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Criminal Appeal No. 973 of 1955, decided on 23rd January 1956, from the order of Fazal Muhammad, Special Magistrate, Bahawalpur, dated the 28th December 1954.

, S. 4 (1) (f) Offence cognizable‑ Abetment of offence also cognizable.

In the Second Schedule to the Code of Criminal Procedure, entries against sections 109 and 116 show that abetment of an offence is cognizable if the offence itself is cognizable.

S.6‑Lambardar‑Public servant‑Charged under section 161, P. P. C. and not under section 161 read with section 109 or 116, P. P. C.‑Not triable by Magistrate.

A Lambardar being a public servant, a charge against him under section 161, P. P. C. but not under section 161 read with section 109 or 116, P. P. C. is not triable by a Magistrate, by reason of the provisions of section 6, Bahawalpur Prevention of Corruption Act (V of 1950).

The Crown v. Imdad Khan P L D 1953 Lah. 449 ref.

S. A. Rahman, for A. G. for Appellant.

Muhammad Din for Respondents.

‑By his order dated the 28th of December 1954, Maulvi Fazal Muhammad, who had, by notification No. 19 dated the 20th of February 1954 of the Bahawalpur Government, been appointed as Anti‑Corruption Magistrate with powers under section 30 of the Code of Criminal Procedure, held that offences under sections 161/116 and 161/109 of the Penal Code were not cognizable and could ‑not, therefore, be investigated by the police without the order of a Magistrate, with the result that the reports of the police regarding those offences could not be taken cognizance of by a Magistrate. The effect of the above order of the Magistrate was that five cases pending in his Court at that time were terminated. In three of these cases charges had been framed by the Magistrate, while in the other two no charge had been framed. In the three cases in which charges had been framed, the accused were acquitted ; while in the other two the Magis trate passed an order of discharge. The Bahawalpur Govern ment questioned the order of the Magistrate by lodging in the Bahawalpur High Court three appeals, Criminal Appeals Nos. 973, 974 and 975 of 1955 with regard to the three cases in which the accused had been acquitted, and two revision petitions, namely, Criminal Revision Nos. 926 and 927 of 1955 with regard to the two cases in. which the Magistrate had passed an order of discharge. The points of law that require determina tion being practically identical in the three appeals and the two petitions for revision, all the five cases will be disposed of by this order.

The offences, to which the three appeals and the two revision petitions relate, were committed long before the Bahawalpur State became merged in the Province of West Pakistan by virtue of the Establishment of West Pakistan Act, 1955, and what one has to see, therefore, is whether or not at the time when the Magistrate took cognizance of them the offences under sections 161/116 and 161/109 of the Penal Code were cognizable offences in the Bahawalpur State. The law applicable to offences under sections 161 and 165 in force in Pakistan and what used to be the Bahawalpur State was not identical, because while the offences under these two sections were cognizable in Pakistan all along, having been made so by the Prevention of Corruption Act (II of 1947) which became law in British India on the 11th of March 1947, they remained non‑cognizable in the Bahawalpur State till the passing of the Bahawalpur Prevention of Corruption Act (V of 1950) which became law on the 11th of May 1950. Section 3 of the Bahawal pur Prevention of Corruption Act is in the following terms

"Offences under sections 161 and 165 of the Penal Code will be cognizable offences notwithstanding anything to the contrary contained in the Criminal P. C., provided that a police officer below the rank of an Inspector shall not investigate any such offence without the order of the Superintendent of Police, Anti‑Corruption".

On the day when the impugned order of the Magistrate C'' was passed as well as on the day he took cognizance of the F present cases, an offence under section 161 of the Penal Code s was admittedly a cognizable offence in the then Bahawalpur State and the question to consider is whether or not abetment of that offence, which was punishable in the Bahawalpur State by virtue of sections 109 and 116 of the Penal Code, was cognizable or not. The Code of Criminal Procedure, 1898, in so far as its provisions with which one is concerned in the present cases was so identical with the Code applicable to Pakistan. Clause (f) of subsection (1) of section 4 of the Code of Criminal Procedure reads as follows

"(f) 'cognizable offence' means an offence for, and 'cognizable case' means a case in, which a police officer may, in accordance with the second schedule or under any law for the time being in force, arrest without warrant." .

In the Second Schedule to the Code of Criminal Proce dure the entry in the third column opposite to section 109 is to the effect that a police officer may arrest without a warrant for the offence of abetment made punishable by section 109 if arrest for the offence abetted may be made without a warrant, but not otherwise, and the entry in column 3 opposite to section 116 is also to the same effect. The result of the above entries in the Second Schedule to the Code of Criminal Procedure is that if an offence the abetment of 'which is the charge against an accused person is cognizable, the abetment itself would be cognizable, but if the offence itself is not cognizable, its abetment‑would not be. It follows, therefore, that the abetments with which the Magistrate was dealing were cognizable by the police and their investigation by them was open to no legal objection. In this view of the matter the order of the learned Magistrate throwing the cases out on the ground that though they could not be investigated by the police they had actually been, cannot be supported on any valid ground. The learned counsel for some of the accused, however, sought to support the order of the Magis trate by saying that, as section 3 of the Bahawalpur Prevention of Corruption Act made no mention of the abetment of offences punishable under sections 161 and 165 of the Code of Criminal Procedure, the abetments of those offences could not be said to be cognizable. This argument, which overlooks the entry in the Second Schedule to the Code of Criminal Procedure 1898, has no force and must be rejected.

It was contended by the counsel for the respondents in Criminal Appeal No. 975 of 1955 that as one of the respondents in that appeal was a public servant, being a lambardar, the offence against him could not be taken cognizance of by the Magistrate because of section 6 of the Bahawalpur Prevention of Corruption Act. The learned counsel is on firm ground when he contends that a lambardar is a public servant and he receives support from a recent decision reported in The Crown v. Imdad Khan (P L D 1953 Lah. 449). But whether or not the offence committed by the accused, who is a lambardar, amounts to a substantive offence under section 161 or merely to an abetment of that offence is a matter which will be determined by the Magistrate after considering the evidence produced before him. If the offence committed by Nasib Gul, one of the respondents in Criminal Appeal No. 975, who is stated to be a lambardar, was punishable under section 161 of the Penal Code and not under sections 161/109 or 161/116 of the Penal Code, the Magistrate could not have taken cognizance of the offence. These questions, however, which are questions of fact, can best be decided by the Magistrate and I would, therefore, leave them to be determined by him.

In view of what I have said above, I would set aside the order of the Magistrate in the three appeals and the two petitions for revision. In the three appeals the Magistrate is directed to proceed with the trial and, if no evidence has to be recorded, to give a finding on the questions of fact and law that arise. In the two petitions for revision, the Magistrate is directed to hold a further inquiry and give his finding one way or the other in the light of what has been said above.

C. M. SHARIF, J.‑I agree

A. H

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