' By this common order, I propose to dispose of Criminal Miscellaneous Applications Nos.258 and 259 of 1998 as the same arise out of same facts and law.
2. In the above applications, applicants have sought quashment of proceedings initiated against them under section 18 of Sindh Cultural Heritage (Preservation) Act, 1994 (hereinafter referred to as the Act) and section 10 read with section 21-A of Sindh Building Control Ordinance, 1979-82 (hereinafter referred to as the Ordinance) respectively.
3. The relevant facts which led the filing of Criminal Miscellaneous Application No,258 of 1998 are that on 2nd September, 1997 Mr. Ziauddin Agha, Director Culture filed complaint before the District Magistrate, Karachi (South) with regard to demolition of protected heritage building known as Olympia Building. In the complaint it is said that the abovcmentioned building as per daily Dawn dated 26-8-1997 has been demolished by the owners in violation of Act as the said building was notified to be protected heritage building vide Notification, dated 7th September, 1995. It is further mentioned that the owners were required to keep the structure in original shape and condition but they failed to do so and demolished the same. As such committed an offence under section 18 and section 6(4) of the said Act.
4. As per Criminal Miscellaneous Application No,259 of 1998. Mr. Amir Kamal Jaffri, Assistant Controller of Buildings, Karachi preferred a complaint under section 10 read with section 21-A of the Ordinance before the Court of learned City and A.D.M., Karachi (South) against the applicant wherein he has mentioned that applicant is the owner of Plot No,81/i, SB-4, Saddar Bazar Quarters, known as "Olympia Building" and the same being declared a historic by the Government has been demolished without getting prior permission from the authority and thus committed an offence under the abovementioned sections. Learned City and A.D.M., Karachi (South) on receipt of the above complaints took the cognizance under the abovementioned sections and issued bailable warrants in the sum of Rs.5,00,000 against the applicants.
5. Mr. Raja Sikandar Khan Yasir, counsel for applicants mainly contended that learned Magistrate by taking cognizance on simple complaint against the applicants has erred in law and the same amounts to abuse of process of Court. According to him, learned Magistrate has misconceived the factual and legal aspect of the case and has failed to comply with the mandatory provisions as laid down in sections 200 and 202, Cr.P.C. And has neither recorded the statement of complainant nor has held any enquiry, as such the entire exercise is illegal. Mr. Raja Sikandar Khan Yasir further submitted that applicants have committed no offence and in fact the said building was declared to be dangerous and such letter was written by Deputy Controller of Buildings, Zone-HI, KBCA/KMC on 26-5-1996 to S.D.M., Preedy, Karachi to seek police help for its demolition. Another letter was written by Deputy Commissioner, Karachi (South) to the Section Officer, Cultural Tourism Sports, Government of Sindh on 12-11-1996 wherein also it was mentioned that competent Authority viz. Karachi Building Control Authority has declared the above building to be dangerous; and that it may collapse at any moment, as such the same may be exempted from protected heritage building. Mr. Raja Sikandar Khan Yasir further went on arguing that abovesaid Authority had got published caution notice in daily Jang and Dawn, dated 5th June, 1997 about the said building and had warned the occupants to vacate the same immediately and get it demolished being earlier declared dangerous by K.B.C.A. He lastly submitted that no agreement of any sort as required under section 8 of the Act was ever entered into between the applicants and Heritage Department, as such the very cognizance under section 18 of the said Act is illegal and unwarranted by law.
Similarly the filing of complaint by Assistant Controller of Buildings and taking cognizance under section 10 read with section 21-A of the Ordinance on the face of it is illegal and liable to be quashed as it was the K.B.C.A. First who notified that the said building has become dangerous and not fit for inhabitation.
6. Mr. Habib Ahmed, learned Assistant Advocate-General Sindh frankly conceded and said that learned Magistrate was not competent to take cognizance as such he has no objection if the proceedings are quashed.
7. I have given anxious thoughts to the contentions raised at bar and have gone through the R. And Ps.
' I am in fully agreement with the counsel for the applicants and have come to the conclusion that learned Magistrate was not competent to take cognizance of the matter. He seems to be ignorant of very basis of the law and does not know the procedure of bringing the complaint on record.
Once a complaint as defined in section 4(h) of Cr.P.C. Is filed it becomes mandatory upon the Court taking cognizance to examine complainant upon oath at once and the substance of examination be reduced to writing and be signed by the complainant and by the Presiding Officer of the Court. After the above is done the Court will have to hold enquiry as required under section 202, Cr.P.C. For ascertaining the truth or falsehood of the complainant and it is thereafter that if Court is satisfied only then process is to be issued. Having violated the above mandatory provisions of law the proceedings merit to be quashed on this score alone. Irrespective of the above no agreement as per section 8 of the Act was ever entered into between the applicants and Heritage Department with regard to preservation of the abovesaid building, as such action taking under section 18 of the Act would be illegal and abuse of process of law. Similarly when Authority viz. K.B.C.A. Had himself issued a declaration that Olympia Building, a heritage building has become dilapidated and can collapse at any time, and its occupants were warned to vacate and demolish the same. There was absolutely no justification for them to lodge the complaint and such action was mala fide. Another important aspect which has lost sight of learned Magistrate was that r Architectural and Engineering Associates had certified that the said building had already collapsed and the remaining walls were found in deteriorated condition.
8. As observed above, the applications succeed and the proceedings initiated on the basis of the above complaints are hereby quashed.