AHMAD MOHI UD DIN vs KHALIL AHMAD AND ANOTHER
This petition for leave to appeal arises from an order of the High Court of Sind & Baluchistan which partly accepted a petition under section 561-A of the Code of Criminal Procedure 1898 and quashed criminal proceedings against the respondent under section 341 of the Pakistan Penal Code 1860, holding that the matter was exclusively triable by a Conciliation Court under the Conciliation Courts Ordinance, 1961. The petitioner contended that the Magistrate had concurrent jurisdiction and that the Conciliation Court could not award adequate punishment. The Supreme Court held that since the case was initiated on a private complaint rather than police investigation, the provisions regarding concurrent jurisdiction did not apply, and that the Conciliation Courts Ordinance, 1961 adequately provides mechanisms for transfer of cases to criminal courts where necessary. The petition was accordingly dismissed.
- Does a Magistrate have concurrent jurisdiction over an offence triable by a Conciliation Court when the proceedings are initiated on a private complaint rather than a police investigation?
- Can criminal proceedings under section 341 of the Pakistan Penal Code 1860 be quashed on the ground that the matter is exclusively triable by a Conciliation Court under the Conciliation Courts Ordinance, 1961?
- What is the mechanism for transferring a case from a Conciliation Court to a competent criminal court under the Conciliation Courts Ordinance, 1961?
- Section 341, Pakistan Penal Code 1860
- Section 379, Pakistan Penal Code 1860
- Section 448, Pakistan Penal Code 1860
- Section 561-A, Code of Criminal Procedure 1898
- Section 3(1)(a), Conciliation Courts Ordinance 1961
- Section 17, Conciliation Courts Ordinance 1961
- Section 18, Conciliation Courts Ordinance 1961
ORDER
1. ANWARUL HAQ, J.-The petitioner had filed a complaint against the respondent Khalil Ahmad under sections 341, 379 and 448, P. P. C. In the Court of the Sub-Divisional Magistrate, Harbour, Karachi.
2. The respondent moved a petition before the High Court of Sind & Baluchistan tinder section 561-A, Cr. P. C. For the quashment of these proceedings mainly on the ground that the dispute between the parties was of a civil nature, and "resort" to criminal law was solely for the purpose of bringing undue pressure to bear upon him. This petition of the respondent was partly accepted by a learned Judge of the High Court by his order dated the 20th of May, 1976, observing that after a preliminary inquiry the complaint had been registered only under section 341, P. P. C., which offence was exclusively triable by a, Conciliation Court under section 3 (1) la) of the Conciliation Courts Ordinance, 1961, With the result that the Magistrate had no jurisdiction to take cognisance of the same. The other contention raised by the respondent regarding the nature of the dispute were not adverted to.
3. The petitioner seeks leave to appeal on the ground that the High Court was in error in holding that the Magistrate had no jurisdiction, as in fact he bad concurrent jurisdiction in the matter as held in Shafi Ahmed v. Gopal Mia (PLD 1967 Dacca 375) and Manzar-Hussain v. The State (PLD 1970 S G 51). It is next submitted that in any case the Conciliation Court would not be able to award adequate punishment to the respondent in case of a conviction, and the matter would necessarily have to be referred to a Magistrate. Finally, it is contended that under a recent order of the Government the jurisdiction of the Conciliation Court has been conferred on the ordinary Magistrates and for that reason also the proceedings before the Sub-Divisional Magistrate were competent.
4. After hearing the learned counsel for the petitioner, we find that there is no merit in these submissions made by him.
5. In the Dacca case (In re : Shafi Ahmed) relied upon by him, it was observed that in order to decide whether a case falls within the mischief o section 3 (1) (a) of the Conciliation Courts Ordinance, 1961, one must examine the case as a whole. Now in the present case, a preliminary inquiry has already been held by a Magistrate and he has prima facie- found that the offence alleged against the respondent falls under section 341, P. P. C. And not under the other sections cited in the complaint.' There is, therefore, no, occasion for us to hold that the matter is not hit by section 3(l)(a) of the Ordinance. The second case relied upon by the learned counsel has no application in the present context. While dealing with section 18 of the Ordinance, this Court observed that "upon a plain reading of section 18 of the Conciliation, Courts Ordinance, it appears that the concurrent jurisdiction arises only in case where there has in fact been an investigation by the police and the investigation, as already indicated, must be by a Police Officer who is competent to investigate either on the basis of a first information report lodged at a police station or under the direction of a Magistrate". These, observations have no relevance in the present case, which has been initiates purely on a private complaint filed by the petitioner. The question of the Magistrate acquiring concurrent jurisdiction under section 18 of the Ordinance does not, therefore, arise.
6. The other contention raised by the learned counsel for the petitioner are also without merit for the reason that section 17 of the Ordinance clearly makes a provision for the transfer of certain cases to the Court of Magistrate if either the District Magistrate thinks it necessary or the Conciliation Court is of the opinion that the ends of justice demand a punishment for the accused. If in the present case the Conciliation Court comes to such an opinion, it cart easily forward the case to a competent criminal Court, under subsection (2) of section 17 of the Ordinance. It makes no difference if the powers of the Conciliation Courts are now being exercised by certain Magistrates, as the latter still have to function within the framework provided by the Ordinance.
7. For the foregoing reasons, the petition fails and is hereby dismissed.