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Criminal Revision No. 91 of 1969, decided on 13th October 1969.

West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (IV of 1968),

S. 16(3)-Magistrate exercising powers under S. 16-Not an inferior criminal Court but a persona designata-Order passed by Magistrate under S. 16(3) Held, not revisable by Sessions Court and High Court-Criminal Procedure Code (V of 1898), Ss. 435, 439 & 6.

Mst. Alam Bibi v. District Magistrate of Tharparkar P L D 1961 Kar. 29 and Sakhf Muhammad v. Wajid Ali and others P L D 1964 Lah. 426 ref.

Rajani Khemtawali v. Emperor 11 Cr. L J 112 - no longer sustainable.

Mumtazuddin for Appellant.

Abdul Aziz for Respondent.

Mir Mohd. Shaikh for the State.

Date of hearing: 13th October 1969.

Applicant Ali imam has questioned the correctness of the order dated 27th May 1969, passed by the learned Additional Sessions Judge, Karachi and the order dated 17th May 1969, of the learned Additional City Magistrate, Mr. Ghulam Nabi Kasimani, by which he ordered the eviction of the appellant under section 16(3) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968.

2. The relevant facts necessary for the disposal of this revision are these. The applicant was employed as a diesal machanic in the cement factory which is run by the Pakistan Progressive Cement Industries Limited, Karachi. He worked in that capacity from 27-12-63 till 13-3-67, on which date his services were terminated as he was found guilty on charges of rioting and disorderly behaviour. He was called upon to vacate the quarter (No. A. F/12) which is situate within the factory premises at Shanti Nagar. This quarter was provided to the applicant by his employer. The applicant refused to vacate the quarter with, the result that the manager of his ex-employer filed a complaint under section 16(2) of the said Ordinance for his eviction before Mr. Ghulam Nabi F. Kasimani, Additional City Magistrate, Karachi.

3. Notice of this complaint was issued to the applicant. He appeared before the learned Magistrate on 30th July 1968, and took a preliminary objection that the learned Magistrate had no jurisdiction to entertain the complaint as the Ordinance was not retrospective and could not cover his case. This preliminary objection was repelled by the learned Magistrate by his order dated 16th September 1968. At the time of the disposal of this complaint, the applicant again took this objection as well as others in regard to the competency of the complaint which are summed up in para. 8, of the order. The learned Magistrate considered these objections and on 17th February 1969, ordered the eviction of the applicant from the quarter in question with force, if necessary. The order contains detailed reasons for the Thereupon the applicant preferred a revision against this order which was heard by Chowdhury Abdul Qadeer, Additional Sessions Judge, Karachi. The objections with regard to the maintainability of the complaint and the applicability of the Ordinance to the case of the applicant were again agitated before the learned Sessions Judge who repelled them and in the ultimate analysis held that there was no force in the revision petition and dismissed it accordingly. The applicant has now come up in revision to question the order of the learned Additional Sessions Judge and that of the learned Magistrate.

4. He has again urged before me those objections which were taken by him in the Courts below. However, I do not propose to go into them as a preliminary' objection has been taken by the counsel for the respondent in regard to the maintain ability of this revision application. According to the learned counsel for the applicant, the order of eviction by the learned Magistrate passed under section 16(2) of the Ordinance is not an order in relation to any proceeding under the Code of Criminal Procedure and that, therefore, he cannot be deemed to be exercising powers of an inferior Court in relation to such a proceeding. The power to revise an order under section 439, Cr. P. C. is only limited to the proceedings under the Code and does not extend to an order passed under a different statute even though it was by a Magistrate designated therein. In support of this contention he cited cases reported in P L D 1961 Kar. 29 and P L D 1964 Lah. 426.

5. In the first case the order of the District Magistrate under sections 3 and 6 of the Sind Prostitution Act, 1961 was challenged in revision; the maintainability of the revision was objected to on the ground that the order challenged was not in relation to any proceeding of an inferior Criminal Court. This contention was upheld. In the second case the order that was challenged was passed by the Industrial Court of West Pakistan under sections 28 and 30 of the Industrial Disputes Ordinance, 1959. Here, the powers of a Criminal Court were conferred by a special statute on the Industrial Court for dealing with offences specified in the f Ordinance itself. The question whether the High Court bad power to revise the order was agitated. It was held after review ing the authorities that the power to exercise revisional jurisdiction under the Code of Criminal Procedure is limited to the proceed ings of inferior Criminal Courts. I respectfully agree with the view taken in these two decisions.

6. Undoubtedly, the Magistrate was not exercising any powers in relation to any proceeding under the Code but pursuant to the power conferred section 16(2) of the Ordinance; his order, therefore, was not one under the Code but under that Ordinance. Merely because section 6, Criminal Procedure Code, designate Magistrate as a Criminal Court, it cannot be said that for the A purpose of exercising the powers conferred on him as a Magistrate t under that Ordinance he can be deemed to be an inferior Criminal Court. He entertains the complaint as a persona designata and not as Criminal Court. The learned counsel for the applicant was not able to meet this objection. He merely placed reliance on an old case reported in 11 Cr. L J 112. The observations in that judgment have some bearing on the question that even though the order challenged was not by an inferior Criminal Court. Yet it could be revised by the High Court. This view is no longer sustainable.

7. In the result, the objection of the respondent prevails for the same reason the revision filed before the Sessions Court was also incompetent and the order dated 27th May 1969, thus passed is also without jurisdiction and of no effect. However, the order of the learned Magistrate dated 17th May 1969, remains intact. I would dismiss the application as it is not maintainable.

Petition dismissed.

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