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Criminal Miscellaneous No. 244‑Q of 1985, heard on 11th March, 1986.

‑‑S. 561‑A‑‑Penal Code (XLV of 1860), S. 419‑‑Displaced Persons (Land Settlement) Act, (XLVII of 1958), Ss. 27 & 28‑‑Quashing of proceedings‑‑Petitioner allegedly committing offence punishable under S.419, P.P.C. which offence not falling within purview of Ss. 27 & 28 of Displaced Persons Act‑‑Cognizance taken by Trial Magistrate, held, unexceptionable, in circumstances‑‑Quashing of proceedings declined.

Noor Muhammad v. The State 1983 P Cr. L J 1357 ref.

‑‑‑S. 561‑A‑‑Quashing of proceedings‑‑Prosecution evidence not recorded as yet Held. It was premature to hold that proceedings against petitioner amounted to abuse of process of Court‑‑Quashing of proceedings declined in circumstance.

Ch. Bashir Hussain Khalid for Petitioner.

Muhammad Akhtar, A.A.‑G. Ejaz Ahmad Ch. for the State.

Date of hearing: 11th March, 1986.

Through this petition under section 561‑A, Cr.P.C. Abdur Rashid petitioner wants this Court to quash proceedings in case titled State v. Hafiz Lal Din and others, F.I.R. No. 315/81, dated 22‑12‑1981 under sections 419/420/468 and 471, P.P.C. pending adjudication before Magistrate First Class, Lahore.

2. The facts leading up to this petition briefly are that on the report lodged by Assistant Commissioner, Lahore a case under section 419/420/468/471, P.P.C. was registered against the petitioner and others, at Police Station Lower Mall, Lahore. The allegations relate to the allotment of land obtained by Bashir‑ud‑Din and others at R.L.II. Khata No. 512 Mouza Amer Sidhu, Tehsil and District Lahore. After investigation report under section 173, Cr.P.C. was submitted before Magistrate First Class, Lahore. The learned trial Magistrate framed charge against the petitioner and others, before prosecution evidence could be recorded. The petitioner moved application under section 294‑A, Cr.P.C. before the Magistrate, which was dismissed on 6‑8‑1984. Feeling aggrieved of this order the petitioner filed revision before the learned Sessions Judge, Lahore which was entrusted to Additional Sessions Judge, Lahore who remanded the matter to the Magistrate on 3‑11‑1984. On remand the learned Magistrate vide order, dated 11‑3‑1985 refused to acquit the petitioner under section 249‑A, Cr.P.C. hence this petition.

3. The learned counsel for the petitioner relied on case Noor Muhammad v. The State reported as 1983 P Cr. L J 1357 to contend that under section 29 of the Displaced Persons (Land Settlement) Act, 1958 the Magistrate could not have taken cognizance of the case on the police report and that he could proceed against the appellant only on complaint in writing made by an officer appointed under Displaced Persons (Land Settlement) Act, 1958. Conversely the learned counsel for the State has opposed this application.

4. I have considered the submissions made by the learned counsel for the parties with care. I have not been able to persuade myself to agree with the learned counsel for the petitioner. On the examination of the allegations against the petitioner and other co‑accused in the F.I.R. as well as report under section 173, Cr.P.C. I feel that the, allegations against the petitioner and others, more particularly of cheating by personation punishable under section 419, P.P.C. does not fall within the purview of sections 27 and 28 of Displaced Persons (Land Settlement) Act, 1958 and as such the offence allegedly committed by the petitioner and others, is not punishable under Displaced Persons (Land Settlement) Act, 1958. That being the position, I am of the view that the learned Magistrate could take cognizance of the report under section 173, Cr.P.C. against the petitioner and the others. Section 29 of the Displaced Persons (Land Settlement) Act, 1958 may be reproduced advantageously:

"No Court shall take cognizance of any offence punishable under this Act save upon a complaint in writing made by an officer appointed under this Act."

The prosecution evidence has not been recorded so far, this Court cannot pre‑empt the duties and functions of the trial Court while dealing with application under section 561‑A, Cr.P.C. and that it is premature to hold that the proceedings against the petitioner amount to an abuse of the process of Court. Furthermore, the learned Magistrate while rejecting the application under section 249‑A, Cr.P.C. of the petitioner has observed:‑

"No doubt section 29 of the said Act read with rule 9 of the Land Settlement Rules, 1959, no Court can take cognizance of the offence unless complaint is made by the Chief Settlement Commissioner. But in the instant case the complaint was lodged by the Assistant Commissioner, who was an authorised officer to deal with the pending cases under the repealed Act. Moreover, there is a reference No. 691‑S C (L), dated 5‑2‑1983 available on record, which shows that before submitting the challan to Court for trial, it was scrutinized by a sub‑committee constituted by the Chief Settlement Commissioner and was sent for trial with prior approval of the Member, Board of Revenue, (S. A.) e.g. Chief Settlement Commissioner. Therefore, the contention raised on behalf of the accused/ petitioner does not hold good."

The learned counsel for the petitioner has not been able to controvert the aforesaid observations made by the learned Magistrate.

5. For what has been said above, the petitioner is dismissed.

S. G. D. Quashment declined.

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