P L D 1969 Peshawar 71 (PLP)

2. The material facts leading up to this appeal against acquittal briefly, are that the respondent allegedly made an encroachment to the extent of 1/3 Marla on Government road by constructing a protection wall of the flour mills and a part of the flour‑mills. The report about this incident was made on 20‑10‑1965 by an Overseer at Police Station, Mardan. The case was registered in the police station on 7‑2‑66, and on the report of the P. S. I. that the case was exclusively triable by the Conciliation Court, the case was sent to the Conciliation Court. 1 he Conciliation Court in its order, dated 30‑6‑66 recorded the finding that the respondent had made an encroachment to the extent of 1/3 Marla on the Government land and directed that the respondent should pay at the rate of Rs. 2,000 per kanal for the encroached area. It appeal s that while the Conciliation Court vas still seized of the matter, the Executive Engineer by letter dated 25‑6‑66 approached the Deputy Commissioner Bannu to withdraw the case from the Union Council on the ground that the case under the law could not be referred to the Conciliation Court, in that "it also involves section 431, P. P. C. and the Conciliation Court has no power to hear this case under this section".

3. The Deputy Commissioner purporting to act as Controlling Authority by order, dated 8‑11‑1966 without issuing any notice to the respondent and without hearing him held that the order of Conciliation Court "is without jurisdiction ab initio as the Conciliation Court had no power to adjudicate upon the case where one of the parties is Government. Secondly the award of the Conciliation Court is not practicable as the Government cannot be forced to accept the value of the tres passed land, assessed by the Conciliation Court. I, therefore, set aside the order of the Conciliation Court and direct that the case be sent to Magistrate Ilaqa for disposal". Consequent to this order, the case was tried by Mr. Abdur Rahim Khan, Magistrate 1st Class, Bannu who by his order, dated 17‑11‑1967 acquitted the accused on two fold‑ground: (1) That the mens rea which is an essential ingredient of an offence under section 431 was wanting in the case in that the encroachment was made with a view to protecting the road from erosion (and also perhaps the water channel of the respondent), (2) that the order of the Controlling Authority setting aside the order of the Conciliation Court and remitting the case for trial to the Criminal Court was without lawful authority.

4. We have heard the learned Assistant Advocate‑General at some length, but find no merit in the appeal, in that under section 3(a) of the Conciliation Courts Ordinance, 1961 (hereinafter to be referred to as Ordinance)" all cases falling under Part I of the Schedule shall, save as otherwise provided, hereinafter be referred to conciliation under this Ordinance, and no civil or criminal Court shall have jurisdiction to try any such case". The learned Assistant Advocate‑General, while conceding that the offence under section 447, P. P. C. was a scheduled offence, and ordinarily exclusively triable by the Conciliation Court, argued that certain category of cases were exempted from the operation of this rule, and that the instant case fell under the exception provided by section 18 of the Ordinance.

5. It was also vehemently argued that the order of the Conciliation Court was without jurisdiction, in that the Conciliation Court was not empowered to direct that in case of an offence under section 447, P. P. C., the Government should be compelled to part with the property on payment of compensation assessed by them.

6. It will be convenient to reproduce section 18 Nothing in this Ordinance shall prevent the police from investigating a cognizable case by reason of the fact that the case relates to an offence specified in section A of Part I of the Schedule, but if any such case is taken to a criminal Court, such Court may, if it thinks fit, direct that it be referred to conciliation under this Ordinance." The learned Assistant Advocate‑General conceded that the case bad not been taken in the Court. This being the position, the State is out of the Court, in that to bring the case under section 18 of the Ordinance, two conditions must be fulfilled : (1) That the police had made investigation in a cognizable case : and (2) that "if any such case is taken to a criminal Court", i.e. where the case is put into the Court. Since the learned Assistant Advocate‑General as already indicated admitted, the case was not put in the Court, therefore, section 18 was not attracted, and consequently, the case was exclusively triable by the Conciliation Court and the fact that part of the order in regard to payment of price to the Government assessed by the Conciliation Court was in excess of jurisdiction would not render the order of acquittal without lawful authority unless and until the same was properly vacated in appeal.

7. There is another hurdle in the way of the appellant in that section 8 of the Ordinance confers finality upon decision of the Conciliation Court unless under subsection (2) of that section "within thirty days of the decision in cases falling under Part I of the Schedule, any party applies in a prescribed manner to the Controlling Authority". No application or appeal as con templated by subsection (2) of section 8 was moved within thirty days of the decision, but as already indicated, the Executive Engineer when the case was still pending before the Conciliation Court, had addressed a letter to the Deputy Commissioner.

8. Lastly but not the leastly, the order of the Controlling Authority setting aside the order of the Conciliation Court is rendered without lawful authority, in that the order of the Controlling Authority was passed at the back of the respondent without issuing him a show‑cause notice.

9. For all the foregoing reasons, we find no merit in this appeal and dismiss it in limine. A.S. Appeal dismissed in limine