ruling of this Court reported as Muhammad Yaqub Khan and others v. Government of Azad J & K P L D 1967 Azad J & K 4 submitted that the Criminal Courts have no jurisdiction to try any such case which falls under Part I of the Schedule. The offences under sections 323 and 447, A. P. C. as clearly fall under Part I of the Schedule; therefore, he made the impugned order.

In P L D 1967 Azad J & TC 4 the accused was challaned for offences under sections 447 and 147, A. P. C. Both these offences were covered by Part I of the Schedule and moreover, the Magistrate before whom the challan was presented refused to refer the case to Conciliation Court under an erroneous impression that it was a pending case within the meaning of section 19 of the Act. The learned Single Judge, in view of the fact that the case was registered on 4-8-62 after the date of the enforcement of the Act on 1st July 1962, accepted the recommendation of the learned Sessions Judge and quashed the order of the trial Magistrate.

In these circumstances it was held by the learned Single Judge that: -

"The only reasonable interpretation of section 18 in view of the provisions of section 3 appears to be that the Police shall be at liberty to investigate these offences and may take a case to criminal Court but then the Court may, if it thinks fit, refer the case to Conciliation Court but cannot try the case itself."

In the present case in addition to those offences covered by Part I of the Schedule there is also an offence under section 325 which is not within the cognizance of Conciliation Court. All these offences were committed in the course of same transaction. Where several persons are jointly charged in respect of one transaction and it appears from the facts implicating the whole of them that one has committed aggravated offence which is not triable by the Conciliation Court and is triable by a Magistrate alone, the criminal Court would be perfectly within its power to try them for those offences as well which are detailed in Part I of the Schedule because section 3 (1) (a) when read together with section 18 which provides that in appropriate cases the matter is left to the discretion of the Court, when a cognizable case after investigation by Police is brought before it, to refer or not such case to Conciliation Court under the said Act. To make it more clear it will be useful to reproduce below the provisions of section 3 (1) (a): -

"(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (Act v of 1898), or in the Code of Civil Procedure, 1908 (Act V of 1908) (a) all cases falling under Part I of the Schedule shall, save as otherwise provided, hereinafter, be referred to Conciliation under this Act, and no civil or criminal Court shall have jurisdiction to try any such case."

The words save as otherwise provided, hereinafter' make the provision of this section subservient to the provisions of other sections of the Act and if something contrary to the provisions of this clause is provided in any subsequent section of the Act then those provisions would supersede the provisions of this clause. Section 18 of the said Act lays down that: --

"Nothing in this Act shall prevent the Police from investigation of a cognizable case by reason of the fact that the case relates to an offence specified in Section A of Part I of the Schedule, but if any such case is taken to a Criminal Court, such Court may, if it thinks fit, direct that it be referred to conciliation under this Act."

The words 'such Court may, if it thinks fit, direct that it be referred to conciliation under this Act' clearly give a discretion to the Court to which a cognizable case is taken by the Police after investigation, either to refer it to Conciliation Court or not if the criminal Court does not deem it proper to refer the matte A then it will be perfectly within its jurisdiction to do so and it can, in such cases, proceed to try the case itself. The provisions of section 3 (1) (a) would not stand in its way because clause (a) of Subsection (1) of section 3 by using the words save as otherwise provided, hereinafter' provides exception to the generality of the) rule contained in that section.

P L D 1967 Lab. 65 was a case initiated on the complaint of one Muhammad Iqbal for an offence under sections 379 and 406, P. P. C. On admitted facts the learned Chief Justice of the Lahore High Court held that; no case under section 379, P. P. C. was made out and as far an offence under section 406 was concerned it was admitted that the value of the property involved was Rs. 100 only. Therefore, on these facts it was held that the Magistrate had no jurisdiction to deal with the offence under section 406, P. P. C. as it was cognizable by Conciliation Court alone.

P L D 1967 Lab. 962 was a case under sections 323, 147 and 149, P. P. C. It was investigated by the Police and a challan under sections 323, 147 and 149 was submitted before Ilaqa Magistrate who proceeded to try the case for these offences. The accused approached the High Court under section 56I-A, Cr. P. C. for quashing the proceedings pending in the Court of the Ilaqa Magistrate on the ground that the jurisdiction of the Criminal Court to try such offences as included in Part I of the Schedule is ousted by virtue of section 3(1) of the Ordinance. Mr. Justice S. A. Mahmood after examination of sections 3 and 18 held that: -

"A careful examination of section 3(1) shows that it directs that all cases falling under Part I of the Schedule shall be referred to conciliation under this Ordinance. The provision in it is in the nature of a direction or a mandate, to refer, but this direction is subject to the words 'save as otherwise provided, hereinafter'. Section 18 provides, otherwise, namely that where a case is taken to a Criminal Court after a Police investigation, such Court may, if it thinks fit, direct that it may be referred to conciliation. It, therefore, rests in the discretion of the Court whether to refer it to conciliation or not and it is not the intention of the Ordinance that such a case must be referred to the Conciliation Court, and the Criminal Court has no jurisdiction to try such a case. Such a case is excluded from the operation of clause (a) of subsection (1) of section 3 by reason of the words 'save as otherwise provided, hereinafter'."

No doubt in P L D 1967 Azad J & K 4 it was held that "then the Court may, if it thinks fit, refer the case to conciliation but cannot try the case itself, parties concerned have to apply to Chairman, Union Council concerned for settlement of such dispute." but with utmost respect for the learned Judge we beg to say that we are convinced that this decision does not lay down correct law. It seems to us that there is considerable force in the argument on which P L D 1967 Lab. 65 and P L D 1967 Lab. 962 proceed.

We, therefore, respectfully agreeing with the views contained in these judgments of the Lahore High Court hold that if a cognizable case included in Part I of the Schedule, after investigation by Police is taken before the Magistrate, such a case is left out of the scope of clause (a) of subsection (1) of section 3 because of the words 'save as otherwise provided, hereinafter' and the jurisdiction of the Criminal Court, in such cases, is not ousted.

In the present case as discussed above in addition to the offence included in Part I of the Schedule there is also an offence' under section 325 which is not cognizable by Conciliation Court.' All these offences are alleged to have been committed in the course of one and same transaction, they being part of the same transaction, separate trial in such cases is not necessary. Asking the Police to put separate challan for offences triable by Concilia tion Court would lead to multiplicity of proceedings and hinder justice, therefore, the learned A. D. M. Muzaffarabad, was not justified in making the impugned order.

For the foregoing reasons we accept the recommendation of the learned Sessions Judge and quash the order of the A. D. M., Muzaffarabad, dated 8-9-67 and the proceedings subsequently taken by him and direct that he should try the case against all the non-petitioners for all the offences for which they have been challaned.

The reference is accepted.

Reference accepted.

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