JUDGEMENT/ORDER.
FAZAL SUBHAN, J.- The instant criminal revision under sections 435/439 of Criminal Procedure Code, 1908 (Code) is filed by the petitioners and have prayed as following: "On acceptance of instant criminal revision petition to set aside the impugned order dated 04.5.2023, of learned trial Court below and to dismiss the complaint, being not maintainable and to acquit the petitioners/respondents from the charges mentioned in the above complaint or any other order which this Hon'ble Court may deem proper and necessary."
2. Record transpires that the respondents filed a complaint under sections 3,4,5 and 7 of the Illegal Dispossession Act, 2005 (Act), claiming that on the basis of partition proceedings, mutation was attested in their favour and later on through execution proceedings, the revenue officer and Patwari Halqa visited the disputed property and erected boundary marks (Burjats), however, on 06.01.2023 the petitioners, after demolishing these boundary marks took forcible possession of their land. They filed complaint under the ibid Act but on the assurance of petitioners that they will restore possession of disputed property to the complainant, executed an Iqrar Nama/deed but now they are reluctant to part with their possession.
3. The learned trial Court on filing complaint proceeded with the complaint, whereafter the petitioners filed application for dismissal of complaint on 07.3.2023 and after hearing arguments the learned trial Court/learned Additional Sessions Judge-IV, Lakki Marwat, through impugned order dismissed the application which is now impugned.
4. Arguments of learned counsel for petitioners and that of learned counsel for respondents heard.
5. There are no two views that the High Court, under section 439 of the Code is conferred with vast powers and jurisdiction to rectify a wrong, illegal and unwarranted order, passed by the subordinate criminal courts, however, the High Court would decline to exercise this jurisdiction if the order impugned is legally correct and no miscarriage of justice is apparently committed. Reliance can safely be placed on the case titled "Farooq Shah-Vs-The State" reported in (2013 PCrLJ 688), wherein the Hon'ble Sindh High Court has held as under: "Needless to emphasize that revisional jurisdiction of this Court cannot be used for interrupting or subverting the normal criminal proceedings and unless an order is found tainted with miscarriage of justice, the same cannot be interfered with."
Similarly, in case titled Muhammad Abdullah-Vs-The State, reported in (2000 P.Cr.L.J 576)
[Lahore], it has been observed by the Hon'ble Lahore High Court that: "Under the criminal visitorial jurisdiction this Court has to satisfy itself about the correctness, legality or propriety of any order recorded or passed by an inferior Court. A revisional jurisdiction cannot be used for interrupting or subverting the normal criminal proceedings and, unless an order under reference was found tainted with miscarriage of justice it cannot be knocked out."
6. From the record it is clear that the learned trial Court has considered the question raised during arguments in its true perspective. In view of section 9 of the Act, the Code has been made applicable to the proceedings and on filing the complaint, the Court has to proceed under section 200 of the Code and examine the complainant and if it requires a probe under section 202 of Code, may postpone the issue of process to the respondent/s and inquire the matter by itself or entrust the same to any Justice of Peace or police officer and on receipt of such report if no case is made out the Court/Magistrate, may dismiss the complaint under section 203 or issue process under section 204 of the Code to the respondent/s by taking cognizance of the offence. Though cognizance is not defined in the Code but it literally means awareness, knowledge, notice or intention.
7. In the Black's Law Dictionary, cognizance, means 1.A Court's right and power to try and to determine cases, jurisdiction,
2. The taking of Judicial or authoritative notice,
3. Acknowledgement or admission of an alleged fact and 4. Common law proceedings. In the Wazir-Vs-The State, PLD 1962 (WP) Lahore 405, the Hon'ble High Court after due consideration of the term "Cognizance" has held that:- "We are of the opinion that it would generally be a question of fact whether at a certain stage a Magistrate has taken cognizance of the case when a police challan bas been presented before him.
When a police officer makes a report under section 173 of the Code of Criminal Procedure that an offence has been committed, the section itself does not say what steps the Magistrate will take, and there is no further provision to meet the situation before we reach section 190, which provides that a Magistrate may take cognizance of an offence upon a police report. In other words, the police report by itself, when received by the Magistrate, does not constitute the taking of cognizance, and it is reasonable to expect that something more will be done to show that the Magistrate Intends to start the proceeding."
8. The August Supreme Court of Pakistan, in the case of Ali Gohar and others- Vs-Pervaiz Ahmad and others, reported in PLD 2020 Supreme Court 427, has observed that:-"Given the above discussed, ordinary meaning of "cognizance of the case" and the judicial opinion rendered thereon, it can plainly be stated that ATC would be said to take "cognizance of the case" when on the receipt of the challan along with the material placed therewith by the prosecution, it takes judicial notice thereon by the conscious application of mind and takes positive steps to indicate that the trial of the case is to follow. These steps need not necessarily be recorded as judicial orders. What is essential is that the orders so passed or steps taken reflect that ATC is to proceed with the trial."
9. True that the respondents had earlier filed complaint under the Act but after recording of statement of respondents, report from the local police was sought, however, in the meanwhile the petitioners who appeared before the Court on their own agreed to an amicable settlement and finally the complaint was withdrawn on the basis of Iqrarnam. Thus till that time, no process was issued to the petitioners nor the trial Court had taken cognizance in the matter and, therefore, it cannot be said that the petitioners were tried or acquitted in the case and in these circumstances the provision of section 248 of the Code would not be attracted because the trial Court by then had not taken cognizance of the case. In these circumstances, it is held that the impugned judgment/order does not suffers from any illegality or perversity, calling for interference of this Court through revisional jurisdiction, hence this petition being devoid of any merits stands dismissed.