1. The petitioner, Khial Akbar a Sepoy in the Pishin Scouts, is said to have killed a fellow Sepoy Zar Khan with a service automatic rifle, in the early hours of 22nd May 1978, in Qilla Ibrahim Khan of Pishin District. On the same day he was arrested by Commandant of Pishin Scouts Unit, but there is nothing on record before me to show for worth as to what action was taken by the Commandant against the petitioner. But record reveals that on 15th of July 1978, the Commandant of the Pishin Scouts despatched a letter to the Assistant Commissioner Pishin having powers of the Deputy Commissioner under the provisions of the Criminal Law (Special Provisions) Ordinance II of. 1968 (hereinafter referred to as Ordinance of 1968), in the form as under;---- "(1) Subject: Murder case. No. NYA Sep. Zar Jan son of Mir Jan Village Chisan Kach, Tehsil Tank, District D. I. Khan, was performing duties at Qilla Ibrahim Khan.
(2) On 22nd May 1978, No. 6012 Sep. Khial Akbar Afridi of this unit using his service rifle fired and killed the above-named sepoy. The accused is referred to you for finding out the motive behind the crime for exploring the possibility of involvement of some more personnel in the plan of murder.
2. The accused may subsequently be tried in civil Court for an intentional murder."
3. The Diary of the Assistant Commissioner dated 15th of July 1978, shows that he referred the case to Naib-Tebsildar for investigation and report. The contents of the diary in original are reproduced herein below :----- Besides there is a form available on the record but nothing mentioned about it in the diary of 17-7- 1978 showing that the cognizance of the offence was taken by the Assistant Commissioner, Pishin on the same day. The contents of this document are reproduced for convenience :- "In the Court of the Assistant Commissioner Pishin.
4. Under Ordinance II of 1968. In the name of Khial Akbar accused.
5. Offence under section 302, P. P. C.
6. Under section 4 of the Criminal Law (Special Provisions) Ordinance II of 1968. I take cognizance of the offence under section 302, P. P: C.
7. Case to come up on for the constitution of a Tribunal parties be informed.
8. Date : 15-7-1978. (Sd.)
9. Assistant Commissioner, Pishin."
10. The Naib-Tehsildar on receipt of the letter carried out investigation into the matter. In his investigation he examined Jamadar of Levies, Qilla Ibrahim Khan the accused Khial Akbar and one Shoukat a Sepoy of the Pishin Scouts, but he was not able to examine other companions of the deceased as they were transferred from Pishin to some unknown places, whereabouts of whom in spite of his repeated efforts were not given to him by the officer of the Pishin Scouts. This is all what has been done by the Naib-Tehsildar in the matter. It is highly lamentable that a heinous offence of murder has been so lightly taken by the law enforcing agency. However, a bail application on behalf of Khial Akbar was moved before Sessions Judge, Quetta who on 14th of October 1978, rejected it on the ground that the matter was yet under investigation. On being refused bail by the learned Sessions Judge, Quetta the petitioner has come for bail before this Court under section 498 of the Code of Criminal Procedure.
11. Raja Muhammad Afsar, Advocate appeared for the petitioner Khial Akbar and Mr. Muhammad Ahmed Mirza the learned Advocate-General made appearance on behalf of the prosecution.
12. It was vehemently contended on behalf of the petitioner that the petitioner is behind the bars since 22nd May 1978, and so far no evidence, whatsoever to connect the petitioner with the offence has been collected by the Naib Tehsildar nor the Naib Tehsildar has challaned, the petitioner before any Court or Tribunal for trial till today. In support of his contention the learned counsel besides has relied on cases The State v. Samiullah Khan and others (PLD 1959 Kar. 157), Amir v. Bakhshu and 6 others (PLD 1975 Lah. 625), Khuda Bakhsh and 2 others v. The State (1975 P Cr. L 1128) and Fazil and others v. The State (1977 P Cr. L J 471).
13. In case of The State v. Samiullah Khan and others, it was held ;- "(1) Some evidence should be adduced before the Court which should be sufficient to raise a suspicion of accused's guilt, and the Court should be assured that further evidence to strengthen suspicion into belief is expected to be collected.
(2) A police report in writing of facts constituting the offence must also be produced to enable the Court to take cognizance of the offence;
(3) If the nature of the case is such that no cognizance can be taken of the offence without previous sanction then such sanction should be produced to enable the Court to take cognizance of the offence."
14. In case, Amir v. Bakhshu and 6 others, it has been held :- "Adjournment for completion of investigation can be allowed by Magistrate but for good reasons reduced into writing. Failure of police to file challan for months together without indicating any sufficient reason. Magistrate not entitled to go on adjourning case mechanically for indefinite period."
15. In case, Khuda Bakhsh and 2 others v. The State, it was held :---- "That accused persons are in Jail at time of occurrence and only evidence against them is uncorroborated confessional statements made seven months after occurrence."
16. In case, Fazil and others v. The State, it has been held :-- "That petitioners continuously in custody for about one year and a half and undoubtedly not responsible for delay of about one year and three months. Witnesses yet to be examined before Sessions Court and no certainty as to length of time conclusion of trial might involve. Petitioners, held, entitled to bail."
17. On the other hand, the learned Advocate-General at the outset raised a preliminary objection regarding jurisdiction of this Court into the matter. He contended that the cognizance of the offence was taken under section 4 by the Assistant Commissioner Deputy Commissioner on 15th July 1978, and his such action excluded jurisdiction of civil Courts including High Court. The learned Advocate-General fortified his contention on the decision of High Court reported in Ali Sher and another v. The State (PLD 1970 Kar_ 790). The learned Advocate-General relied on paragraph 16 at page 798. Paragraph 16 is reproduced as under :-.
18. "The position which emerges from the foregoing discussion is that the term "proceedings" as used in 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."
19. On point of delay the learned Advocate-General drew my attention to the proposition laid down in the cases Sikandar Hayat v. She State (1972 P Cr. L J 74) and Fateh Muhammad and another v. The State and another (1975 SCMR 354) wherein delay per se in disposal of case was not found to be the ground for bail of the accused, specially in heinous crimes.
20. In 1972 P Cr. L J 74 it is held :- "That accused below 16 years at time of occurrence. Delay in proceeding with trial, although, per se no ground for bail in cases punishable with death or transportation for life, yet can be a good ground for bail in cases falling under proviso to section 497 of Cr. P. C."
21. In 1975 SCMR 354, it has been held :-- "That trial having not yet commenced despite lapse of 8 months, petitioners, held, would be entitled to renew their application for bail before Court concerned if trial still unduly delayed."
22. The difficulty regarding taking of the "cognizance" and the "ouster" of jurisdiction of the civil Courts was faced by this Court in bail application of Ghulam Muhammad and 3 others (PLD 1979 Quetta 1). In this case volumi--nous law has been discussed on the controversial issues of "cognizance" and "ouster". In paragraph 4 at page 4 of the citation the Court formulated four points for determination, at page 7 of this authority the Court has answered the first question. The remaining questions have been answered by the Court at Head Notes, "C" at page 8, "D" at page 9, "E" at page
11. "A" reads as under :- '.`Criminal Law (Special Provisions) Ordinance II of 1968, Sections 3, 4, 5 & 28-Words and phrases- Words "proceedings" as used in Ordinance-Meanings-Stage of commencement-[Words and phrases].
23. Among others the word "proceeding" would require such construction which may be best suited and best fitted in the scheme of a particular enactment. Generally it would mean "all what is done in a case" and would include every step and transaction commencing from the first step whereby the machinery of law is put into action up to the stage of the case where it concludes and does not require any further action. This last stage would not necessarily mean the stage of judgment, for, it may further include all steps taken till the stage of the execution of the judgment. Accordingly in the light of the scheme of the Ordinance the interpretation of the word "proceeding" given in the case of Emperor v. Fazlur Rehman and others PLD 1937 Pesh. 52 above, i.e. "whole bundle of actions taken and recorded by the Court from the moment of taking cognizance of the case until its disposal" would be most relevant. In order to understand the meaning and scope of this term as used in sections 3 and 28 of the Ordinance with further accuracy, one may better advert to the preamble of the Ordinance as well which is as under 'An Ordinance to make a special provision for trial of certain offences in certain areas of West Pakistan.'
24. From the recital of the preamble it is manifest that the Ordinance provides for the trial of offences, so that proceedings in a case under the Ordinance can only be taken to cover that aspect of the case which deals with trial of cases. Hence all what is done in this regard starting from the commencing point of the Ordinance with the taking of cognizance of offence upto the stage of the execution of the judgment is proceeding. It is thus obvious that the moment cognizance of an offence is taken by the District Magistrate acting under the Ordinance its operation commences to the exclusion of the Code and Evidence Act, by virtue of sections 3 and 28 of the Ordinance."
25. Case of Jan Muhammad and another v. Home Secretary, Government of West Pakistan and others (PLD 1968 Lab. 1455) has been referred on the proposition "Head Note (b): Criminal Law (Special Provisions) Ordinance of 1938, section 4 read with Criminal Procedure Code (V of 1898), section 190--Words and phrases-Word "cognizance"-Meaning-Stage of taking--[Words and phrases-Cognizance]."
26. When a Magistrate after having gone through the complaint, the reading of which should necessarily constitute an offence as is a prerequisite both under section 4(1) of the Criminal Law (Special Provisions) Ordinance (II of 1968) and section 190 of the Criminal Procedure Code, makes up his mind to proceed either to refer it for enquiry and report under section 200 of the Code or proceeds with the trial of the case himself by issuance of process to the accused only then he would be said to have taken cognizance as in that event it is evident that he did so after consciously applying his mind to the facts narrated in the complaint. He may in case is satisfied that circumstances calling for any action including issuance of process immediately against the accused do not exist he may postpone the issuance of the process and order further enquiry in the matter. In such a case it would be deemed that he has deferred the question of taking cognisance for a further date. For further enquiry he may make a probe in the case himself or refer the case to some other Magistrate or to police agency. The Crux of the matter however, is that the Magistrate is not in all circumstances bound to take 'cognizance' of the offence as soon as a complaint is placed before him though he may do so if he feels satisfied that the facts therein do constitute an offence, having been committed within the limits of his territorial jurisdiction. If he is of such view he may immediately take 'cognizance' and proceed further in the matter in the manner discussed above. If he is not so satisfied and. Considers the complaint to be false or frivolous he can drop the idea of proceeding further and reject the complaint. That would mean that be declined to take cognizance of the offence after application of mind to the facts of the case which is a must in all circumstances. In the case of a private complaint as also in other cases it is always the satisfaction of the Magistrate about the commission of the offence and his decision to proceed in a particular way which can be termed as conscious application of mind to the facts of the case and may be followed by an order of `cognizance' in suitable cases. Cognizance can be taken firstly on the basis of a complaint of facts constituting an offence, secondly upon the report in writing by the Police Officer, and thirdly upon the information, knowledge or suspicion of the Magistrates in the case under section 190 of the Code therefore, in the' light of the above discussion it can be said without any fear of contradiction that the District Magistrate can take cognizance (a) if it is a private complaint and he is satisfied that it discloses prima facie the commission of the offence and then proceed further in the following three manners :- "(a) he may himself try the case, or
(b) entrust the case to some other Magistrate for enquiry, or
(c) send it to the police within the meaning of section 156(3) of the Code, and
(b) if it is a police case on the basis of a complete or incomplete challan submitted to him by the police, and
(c) in cases where he wishes to proceed upon his own knowledge or information or suspicion he would reduce into writing necessary details and after giving a choice to the offender to have the case decided by him or by some other District Magistrate as provided by subsection (2) of section 4 of the Ordinance he may either (1) refer the case to the police for further investigation, etc. Or may refer it to some other Magistrate or send it to the Tribunal for trial directly. In this case since the investigating agency of the Government is already investigating into the offence, the stage of taking cognizance would arrive when a complete or incomplete challan or some material is otherwise submitted to the District Magistrate in any shape or form as a result of investigation, giving him an opportunity to apply his mind to the sufficiency or otherwise of the material in order to make up his mind whether a case was made out or not, or whether it was necessary to allow further material to be collected or to drop the proceedings. The private complaint in such circumstances is simply to be treated as a miscellaneous application and order of investigation passed thereon a miscellaneous order, for, there can neither be two orders of cognizance, i.e. One which would be passed on the basis of the examination of the material collected by the police in the case and the other order already passed on the complaint nor can there be two different independent forums for the investigation of a case at a time."
27. Head Note (c) : Criminal Law (Special Provisions) Ordinance (II of 1968), section 4(b) & (c)-Case being a police case and enquiry also being made by police, case covered by paragraph (b) of section-Deputy Commissioner as such not entitled to treat case as falling under para--graph (c) of section 4-Nor could Deputy Commissioner say to have come to know about commission of offence and take cognizance of offence on basis of his own knowledge--Case having fallen in one category (b) could not fit into other category (c)-So-called order of cognizance passed by Magistrate, held, a colourful and mala fide order passed with ingenuine intention of causing ouster of jurisdiction of ordinary Courts and liable to be set aside."
28. This authority has been elaborately discussed. It answers the preliminary objection of the learned Advocate-General. Indeed I have no reason and really I shall have none to disagree with the proposition laid down in this authority.
29. Additionally, in case of, R. R. Char! v. The State of Uttar Pradesh (AIR 1951 SC207), the proposition in respect of taking of the cognizance was elaborately discussed. In this case, case of Superintendent and Remembrancer of Legal Affairs, W. B. v. Abani Kumar (AIR 1950 Cal. 437) has been relied upon.
30. It says;--- "What is taking cognizance has not been defined in the Criminal P. C. And I have no desire to attempt to define it. It seems to me clear however that before it cannot be said that any Magistrate has taken cognizance of any offence under section 190(I) (a), Criminal P. C. He must not only have applied his mind to the contents of the petition but he must have done so for the purpose of proceeding, in a particular way as indicated in the subsequent provisions of this Chapter, proceeding under section 200 and thereafter sending it for inquiry and report under section 202.
31. When the Magistrate applies his mind not for the purposes of proceeding under the subsequent sections of this Chapter, but for taking action of some other kind e.g. Ordering investigation . . . . .
32. Under section 156(3), or issuing a search warrant for the purpose of the investigation he cannot be said to have taken cognizance of the offences."
33. In view of such circumstances, I am of the clear view that camouflage of the taking of cognizance by the Assistant Commissioner on 15th July 1978 would not be deemed to be taking of the legal cognizance.
34. The same point of the taking of the cognizance of the offence was taken into consideration by the learned Sessions Judge Quetta, who had too held that the cognizance in the offence was not taken at all. The same position till remains today. It is, as such held that this Court is competent to hear the bail application.
35. The record of the enquiry reveals that there is no evidence against the petitioner to connect him with the offence. It is said that still further enquiry into the matter is to be carried out by the Naib- Tehsildarr as such this is not the stage where the petitioner be released on bail. The petitioner has remained behind the bars for a period from 22nd May 1978, till today. The record is before me. I have found that even B the provisions of section 167 and other laws in respect of remand have not been complied with by the Commandant of Pishin Scouts or the Naib --Tehsildar during the so- called inquiry or investigation. It is a serious attempt to curb liberty of the citizens of this country.
36. Sub-Article (2) of Article 10 of the Constitution of Islamic Republic of Pakistan says that every person who is arrested and detained in custody shall be produced before a Magistrate within a period of 24 hours of such arrest, excluding the time necessary for the journey from the place of arrest to the Court of the nearest Magistrate, and no such person shall be detained in custody beyond the said period without the authority of a Magistrate.
37. Even this provision of constitution has been flagrantly violated. That being the position of the case, I feel that it is the right of the petitioner to be released on bail.
38. During arguments, an important aspect of this case was discussed by the learned Advocate for the petitioner as well by the learned Advocate General. It was in respect of inquiry or investigation of the scheduled offences, under the Ordinance II (Special Provisions) of 1968. It was however unanimously conceded by the both learned counsel that there was no provision for investigation or enquiry of the scheduled offences under the Ordinance II of 1968.
39. However there was divergent views of the both counsel on the issue of whether the enquiry or investigation carried out by Naib-Tehsildar or Levies is under the Criminal Procedure Code or under Ordinance II of 1968. It was the contention of the learned counsel for the petitioner that the investigation or enquiry carried out into the scheduled offences before the taking of the cognizance by the Deputy Commissioner was under the provision of the Criminal Procedure Code.
40. The learned counsel has rightly relied upon the citation Ali Sher and another v. The State (PLD 1970 Kart. 790). In the authority it has been held as under "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."
41. I respectfully agree with the proposition laid down by the High Court and hold that the provisions of the Criminal Procedure Code govern the investigation or inquiry before the Deputy Commissioner takes the cognizance of the offence.
42. On the other hand, the learned Advocate-General stressed that as soon as the Deputy Commissioner receives the complaint, he takes the cognizance of the offence. After taking of such cognizance he is not bound to follow the provisions of Cr. P. C. Or any other law. In other words, it could be said that he has unfettered powers for the purpose of holding enquiry or investigation in the matter. It is really strange when there is a restricted procedure laid down for the trial of offences under the Ordinance; how a Deputy Commissioner can have unlimited powers of holding enquiry or investigation into the Schedule offences. It is already said that there is no provision for holding of inquiry or investigation into the scheduled offences under the Ordinance. It would be mockery of the statute if this contention is accepted. It is a well-settled principle of law that when a statute provides a mode for doing a thing in a particular manner, such thing shall be done in the prescribed manner, and in no other manner or not at all. This proposition gets support from the proposition laid down in authorities :-- "(i) AIR 1936 P C 253(2) Nazir Ahmad v. Emperor.
(ii) PLD 1964 SC 536 E. A. v. Muhammad Ashraf.
(iii) PLD 1979 Lay. 54 Government of West Pakistan through Collector, Gujranwala v. Land Acquisition Collector, District Gujranwala, etc."
43. In the circumstances, I am clearly of the view that the Deputy Commis--sioner under the Ordinance II of 1968 is not competent to order for enquiry or investigation into the scheduled offences, after he takes the cognizance D of the offence. After taking of the cognizance, he is bound under section 5 of the Ordinance to refer the case to Tribunal. Any such investiga--tion or inquiry ordered by him to be held by his subordinate Magistrate Levies is ab initio, illegal.
44. The point would arise now that if there is no provision for holding of enquiry or investigation under the Ordinance II into the scheduled offences, what is to be done by the Deputy Commissioner for holding enquiry or investigation. On the proposition laid down in case of Ali Sher and another v. The State before the taking of the cognizance by the Deputy Commissioner, the provisions of Cr. P. C.
45. Are to be followed for inquiry or investigation of the offences.
46. In cases where the Deputy Commissioner orders for investigation or inquiry, it means he refuses to take cognizance and refers the case to a subordinate Magistrate or Levies for investigation or inquiry as the case may be. The same position is with this case. The Assistant Commissioner has ordered for investigation or inquiry of the case. It means he has refused to take the cognizance and referred the case for enquiry. On such view, I am of the clear view that in this case, when the Assistant Commissioner Pishin has referred the case for enquiry to the Naib-- Tehsildar he has done so under the Code of Criminal Procedure but not under Ordinance 11 of 1968. This proposition is based on the principles laid down in case of Ali Sher and another v. The State.
47. After receiving of the complaint from the Deputy Commissioner, the subordinate Magistrate or Levies has to follow the provisions of section 20 of the Criminal Procedure Code. It is not the case of the prosecution that the subordinate Magistrate or the Levies have been conferred upon the powers of Police under any law. That being so, the subordinate p Magistrate or the Levies does not have the power to cause arrest o detention of accused person involved in scheduled offences under the provisions of section 202, Cr. P. C. The subordinate Magistrate or any other person empowered by him has to send a report to the Magistrate after holding investigation or enquiry into to the matter. Nothing beyond that.
48. In numerous cases, it has been noticed that the Deputy Commissioners refer the case for investigation or enquiry without recording their statements under section 200 of the Criminal Procedure Code. It may be said that when the Deputy Commissioner refers the complaint without recording the statement of the complainant under section 200; he might have been doing it under subsection (3) of section 156 of the Criminal Procedure Code. In that case also only police is competent to investigate into the offence and none else.
49. In view of such legal position of the case, the Administration would certainly feel difficulty in investigation or enquiry of the scheduled offences. Let this fact may be brought to the notice of the Government of Baluchistan for taking proper and adequate steps for arranging an agency for the purpose.
50. A copy of this order may be sent to the Chief Secretary, Government of Baluchistan.
51. In preceding paragraphs of this order, I have already observed that the petitioner is entitled for bail, he as such is ordered to be released on bail in the sum of Rs. 20,000 with two sureties of Rs. 10,000 each and P. B. Of Rs. 20,000 at the satisfaction of the Assistant Commissioner, Pishin. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.