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Criminal Miscellaneous No. 51 of 1968, heard on 28th March 1969.

, S. 4 ‑‑ Expression "take cognizance" and word "may" ‑ Word "may"' does not make it optional with Deputy Commissioner in taking cognizance on a complaint which prima facie discloses offence ‑ City Magistrate also invested with powers of Deputy Commissioner under Ordinance but acting as City Magistrate on receiving complaint, recording preliminary evidence and finding case triable by Tribunal under Ordinance issuing bailable warrants for ensuring appearance of accused before Tribunal‑‑Contention that ail acts, including issuance of warrant, were referable to powers vesting in City Magistrate by virtue of provisions of Cr. P. C. and were not actions taken under Ordinance and as such Magistrate could not, in circumstance, be said to have applied his mind for taking cognizance under Ordinance ‑ Contention, held, not correct.

Badsha Mian and others v. The State P L D 1958 Dacca 598 ref.

, S. 561‑A‑Petitioner having another remedy for setting aside impugned order‑Inter ference by High Court under S. 561‑A not called for.

I. H. B. Hanafi for Petitioners.

Kh. Safdar Rashid for Respondent.

Dates of hearing : 27th and 28th March 1969.

This is a petition under section 561‑A, Cr. P. C. wherein the petitioners have alleged that respondent Mumtaz Hussain bled a complaint against them in the Court of the City Magistrate, Quetta, on 6th March, 1968, under section 420/406/392/34, P. P. C. and that the said learned Court, after recording the preliminary evidence, which consisted of the statements of two witnesses and that of the complainant, issued process against the two petitioners under he above mentioned sections of the Pakistan Penal Code. The perusal of the order made by the learned City Magistrate itself, which was passed on 7‑3‑68, however, to the effect that the statements of the complainant and his two witnesses had been recorded and the facts constituting the offence and certain documents had been placed before him that as the case, had according to the provisions of the ordinance 1968. [Criminal Law (Special Provisions) Ordinance. 19681. hereinafter called the Ordinance, to be entrusted to the Tribunal, it was necessary to ensure the appearance of the accused before the Tribunal. Bailable warrants in the sum of Rs. 5,000 each were accordingly directed to be issued. This order is signed by the City Magistrate, Quetta, Ist Class, and Deputy Commissioner. It is an admitted position that the City Magistrate is exercising the powers of the Deputy Commissioner under this Ordinance.

2. In the face of this order, the first question that arose was whether this petition under section 561‑A, Cr. P. C. could be entertained. In this connection the following provisions of the Ordinance are relevant:‑

"Section 3. Trial of scheduled o/fences.‑(I) Notwithstanding anything contained in any other law for the time being in force, no scheduled offence shall be tried except in the manner provided by this Ordinance.

(2) Except as otherwise provided in this ordinance provisions of the Evidence Act, 1872 (I of 1872) and the Code of Criminal Procedure, 1878 (V of 1878), shall not apply to any proceedings under this Ordinance."

A scheduled offence is defined in section 2 (e) to mean an offence made punishable by the Pakistan Penal Code (XLV of 1860), other than an offence specified in S. A. of Part I of the Schedule to the Conciliation Courts Ordinance, 1961 (XLIV of 1961).

"Section 29. Jurisdiction of Courts barred.‑Excepts as other wise provided in this Ordinance, no proceedings under this Ordinance, and no decision given, sentence passed or order made in any such proceedings shall be called in question in any Court or before any other authority."

3. Learned counsel for the petitioners concedes that in case the proceedings so far taken by the learned City Magistrate, Quetta, have been taken under this Ordinance, the present petition would not be entertainable. He, however, submits that the proceedings taken by the learned City Magistrate, Quetta, namely, the recording of the statements of the complainant and his two witnesses, the orders for issuance of warrants and the subsequent order dated 19‑3‑68, whereby search warrants were issued are all acts which are referable to the powers vesting in the City Magistrate by virtue of the provisions of the Code of Criminal Procedure and are not of actions which he can exercise under the Ordinance. In this connection he has invited my attention to the provisions of section 4 of the Ordinance which, to the extent relevant, lays down :‑

"Cognizance of scheduled offence.‑(1) the Deputy Commis sioner shall have exclusive jurisdiction to take cognizance of a scheduled offence; and such cognizance may be taken by him.

(a) upon receiving a complaint of facts which constitute such offence;

(b) upon a report in writing of such facts made by a Police officer; or

(c) upon information received from any person other than a police officer or upon his own knowledge or suspicion that such offence has been committed."

4. Learned counsel for the petitioners cited before me Badsha Mian and others v. The State (P L D 1958 Dacca 59) wherein the provisions of subsection (1) of section 190, Cr. P. C. were examined, the terms whereof are somewhat similar to the terms of subsection (1) of section 4 of the Ordinance and has contended that unless the Magistrate applies his mind for the purposes of proceedings under the Ordinance he cannot be said to have taken cognizance of the offence. The following passage from the above judgment, which itself was taken from a judgment delivered by the Calcutta High Court, and which had their Lordships' approval, was relied upon:‑

"Before it can be said that any Magistrate had taken cognizance of any offence under section l90 (1) (a), Cr. P. C., he must not only have applied his mind to the contents of the petition, but he must have done so for the purpose of proceeding in a particular way as indicated in the subsequent provisions. Proceeding under section 200, and thereafter sending it for enquiry and report under section 202. When the Magistrate applies his mind not for the purpose of proceeding under the subsequent sections and this Chapter, but for taking action of some other kind e.g. ordering investigation under section 156(3), or issuing a search‑warrant for the purpose of investigation, he cannot be said to have taken cognizance of the offence."

5. Mr. Hanafi argued that the recording of the statements of the complainant's witnesses, issuance of warrants of arrest and thereafter of search warrants under section 196, Cr. P. C. showed that the learned City Magistrate, Quetta, had not taken congnizance of the offence and, therefore, the proceedings under the Ordinance had not commenced. In this connection attention is invited to the words "cognizance may be taken by him" to show that the learned Deputy Commissioner has a discretion to take or not to take cognizance of a scheduled offence.

6. The expression taking cognizance of an offence has neither been defined in the Code of Criminal Procedure nor in the Ordinance. Cognizance is taken of an offence as soon as a Court, competent for the purpose, applies its mind to the offence with the intention of initiating judicial proceedings against offenders in respect of the offence. The use of the word "may", moreover, does not make it optional with the f Deputy Commissioner in taking cognizance on a complaint which, prima facie, discloses an offence by the offenders. The expression "may" rather refers to the action of the Deputy Commissioner in taking cognizance in one or other modes specified in the section. The interpretation of this word sought to be given by the learned counsel for the petitioners, is, therefore, not correct.

7. It can hardly be doubted that the learned City Magistrate exercising functions of the Deputy Commissioner did apply his mind with the intention of initiating proceedings against the petitioner under the Ordinance. The learned Court recorded the statements of the complainant and his witnesses to appraise himself as to the nature of the offence alleged against the petitioners. The further proceedings also appear to be under the Ordinance. As pointed out by Kh. Safdar Rashid, learned Advocate for the respondent, the Tribunal under section 10 of the Ordinance is invested with the powers of a Court under the Criminal Procedure Code only with respect to enforcing the attendance of any witness or the production of any document or thing and has no power to enforce the attendance of the accused, by its own force. However, according to section 9, the Tribunal for the purpose of coming to a finding on a question referred to it shall give opportunity to the parties to appear before it. A "party" according to section 2(d) of the Ordinance means, inter alia the accused. To ensure the attendance of the accused persons before the Tribunal, their arrest had to be ordered by the Deputy Commissioner. The issuance of the bailable warrants of arrest would, therefore, be a proceedings in implementation of the terms and objects of the Ordinance and not outside it. In fact, express powers are conferred in this behalf under section 17 of the Ordinance. It is true that issuance of search warrant under section 96, Cr. P. C. by the learned Court's order dated 19‑3‑68 does not appear to be covered by the provisions of the Ordinance and orders in this behalf appear to fall within the jurisdiction of the Tribunal under section 10 of the Ordinance. The question whether proceedings under sections 420/406/392/34, P. P. C. pending against the accused‑petitioners should be quashed under section 561‑A, Cr. P. C. on account of the erroneous order passed in this respect is, however, another matter. Indeed the B petitioners have other remedies at law for the setting aside of this order. It may be pointed out that section 24 of the Ordinance enables any party aggrieved by any decision given, sentence passed or order made by the Deputy Commissioner under this Ordinance to prefer an appeal to the Commissioner within 30 days of such decision, sentence or order.

8. To sum up the position boils down to the following. The learned City Magistrate/Deputy Commissioner took cognizance of the complaint as soon as he applied his mind to the fact and circumstances of the offence alleged against the petitioners. In his order he has expressly noted that the matter had to be entrusted to a Tribunal, under the Ordinance and with a view to ensuring the presence of the accused before the Tribunal directed the issuance of bailable warrants for their arrest. In this view of the matter, this Court has no jurisdiction to question the proceedings impugned herein, in exercise of the powers under section 461‑A, Cr. P. C. The present petition accordingly must fail and is dismissed herewith.

A. E. Petition dismissed.

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