1971 P Cr (PLP)

Ch. Mohd. Sardar Khan for Petitioners. Raja Muhammad Sabir for Raja Muhammad Anwar for Respondent. 13y this petition under section 561‑A, Cr. P. C., the petitioners who are residents of Gujrat seek the quashment of proceedings pending against them in a case under section 420, P. P. C. before Sub‑Divisional Officer, Jehalawan Khuzdar, on a complaint filed by the respondent who also originally belonged to Gujrat but was, at the relevant time, serving as Superintendent, District Officer, Khuzdar, District Kallat.

2. The facts, as disclosed in the petition as well as in the complaint made by the respondent which has been read from the record by the learned counsel for the petitioner, do disclose a prima facie case on merits in which this Court might have exercised its powers under section 561‑A; but the learned counsel for the respondent has raised a preliminary objection which the learned counsel for the petitioner has found it difficult to answer. The objection is that by promulgation of West Pakistan Criminal Law (Special Provisions) Ordinance (II of 1968) on 16th January 1968, all offences as defined in Pakistan Penal Code were defined as scheduled offences' under that law and by virtue of section 4 thereof, the Deputy Commissioner concerned had the exclusive jurisdiction to take cognizance of those offences and then to appoint a Tribunal under section 6 for trial thereof. The Deputy Commissioner has been defined in clause (b) of section 2 as "including any officer exercising or performing any power or function of a Deputy Commissioner under this Ordinance". Thus, it is contended, section 561‑A, Cr. P. C. is not applicable.

3. In my view, the objection of the learned counsel for the respondent cannot succeed. It appears from the record that the complaint was made by the respondent before a Sub‑Divisional Officer exercising powers as a Magistrate under the Criminal. Procedure Code. He took cognizance of the case as Magistrate and then sent the case to a Tehsildar exercising powers of a Second Class Magistrate under the Criminal Procedure Code, for preliminary enquiry. During the enquiry, the Tehsildar started summoning the petitioners and even tried to use certain coercive measures. On his failure to secure the attendance of the peti tioners, he reported to the Sub‑Divisional Officer that he has failed in securing the attendance of the petitioners, therefore, the latter may himself issue warrants for the appearance of the petitioners. Thereafter it further appears, coercive orders have been passed for the appearance of the petitioners. The picture that emerges is that the Deputy Commissioner never took cognizance of the offence which, admittedly, was said to have been committed after the promulgation of the first Ordinance mentioned above and also the amending Ordinance promulgated on 12th June 1968. Not only this, he never constituted a Tribunal under section 6 of the original Ordinance and the Tehsildar exercising the powers of Second Class Magistrate obviously is not acting as the Chairman of the Tribunal; because he was neither appointed as such nor there are other members who may have acted as Tribunal. There is no order on the file to show, nor the learned counsel for the respon dent has urged, that the Deputy Commissioner ever appointed the Sub‑Divisional Officer as the Chairman of the Tribunal, nor there is any other material that a Tribunal has been appointed by the Deputy Commissioner with certain other persons as members and the Sub‑Divisional Officer as the President thereof. In these circumstances, it is absolutely clear that the Sub‑Divisional Officer as well as the Tehsildar have purported to exercise their powers under the Code of Criminal Procedure and none of them is so far conscious of the fact that they can neither take cognizance of a scheduled offence as defined in the said Ordinance nor can they try a person accused of that offence. Throughout they appear to be conscious of the fact that they are exercising powers under the Criminal Procedure Code and are trying or going to try the accused‑petitioners under that law. Section 4 of the Ordinance is clear that it is only the Deputy Commissioner who has the exclusive jurisdiction to take cognizance of a scheduled offence and it is only the Tribunal which has the exclusive jurisdiction to try the offenders. Therefore, the Sub‑Divisional Officer and the Tehsildar (Magistrate, 2nd Class) as such have no power or jurisdiction to take cognizance of the offence or try the petitioners. That being so, the proceedings conducted by and pending before either of them are without jurisdiction. This Court has the power to quash the proceedings which are pending before a Magistrate acting under the Criminal Procedure Code and in which he has neither the jurisdiction to take cognizance nor to try the offence or the offender. Consequently, the pendency of the proceedings, if any, before the Sub‑Divisional Officer or the Tehsildar, besides being without jurisdiction will have to be held as an abuse of the process of the Court (Magis trates acting under the Criminal Procedure Code). I, therefore, in order to prevent the abuse of the process of the Court hereby quash those proceedings.

4. At this stage, it needs to be noted that the learned counsel for the respondent has stated that the respondent is, after retirement, now residing at Gujrat and that lie desires that the case should now be heard and tried at Gujrat and if the petitioners make application for transfer of the case, he would have no objec tion rather would support such a request of the petitioners. I have already held that the criminal Courts acting under the Criminal Procedure Code have no jurisdiction to try the offence/offender in this case which, admittedly, is covered by the provisions of the Ordinance. Therefore, no order is called for on the suggestion made by the learned counsel for the respondent. Proceedings quashed.