1. ' This is a reference by Tehsildar/Magistrate II Class Bagh thereby bringing it to the notice of this Court that a case under section 325, Penal Code was challaned to his Court by the police which, according to him, was to be challaned under section 15 of the Islamic (Tazeerati) Quwaaneen Nafaz Act of 1974 (hereinafter to be called the Act), before the Tehsil Criminal Court consisting of a Sub-Judge/Magistrate and a Tehsil Qazi and not before the Court of a Magistrate alone and so he has sought quashment of proceedings which were taken by his predecessor and subsequently to send the case to a Court of competent jurisdiction for trial. ' learned Advocate-General was heard.
2. ' At the very outset it was pointed out that Tehsildar/Magistrate was not, at all, empowered under section 190, Cr. P. C. To take direct cognizance of the offence triable by a Magistrate II Class.
3. Tehsildar/Magistrates are not specially empowered to taken cognizance of any offence to be tried unless it is made over to them by a competent Magistrate over them. Having regard to section 190(1) of the Cr. P. C., a District Magistrate or a Sub-Divisional Magistrate has statutory powers to take cognizance of an offence and in all other cases the Magistrate hat to be specially empowered in this behalf. If an offence is triable by a Magistrate II Class and he takes its cognizance without being empowered by any of the competent authorities, proceedings so taken by him for not having been empowered under section 190(1), clause (a) or Clause (b) are protected under section 529(e) of the Cr. P. C. That is to say where a Court has jurisdiction to try an offence as provided in Schedule II under Column 8 of the tabular statement of offences. But in the instant case, at the time, this challan was presented to the Court of Tehsildar/Magistrate II Class, he was not competent to take cognizance of the offence under section 325 of the Penal Code. It may be mentioned here that in Azad Kashmir. Column 8 of the tabular statement of offences contained in Schedule JI does not stand amended so far as the competency of a Magistrate II Class is concerned to take cognizance of an offence under section 325, Penal Code. It is very well triable here in Azad Kashmir even by a Second Class Magistrate. On enforcement of the said Act, the offence of hurt was included therein and it may be either under section 15 of the Act or under section 325 of the Penal Code, was made triable under section 24 of the Act by a Court of competent jurisdiction constituted under section 2(8) of the same Act. In case of offence of hurt of any nature, the Tehsil Criminal Court was thus competent to take cognizance of such an offence, but the instant challan was not presented to that Court and instead, was brought before a wrong Court which had no jurisdiction to entertain the same i,e, Court of Magistrate II Class.
4. ' Again, an amendment in section 24 of the Act was made on 26-9-1979 and its old subsection (2) has been substituted by a new subsection (2) to the effect that if during investigation of a case it is found that evidence as provided by the Act under section 26(1) is not on hand, the challan will be presented before a Court of competent jurisdiction established under the provisions of the Criminal Procedure Code: Evidently, at the time, the instant challan was presented before the Court of Tehsildar/Magistrate II Class, it had no jurisdiction to take cognizance of the offence under section 325 of the Penal Code and so it would be deemed that there was no presentation of the challan before a Court of competent jurisdiction and the proceedings taken by the Tehsildar/Magistrate thereof, before the said amendment was effected in the Act through an Ordinance of 1979 in order to make offences falling under the provisions of the Penal Code triable by Criminal Courts established under the provisions of Criminal Procedure Code which, for want of requisite number of witnesses, could not strictly be seized in grip of the defined Islamic Law and codified in the Act, were without jurisdiction. The challan, it appears, was lying idle without any proceedings after 5-1- 1978 and no cognizance of the same could be taken by the succeeding Magistrate till it was submitted to this Court for an appropriate order to be made in revision under section 435, Cr. P. C.
5. The offence in hand, according to the very prosecution case in regard to the relevant law, falls within the purview of section 325 of the Penal Code and very rightly so and not under section 14 of the Act wrongly referred to because evidence prescribed by Muslim Law of Evidence as envisaged in section 26(1) of the Act was not available to the prosecution so as to bring the case in relation to punishment for the offence of grievous hurt, within the purview of `Qisas' i,e, punishment by way of retaliation, and it was, therefore, a case of `Tazeer' (punishment other than 'Hadd', latter being prescribed by the Qur'an and Sunnah) as defined under section 2(1) of the Act read with old subsection (2) of section 24 of the same Act and that being so, the offence under section 325 of the Penal Code was to be tried by a Court of competent jurisdiction, namely, Tehsil Criminal Court before the amendment of section 24 was enacted through an Ordinance as stated earlier. But it could not be done so at the relevant time and so it is now to be tried by a Court of a Magistrate competent to take cognizance under section 190, Cr. P. C. As no proceedings were taken by the Tehsildar/ Magistrate II Class after 5-1-1978 till a reference was made to this Court without taking cognizance of the offence even after the amendment was made empowering Magistrate to take cognizance of an offence when it is ousted of jurisdiction of a criminal Court established under the provisions of the Act. It would thus be deemed that no cognizance of the offence was taken by Tehsildar/Magistrate II Class and as such, invoking of section 529(e) of Cr. P. C. Will not come into play and in these circumstances, it can safely be said that there was no presentation of the case legally validated before the Court of Tehsildar/Magistrate II Class and as such, its fresh presentation is, by all means, required to be made before the Court of a competent Magistrate.
6. In view of the aforesaid matter, the proceedings taken by the Tehsildar/ Magistrate II Class before the amendment of section 24 of the Act as indicated above, are held to be taken by a Court of incompetent jurisdiction and as such they are hereby quashed and the case is made over to the Sub-Judge/Magistrate 1st Class, Bagh for its cognizance and order according to law.