ALI SHER AND ANOTHER Versus THE STATE

In this application for the grant of bail under section 498 of the Code of Criminal Procedure a preliminary question regarding the jurisdiction of this Court has arisen in view of the extension of the Criminal Law (Special Provisions) Ordinance, 1968 (West Pakistan Ordinance II of 1968) (hereinafter referred to as the Ordinance) to the Divisions of Quetta and Kalat except the tribal areas.

2. The facts relevant to the question are that on the 8th of December 1969 an application was made to the Naib‑Tehsildar of Temple Dera in the Kachhi District of Kalat Division by one Ghulam Muhammad resident of Mauza Shor Shar, complaining that about 70 or 80 Hurs of District Nawab Shih in the former Sind Province had arrived in his village, had dug trenches and had taken up positions so as to take illegal possession of the lands and the crops standing thereon. Ghulam Muhammad prayed that the authorities should take appropriate action. This application was followed by concrete information on the 9th of December 1969 which was recorded as the First Information Report at 5‑0) p.m. by the Naib‑Tehsildar concerned. The informant was once again the same person Ghulam Muhammad, and he alleged that on his application of the previous day the Naib‑Tehsildar had visited the village, whereupon the Hurs had disappeared, but after about an hour of the departure of the Naib‑Tehsildar from the village the Hurs had returned and had opened fire repeatedly and indiscriminately on the residents of the village. He expressed his apprehension that the firing by the Hurs will cause damage to the residents of the village and he, therefore, prayed for effective action. This F. .I. R. was followed by a formal challan submitted in the Court of the Sub‑Divisional Magistrate, Dadar, by the Naib‑Tehsildar of Temple Dera on the 24th of December 1969 against several persons, including the two petitioners Ali Sher and Achhar who were said to have been arrested, and who had organised the assault with a view to taking illegal possession of certain lands in the village. The challan concluded by saying that the offences alleged against the accused persons fell under sections 149, 303, 307, 352 and 447 read with section 149 of the Pakistan Penal Code.

3. It will be seen that unlike the procedure followed in the settled districts of West Pakistan, the investigation was conducted by a Naib‑Tehsildar and not by a Police Officer, although he adopted exactly the same procedure of first recording the First Information Report and then submitting a formal challan to the Court concerned. On the 29th of December 1969 the petitioners' application for bail was rejected by an officer who has been described as Nazim and Magistrate of the First Class at Dadar with powers of Deputy Commissioner under the Ordinance. Thereupon the petitioners made a further applica tion for bail to the Deputy Commissioner and Sessions Judge of Kachhi District, but the same was rejected on the 10th of January 1970. It .is stated by the learned counsel for the petitioners that on that particular day the Sessions Judge of Kalat was away and his powers were being exercised by the Deputy Commissioner, and it was for this reason that the application was made to the Deputy Commissioner.

4. The present application seeks a reversal of the order of the Sessions Judge, and prays for grant of bail to the two petitioners on the ground that even if the allegations against them be accepted on their face value no injury was caused to anyone during the alleged incident, and that the petitioners are respectable persons who are being proceeded against with ulterior motives arising‑out of enmity with the complainant party. It is further submitted that the offences alleged to have been committed by the petitioners are bailable offences. Reference has also been made to the statements of certain prosecution witnesses in an attempt to show that they did not implicate the petitioners.

5. As stated at the beginning, West Pakistan Ordinance 11 of 1968 laying down special provisions for trial of certain) offences in certain areas of West Pakistan has been made applicable to Kalat Division and would, therefore, govern the trial of the offences alleged against the petitioners. The con tention on behalf of the State is that this special law bars the jurisdiction of the ordinary Courts, including the High Court, to interfere with an order made by the Deputy Commissioner in the matter of bail, as section 28 of the Ordinance provides that "except as otherwise provided in this Ordinance, no proceedings under this Ordinance, and no decision given, sentenced passed or order made in any such proceedings shall be called in question in any Court or before any other authority". It is submitted by the learned Additional Advocate‑General that as a necessary consequence of the application of the Ordinance to criminal trials arising in Kachhi District of Kalat Division the entire matter of bail in the present case has been taken out of the purview of the provisions contained in the Code of Criminal Procedure and has to be regulated exclusively by the provisions of the Ordinance itself.

6. On behalf of the petitioners the submission made by Mr. Abdul Fateh Memon is that although it is correct that the trial of criminal offences alleged to have been committed in any part of Kalat and Quetta Divisions would be regulated by the provisions of the special law, yet before the commencement of the trial all matters relating to the investigation of such offences and the grant of bail to offenders involved therein are to be regulated by the provisions of the Code of Criminal Procedure, for the reason that the Ordinance does not contain any procedure with regard to these matters, and deals exclusively with the trial of offences. It is further submitted by the learned counsel that the term "proceedings" mentioned in section 28 of the Ordinance, which bars the jurisdiction of other Courts, has to be construed strictly in the interest of the liberty of the subject and the preservation of the jurisdiction of the ordinary Courts of the land as far as possible. The learned counsel suggests that on this principle the proceedings and orders made therein, as contemplated by section 28 of the Ordinance, should be construed to mean the proceedings and orders relating to the actual trial of the case, which under section 5 of the Ordinance has to be held before a tribunal constituted by the Deputy Commissioner of the district ; and as no such tribunal has yet been constituted in this case it should be held that the matter continues to be governed by the ordinary law.

7. For the resolution of the question arising in this case it will be useful to run quickly through the scheme of the Ordinance, the preamble whereof reads : "Whereas it is necessary to make special provision for trial of certain offences in certain areas of West Pakistan to meet the special require ments of those areas . . . . . .". It will be seen that the emphasis is on the trial of certain offences and not on their investigation etc. Section 2 of the Ordinance contains certain definitions, and the one relevant for our present purposes is that of the term "Deputy Commissioner" which is defined by clause (b) of sub section (1) of this section as "including any officer exercising or performing any power or function of a Deputy Commissioner under this Ordinance". Clause (e) defines the phrase "scheduled offence" as meaning an offence made punishable by the Pakistan Penal Code other than an offence specified in section of Part I of the Schedule to the Conciliation Courts Ordinance, 1961. Subsection (1) of section 3 lays down that "notwithstanding any thing contained in any other law for the time being in force, no scheduled offence shall be tried except in the manner provided by this Ordinance". Subsection (2) of the same section provides that "except as otherwise provided in this Ordinance, the provisions of the Evidence Act. 1872 (1 of 1872) and the Code of Criminal Procedure, 1898 (V of 1898) shall not apply to any proceedings under this Ordinance". Then comes section 4 dealing with the taking of cognizance of scheduled offences. Subsection (1) of this section is particularly relevant in the present context and may, therefore, be reproduced in full :‑

"The Deputy Commissioner shall have exclusive jurisdiction to take cognizance of a scheduled offence committed within the district to which he is so appointed for the time being ; and such cognizance may be taken by him‑

(a) upon receiving a complaint of facts which constitute such offence ;

(b) upon a report in writing of such facts made by a Police Officer ; or

(c) upon information received from any person other than a Police Officer or upon his own knowledge or suspicion that such offence has been committed

Provided that cognizance of an offence under section 14 shall not be taken except upon a complaint made by the husband of the woman, or in his absence, by some person who had the care of such woman on his behalf at the time when such offence was committed."

8. Subsection (2) of section 4 has also some relevance, as it lays down that "when the Deputy Commissioner takes cognizance of a scheduled offence under clause (c) of sub section (1) he shall, before constituting the Tribunal under section 5, inform the accused that he is entitled to have the case decided by another Deputy Commissioner . . . . .". Section 5 then empowers the Deputy Commissioner taking cognizance of a scheduled offence to constitute a Tribunal in accordance with the following section, and refer the question of the guilt or innocence of the person or persons accused of such offence to the decision of such Tribunal. Sections 6, 7, 8, 9 and 10 of the Ordinance deal with the constitution and functioning of the Tribunal. Section 11 lays down that the Tribunal shall submit its findings to the Deputy Commissioner, who is then empowered to impose punishment under section 12. Section 15 of the Ordinance makes all scheduled offences cognizable and section 16 deals with the question of bail. It would be useful to reproduce this section as well in full at this stage :‑

"16. Bail.‑(1) A scheduled offence shall be bailable or non‑bailable according as the same is bailable or non=bailable under the Code of Criminal Procedure, 1898 (V of 1898), and the Deputy Commissioner shall have the same powers of granting bail to a person or persons accused of an offence as a Court has under that Code.

(2) The President of a Tribunal may, in regard to a case referred to the Tribunal for decision under section 5, exercise the powers of the Deputy Commissioner under this section."

9. Sections 17 to 22 contain preventive provisions, and then comes section 23 which provides an appeal to the Commissioner against an order made by the Deputy Commissioner under this Ordinance. Section 24 allows a revision to the Provincial Government against the order of the Commissioner. Sections 25 to 27 deal with certain ancillary matters and then comes the important section 28 which bars the jurisdiction of the ordinary Courts, and which has already been reproduced in an earlier part of this judgment. Sections 29 to 33 deal with matters with which we are not directly concerned in the present case.

10. From the foregoing review of the entire scheme of this Ordinance it becomes abundantly clear that the Ordinance does not attempt to deal with the investigation of scheduled offences, nor does it make any provision for matters arising before "cognizance" is taken by the Deputy Commissioner under section 4 of the Ordinance, such as grant of remand to police custody or grant of bail during investigation. In regard to such matters, therefore, the procedure prescribed by the Code of Criminal Procedure would continue to apply even in the Divisions of Quetta and Kalat in view of the provisions contained in subsection (2) of section 1 and subsection (1) of section 5 of the Code. The first‑mentioned provision lays down that the Code "extends to the whole of Pakistan but, in the absence of any specific provision to the contrary, nothing herein contained shall affect any special or local law now in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force". e Subsection (1) of section 5 of the Code stipulates that "all offences under the Pakistan Penal Code shall be investigated, inquired into, tried and otherwise dealt with according to the provisions hereinafter contained". The scheduled offences under the Ordinance are mostly the offences under the Pakistan Penal Code, and normally they would, therefore, have to be investi gated, inquired into and tried in accordance with the procedure embodied in the Criminal Procedure Code, but as subsection (2) of section 1 of the Code makes room for the application of special or local laws, to that extent, therefore, the provisions of the Code shall give way to the Ordinance. Once "cognizance" has been taken by the Deputy Commissioner in terms of section 4 of the Ordinance the matter would fall to be regulated solely by the provisions contained in the Ordinance, to the exclusion of tote jurisdiction of the Courts functioning under the Code of Criminal Procedure.

11. The next question, therefore, is regarding the meaning of the term "cognizance" as used in section 4 of the Ordinance. This phrase was examined at some length by a Special Bench of the Patna High Curt presided over by Fatal Ali, C. J. in Gopal Marwari and others v. Emperor (A I R 1943 Pat. 245), and it was observed as under

"Taking cognizance does not involve any formal action or indeed action of any kind, but occurs as soon as a Magistrate, as such, applies his mind to the suspected commission of an offence. The word `cognizance' is used in the Code ‑to indicate the point when a Magistrate or a Judge first takes judicial notice of an offence. It is a different thing from the initiation of proceedings, rather it is the condition precedent to the initiation of proceedings by the Magistrate. Cognizance is taken of cases, not of persons, and there seems to be nothing in theory to prevent a Magistrate from taking cognizance of a case even where the offenders are unknown. The fact that a Magistrate has taken cognizance does not necessarily mean that there will be judicial proceedings against anyone. There fore, cognizance is something prior to and does not necessarily mean the commencement of judicial proceedings against anyone."

12. Respectfully following the above interpretation of the phrase "taking cognizance", it seems to me that the moment a case involving the alleged commission of a scheduled offence is placed before the Deputy Commissioner, and he takes judicial notice of the facts constituting such offence, the case is drawn into the ambit of the Ordinance for the reason that the Deputy Commissioner has taken cognizance thereof within the meaning of section 4 of the Ordinance. The act of constituting a Tribunal under section 5 of the Ordinance is subsequent to the taking of cognizance by the Deputy Commissioner and cannot be regarded as a condition precedent, as suggested by the learned counsel for the petitioner. It is significant that section 4 of the Ordinance is identical with section 190 of the Code of Criminal Procedure, which contemplates three modes in which cognizance of an offence can be taken by a Magistrate, upon receiving a complaint of the facts constituting such offence, upon a report in writing of such facts made by a Polite Officer or upon information received from any person other than a Police Officer C or upon his own knowledge or suspicion that such offence has been committed. No formal act has necessarily to be performed by the Deputy Commissioner to show that he has taken cogni zance of the offence ; what is necessary is that the relevant facts constituting the offence have come to his judicial .notice or knowledge by the case having been submitted to him in any of the prescribed modes.

13. Now, in the present case it is admitted that the Nazim and Magistrate of the First Class, exercising the powers of the Deputy Commissioner, had very much taken judicial notice of the relevant facts by applying his mind to the question of granting bail to the petitioners. Such a question could not have arisen before him unless he had taken cognizance of the case.

14. The bar of jurisdiction as contained in section 28 of the Ordinance extends to proceedings under the Ordinance and any decision given, sentence passed or order made in any such proceedings. According to a Full Bench of this Court, of which I was a member, the term "proceeding" includes‑ "every step taken towards the further progress of a case in Court or before the Tribunal, where it may be pending. It is the step towards the objective to be achieved, say for instance, the judgment in a pending suit. The proceedings commence with the first step by which the machinery of the law is put into motion in order to take cognizance of the case. It is indeed a comprehensive expression and includes all possible steps in the action under the law, from its commence ment to the execution of the judgment. Coming to the provisions of this Act (namely, West Pakistan Criminal Law (Amendment) Act, 1963), the machiacry of the law is put in motion the moment the Commissioner starts taking cognizance of a case under section 3 in order to make up his mind as to whether it is expedient or not that the case against the accused should be referred to the special Tribunal for disposal."

(See Jan Muhammad and another v. Home Secretary to Government of West Pakistan and others P L D 1968 Lah. 1455).

This view was approved by their Lordships of the Supreme Court in appeal (P L D 1969 S C 333).

15. A similar question arose in Emperor v. Fazal Rehman and others (A I R 1937 Pesh. 52) and it was held that "the word 'proceedings' is not defined in the Criminal Procedure Code but is frequently used therein and from the nature of its use throughout the Code it is clear that in connection with a trial it includes the whole bundle of actions taken and recorded by the Court from the moment of taking cognizance of the case until its disposal".

16. The position which emerges from the foregoing dis cussion is that the term "proceedings" as used is section 28 has to be interpreted as consisting of a continuous process commencing with the Deputy Commissioner taking cognizance of the case and culminating in the final disposal thereof by the Deputy Commissioner and the decision of any appeal or' revision that may be preferred under the relevant provisions of the ordinance. The jurisdiction of the ordinary Courts, including the High Court, would be barred throughout the proceedings as understood in this sense, and the provisions of the Criminal Procedure Code would not apply.

17. A similar view was taken by a learned Single Judge of this Court in Mst. Rani and others v. Chanlu and another (P L D 1969 Kar. 463) and by a Division Bench of this Court consisting of Muhammad Iqbal and Karam Elahi Chauhan, JJ. in Criminal Revision No. 6 of 1968 (State v. Syed Fazal Hussain Hashmi), decided at Quetta on the 7th of June 1968. In this last‑mentioned case the learned Judges held that before cognizance is taken of a scheduled offence by the Deputy Commissioner under section 4 of the Ordinance the provisions of the Criminal Procedure Code regarding investigation and grant of bail would continue to apply, but once cognizance has been taken, then the special or local law would apply. This case was specially brought to my notice by the learned counsel for the petitioners in support of his contentions, but I find that, on the contrary, it lends support to the position taken up on behalf of the State, by clearly distinguishing between the two stages of the case, namely, before and after the taking of cognizance under section 4 of the Ordinance.

18. As a result, it has to be held that as the Deputy Commissioner has taken cognizance of the case under section of the Ordinance, the jurisdiction of the High Court under the Criminal Procedure Code stands excluded in view of the provisions contained in section 28 of the Ordinance. The proper remedy for the petitioners is, therefore, to go up in appeal and revision as contemplated by the Ordinance itself. The application is accordingly dismissed.

S. A. H. Application dismissed.