' This is a bail application filed by the present applicant Sardar Pir Muhammad son of Haji Sardar Muhammad, an Afghan National, who stands trial with 7 other co-accused under section 364/365/341/ 342/109/34 P.P.C. For abducting Abdul Hakeem and Abdul Hameed son of Haji Ahmed (hereinafter called the "abductees") and taking them to Afghanistan in the last week of July, 1986. It seems that upon filing of an application by one Ghulam Qadir, the Deputy Commissioner, Quetta ordered that the warrants of arrest be obtained from the Assistant Commissioner, Quetta, which were issued on or about 8th October, 1986. It further appears that upon a complaint presented before the Deputy Commissioner Quetta which was forwarded to the Assistant Commissioner, Quetta, he examined the abductees and passed the following order on 29th September, 1986:- {{URDU TEXT}} .
(Sd.)
Assistant Commissioner, Quetta, with power of Deputy Commissioner." {{URDU TEXT}} (Sd.)
' Assistant Commissioner, Quetta, with powers of Deputy Commissioner".
' In pursuance of the above order, the matter was referred to the Naib-Tehsildar, Panjpai. The present applicant was arrested on 20th/21st December, 1986. The applicant filed an application for bail before the learned Assistant Commissioner, Quetta, which was granted conditionally for a period of 15 days on 18th January, 1987. However, as per learned Advocate-General, since the applicant had not fulfilled the condition, he was taken into custody on the expiry of the above 15 days period on 3rd February, 1987. It appears that on 5th February, 1987, the applicant filed an application for bail before the learned Sessions Judge, Quetta, which was transferred to the learned Additional District and Sessions Judge-I, Quetta, who by his order dated 9th February, 1987 dismissed the same on the ground that the learned Assistant Commissioner had taken cognizance of the matter under section 4 of the Criminal Law (Special Provisions) Ordinance-II of 1968 (hereinafter referred to as the "Ordinance") on 10th January, 1987. It may be observed that the applicant has filed 'a photostat copy of the printed form dated 10th January, 1987 of taking cognizance under section 4 of the Ordinance by the learned Assistant Commissioner, Quetta with the powers of Deputy Commissioner as Annexure "F" to the application. Upon the rejection of the above bail application by the learned Additional District & Sessions Judge-I, Quetta, the applicant filed an appeal before the learned Additional Commissioner, Quetta Division, Quetta under section 23 of the Ordinance, which was dismissed by him by his order dated Ist March, 1987 on the ground that the same was premature, as the applicant's application for bail was pending before the learned Assistant Commissioner, Quetta for disposal. The applicant has now filed the present bail application .
2. In support of the above bail application, Mr. Basharatullah, learned counsel for the applicant has vehemently urged that since the learned Assistant Commissioner by his above-quoted order dated 29th September, 1986 has referred the matter to the Naib-Tehsildar, Panjpai for inquiry, he could not have taken the alleged cognizance on 10th January, 1987 by filling in the printed form and, therefore, the rejection of the bail application by the learned Additional District & Sessions Judge-I, Quetta was unwarranted on the above ground. He has further submitted that the reliance placed by the learned Additional District & Sessions Judge-I, Quetta on an unreported order of mine dated 10th August, 1985 in Criminal Bail Application No,98 of 1984, is also misconceived. He has also submitted that factually, except the statements of the abductees, there is no material against the present applicant, who is in custody since 20th December, 1986, which is unjustified.
' On the other hand, Mr.Yaqub Khan Yousufzai, learned Advocate-General and Mr. W.N.Kohli, learned counsel for the private respondent have vehemently contended that since the learned Assistant Commissioner exercising the powers of Deputy Commissioner has applied his mind to the facts of the present case, and has passed the above-quoted order dated 29th September, 1986 and had filled in the printed form of taking cognizance on 10th January, 1987, the learned Additional District & Sessions Judge-I, Quetta was justified in dismissing the bail application on the aforesaid ground.
3. Mr. Basharatullah, learned counsel for the applicant has referred to the case of Ghulam Muhammad and 3 others v. The State, reported in PLD 1979 Quetta 1, and the case of Khial Akbar v.
The State, reported in PLD 1979 Quetta 96.
' In both the above cases, the learned Single Judges of this Court had held that since the Assistant Commissioner had referred the case for inquiry to the Tehsildar/Naib-Tehsildar, he had not taken cognizance and could not have taken cognizance till the conclusion of the inquiry. In this regard, it may be pertinent to point out that the above cases were decided in 1978, whereas by Ordinance No,XIV of 1980, the following proviso (hereinafter referred to as the "Proviso"), was added to subsection (1) of section 4 of the Ordinance on 14th October, 1980, which was published in the Baluchistan Gazette on 22nd October, 1980. The proviso reads as follows:- "Provided further that the Deputy Commissioner or Political Agent may direct an enquiry 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 enquiry or investigation exercise all the powers conferred by the Code of Criminal Procedure, 1898, or an officer-in-charge of the Police Station."
' The import of the proviso is to empower the Deputy Commissioner or Political Agent to direct an enquiry 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 person has been conferred all the powers exercisable by an Investigating Officer under the Criminal Procedure Code or by an Officer-in- Charge of the Police Station. The aforesaid two cases cited by Mr. Basharatullah, learned counsel for the applicant, therefore, relate to the period prior to the incorporation of the proviso. Hence, these rulings can be distinguished on that account apart from the reasons referred to hereinbelow.
' Mr. Basharatullah, learned counsel for the applicant has also referred to the Full Bench case of this Court, namely, Meher Gul v. Member, Board of Revenue III, Quetta and 4 others, reported in PLD 1982 Quetta 103, in which, the judgments were delivered by the three learned Judges of the Full Bench separately, inter alia, on the question, as to when the cognizance is deemed to have been taken by a Deputy Commissioner or Assistant Commissioner exercising the powers of Deputy Commissioner under the Ordinance. Mr. Abdul Qadeer Chaudhry, J. Who agreed with late Zakaullah Lodi, Actg. C.J. In his judgment, inter alia, observed that "where the case is registered by the Police, the Deputy Commissioner comes into picture when the challan is submitted before him, or in a case of private complaint when it is filed before it. The taking of cognizance is a stage where the jurisdiction of the normal court is ousted." It was also held by the majority view that "the Deputy Commissioner does not figure in during the investigation of the case and, therefore, normal court retains the jurisdiction to entertain the bail."
' Reference was also made to a recent judgment of the Honourable Supreme Court of Pakistan in the case of Muhammad Alam and another v. Additional Secretary to Government of N.-W.F.P., Home & Tribal Affairs Department and 4 others, reported in PLD 1987 SC 103, in which, the Hon'ble Supreme Court while construing the provisions of section 4(1)(c) of the Provincially Administered Tribal Areas Criminal Laws (Special Provisions) Regulation (I of 1975) held that "the Deputy Commissioner not only noted challan of case but applied his mind to the case and summoned accused to attend Court on next hearing, it was enough to constitute the taking of cognizance in terms of the above provision."
4. It may be pertinent to reproduce herein below subsection (1) of Section 4 of the Ordinance without the provisos, which reads as follows: - "4. Cognizance of Scheduled Offences
(1) The Deputy Commissioner shall have exclusive jurisdiction to take cognizance of a scheduled offence (committed within the district to which he is so appointed for the time being;) and such cognizance may be taken by him;
(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a report in writing of such facts made by a Police Officer;
(c) upon information received from any person other than a Police Officer or upon his own knowledge or suspicion that such offence has been committed."
' From the above-quoted portion of subsection (1) of Section 4 of the Ordinance, it is evident that the Deputy Commissioner has the exclusive jurisdiction in respect of the scheduled offences in the area for which he is appointed and that the cognizance can be taken by him either upon receiving a complaint of facts which constitute such offence, or upon a report in writing of such facts made by a Police Officer, or upon information received from any person other than a Police Officer, or upon his own knowledge or suspicion that such offence has been committed.
In the present case, it is an admitted position that a complaint was submitted to the learned Deputy Commissioner by the private complainant, which was passed on to the learned Assistant A Commissioner, Quetta exercising the powers of the Deputy Commissioner, who passed the above- quoted order, in which, it has been inter alia, stated that: {{URDU TEXT}} ' After having observed that the offence has been committed, he referred the case to the Naib- Tehsildar Panjpai with the direction to arrest the accused and after investigation to submit the challan to him promptly.
5. It has been vehemently urged by Mr. Basharatullah, learned counsel for the applicant that the learned Assistant Commissioner had examined the abductees under section 200 Cr.P.C. As a Magistrate and was not exercising the powers of the Deputy Commissioner for the purpose of the Ordinance. This contention is contrary to the record, as from the original police record, it is evident that the B learned Assistant Commissioner had signed the above order as the "Assistant Commissioner, Quetta with powers of Deputy Commissioner".
6. The question, whether the Deputy Commissioner or the Assistant Commissioner exercising the powers of Deputy Commissioner has taken cognizance in a matter, will depend on the facts of each case. Mere filling in the printed form for taking cognizance without applying his mind will not constitute taking of cognizance in terms of the Ordinance. Conversely non-filling of the printed form for taking cognizance may not be fatal, if otherwise the Deputy Commissioner or the Assistant Commissioner exercising the powers of Deputy Commissioner has applied his mind to the facts of the case and takes cognizance by passing an order, which he could have passed only after taking cognizance.
' In the present case, from the above-quoted order of 29th September, 1986 in para. 1, it is evident that upon presentation of the complaint, the learned Assistant Commissioner, Quetta exercising the powers of Deputy Commissioner, examined the abductees and on the basis of their statements, he was of the view that the offence was committed and, therefore, he ordered the arrest of the accused including of the applicant by the Naib-Tehsildar, Panjpai, though at the same time, he ordered that after investigation of the case, the challan be submitted to him promptly.
' In my view, this in fact, was a direction for holding further inquiry, as he had already held some inquiry by recording the statements of the abductees. The learned Additional District & Sessions Judge-1, Quetta, has relied upon the above-unreported order of mine dated 10th August, 1985 in Cr1. Bail Application No,98 of 1984, in which also, the learned Assistant Commissioner after receiving the interim challan had ordered for further investigation and I had held that he had taken cognizance in the matter.
7. It may be appropriate to point out that the applicant himself also was of the view that the learned Assistant Commissioner had taken cognizance in the matter, inasmuch as, he filed the bail application before him and after his arrest in December, 1986 in pursuance of the above-quoted order dated 29th September, 1986. When he was rearrested on 3rd February, 1987, he approached the learned Sessions Judge, Quetta for bail, which was dismissed by the learned Additional District & Sessions Judge-1, Quetta, as stated hereinabove, on 9th February, 1987. After that, the applicant filed an Appeal under section 23 of the Ordinance before the learned Additional Commissioner, Quetta Division against the aforesaid order dated 3rd February, 1987 for taking the applicant into custody on the expiry of 15 days' time, for which, the learned Assistant Commissioner had granted interim bail. After the above Appeal was dismissed under the Ordinance by the learned Additional Commissioner, Quetta Division, he has approached this Court.
' Though it is true that no estoppel of fact or law can be pleaded against an accused person in a criminal proceeding, but the above facts atleast indicate what was understood by the Counsel for the parties at the relevant time.
8. I am, therefore, of the view that the learned Assistant Commissioner, Quetta exercising the powers of Deputy Commissioner by passing the above-quoted order dated 29th September, 1986, had in fact, taken cognizance, which was reiterated by filling in the printed form on 10th January, 1987. The filling in of the printed form on 10th January, 1987 cannot be read in isolation without reference to the other facts of the present case. The learned Additional District & Sessions Judge-1, Quetta, therefore, was right in declining the bail on 9th February, 1987 on the basis of the above- unreported order of this Court. Admittedly, by the above date, even the printed form for taking cognizance was already filled in by the learned Assistant Commissioner and, therefore, even if it is to be held that on the aforesaid date of 29th September, 1986, he had not taken the cognizance the same was taken, in any case, on 10th January, 1987 when the above-printed form was signed by him.
9. The present bail application is, therefore, dismissed.
' These are the reasons in pursuance of short order of even date.