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Criminal Appeal No. Q‑7 of 1984, decided on 8th April, 1985.

‑‑‑Ss. 145 & 439‑A‑‑Law Reforms Ordinance (XII of 1972), Sched., item 154‑‑Appeal against order of High Court rejecting reference sent to it by Sessions Judge‑‑Reference sent to High Court for setting aside order of Assistant Commissioner and First Class Magistrate passed under S.145, Criminal Procedure Code, on ground that Assistant Commissioner and First Class Magistrate had passed order in disregard of direction of High Court in judgment given earlier in same case-High Court opposing reference with remarks that Sessions Judge was himself competent to dispose of same under 5.439‑A, Cr.P.C., ignoring thereby fact that provisions of 5.439‑A, Cr.P.C. were not extended to relevant District and, therefore, Sessions Judge was not competent to exercise revisional jurisdiction in respect of that order‑‑Appellant however failing to satisfy Supreme Court that Assistant Commissioner and First Class Magistrate passed order in violation of direction of High Court passed in an earlier judgment in same case‑‑Appeal, subject to observations made regarding legal position, dismissed.

Yakub K . Eusufzai, Advocate‑on‑Record for Appellants.

Ch. Tahir M. Khan, Advocate Supreme Court for Respondent.

Date of hearing: 8th April, 1985.

‑‑This appeal by leave is directed against the judgment of High Court of Baluchistan dated 19‑7‑1983 rejecting a reference made by the Additional Sessions Judge, Quetta for setting aside the order of the Assistant Commissioner and First Class Magistrate, Pishin dated 5‑5‑1982 under section 145 of Code of Criminal Procedure. Learned Additional Sessions Judge made the reference on the ground that learned Assistant Commissioner and First Class Magistrate, Pishin had passed that order in disregard of the direction of the High Court in the judgment dated 30‑6‑1981 passed in the earlier proceedings in the same case by which evidence of the parties was to be recorded afresh, and then the final order under section 145 of the Code was to be passed according to, law.

The High Court on scrutiny of the file of the case noticed that "the record shows that after remand of this case by this Court, the learned Magistrate examined) witnesses of the parties. The parties cross examined the witnesses and thus there is no illegality and (or) irregularity in the proceedings." The High Court also accepted the plea raised by the learned Assistant Advocate‑General who appeared for the State and opposed the reference made by the learned Additional Sessions Judge, that the learned Additional Sessions Judge was himself competent under section 439‑A of the Code to dispose of the case without making reference to the High Court. On this view of the case, the High Court rejected the reference by the judgment, dated 19‑7‑1981.

This Court granted leave to appeal from the judgment of the High Court in order to examine the plea, firstly, that the High Court ignored the fact that the provisions of section 439‑A of the Code are not applicable to Pishin District, and the learned Additional Sessions Judge was, therefore, not empowered to exercise the revisional jurisdiction so as to interfere with the order of the learned First Class Magistrate Secondly, also to examine the submission made by the learned counsel for the appellants that the High Court has not properly appreciated the reference made by the learned Additional Sessions Judge that the learned First Class Magistrate passed the order dated 5‑5‑1982 in flagrant disregard of the earlier judgment of the High Court dated 30‑6‑1981.

It is now the admitted position of the learned counsel for the parties before us, which in fact is the correct legal position, that se far as the Province of Baluchistan is concerned, certain provisions of the Schedule to the Law Reforms Ordinance 1972, including item 154, that is, the newly added section 439‑A of the Code of Criminal Procedure, were enforced with effect from 23‑12‑1975 only to the areas of Quetta Town, Cantonment, and Nasirabad District. In this behalf, reference was made to the Notification No. Legis‑3/15/Law/75 issued by the Government of Baluchistan, published in the Gazette of Baluchistan,

Extraordinary dated 23‑12‑1975. Thus the legal position is clear that only those items of the Schedule to the Law Reforms Ordinance 1972, relating to amendments in the Code of Criminal Procedure, 1898 are applicable to the Province of Baluchistan as are mentioned in the aforesaid notification of the Provincial Government of Baluchistan, and these apply to only the areas of Quetta Town, Cantonment and District Nasirabad and not to the others, unless made applicable hereafter. In view of this position under the law, learned Assistant Advocate‑General who had appeared for the State before the High Court, and who also represents State before us, states that he now stands corrected that the provisions of section 439‑A of the Code not having been extended to Pishin District, learned Additional Sessions Judge was not competent to exercise revisional jurisdiction in respect of the order of the First Class Magistrate dated 5‑5‑1982.

As regards the second point on which leave to appeal was granted, learned counsel for the appellant was unable to satisfy us that the learned Assistant Commissioner and First Class Magistrate, Pishin passed the order dated 5‑5‑1982 in violation of the direction of the High Court in the earlier judgment of the High Court dated 30‑6‑1981; indeed in this behalf it was pointed out by the learned counsel for the respondent that the learned First Class Magistrate had, in fact, in compliance of that judgment, examined the witnesses produced by the parties and they were duly cross‑examined and thus, as pointed out by the High Court in the impugned judgment, no illegality or irregularity was' committed in the proceedings.

In view of this position, the appeal, subject to the observation made above regarding the legal position, is otherwise dismissed.

M.Y.H. Appeal dismissed.

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