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Criminal Miscellaneous No. 369 of 1982, decided on 7th August, 1984.

‑‑Ss. 5 & 6‑‑Sind Government Notification No. SO KDA 4‑2/71, dated 7‑3‑1982‑‑Penal Code (XLV of 1860), Ss. 323 & 504‑‑Criminal Procedure Code (V of 1898), S.561‑A‑‑Conciliation Court‑‑Jurisdiction‑‑Power to act as Chairman of Conciliation Court and vested same in Magistrate concerned‑‑Magistrate in whose Court direct complaint filed, held, supposed to deal with complaint as Chairman of Conciliation Court and not as Magistrate.‑‑[Jurisdiction].

‑‑‑S.5‑‑Conciliation Court‑‑Composition‑‑Conciliation Court does not mean Chairman alone but a body consisting of two representatives to be nominated by each party besides Chairman.

‑‑‑Ss. 5 & 6‑‑Penal Code (XLV of 1860), Ss. 323 & 504‑‑Criminal Procedure Code (V of 1898), 5.561‑A‑‑Conciliation Court‑‑Direct complaint‑‑Neither Conciliation Court constituted nor direct complaint handled by such Court but instead Magistrate acted alone and issuing process by exercising ordinary powers of Magistrate‑‑Magistrate, held, acted without jurisdiction‑‑Proceedings before such Magistrate amounted to abuse of process and quashed in circumstances.‑‑[Complaint].

‑‑‑Ss. 5 & 6‑‑Criminal Procedure Code (V of 1898), S.537‑‑Conciliation Court‑‑Chairman dealt with case alone and not by a full‑fledged Conciliation Court‑‑Defect occurred due to dealing of case by Magistrate alone, who acted as Chairman, held, material in nature and affected rights of party‑‑Such defect could not be ignored and not curable under S.537, Cr.P.C.

Date of hearing: 5th August, 1984.

This is an application under section 561‑A, Cr. P C. seeking, quashment of the criminal case under section 323/504, P.P.C. pending against the applicant Yasin Ahmad in the Court of A.C.M.XI, West Karachi.

The arguments of the learned counsel for the parties were heard at some length and the relevant record was also perused with their assistance.

Briefly stated the facts leading to this case are that the applicant is tenant of the respondent Muhammad Qasim in respect of a portion of the House No.810/3, ground Floor, Hussainabad, Karachi. It is alleged by the applicant that in order to pressurise him, the respondent has not only filed Ejectment Case No. 721/81 against him in the Court of the learned Rent Controller XIth, Karachi but also has dragged him in direct complaint filed in the Court of the said Magistrate. According to the complaint, while the respondent was crossing the road, the applicant alongwith his two companions who were unknown to the respondent caught hold of the latter by his collar and abused him. It is further alleged that several people gathered at the scene of offence, and in their presence the applicant gave beating to the respondent who was slightly injured. The respondent approached the police for report but he was told that the offences allegedly committed by the applicant were not cognizable by police. Accordingly, he filed direct complaint in the aforesaid Court.

The applicant first made an attempt to have the case finished by moving an application under section 249‑A, Cr.P.C. but the same was dismissed.

It was first contended by the learned counsel for the applicant that the direct complaint was triable by the Conciliation Court and the cognizance taken by the Magistrate was in contravention of law. In this connection, he invited my attention to the Conciliation Courts Ordinance, 1961 and submitted that as provided in section 3(1)(a) of the said Ordinance all cases falling under part 1 of the Schedule shall have to be referred to Conciliation Court and civil or criminal Courts shall have no jurisdiction to try any such case.

He further submitted that Conciliation Court as defined under section 2(b), means Conciliation Court constituted under the Ordinance. Referring to subsection (1) of section 5 of the said Ordinance the learned counsel argued that Conciliation Court is a body consisting of the Chairman and two representatives to be nominated by each of the parties to the dispute. Subsection (2) of the same section provides that the Chairman of the Union Council shall be the Chairman of the Conciliation Court. Accordingly he argued that since the learned Magistrate has wrongly assumed jurisdiction in dealing with the direct complaint, the proceedings pending before the said Magistrate are legally not sustainable.

On the other hand the learned counsel for the respondent pointed out to the Sind Government's Notification No. S.O. KDA 4‑2/71, dated 7th March, 1972 whereby the Magistrates concerned have been substituted for Chairmen of the Union Council for the purpose of constituting Conciliation Court. Therefore, his submission was that the learned Magistrate in whose Court direct complaint was filed had the necessary jurisdiction to take cognizance on the direct complaint.

It goes without saying that by the above notification the power to act as Chairman of the Conciliation Court was taken away from the Chairmen of the Union Council and vested in the Magistrates concerned. However, the Magistrate in whose Court the direct complaint was file was supposed to deal with the complaint as Chairman of the Conciliation Court and not as an ordinary Magistrate. It appears he has not followed the procedure envisaged in the said Ordinance and the rules framed thereunder. As pointed out earlier Conciliation Court does not mean only Chairman but it is a body consisting of two representatives to be nominated by each party besides the Chairman. It appears that neither Conciliation Court was constituted nor the direct complaint was handled by such Court. But instead the learned Magistrate acted alone and issued process by exercising ordinary powers of the Magistrate. Obviously, he has acted without jurisdiction and hence all actions taken by him are illegal and void ab initio.

I am in agreement with the arguments of the learned counsel for the applicant that all proceedings stood vitiated on account of lower Court's failure to follow the procedure in constituting the Conciliation Court and dealing with the direct complaint as such Court.

However, the learned counsel for the respondent made a feeble attempt to argue that if at all the proceedings in the lower Court suffer from any defect, it is merely of procedural nature and on account of such defect, the whole case cannot be held to be without jurisdiction. I am not inclined to endorse this argument. There is a wide difference between dealing with the case by the Chairman alone at his personal level and by the full‑fledged Conciliation Court which includes not only Chairman but also two representatives of each party. Thus, the defect is of material nature affecting the rights of the party concerned. Such a defect cannot be easily ignored and is certainly not curable under section 537, Cr. P.C. as being mere irregularity.

For the above reasons pendency of the case in the lower Court would amount to abuse of process. Consequently, in the exercise of powers conferred by section 561‑A, Cr.P.C., I quash the proceedings pending in the lower Court.

M. Y. H. Proceedings quashed.

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