P L D 1974 Quetta 46 (PLP)

NOORUL ARFIN, J.‑This constitutional petition calls in question the order dated 17‑11‑1971 made by a Member of the Board of Revenue, Baluchistan. In brief, the facts are these. On 9‑5‑1969, one Mir Ahmad Ashezai of Chaman informed the Assistant Commissioner that there has been a quarrel between two groups, namely, the group of Malik Pir Muhammad and Muhammad Isa of Rehman Kahol of Ashezai Tribe and the group of Malik Abdul Ghaffar, and that both the groups were proceeding towards village Sirki Talliri where, it was appre hended, the groups will fight among themselves. The Assistant Commis sioner, accompanied by the Tehsildar, reached the place where a fight was apprehended, but, by that time the fight was already over and two persons of the Rehman Kabol group. (the petitioner's party) were already dead, they being Muhammad Umar and Abdul Ali, and nine persons of this party had received injuries, they being Khair Muhammad, Inayatullab, Abdulla Qayyum, Abdul Ghafoor, Sadullab, Abdul Ghani, Ghulam Muhammad, Ali Khan and Mohammado. The last two persons later succumbed to their injuries and died. The Tehsildar was ordered to carry out the investigation, and in his report submitted to the Assistant Commissioner, he submitted that he had reached the conclusion that only seven persons of the respondent's party were involved in the fight, namely, Malik Abdul Ghaffar, Malik Abdul Kadir, Malik Abdul Mannan, Khair Muhammad, Abdul Hai, Abdul Karim and Akhtar Muhammad, all sons of Malik Zarif, but that, according to the statements of the persons who received injuries, six more persons belonging to the respondent's party were also involved in the fight, they being the six respondents before us, but that the allegations against these six persons were not supported by any other evidence. The petitioner's party also filed a direct complaint before the Assistant Commissioner on 28‑5‑1969, in which they had implicated all the 13 persons belonging to the respondent's party who have been named above. On the same day the Assistant Commis sioner ordered registration of the case against all these 13 persons and referred the matter to the Tehsildar, who was already carrying out investi gations. As stated above, the Tehsildar submitted his report, and this was done on 15‑9‑1969, in which report he took the view that only 7 persons, referred to above, were involved in the fight and the other six had only been implicated by the injured persons, but that their allegations did not find support from other evidence. It may here be stated that seven persons named by the Tehsildar had already made good their escape into Afghanistan. On 2‑1‑1970, the Assistant Commissioner, who was invested with powers of the Deputy Commissioner, made an order that he had taken cognizance of the offence under section 4 of the Criminal Law (Special Provisions) Ordinance, 1968 (Ordinance II of 1968) against thirteen persons, namely, Malik Abdul Ghatfar and twelve others, and that the case would come up before him on the same day for constitution of a Tribunal under this Ordi nance. Accordingly, notices were issued to all the accused including the respondents 1 to 6, who moved an application before the Assistant Com missioner on 1‑3‑1971 to the effect that they should be discharged from the case, as the report of the Tehsildar had completely exonerated them. This application was rejected by the Assistant Commissioner on 3‑4‑1971, and in his order, the Assistant Commissioner took the view that under section 4 of the said Ordinance, be was required to refer the case to the Tribunal for making an enquiry of the offence of which he had taken cognizance, and that as regards the guilt or innocence of the accused, this would rest on the determination which the Tribunal may make on the evidence before it. An appeal made by the respondents 1 to 6 against this order was rejected by the Commissioner, Quetta Division on 6‑7‑1971, but a revision application there against was accepted by the Member, Board of Revenue, baluchistan by order dated 17‑11‑1971. Hence the petitioner's party has brought this constitutional petition to obtain a declaration that this order of the Member of the Board of Revenue was made without lawful authority.

2. Mr. I. H. B. Hanafi, the learned Advocate for the respondents 1 to 6 submitted his written objections in the Court today, and contended therein that no action could be taken by the Assistant Commissioner on the direct complaint dated 28‑5‑1969, as the matter was already under investigation by the Tehsildar, and, in the alternative, cognizance of the offence was taken in fact only on 2‑1‑1970 on the report submitted by the Tebsildar, but only against seven persons who were named as the guilty persons in this report. At the Bar, Mr. I. H. B. Hanafi formulated these two contentions into one proposition, that is, that since cognizance of the offence had once been taken by the Assistant Commissioner when he directed the Tehsildar to carry out investigation, no second cognizance of the offence could be taken on the direct complaint dated <8‑5‑1969. We must, however, state here that, according to Mr. I. H. B. Hanafi, cognizance of the offence was taken by the Assistant Commissioner only on 2‑1‑1970, when he made an order to this effect and stated that the case would come later before him for constitution of a Tribunal. Mr.

1. H. B. Hanafi also argued that the Assistant Commissioner had no power to direct investigation of an offence, this power resting only with the Tribunal constituted under the said Ordinance. Before we deal with Mr. I. H: B. Hanafi's arguments we should refer to the relevant provisions of this Ordinance, at the relevant time. Under section 4, the JA Deputy Commissioner is vested with exclusive jurisdiction to take cognizancel of a schedule of offence (scheduled offence being defined in section 2 (e) as an offence made punishable by the Pakistan Penal Code other than an offence specified in Section A of Part I of the Schedule to the Conciliation Courts Ordinance, 1961) committed within the district to which he is appointed upon (a) receipt of a complaint of facts which constitute such offence; (b) report in writing of such facts made by the Police Officers; and (c) upon an informa tion received from any person other than a Police Officer, or upon his own knowledge or suspicion that such offence has been committed. Under section 5, when the Deputy Commissioner takes cognizance of a scheduled offence, he is required to constitute a Tribunal in accordance with section 6 of the Ordinance and refer the question of the guilt or innocence of the person or persons accused of such offence to the decision of such Tribunal. Under section 9, the Tribunal, before coming to a finding, is required to give an opportunity to the parties concerned to appear before it and record such evidence as may be adduced in respect of the accusation and on behalf of the accused or as may be called for by the Tribunal. Under section 10, the Tribunal constituted, as above, is vested with powers of a Court under the Code of Criminal Procedure in respect of enforcing the attendance of any witness or the production of any document or other thing. Under section 11 (1), the findings of the Tribunal on a question referred to it are required to be submitted to the Deputy Commissioner in the form of a report containing the reasons for such findings.

3. We have in detail referred to the relevant provisions of the Ordinance to repel the contention of Mr. I. H. B. Hanafi that even investigation of an offence is to be carried out by the Tribunal constituted under the Ordinance. We have seen that the Tribunal constituted under the Ordinance is required to submit a decision in the form of a report to the Deputy Commissioner con cerning the guilt or innocence of the persons who are accused before the Tribunal. The Tribunal cannot be treated as an investigation agency, but is, in effect, an enquiry Tribunal, upon whose report the Deputy Commissioner is required to take action under section 11 of the Ordinance.

4. Turning to Mr. I. H. B. Hanafi's main argument, to which reference has been made above, we have only to refer to section 4 of the Ordinance, whose provisions, outlined above, enable the Deputy Commissioner to take cognizance of a scheduled offence either upon receipt of a complaint of such offence, or upon receipt of a report in writing of such offence made by a Police Officer, or upon information received from any other person, or upon his own knowledge or suspicion that such an offence has been committed. The language of this section is very clear and is not susceptible of any doubt. Under this section, as far as the present case is concerned, cognizance of an offence may be taken by the Deputy Commissioner either upon a complaint made to him with regard to such offence, or upon the report of a Police Officer, or upon information received from any other person, or upon his own knowledge or suspicion. In the instant case, the Assis tant Commissioner, exercising the powers of a Deputy Commissioner did no more than this‑that he took cognizance of the offence upon the information contained in the report of the Tehsildar as well as upon the direct complaint submitted to him on 28‑5‑

69. Mr. I. H. B. Hanafi relied on the order of the Assistant Commissioner dated 2‑1‑1970 to support his contention that cognizance of the offence was taken on this date but only against persons other than the respondents 1 to

6. But this very order, whose certified copy has been produced by Mr. I. H. B. Hanafi shows that cognizance of the offence was taken by the Assistant Commissioner with regard both to the persons named as guilty persons in the report of the Tehsildar as well as against the persons named in the direct complaint submitted to him on 28‑5‑1969, as the very title of this order would show, this title reading as follows: "Abdul Wahid Ashezai versus Abdul Ghaffar Ashezai and 12 others." Thus, the very order upon which reliance is placed by Mr. I. H. B. Hanafi shows that the Assistant Commissioner took cognizance of the offence against all the thirteen persons named in the direct complaint submitted to him by the petitioners' party. As regards the contention of Mr. I. H. B. Hanafi that having once taken cognizance of the offence by directing the Tehsildar to carry out investigations, the Deputy Commissioner could not take cog nizance a second time on the direct complaint made by petitioner's party, we would say that this is not the course which the Assistant Commissioner in fact adopted. If the order to the Tehsildar to carry out investigations constituted cognizance of the offence by the Assistant Commissioner, then the order on the direct complaint dated 28‑5‑1969 did not in any way constitute a second cognizance of the offence as this order would show. The order reads as follows;

In fact, if the order dated 2‑1‑1970 does not constitute taking of cognizance of the offence by the Assistant Commissioner, then it is this order under which the Assistant Commissioner, for the first time can be said to have taken cognizance of the offence by directing that the case should be registered and the complainant's statement should be recorded and the accused should be arrested. No previous order of the Assistant Commissioner, directing regis tration of the case, has been brought to our notice. Even if we were to assume that the order of the Assistant Commissioner to the Tehsildar to carry out investigations constituted "the taking of cognizance of an offence" under sec tion 4 of the Ordinance, then, in our opinion, the second order made on the direct complaint does not constitute "taking of the cognizance of an offence", but is in effect, taking cognizance of the fact that some more persons are accused as offenders than made out in the proceedings before the Tehsildar. The course is fully justified in law, and we would refer to the decision of the Supreme Court in Falak Sher and another v. The State (PLD1967SC425), in which it was held that a Magistrate may take cognizance under section 190(b) of the Code of Criminal Procedure of the case of an accused shown as innocent in the report submitted by the Investigating Officer under section

173. In other words, according to their Lordships, such a course does not constitute "taking cognizance of an offence", but is, in effect, cognizance of the case of accused persons who are shown as innocent in the report of the Investigating Officer. The Courts take cognizance of an offence, and not of the offenders, and for this purpose, it is not at all necessary that the names' of all the accused persons must be mentioned in the investigation report. (See The State v. Shad Muhammad and 48 others (P L D 1972 Quetta 76). Further, cognizance of offence is taken when steps are taken indicative of the intentions to commence an enquiry or trial. Issuance of miscellaneous orders for conducting search or completing investigations do, not necessarily amount to the taking of cognizance of an offence. Even under section 173 of the, Criminal Procedure Code, the Police, notwithstanding the submission of a final report, may well make further investigation in spite of the fact that cognizance of the offence had already been taken and even recording of evidence had commenced. (See Alam Din v. The State (P L D 1973 Lah. 304)). This is the legal position under the Criminal Procedure Code, and Ordinance II of 1968 does not contain any provisions to militate against this well established law.

5. Accordingly, we are of the view that even if it be held that the Assistant Commissioner took cognizance of the offence when he directed the Tehsddar to carry out investigations, his order on the direct complaint submitted to him on 28‑5‑1969 does not constitute "cognizance of the offence", but is, in effect, a direction to the Tehsildar to carry out investigations against the persons named in the complaint as the offenders, because cognizance of the offence had already been taken previously, and the second order is merely taking cognizance of the case of more accused persons than proceeded against by the Tehsildar. However, in our opinion, the direction to the Tehsildar to carry out investi gation does not constitute cognizance of an offence. If any orders constitute cognizance of an offence, then it is either the order made by the Assistant Commissioner on 28‑5‑1969 on the direct complaint of the petitioner's party when he directed that the case be registered against the offenders named in the complaint, or the order dated 2‑1‑1970, when the Assistant made a formal order to the effect that he took cognizance of the offence against Malik Abdul Ghaffar and twelve others, and that the case should come up before him in the course of the day for constitution of the Tribunal. We are, therefore, unable to agree with Mr. Hanafi's contention that the Assistant Commissioner took cognizance of the offence twice, once when he directed the Tehsildar to carry out investigations, and again when he made the order on the direct complaint of the petitioner's party. In our view, the orders of the Assistant Commissioner, dated 3rd April 1971, when he refused to discharge the respondents 1 to 6, and the order of the Commis sioner, Quetta Division, when he rejected the appeal of the respondents, were valid orders, and it was the learned Member .of the Board of Revenue who, when making the revisional order dated 17‑11‑1971, completely_ misunderstood the legal position. Accordingly, we accept this petition and quash the order of the Member of the Board of Revenue as having been made without lawful authority. K. R. A. Petition accepted.