' This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, calls in question the judgment dated 23-4-1989 of the learned Additional Session Judge, Jhelum, whereby he dismissed the revision petition against the order dated 5-2-1989 passed by the learned Senior Civil Judge/Magistrate Section 30, Jhelum, whereby he summoned the petitioner to face trial under section 307/34, P.P.C. In a private complaint filed by Muhammad Arif respondent No, 5 herein.
2. The facts giving rise to this petition, briefly are that on 2-5-1988 respondent No, 5, herein lodged a private complaint before the District Magistrate, Jhelum, against the petitioner and three others alleging therein that they gave him abuses. When he returned the same, he was fired at first by Riaz accused with pistol, which did not hit him and secondly when the complainant fell down, in that condition, he was fired at by Liaqat accused hitting him at the right shin. The District Magistrate, Jhelum, marked the complaint to his Reader and subsequently, entrusted the same to the learned Senior Civil Judge, Jhelum, with powers of Magistrate section 30 for trial. The petitioner being aggrieved with this order filed a revision petition before the learned Session Judge, Jhelum, which was dismissed by the learned Additional Session Judge, vide order dated 23-4-1989.
3. Learned counsel for the petitioner submitted that the Gazette of Punjab Notification dated 19th November, 1972, conferred powers under section 30, Cr.P.C. On the learned Senior Judge and Administrative Civil Judges in the Punjab. The said notification reads as under:- "Every Senior Civil Judge and Administrative Civil Judge in the Punjab, who is a Magistrate of Ist Class, is empowered to try as a Magistrate all offences not punishable with death within the limits of the district in which he is posted from time to time. He shall not, however, take cognizance of cases under section 190, Cr.P.C. 1898 and will try only such cases as are transferred to him by the competent authority."
4. It was submitted that this notification restricted the powers of the Senior Civil Judge/Magistrate Section 30 to take cognizance under section 190, Cr.P.C. Of the cases and they were authorised to try only those cases which are to be transferred by the competent authority to them. Under section 38, Cr.P.C. The powers of the District Magistrate to confer powers under section 190, Cr.P.C. Under clauses (i) and (ii) and as envisaged in Schedule IV, Cr.P.C. Are subject to the control of the Provincial Government. The Provincial Government specifically having restricted the power of Senior Civil Judge, Administrative Civil Judge and all other Civil Judges of Ist Class not to take cognizance under section 190, Cr.P.C., the District Magistrate had no authority to confer the said powers upon the Senior Civil Judge/Magistrate Section 30.
5. The question involved in the present petition relates to application of sections 190 and 192, Cr.P.C.
Subsection (1) of section 190, Cr.P.C. Provides that any District Magistrate, or Sub-Divisional Magistrate and or any other Magistrate specially empowered in this behalf may take 'cognizance' of any offence--
(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a report in writing of such facts made by any 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.
' If the offence is one triable by the District Magistrate, Sub-Divisional Magistrate or any other Magistrate, and if either of them takes cognizance of a case under clause (a) or clause (c), he would proceed to make a preliminary inquiry into the matter, if a prima facie case is made out, he could try the case. Here a bare reading of the complaint discloses prima facie commission of an offence punishable under section 307, P.P.C. And therefore, the District Magistrate after taking cognizance of an offence under clause (a) of subsection (1) of section 190, Cr.P.C., which was ex facie triable by a Section 30 Magistrate, transferred the complaint for trial to the learned Senior Civil Judge, Jhelum, to which no exception can be taken.
6. I am unable to agree with the learned counsel for the petitioner that the District Magistrate did not take cognizance of the case, but merely acted as post office by automatically sending the case for trial to the learned Senior Civil Judge/Magistrate Section 30. Refer a Division Bench judgment of this Court in the case of Alam Din v. The State (PLD 1973 Lahore 304), wherein it was held that a Court takes cognizance by a judicial action which need not necessarily involve any formal act, but occurs as soon as the Court applies its mind to the suspected commission of the offence, as disclosed in the police report or the private complaint, for the purpose of proceeding in a particular way in accordance with the provisions contained in the Code for holding an enquiry or a trial, as the case may be.
7. When faced with this Mr. Iftikhar Hussain Chaudhry, learned counsel for the petitioner respectfully submitted that the learned Senior Civil Judge, Jhelum, was not competent to hold a preliminary inquiry by virtue of the power conferred upon him in the said notification but could only hold trial of the case entrusted to him.
8. Be that as it may, under clauses (e) and (f) of section 529, Cr.P.C., if any Magistrate not empowered by law takes cognizance of an offence under section 190(1), clauses (a) and (b) or transfers a case under section 192, erroneously in good faith then proceedings taken by him in connection thereto are not liable to be set aside merely on the ground that he was not empowered by law to do the above things. Here, it is not alleged that the learned Senior Civil Judge, Jhelum, held a preliminary inquiry by taking cognizance of the complaint under section 190 (1)(a), Cr.P.C. In bad faith. Even otherwise presumption of regularity is attached to all official acts unless rebutted and therefore, the impugned orders do not warrant any interference in the exercise of writ jurisdiction.
' In view of the above, the writ petition fails and is hereby dismissed, but there shall be no order as to costs. The parties shall appear before the learned Senior Civil Judge/Magistrate section 30, Jhelum, on 13-3-1993 for further proceedings in accordance with law.