' This Constitutional Petition emanates from the order whereby the Assistant Commissioner, Quetta acting under the delegated powers of the Deputy Commissioner took cognizance of a complaint filed under section 497 P. P. C. Read with section 14 of Criminal Law (Special Provisions) Ordinance H of 1968.
2, The facts forming the background of the case may briefly be narrated as under : On 22nd September 1975 the first respondent filed a complaint in the Court of Assistant Commissioner Quetta under above noted penal provisions of law against the petitioner. The allegation in the complaint was that the petitioner had developed illicit connections with the daughter of the first respondent for about a year prior to the filing of the complaint. The daughter of the first respondent had been undisputedly divorced by her husband about two years prior to the filing of this complaint.
3 The Assistant Commissioner, 2nd respondent recorded the statement of the first respondent and two of his witnesses including his daughter who was said to have developed illicit connections with the petitioner. After recording the statements be took cognizance of the matter under section 4 of Criminal Law (Special Provisions) Ordinance II of 1968 on 22-9-1975 and constituted the Tribunal for the trial of the case.
4. The order of the 2nd respondent whereby cognizance had been taken and Tribunal had been appointed was challenged before the Commissioner through an appeal which was dismissed on 28-2-1976. Likewise the revision preferred to the Member, Board of Revenue acting as revisional authority under the delegated powers, of the Provincial Government was also dismissed on 28- 44976. However the learned Member, Board of Revenue ordered that the decision of the whole case depended on the issue whether Mst. Muhammad Zai daughter of the first respondent was a married woman or not therefore this question should be decided first.
5. The first contention of the learned counsel for the petitioner is that no case was made out against the petitioner because Mst. Muhammad Zai the daughter of the first respondent was not a married woman when he allegedly developed illicit connections with her. In this connection he had invited my attention to the complaint i1 which the first respondent has himself stated that Mst.
Muhammad Zai had been divorced by her previous husband and was residing with him at the time when she developed illicit connection with the petitioner. The statement of Mst. Muhammad Zai recorded at the stage of in vestigation is very clear on the point. She has stated that about two years prior to the filing of the complaint she had bee divorced by her husband and that about one year prior to the filing of the complaint she had developed illicit connections with the petitioner. T initial ingredient of section 497 P. P. C. Is that a woman with whom adulte is committed should be a married woman. In this case according to t first respondent as well as according to Mst.
Muhammad Zai she was not a married woman during the period she developed illicit connections with the petitioner. On this ground alone the learned Assistant Commissioner (respondent No, 2 in the case) could not take cognizance.
6. Before I part with the case I may refer that it is not incumben upon the Deputy Commissioner to take cognizance within the meanm of section 4 of Ordinance II of 1968 in each and every case and appoint a tribunal. For taking cognizance it is essential that the complaint filed before him should disclose that some scheduled offence has been committed. In case the commission of a scheduled offence is not prima facie disclosed the Deputy Commissioner shall refuse to take cognizance of the case. In the instant case no offence was disclosed by the complainant therefor- cognizance could not be taken and the case could not be referred to th tribunal for trial. The taking of cognizance is not a mechanical affair. The learned Deputy Commissioner is bound to apply his mind to the fact disclosed in the complaint and reach the conclusion that prima Jack offence is made out by the complainant otherwise he is not duty bound to take cognizance.
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11. The other points raised in this petition do not need discussion as I propose to allow this petition on consideration of the only point discussed above.
12. For the foregoing reasons the petition is allowed and the orders of the 2nd, 3rd and 4th respondents are declared illegal and without lawful authority. The action, if any, taken by the 5th respondent in pursuance to the directions of the 4th respondent will automatically fall with the setting aside of the order of the 2nd, 3rd and 4th respondents. Parties are however left to bear their own costs.