' AJMAL MIAN, ACTG. C. J.-This petition is directed against the orders dated 30th April, 1980 and 31st March, 1982, passed by the respondent Nos. 2 and 1 i,e,, Additional Commissioner, Quetta Division and the Member Board of Revenue-II1 Baluchistan respectively. Brief facts leading to the filing of this petition are that on 29th September, 1979, a report was recorded by the respondent No, 3 Risaldar Major Haji Abdullah Khan son of Shabak Khan in his official capacity at the levies Thana, which was put-up before the Assistant Commissioner, Quetta exercising power of Deputy Commissioner under the Criminal Law (Special Provisions) Ordinance, 1968 (hereinafter referred to as the 'Ordinance') under section 504/323/440/307/309/147/148/149, P. P. C. In respect of the incidents, which had been placed in the morning and in the evening of 28th September, 1979 against the persons named therein, including Shahbaz Khan son of Haji Kamal Khan and Khan son of Haji Kamal Khan apparently the two sons of the present petitioner. On the following day i,e, 30th September, 1979 the petitioner filed the private complaints in the Court of Assistant Commissioner, Quetta exercising powers of Deputy Commissioner under the 'Ordinance' under section 307/440/504/147/148/149/ 109/34, P. P. C. Against the five persons including the present respondent No, 3 Risaldar Major Haji Abdullah Khan. It seems that in ,pursuance of the aforesaid report, dated 28th September, 1979, surety bonds were obtained from the persons named therein. It further seems that the present petitioner filed a Miscellaneous application before the Deputy Commissioner, Quetta requesting therein the respondent No, 3 Risaldar Major Haji Abdullah Khan should not exercise his official influence and that the matter be proceeded within accordance with law. Upon the above application, the Deputy Commissioner passed the following order on 5th January, 1980 : "A. C., Quetta.
' Please ensure that the case is decided exclusively on merits.
(Sd.) Deputy Commissioner, Quetta."
' Upon receipt of the copy of above order. The Assistant Commissioner passed the following order :- "Order dated 5-1-1980 of the learned Deputy Commissioner, Quetta perused. As required under section 5, Criminal Law (Special Provisions) Ordinance II of 1968, the question of guilt or innocence of the accused has to be referred to Tribunal, therefore, the Tribunal is required to consider the contents of the application on merits."
' The present petitioner as well as the respondents filed appeals before the learned Additional Commissioner, Quetta Division, namely cases Nos. 8-C.L. 0/1980 and 21-CC/,1980 The grievance of the petitioner was that the learned Assistant Commissioner had not obtained surety bond from the present respondents as was done in pursuance of the aforesaid police report, dated 29th September, 1979, whereas the grievance of the respondents was that no case was made out against them by the petitioner in pursuance of the above private complaint. Learned Additional Commissioner by his impugned order, dated 30th April, 1980, exonerated the respondent No, 3 and ordered that rest of the accused should be dealt with in accordance with the provisions of law. He also observed that the peace securities from both the parties have been obtained in different amounts which were also not in accordance with the provisions of law. He, therefore, directed the lower Court to obtain peace securities from both the parties in equal amounts after completing the procedure laid down in the Ordinance. The petitioner being aggrieved by the above order filed revision, which was dismissed by the respondent No, 1 by his above order, dated 31st March, 1982.
The petitioner being aggrieved by the above two orders has filed the present petition.
2. In support of the above petition, learned counsel for the petitioner Mr. Iftikhar Muhammad has vehemently urged that under the Ordinance, the Additional Commissioner had no power to exonerate the respondent No, 3 that it was only the Tribunal which was competent to have regarded the finding that the said respondent was not guilty. On the other hand, Mr. Tahir Muhammad Khan, learned counsel for the private respondents has contended that in terms of section 5 read with section 23 of the Ordinance, learned Additional Commissioner was competent to have passed the impugned order. Mr. Iftikhar Muhammad in furtherance of his above submissions has referred to an unreported judgment of a D. B. Of this Court, dated 5th March, 1985, given in C. P. No, 51 of 1982 in the case of Muhammad Shahid Khan v. Hafiz Muhammad Saleem and others, in which it was held that once the cognizance has been taken by the Deputy Commissioner, he should have referred the matter to the Tribunal as required under section 5 of the Ordinance but he could not have summarily passed the impugned order acquitting the accused without receiving the recommendations of the Tribunal. Learned counsel for the parties have also referred to the following cases :-
(i) Ghulam Muhammad v. The State PLD 1979 Quetta 1 in which a learned Single Judge of this Court while construing section 4 of the Ordinance and section 190, Cr. P. C. Observed as follows:- ``From the discussion on the point in this case it transpires that only when a Magistrate after having gone through the complaint, the reading of which should necessarily constitute an offence as is a pre-requisite both under section 4(1) of the Ordinance and 190 of the 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 of offence 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 he 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 inquiry in the matter. In such a case it would be deemed that he has deferred the question of taking cognizance for a further date.
For further inquiry 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."
' Meher Gul v. Member, Board of Revenue III, Quetta PLD 1982 Quetta 103. In the above case, the question before a Full Bench of this Court was, whether a Deputy Commissioner can admit an accused to bail before taking the cognizance of the offence under section 4 of the Ordinance. The majority view was that the Deputy Commissioner has no jurisdiction to admit a person to bail before the cognizance of the case is taken by him and that normal Courts continue to have exclusive jurisdiction in the matter till such time the cognizance is taken by a Deputy Commissioner under the above section 4. The majority view also reiterated the view found favour with the learned Single Judge in the above reported case of PLD 1979 Quetta 1.
3. Reference was also made to the amendment brought about by Criminal Law (Special Provisions)
Baluchistan (Amendment) Ordinance, 1980, (Ordinance XIV of 1980), whereby in subsection (1) of section 4 of the Ordinance, the following two proviso were added to :- "Provided further that the Deputy Commissioner or Political Agent may direct an inquiry or investigation to be made by such other person as he thinks fit for the purpose of ascertaining truth or falsehood of a complaint and such other person shall for the purpose of the said inquiry or investigation exercise all the powers conferred by the Code of Criminal Procedure 1898, on an officer In charge of the Police Station : ' Provided also that if the result of inquiry/investigation indicates that no offence has been committed the Deputy Commissioner or Political Agent may instead of making reference to Tribunal dismiss the complaint."
4. It may be observed that from the record available before us it is evident, that the learned Assistant Commissioner has factually not taken the cognizance of the two private complaints which were filed by the petitioner. This fact is also reflected in the above impugned order of the Additional Commissioner, dated 30th April, 1980. In this regard, reference may be made to the following observation of the Additional Commissioner :- "The counsels for both the parties and P. p. For State present and heard. The record of the case perused. From the record it has been observed that no order has so far been passed on the two criminal files pending in the lower Court which are as under :-
(1) State v. Muhammad Alam and 15 others under section 323/504/440/ 307/309/147/148/149/188, P.
P. C. And 17/18 of Ordinance II of 1968.
(2) Haji Kamal Khan v. Abdullah Jan and 4 others under section 307/ 147/148/149/109/440/504/34, P. P. C.
' The first case has been instituted on a report from the Risaldar Major, dated 29-9-1980 whereas the second is a complaint from Haji Kamal Khan filed on 30-9-1979. Both these cases relate to W.
0. Separate incidents which took place on one and the same day i,e, 28-9-1979. It appears that cognizance in one case has been taken whereas no cognizance has been taken in the second case pertaining to the complaint of Haji Kamal Khan Bazai, In both the cases the Tribunal has not yet been constituted by the lower Court. On the other hand the impugned order has been passed on an application dated 5-1-1980, of Haji Kamal Khan addressed to Deputy Commissioner, Quetta and copy to S. M. L. A., Quetta which the D. C. Has marked to Assistant Commissioner Quetta with his minutes to please ensure that the case is decided exclusively on merits. The Assistant Commissioner passed order with the following consents :-- "Order dated 5-1-1980 of the learned Deputy Commissioner, Quetta perused. As required under section 5, Criminal Law (Special Provisions) Ordinance II of 1968 the question of guilt or innocence of the accused has to be referred to Tribunal, therefore, the Tribunal is required to consider the contents of the application on merits.
' I have closely perused this order and I am of the opinion that this order has been passed only to adjudicate the contents of the application dated 5-1-1980, submitted by Haji Kamal Khan Bazai which is addressed to the Deputy Commissioner, Quetta and copy thereof has been endorsed to the Sub-Martial Law Administrator, Quetta, Unless proper orders are passed in both the cases the guilt or innocence of persons involved in these cases cannot be determined. In view of these facts all these appeals are immature. As the order of the lower Court is on a Miscellaneous application which could have been placed on record, the reference for its disposal on merits is legally void and, therefore, the order dated 10-1-1980 is not maintainable. The lower Court should maintain proper record of both the cases and after considering them to be fit for reference to a Tribunal action in accordance with the law be taken."
' In spite of the above observation, the learned Additional Commissioner proceeded with examining the case on merits of respondent No, 3 Risaldar Major Haji Abdullah Khan and exonerated him. This lead us to the question whether it was open to the learned Additional Commissioner to have exonerated an accused person though according to his own finding, cognizance of the offence was not taken by the Assistant Commissioner in terms of section 5 of the Ordinance. It was vehemently urged by Mr. Tahir Muhammad Khan, learned counsel for the private respondents that in view of section 5 read with section 23 of the Ordinance, the Additional Commissioner was competent to pass the impugned order. It was further urged by him that the learned Additional Commissioner being an appellate Courts was competent to exercise the same powers which a Deputy Commissioner of a person acting on his behalf in terms of section 5 of the Ordinance, can exercise. It may be pertinent to observe that section 5 provides that the Deputy Commissioner taking cognizance of a scheduled offence shall constitute a Tribunal in accordance with section 6 and refer the question of the guilt or innocence of the persons accused of such offence, to the decision of such Tribunal whereas subsection (1) of section 23 provides that any party aggrieved by any decision given, sentence passed or order made by the Deputy Commissioner under the Ordinance may within thirty days of such decision, sentence or order, prefer an appeal to the Commissioner. There cannot be any cavil to the proposition that an appellate Court enjoys the same powers which are enjoyed by a trial Court, but the question in issue before us is that if a trial Court has not taken cognizance of an offence in terms of sections 4 and 5 of the Ordinance, whether it is open to an appellate Court to exonerate an accused person named in the private complainant or pass any other order after having held that the appeal is premature and that cognizance has not been taken.
5. We are in respectable agreement with the observation of the learned Single fudge in the above reported judgment in PLD 1979 Quetta, para. 1 that a Magistrate has to apply his mind consciously to the question whether cognizance of an offence is to be taken or not. This he c cannot do so without going through the complaint and without examining the material available on record before him. In the instant case, as, observed hereinabove, this was not done, which is also evident from the impugned order of the learned Additional Commissioner quoted hereinabove. In this view of the matter the learned Additional Commissioner was not competent to entertain any appeal in respect of a matter which cognizance was not taken nor under section 23 of the Ordinance, he could have examined the private complaints and the other material available for the purpose of exonerating the respondent No,
3. In our view there is a marked distinction between the appellate powers under section 23 of the Ordinance and revisional or inherent powers exercisable by a High Court under section 439 or 561-A, Cr. P. C. Inter alia for quashment of criminal proceedings. The Additional Commissioner under above section 23 of the Ordinance is not clothed with the powers akin to the powers contained in above sections 439 and 561-A, Cr. P. C. It may also be observed that the above amendment brought about by Ordinance XIV of 1980, (which came into force on 22nd October, 1980), has placed a complaint under section 5 of the Ordinance at par with complaint under the P. P. C./Cr. P. C. b3 providing that the Deputy Commissioner or the Political Agent may direct an inquiry or investigation indicates that no offence has been committed, the Deputy Commissioner or Political Agent, may instead of making reference to Tribunal dismiss the complaint. Similar powers are enjoined on a Magistrate under sections 202 and 203, Cr. P. C.
6. In view of the above discussion, we are of the view that the impugned order on dated 30th April, 1980 passed by the learned Additional Commissioner, Quetta Division and Revisional order, dated 31st March, 1982, passed by the learned Member, Board of Revenue confirming the above order are without lawful authority and are of no legal effect. The above private complaints filed by the petitioner shall be deemed to be pending before the Assistant Commissioner exercising the powers of Deputy Commissioner under the Ordinance who will examine the question, whether he should take cognizance of any offence or not and against all or which of the accused. The petition stands disposed of in the above terms with no orders as to costs.