1990 P Cr (PLP)

A.M. Naqvi for Appellant. A.A. Mohammadally, Addl. A: G. for the State. Date of hearing: 29th August 1989. This application under section 194/561‑A, Cr.P.C. involves a somewhat important point of law on which there does not seem to be any direct authority of our own High Court.

2. On 2‑7‑1989, a police party headed by Akhtar Ali Januri, Superintendent of Police, Jacobabad raided village Jafarabad, Taulka Garhi Khairo. They forced their entry in the house of Sardar Fazal Haque Buledi and committed the murder of Ghulam Siddique, a relative of applicant Nabidad who was working as Chowkidar in the said house. The police party then took away valuables from the said house and also removed the dead body of Ghulam Siddique to village Oarm Khan Wadhio, where he was buried. It is alleged that due to constant threats given by Superintendent of Police, Jacobabad the applicant is unable to take A recourse to law. He has, therefore, approached this Court under section 194, Cr. P.C.for taking cognizance against the culprits.

3. Subsection (1) of section 194, Cr.P.C. which stood before the amendment made by Law Reforms Ordinance, 1972, provided as follows: "The High Court may take cognizance of any offence upon a commitment made to it in manner hereinafter provided. Nothing herein contained shall be deemed to affect the provisions of any Letter Patent or Order by which a High Court is constituted or continued or any other provision of this Code."

4. The words upon a commitment made to it' were omitted by the Law D Reforms Ordinance, 1972. The words `in manner hereinafter provided' were referred to Chapter XV111 of the Code of Criminal Procedure, 1898. This chapter was also omitted by Law Reforms Ordinance 1972 Chapter XXII‑A, which was added by Law Reforms Ordinance, 1972, and was then substituted by the Code of Criminal Procedure (Amendment) Act, 1976, laid down the procedure for trials before High Courts and Courts of Session. The words `in manner hereinafter provided' used in subsection (1) of section 194, Cr.P.C., therefore, relate to Chapter XXII‑A, Cr.P.C. 5: Subsection (3) of section 190, Cr.P.C. which was substituted by Law Reforms Ordinance 1972 laid down the procedure to be adopted by a Magistrate in respect of an offence tribal exclusively by Court of Session. Section 193, Cr.P.C. again made it clear that except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the case has been sent to it under section 190, subsection (3). Subsection (1) of section 194, Cr.P.C. when read together with the newly‑added provisions contained in Chapter XXII‑A, makes it clear that a High Court may take cognizance of Offences in the manner as provided in Chapter XXII‑A of the Code of Criminal ‑Procedure, 1898.

6. Section 561‑A, Cr.P.C. does not enlarge the powers of a High Court. This section is not intended to relate to powers which are not available to High Court under section 194, Cr.P.C_ 1Nlc. A.M. Naqvi, learned counsel for applicant has invited my attention to the observations made in Sialkot Bus Service, Sialkot C v. The State and another reported in 1969 S C M R 325, ir. an attempt to show that the High Court has got wide powers and can make all such orders which may be necessary to do real and substantial justice. I cannot do better than quote their Lordships' observation in extenso: "It is, no doubt, true that where express provision is made in the Code itself fur a purpose, recourse cannot be had to the inherent jurisdiction to achieve the same purpose, but at the same time it has to be pointed out that the inherent power of the High Court is of a very wide and indefinable nature and to exercise of this power the High Court can make all such orders which may be necessary to do real and substantial justice and prevent abuse of the process of the Court, subject only to the limitation that it cannot override an express provision of the Code."

7. There can be no cavil with this proposition of law. The High Court can certainly make all such orders which are necessary to do real justice, but with the limitation that it cannot override an expires provision of the Cods: of Criminal Procedure, 1898. The powers to take cognizance on original side vests with a g Magistrate and the High, Court cannot assume that power unless the case is received by it in the manner as provided by the Code of Criminal. Procedure, 1898.

8. The complaint being not maintainable, is dismissed in limine. SA./N‑233/K Complaint dismissed in limine.