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Writ Petition No. 418 of 1984, decided on 12th April, 1986.

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‑‑S. 1‑Penal Code (XLV of 1860), S. 302‑Constitution of Pakistan (1973), Art. 199‑Trial of offence‑Jurisdiction‑Provincially Admi nistered Tribal Areas Criminal Laws (Special Provisions) Regulation, 1975 extended to relevant area, long after occurrence had taken place‑Case, held, wan legally triable by Court of Session under pro visions of Criminal Procedure Code‑Order of Political Agent refer ring case to Assistant Political Agent for trial under said Regulation declared without jurisdiction and of no lawful authority.

Mehar Khan v. Yaqub Khan and another 1981 S C M R 267 rel.

M. Zahoorul Haq and Tariq Parvaiz Khan for Petitioners.

S. Ibni All, Addl. A.‑G. for Respondent.

Date of hearing : 28th January, 1986.

‑This writ petition has arisen in the follow ing circumstances :

The two petitioners who are brothers inter se are involved in a murder case. The offence in the case took place in the Malakand Protected Area on 11‑7‑1981 when PATH Regulation I of 1975 was not applicable to that area. The prosecution case is that on 11‑7‑1981 Umai Rehman a Sepoy of Malakand Levies lodged a report about the occurrence in this case at Police Post Batkhela. He alleged in the report that he was on guard duty at Civil Hospital Batkhela when he heard the report of fire‑shot and also weaping. He, therefore, went to the place of occurrence in the company of Haveldar and found Salimur Rehman lying dead. A case was, there fore, registered under section 302, P. P. C. vide F. 1. R. No. 23, dated 11‑7‑1981 in which nobody was charged. In the course of investigation Inayatur Rehman, a Taxi Driver, was arrested by the police. The said driver made a statement alleging that his Taxi was hired by three persons on the day of occurrence. At the material time, he was staying in the Tractor Workshop at Batkhela for Aftari when the said three persons went in the direction of canal side where the deceased bad allegedly been mur dered. He further alleged that after the departure of the three persons he heard the report of fire‑shots and then the said three persons came and he drove them towards Mardan. In his statement he named one culprit as Saeedullah who according to him had hired the Taxi for three persons. Consequently, the two petitioners before us were arrested by the police one after the other. The petitioners were thereafter produced before the Magistrate who remanded the case. While in Judicial custody, petitioner Saeedullah allegedly made confession to the guilt. Meanwhile the two petitioners filed before this Court application for the transfer of the case in which notice was issued to the State but on 10‑11‑1981 the case was requisitioned by the Martial Law Authorities for trial of the accused in the Military Court. Complete challan of the case was put in the Military Court and the accused were charge‑sheeted and put to trial. According to the learned counsel for the petitioner, evidence was recorded by the Military Court and the case was ripe for judgment when in June, 1984 the Martial Law Administrator, Zone B, ordered trial of the accused by a competent Court, vide Annexure 'C'. The matter was thereafter placed before the Political Agent. Malakand who wanted to take cognizance of the case under PATH Regulation I of 1975 and although an objection was raised before him on behalf of the petitioners that legally it is a case triable by the Sessions Court, the Political Agent did not accept this objection and ordered trial of the accused by the Assistant Political Agent, Dargai under the said Regulation. The order passed by the Political Agent in this behalf is, dated 20‑9‑1984 and may be reproduced :‑

"Counsel for accused Syed Ahmad Shah alongwith Mr. Murad Ali present. P. S. I. and counsel for State Mr. Faridullab Shah also present. The case was submitted before the Martial Law Court for trial which was returned by the M. L. A. Zone 'B' Peshawar Cantt; vide their Letter No. 2372/ML/JAG, dated 11‑6‑1984 for trial by competent criminal Court. The counsel for accused argue that case should be handed over to the Session Court for trial as the occurrence of the offence took place on 11‑7‑1981 when the PA' Regulation was not extended to Malakand Agency. Giving referee to section 171, Cr. P. C. subsection (a) whore the name of the party and the nature of offence has already been declared and case has proceeded for 2 years in the Military Court, hence cognizance has been taken. The learned counsel also referred to P L D 19 Provincial Statute, Part IV, page 6, Gazette of N.‑W. F. P., Extra ordinary, 24th August, 1983 wherein, it has been mentioned that the Notification shall come into force at once and not with retrospective effect, therefore, the case is triable by the Court Session.

Arguments of the counsel for State heard. Reference was ma to P L D 196' S C 259 and 267 (M. Aslam v. State) wherein, it has been stated that cognizance of a case is said to be taken from the date the case is put in Court vide complete challan and not from the date of occurrence.

Having heard the arguments of both the learned counsel I am of t opinion that the above‑mentioned case was submitted before the Military Court for trial. The Military Court issued summons again the accused and witnesses and after charge sheeting record evidence. The case has been in the Military Court for a period of 2 years. Military Court for all purposes is a competent Court and as such after recording evidence; it should have either convicted acquitted the accused. The mere fact that the Military Court has returned the case for trial by a competent criminal Court, suggest that all proceedings during the last 2 years in the Military Court was not actually a process of trial but was a process of investigation That is why the Military Court has found the case unfit for trial by Military Court. Since fresh evidence has to be recorded which ever the Court is entrusted with the case, it is therefore, beyond doubt to say that this case legally has not been put in Court as yet The case shall be put in Court for recording evidence after the orders. I, therefore, order that the case be tried by Assistant Political Agent, Dargai which is competent Court under PATA Regulation."

By this order the petitioners fell aggrieved, therefore, they have fill the present writ petition with a prayer that the said order may be declared as without lawful authority having been passed without jurisdiction at that the Political Agent (respondent No. 1) be directed not to proceed with the case and further a direction may be issued that the case may be tried by a Court of competent jurisdiction under the Criminal Procedure Code.

We have beard the learned counsel for the petitioner and learned Additional Advocate‑General on behalf of the State. Learned counsel for the petitioners contended that the occurrence in the present case took place on 11‑7‑1981 in the Malakand Protected Area when PATA Regulation I of 1975 was not extended to that area and the case was put in the Court of Magistrate to proceed with it under the provisions of the Criminal Procedure Code. The Magistrate remanded the case. While the application of the petitioners for transfer was pending in this Court, the case was requisitioned by the Martial Law Authorities for trial in the Military Court, On 28‑1‑1982 complete challan was put in the Military Court, which Court took cognizance of the case and recorded evidence produced by the prosecution. The case was mature for judgment by the Military Court when it was sent back to the Political Agent for trial by a competent criminal Court. The learned counsel for the petitioners, therefore, argued that on I 1‑7‑1981 when the offence in the present case was committed and on 28‑1‑1982 when complete challan was put in the Military Court. PATA Regulation I of 1975 was not applicable to the Malakand Protected Area, as it was enforced in that area on 24‑8‑1983. He also argued that cognizance of the case was taken of twice, once by the Magistrate when he remanded the case in 1981 and again by the Military Court when on 9‑3‑1983 the petitioners were charge‑sheeted put to trial. In substance, the submission of the learned counsel for the petitioners, therefore, is that in the present case as the offence was committed and cognizance of the case was taken of before the application of the DATA Regulation I of 1975 to the Malakand Protected Area, the Political Agent would have no jurisdiction to order trial of the petitioners under the said Regulation and the case, according to the learned counsel, is triable by the Sessions Court under the provisions of the Criminal Procedure Code. The learned Additional Advocate‑General has opposed the submission of the learned counsel for the petitioners. He contended that the case is still pending and legally there can be no embargo against the Political Agent to refer it to the Assistant Political Agent for trial under the DATA Regulation even though, according to him, the occurrence in this case has taken place before the extension of the PATH Regulation to the Malakand Area.

We need not dilate upon resolving the question whether in a case of this nature the Court competent to take cognizance of the case has taken cognizance This question came up for consideration before the Supreme Court in the case of Mehar Khan v. Yaqub Khan and another (1981SCMR 267). The Hon'ble Judges of the Supreme Court took note of the relevant provisions in the Criminal Procedure Code applicable before and after the amendment in the Criminal Procedure Code by the Law Reforms Ordinance, 1972. Incidentally, the cited case was also a murder case and for the purpose of this writ petition it is sufficient to state that the accused in that case after arrest was produced before the Magistrate within 24 hours of his arrest and the Magistrate remanded him to Police custody. The report would show that in that case it was contended before the High Court on behalf of the complainant that as neither a complete nor an incomplete challan under section 173, Cr. P. C. had been submitted before the Magistrate, he cannot be said to have taken cognizance of the case under subsection (1) of section 190, Cr, P. C. for the purpose of subsection (3) of the said section and as such he was not competent to pass an order of remand under section 344(1), Cr. P. C. and secondly as the case was exclusively triable by the Sessions Court, it would only be the Sessions Court to postpone the commencement of or adjourn, the trial of the case under section 344, Cr. P. C. because the inquiry proceedings under section 344, Cr. P. C. by ‑the Magistrate to commit the accused for trial to the Session Court have been dispensed with. The learned High Court dealt with the second contention raised on behalf of the complainant and held that "since inquiries for commitment by Magistrate have been dispensed wish, only a Court competent to try the case, in question, namely. Court of Session, could pass an order of remand under section 344, C:r. P. C., and because in the present case order of remand has been passed by a Magistrate, the petitioner's detention in judicial custody was not legal". The High Court, therefore, granted to the accused bail which had been refused to him by the two Courts below. The complainant took the matter in petition for Special Leave to Appeal to challenge the order of the High Court and Leave was granted to consider the effect of the relevant provisions of law i. e. subsections (1) and (3) of section 190. Cr. P. C. and section 344 Cr. P. C. and whether the Magistrate could pass an order of remand tinder section 344, Cr: P. C. even without taking cognizance of the case The Hon'ble‑ Judges of the Supreme Court also took note of section 193(1), Cr. P C, in this behalf. Considering the cumulative effect of the aforesaid provisions the learned Judges reached the conclusion that in the changed state of law after amendment of the Criminal Procedure Code by the Law Reforms Ordinance, the only difference that has been brought about is that now the Magistrate can only send the case for trial by the Sessions Court to that Court. While pre viously the Magistrate was to commit the case to the Sessions Court for trial if there was sufficient evidence against the accused. Hut notwithstand ing this position, the power of the Magistrate to take cognizance of the case remains intact. The learned Judges of the Supreme Court analytically examined sections 190 and 344, Cr. P. C. to show that in the present state of law the Magistrate is competent to take cognizance of the case triable by the Sessions Court and in this behalf we may reproduce the following observations from the report :‑

"Although now a Magistrate is not required to hold an 'inquiry' under Chapter XVIII, but that does not mean that he is to act merely as a post office and automatically 'send' the case for trial to a Court of Session simply because a section relating to an offence exclusively triable by a Court of Session has been mentioned by the Police or the complainant (as the case may be) in the challan the private complaint. He is, in fact, required on having taken cognizance of such a matter to enquire into the case and to apply his mind to whatever material is placed before him, by the Police or the complainant, in order to determine whether' the allegations made in the police report, private complaint or informa tion received by him, make out a prima facie case triable exclusively by a Court of Session. In the changed circumstances, after the commitment proceedings have been dispensed with by the Law Reforms Ordinance, this inquiring into the relevant material and application of mind thereto by a Magistrate, to determine the nature of offence i.e., to determine as to whether or not the case is one triable exclusively by the Court of Sessions, would now constitute an 'inquiry' within the meaning of the word as defined in clause (k) of section 4. Cr. P. C. and used in section 344(1), Cr. P. C. A Magistrate could take cognizance of some cases for trying the same. He could also take cognizance of cases triable exclusively by a Court of Session but only for the limited purpose of com mitting them to that Court for trial. As such for that purpose he had to hold an inquiry under Chapter XVIII of the Code which were commonly known as commitment proceedings. As such it could, under section 344, Cr. P. C., 'postpone the commence ment of or 'adjourn' the trial of cases which he was empowered to try. It would also 'postpone' or 'adjourn' an inquiry which was required to hold under Chapter XVII. But now that the inquiry, for the purpose of commitment, under Chapter XVIII, has been dispensed .with, it has been found difficult to visualise as to how a Magistrate could postpone, commence or adjourn an 'inquiry' which he is no longer empowered to hold. Similarly it cannot be visualised how a Magistrate can postpone the commencement or adjourn a 'trial' which he is not empowered by law 'to conduct i.e., the trial of a case which is triable only by a Court of Session. The cause for this apparent conflict or confusion, is, however, not difficult to spot. It has resulted simply from the fact that it has been generally overlooked that, as explained in paragraph No. 9 above, even under the recently subsequently subsection (3) of section 190, Cr. P. C. a Magistrate who takes ,cognizance of any offence under any of the clauses of subsection (1) of that section is required to apply his mind in order to ascertain as to whether the case in ques tion is one which he is required to 'send' for trial to the Court of Session or whether it is one which he can proceed to try himself. In other words, under the law, as it stands at present, this application of mind by the Magistrate now constitutes the 'inquiry' which he is empowered to postpone or adjourn under section 344(1), Cr. P. C. It follows, therefore, that a Magistrate who has taken cognizance of a case under section 1901(1), Cr. P. C. and is applying his mind for the aforementioned purpose, is also empowered under the said section, to postpone the commencement of or adjourn the said 'inquiry' and naturally, therefore, he would have the power to remand the accused to judicial custody from tithe to time, till he finally 'sends' the case for trial to the Court of Session."

In view of this authority, there can be no question about the fact that as the Magistrate had remanded the case, he had taken cognizance of it under the provisions of the Criminal Procedure Code. Now the question to be examined is whether the Political Agent had the jurisdiction to refer the case to the Assistant Political Agent, Dargai for trial under the provisions of PATA Regulation. It is conceded that PATA Regulation was extended to the Maiakand Protected Area long after the occurrence in this case had taken place. The case suffered unconscionable delay in disposal because of the fact that the Martial Law Authorities requisitioned it for trial in the Military Court. The Military Court did no decide the case and referred it back to the Authorities for trial of the accused by a competent criminal Court. We observe that it' the case had taken its normal course towards disposal, it would have been decided there and then one way or the other by the Sessions Court before the PATA Regulation was extended to the Malakand Protected Area. In the circum stances, we feel that legally it is a case triable by the Sessions Court according to the provisions of the Criminal Procedure Code.

This writ petition is, therefore, accepted, the impugned order of the Political Agent is declared without jurisdiction and of no lawful authority. The' result is that the case would be sent to the Sessions Court for trial under the provisions of Criminal Procedure Code.

M. Y. H. Petition accepted.

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