MUHAMMAD ALAM AND Another vs ADDITIONAL SECRETARY TO GOVERNMENT

ORDER

1. MUHAMMAD AFZAL ZULLAH, J.-Leave to appeal has been sought from judgment dated 28-1-1986 of the Peshawar High Court ; whereby Constitu--tional Petition filed by the complainant in a murder case triable under the Provincially Administered Tribal Areas Criminal Laws (Special Provision)

2. Regulation I of 1975 (hereinafter called the Regulation), was allowed.

3. The two -petitioners, Muhammad Alam and Muhammad Zahir and their co-accused Sardar Ali are accused in a case of murder registered at the instance of Taj Malook respondent No. 5 at P. S. Khwazakhela District Swat. A report was submitted by the police under section 173, Cr. P. C., before the Additional Deputy Commissioner who it is admitted was authorised to take cognizance of the offence under the Regulation. The date of submission of the Challan report is disputed. The petitioners claim it to be 18-3-1985 while-the other possibility is 18-10-1984. Be that as it may, the Investigating Officer submitted on 2-1-1985 another report purporting to be under section 169, Cr. P.

4. C. Before the Additional Deputy Commissioner requesting for the release and discharge of the petitioners as the case against them was weak and the higher authorities had also desired it so. On 3-1-1985, the A. D. C. "allowed" the request of the Investigating Officer with the result that the petitioners were pre--sumed to have been "discharged under section 169, Cr. P. C."

5. The complainant respondent moved the respondent No. 1 in revision but without any success. It was held that the petitioners were competently released under section 173(3), Cr. i'. C. And that this exercise of power could not be interfered in revision. The complainant also moved the Sessions Court but without any success, as the said Court held that it had no jurisdiction to entertain revision in matters arising out of the Regula--tion. He then moved the High Court in Constitutional jurisdiction. The writ petition was allowed by the High Court on the finding that the A. D. C. Could not discharge the petitioners under section 169, Cr. P. C. As paras. 5 and 6 of the Regulation barred such an order. The High Court gave the following direction :- "The Deputy Commissioner Swat shall take cognizance of the case and refer it to a Jirga constituted under section 6 of the Regulation to determine the guilt or innocence of the accused in accordance with the provisions of section 5 of the Regulation."

6. In the application dated 2-1-1985 it is clearly stated that the Challan had already been submitted in Court, which means that it must have been submitted before 2-1-1985. But the record which is over-written shows it was put in Court on 18-3-1985. It is obviously incorrect. The original date which has been over-written clearly seems to be 18-10-1984. Besides these intrinsic elements, there is another circumstance which supports the above assumption. In or about November 1984 the file of the case was sent to Martial Law Authorities. They, however, declined to entertain it. On this, the file was returned. Perhaps it was noticed by the Court after the return, on 18-3-1985. That is why some one bona fide but wrongly put the now date by overwriting the original one instead of separately giving the new date. The first and original correct date therefore shall be taken for the present proceedings as 18-10-1984.

7. The Additional Deputy Commissioner had not only noticed the Challan report under section 173, Cr.

8. P. C. But applied mind to the case) and summoned the accused to attend the Court on the next hearing'' This, in our view, was enough to take cognizance of the case which under, para. 4(l)(c) of the Regulation could be on a police report in writing.

9. Although the application of the Investigating Officer to Additional Deputy Commissioner on 2-1- 1985 was under section 169 and was also not in form prescribed for report under section 173, Cr. P.

10. C., we presume that he intended the same co be the second report under section 173, Cr. P. C.

11. Which is permissible under the law. The report under sec--tion 169 was otherwise too, in the above circumstances, not the proper course. It should have been under section 173, Cr. N. C. See Habib v.

12. The State (1983 SCMR 370). Similarly, the order of Additional Deputy Commissioner releasing the petitioners and discharging them of their bonds, could be under section 173, Cr. 1---. C. And not under section 169, Cr. P. C. The cancellation of the case also if validly made will have to be under sec--tion 173, Cr. P. C. See Bahadur and another v. The State and another (PLD 1985 SC 62). Thus, we will presume for the proper appreciation of the point involved, that the order of the Court was under section 173, Cr. P. C. And that too of cancellation of the case, as is discussed in the case of Bahadur.

13. The question involved is whether the case could be cancelled under section 173, Cr. P. C. After the Court had taken cognizance (whether under section 190, Cr. P. C. Or under para. 4 of the Regulation).

14. Chapter XVII of Cr. P. C. Deals with "the commencement of pro--ceedings before the Courts".

15. Section 204 therein deals with the issuance of process by the Court on taking of cognizance. After taking the cognizance and even before the issuance of the process, the normal procedure under the Code or the Regulation, as the case may be, would be followed. The police report would not relieve the Court of its obliga--tion to continue the proceedings until their proper termination under the relevant law. The cancellation of case under section 173 is not permissible after the cognizance has been taken. But it could have been done before that stage. It was so held in the Full Bench case of Lahore High Court, Wazir v. The State (PLD 1962 (W. P.) Lah. 405), which we feel is correct approach in so far as this point of cancellation, before cognizance, is concerned.

16. It has been stated at the bar by both the sides that after the cognizance of the case under para. 4 of the Regulation, the Cr. P. C. Remains no more applicable to the proceedings under the Regulation. We also agree with this statement of law as is contained in para. 3(2) of the Regulation.

17. But this will not make any difference in so far as the stage after cogni--zance of the case by the Additional Deputy Commissioner under the Regulation is concerned. Para. 5 thereof clearly provides that on taking of cognizance a Tribunal shall be constituted in accordance with para. 6.

18. The Additional Deputy Commissioner could not have acted otherwise. The release, so called discharge or cancellation under sec--tion 173 read with section 169, Cr. P. C. At that stage, was not possible. It could have been done before the cognizance is taken under para. 4 thereof.

19. In the light of the foregoing discussion the so-called discharge of the petitioners under section 169 or for that matter the cancellation of case against them under section 173, Cr. P. C. By the Additional Deputy Commissioner after taking cognizance under para. 4 of the Regulation was illegal and without lawful authority and was thus without any legal effect. We would while upholding the impugned judgment for some--what different reasons dismiss this petition with the observation that the need not be any fresh cognizance as directed by the High Court. The original cognizance taken by the Additional Deputy Commissioner on 18-10-1984, shall be deemed to have been restored on the acceptance of the constitutional petition.