P L D 1958 (W (PLP)

This is a petition for revision of the order of Mr. Bashir‑ud- Din Ahmad, Sessions Judge, Sialkot, dated the 10th of June 1957, maintaining the conviction of the petitioners, who were found guilty by a Magistrate under section 323, P. P. C. and sentenced to one year's rigorous imprisonment each, but reducing the sentences to three months with a fine of Rs. 100 each or three months rigorous imprisonment each in default.

2. The main ground urged in revision is that the trial was illegal, the alleged offences relating to an area for which a panchayat had been established and the jurisdiction of the Magistrate being consequently ousted by virtue of section 28 of the Punjab Panchayat Act (XI of 1939).

3. The offences in question were committed within the area of village Chhabilpur, which forms part of the revenue estate of Ghuenke. By notification No. 1293‑E&P‑51/44205, dated the 31st of _July 1951, fifty‑three villages were constituted a panchayat area of the above name, Chhabilpur being included as No.

10. Further, by Notification No. 1293‑E&P‑51 /44206 of the same date a panchayat consisting of seven panches ‑was established for the Ghuenke area.

4. Within the area of Ghuenke, therefore, all offences enumerated in Schedule I to the Punjab Panchayat Act are cognizable by a panchayat, and section 323, P. P. C. Is one of those offences.

5. Sheikh Ijaz Ali argued that the provisions of section 28 of the Panchayat Act are only directory and not mandatory, but this contention has no force. The section in question runs "28. (1) Any Magistrate before whom a complaint or report by the police of any offence triable by a panchayat is brought shall transfer the proceedings to the panchayat. (2) No Magistrate shall upon his own knowledge or suspicion take cognizance of any offence which is triable by a panchayat. (3) A District Magistrate or Sub‑Divisional Magistrate may for reasons to be recorded in writing transfer any criminal case from one panchayat to another or to another Court sub ordinate to him."

6. It will be seen that the above section covers, with one exception, the various ways in which a Magistrate can take cognizance of a case under section 190 of the Code of Criminal ‑ Procedure. The exception, perhaps. omitted by in advertence, is that contained in clause (c) of section 190, namely: "upon information received from any person other than a police officer."

7. The effect is clear, and is that where subsections (1) and (2) of section 28 of the Panchayat Act are applicable the jurisdiction of the Magistrate is ousted. Sheikh Ijaz Ali attempted to draw a distinction between the wording of section 28 of the Panchayat Act and that of section 3 of the Pakistan Criminal Law Amendment Act (XIX of 1948), pointing out that subsection (1) of the latter section provides that the offences Specified in the second schedule to the Act shall be tried by Special Judges. In other words, learned counsel contends that whereas under the Criminal Law Amendment Act Special Judges are given exclusive jurisdiction to try the offences in question, no such jurisdiction is conferred on the panchayat by section 28 of the Panchayat Act. The same result can, however, be attained in more than one way, and it is obvious that the effect of section 28 of the Panchayat Act is to oust the jurisdiction of a Magistsate, the only exception being that where, in view of A special circumstances, it is not expedient for the panchayat exercising jurisdiction in the area concerned to try a particular case, it may be transferred by the authorities named in subsection (3) either to another panchayat or to a Magistrate.

8. Sheikh Ijaz Ali referred to section 39 of the Panchayat Act, subsection (1) of which enables the District Magistrate or Sub‑Divisional Magistrate, or any Magistrate especially empowered by Government in this behalf to cancel or modify in certain circumstances any order of acquittal, conviction or compensation made by the panchayat or to direct the re‑trial of any criminal case by the same or any other panchayat or by a Court of competent jurisdiction subordinate to him, but the subsection in question relates to proceedings subsequent to the trial, and does not alter the fact that the case must in the first instance be tried by a panchayat unless the provisions of subsection (3) of section 28 have been invoked.

9. For the above reasons I accept the revision petition, set aside the convictions and sentences of the petitioners, and acquit them. The fines, if paid, to be refunded. Z. A. S. Petition accepted.