MUHAMMAD AKRAM, J.-This is a petition for special leave from the order dated 14th of September 1977, passed by a learned Judge of the Lahore High Court at Lahore dismissing the Criminal Miscellaneous No. 145-Q of 1977 filed by the petitioner herein against the respondents.
2. It is alleged that the father of the petitioner was transferred shop bearing No. 3727 and Omar Din respondent No. 4 is the transferee in possession of the Choubara of the contiguous House No. 3226, situated in Ghalla Mandi Bazar, Pakpattan, District Sahiwal. The petitioner started reconstructing his shop. On this on the 8th of September 1976, the respondent filed a declaratory suit against the petitioner in the Civil Court at Pakpattan for a permanent injunction restraining him from demolishing the premises and reconstructing .The same. The respondent also made an application for the issuance of a temporary injunction during the pendency of the suit which was however, dismissed. His appeal against the order was also rejected by the Additional District Judge Sahiwal.
3. In these circumstances on the 26th of October 1976, the respondent moved a miscellaneous application before the Deputy Commissioner, Sahiwal for appropriate action against the petitioner under sec--petition 448/452/379, P. P. C. It was alleged that the present petitioner had forcibly demolished the roof of his shop which formed a part of the courtyard belonging to him and after having trespassed into his premises had abused his womenfolk. But that the local police in collusion with the petitioner refused to even register the case against him. He, therefore, prayed that the case may be got registered against the petitioner herein for disposal in accordance with the law.
4. On this on the 26th of October 1976, the Deputy Commissioner forwarded the application to the Assistant Commissioner (P) to look into it so that his genuine grievance was redressed. In turn on the 4 of November 1976, the Assistant Commissioner (P) directed the S. H. O., Pakpattan to register the case against the accused (petitioner) under sec--petition 379;448452, P. P. C. Accordingly on the 8th of November 1976,the S. H. O., Police Station, Pakpattan registered the complaint on this application of the respondent against the petitioner.
5. In these circumstances the petitioner herein filed a Petition (Criminal Miscellaneous No. 762-Q of 1976) in the High Court for quashment of the proceedings: But on the 4th of March 1977, a learned Judge of the Lahore High Court dismissed the application as premature as it transpired at the time that the case was still under investigation.
6. The petitioner then filed the second petition (Cr. Misc. No. 145-Q of 1977) under section 561-A, Cr.
P. C. Read with Article 199 of the Constitution for quashment of the proceedings initiated against him. On the 12th of April 1977 the learned Single Judge partly heard the counsel for the parties.
However, it appears that at the resumed hearing the counsel for the respondent failed to appear, and the Court orally pronounced the order in favour of the petitioner in the light of law cited before him. But sometime later on the same day the learned counsel for the respondent put in appearance and filed an application under section 561-A, Cr. P. C. For rehearing and reconsideration of the order that had been thus orally announced. Eventually, after notice to the parties and on further considera--petition the learned Single Judge dismissed the Criminal Miscellaneous No. 156-Q of 1977 filed by the petitioner herein for quashment of the proceedings taken against him at the instance of respondent No. 1. Hence this petition for special leave to appeal from the judgment.
7. The learned Single Judge of the High Court in his impugned judgment has held that on the 12th of April 1977 at the resumed hearing he had pronounced the order orally which had not been signed by him when the respondent made the application for rehearing and reconsideration of the order thus orally announced. In: this connection the Court relied on Amodini Dasee v. Darson Ghos (1912 Cr. L J 120 (Cal.)), Amin Sharif v. Syeda Khatoon (PLD 1962 SC 97) and Rukan Din v. Hafiz-ud-Din (PLD 1962 (W.P.) Lah. 161) in holding that in the circumstances he was fully justified in rehearing the case and section 369, Cr. P. C. Did not operate as a bar to it. On the merits the learned Judge after rehearing the parties, was of the considered opinion that in the present case Umar Din respondent had moved the miscellaneous application on the executive side before the Deputy Commissioner, Sahiwal for action to be taken against the petitioners under section sections 448, 452 and 379, P. P.
C. Because the local police had failed to take cognizance of the matter. From the record the Court formed the opinion that this application was not in the nature of a complaint as envisaged by section 200, Cr. P. C. Moreover, in pursuance to this application no statement of the complainant was at all recorded either by the Deputy Commissioner in his capacity as the District Magistrate or the Assistant Commissioner as a Magistrate of the area and the application was straightaway marked by the Deputy Commissioner to the Assistant Commissioner who forwarded the same to the police for the registration of the case against the present petitioner and investigation. In the circumstances; in the opinion of the learned Judge it could not therefore, be held that they had taken cognizance of the private complaint under section 200, Cr. P. C. And they were, therefore, bound to proceed in accordance with the provision of sections 202-204, Cr. P. C. And could not refer the matter to the police under section 156 (3), Cr. P. C. In support of this opinion the learned Single Judge, inter alia, relied on the pronouncement in Raja Munawar Khan etc. v. Muhammad Ishaq etc. (PLD 1975 Lah. 577) and Munir Ahmad v. The State and another (PLJ 1975 Cr. C. (Lah.)
370).
8. In this petition before us the learned counsel for the petitioner was unable to support his contention to the effect that the High Court was not competent to rehear and reconsider the orderth orally passed by it on the 12th of April 1977. The pronouncement having been made orally and in the light of the provisions contained in sections 366 and 369, Cr. P. C. The High Court was competent to have reheard the case before the judgment A was actually signed and sealed by the Court. On the merits also we are inclined to agree with the view taken by the learned Single Judge of the High Court in holding that the miscellaneous application dated 26th of October 1976 filed by the respondent before the Deputy Commissioner was not in the nature of a private complaint envisaged by the provisions contained in section 200, Cr. P. C. Neither the Deputy Commissioner nor even the Assistant Commissioner had recorded the statement of the respondent in pursuance to this application. As such either the Deputy Commissioner as the District Magistrate or the Assistant Commissioner as the local Magistrate could be said to have taken cognizance of the private complaint under section 200, Cr. P. C. They had rather acted as the executive officer incharge of the area and merely directed the police to do its duty in accordance with the law in registering the case against the petitioner under section 156 (3) of the Code. In these circumstances as held in Azizur Rehman v. The State (PLD 1960 Dacca 631) and the two Lahore cases noticed above if a Magistrate takes cognizance of a private complaint under section 200, Cr.
P. C. By recording the statement of the complainant, he must. There--after proceed in accordance with the provisions of Chapter XVI of the Cr. P. C. i.e. Under sections 202 to 204, Cr. P. C. It is only then that he cannot refer the matter to the police under section 156 (3) of the Code which lies in an altogether different chapter. But he could, if he so chose, instead of recording the statement of the complainant, send the case for investigation to the police under section 156 (3), Cr. P. C. It follows, therefore, that where a learned Magistrate, as in the present case, has not taken cognizance of a private complaint by applying his own mind to it and had not recorded the statement of the complainant or his witnesses, it is open to him to send the case to the police for registration, necessary investigation into the same and disposal in accordance with the law. The learned counsel before us then laid stress to contend that even according to the facts alleged in the F. I. R.
Lodged at the instance of the respondent, no offence under sections 448, 452 and 379, P. P. C. Has been made out. It is further contended that the dispute between the parties was essentially of a civil nature and the respondent having failed in the civil Court to secure any temporary injunction against the petitioner had initiated the criminal proceedings. Even otherwise according to the learned counsel the respondent had lodged the complaint after an inordinate delay and for all these reasons the proceedings against the petitioner were liable to be quashed. But none of these contentions has any force and no case has been made out for quashment of the proceedings at this stage.
For the foregoing reasons there is no force in this petition which is therefore, dismissed.