' A case registered on 8-9-1972 was challaned on 28-12-1972 against the petitioners under section 156 (89) of the Customs Act (IV of 1969) before Magistrate 1st Class, Rawalpindi. The case proceeded and according to learned counsel for the petitioners the evidence concluded but before arguments could be heard, a change in the relevant law was brought about by introduction of a new section 185-A in the Customs Act by Finance Act (L of 1973). By Finance Act of 1974 (XL of 1974), which came into effect on 30-6-1974, subsections (7), (8), (9) and (10) were added to the said section 185-A. By virtue of this section 185-A, Courts of Special Judges were set up, and all cases pending in the magisterial Courts at the relevant time stood transferred to Court of the Special Judge concerned. The case against the petitioners accordingly came up before the Special Judge, Customs and Taxation, Lahore, Camp Rawalpindi. On 22-5-1975, the prosecution withdrew the case "in order to file a proper complaint as envisaged by law". The matter was adjourned to 12-6-1975 for the purpose, but on that date no complaint was filed and it was further adjourned for filing of the complaint. The petitioners moved an application on 11-11-1975 before the Special Judge urging that no complaint having been made as envisaged by subsection (6) of section 185-A of the Customs Act and the case having been withdrawn by the Public Prosecutor on 22-5-1975, the petitioners were no longer accused of any offence and as such the Court had no jurisdiction to proceed with the case. The learned Special Judge rejected this application on 13-11- 1975 upon the view that no fresh complaint was needed and that the case stood transferred to his Court and the trial should continue without any complaint. Not satisfied, the petitioner, moved the present application under section 561-A, Cr. P. C. Praying for quashment of the case.
2. It will be useful to reproduce the relevant provisions of section 185-A to which attention has been drawn frequently during the hearing of this petition. These are : "185-A. Offences to be tried by Special Judges. -(3) Notwithstanding anything contained in any other provision of this Act or in any other law for the time being in force on the appointment of a Special Judge for any area, an offence punishable under this Act, shall be tried exclusively by the Special Judge and all cases pending in any other Court in such area immediately before such appointment shall stand transferred to such Special Judge." -(6) A Special Judge shall take cognizance of and have jurisdiction to try, an offence triable under subsection (3) only upon a complaint in writing made by such officer of customs or such other person invested with the powers of officer of customs, as may be authorised by the Central Board of Revenue in this behalf, by a general or special order in writing.
"(10) In respect of a. Case transferred to ,a Special Judge by virtue of subsection (3) or under subsection (9), such Judge shall not, by reason of the said transfer, be bound to recall and rehear any witness who has given evidence in the case before the transfer and may act on the evidence already recorded by or produced before the Court which; tried the case before the transfer."
3. Learned counsel for the petitioners laid stress on the provisions of subsection (6) to urge that the only method of taking cognizance by a Special Judge in all cases triable by him is upon a complaint in writing made by an authorised officer and that as no saving had been made in respect of pending A cases which stood transferred to the Special Judge by virtue of subsection (3), the Special Judge could not take cognizance of these cases also, in the absence of the required complaint.
4. The contention, in my view, is misconceived because the question, of taking cognizance arises only in fresh cases and not in pending cases in which cognizance had already been taken.
Cognizance once taken of a case remains unaffected by subsequent transfer of the case to another Court by an order or by operation of law. The necessary legal implication in every transfer of a case is that the case moves from one Court with jurisdiction to another Court with jurisdiction and the cognizance already taken by the earlier Court passes on with the case to the latter Court upon the transfer. B In fact, a pending case remains pending until it has been finally disposed of. To hold that a pending case will stand transferred to the Court of Special Judge by operation of law, and also that the Court cannot take cognizance of such case unless a complaint has been filed, is contradictory, in terms. What will happen if the person authorised to file complaint chooses not to do so. Will he thereby frustrate the directive of the law relating to the transfer ? Can a Court to which a case stands transferred still take cognizance of it ? The answer, to my mind, is plainly in the negative.
Petition