ZAKAULLAH LODHI, J.---In this constitution petition, the petitioner seeks to challenge the order of cognizance dated 3rd May, 1972 passed by the Assistant Commissioner-cum-Additional Deputy Commissioner, Quetta exercising powers under Criminal Law (Special Provisions) Ordinance II, of 1968 (hereinafter referred to as the "Ordinance") upon a complaint filed by the third respondent against the petitioners.
2. The facts leading up to the filing of this petition may briefly be narrated as under:---- Dr. Abdul Majid Kansi, the third respondent herein, is son-in-law of the first and second petitioners namely, Dr. Salahuddin and Mst. Iqbal Bane. The third petitioner namely Met. Zatida Parveen is his wife, whereas the 4th petitioner Mat. Azra Begum is a relation to Mst. Iqbal Bano. Persuant to some matrimonial disputes the third petitioner left the house of the third respondent in his absence on or about 20th January 1972. On 3rd May, 1972 the third respondent filed a complaint against the petitioners under sections 380, 420, 363 and 109, Pakistan Penal Code, alleging that the third petitioner in collusion with the remaining petitioners took away some cash. Gold ornaments, clothes and household articles and also removed his children from his custody, while leaving his house on 20th January, 1972. It was further alleged that for some time he tried for an amicable settlement but failing in that he made a report in the concerned police station but the police authorities asked him to file a direct complaint, which he did on 3rd May, 1972. The complaint gas addressed to Assistant Commissioner, Quetta who was also a Magistrate of the First Class. He recorded the statements of the third respondent and two witnesses produced by him on the same day and finding that a prima facie case was made out by the complainant, he took cognizance of the offences under the provisions of the Ordinance there and then and issued bailable warrants against all the petitioners The first petitioner on coming to know about the registration of the complaint filed an application to the Deputy Commis--sioner, Quetta for the transfer of the case from the Court of the Assistant Commissioner, Quetta to some other Court on the allegation that the latter was biased against the petitioners. However, this application was dismissed on 20th December, 1972. Again non-bailable warrants were issued against the second, third and fourth petitioners by the Assistant Commissioner, Quetta but it appears from the record that the same were not served upon them.
3. That first petitioner failing in his efforts to get the case transferred from Court of the Assistant Commissioner, Quetta-Pishin to some other Court, filed an appeal to the Deputy Commissioner.
Quetta exercising appellate powers under the Ordinance seeking quashment of the proceedings on the ground that on the date on which cagnizancx of the offences was taken by the Assistant Commissioner, Quetta the Ordinance was not in force in the areas of Quetta City and Cantonment where the alleged offence is said to have taken place, as it had been withdrawn earlier on 30th April, 1972. The appeal was allowed vide order dated 26th June, 1973 in view of this undisputed legal position. The third respondent feeling aggrieved by the appellate order filed a revision petition which was heard and accepted by the Revenue Commissioner. Baluchistan on 22nd February, 1973 mainly on the ground that although the Ordinance was not applicable to Quetta City and Canton- -ment on the date of the taking of cognizance, but on the date of the commission of the offences it was in force in these areas and therefore the order of cognizance was legal and valid. It was held in the alternative that the Ordinance remained out of the field only for twenty-two days a9 it was reinforced on 22nd May, 1972 and since the complaint remained pending during all this period, therefore, even if there was any irregularity in the order of cognizance is stood automatically cured by dint of the reinforcement of the Ordinance. The petitioner has now come up before this Court against this order.
4. Mr. Munawar Ahmad Mirza, the learned counsel for the petitioner challenged the Impugned order on two grounds. Firstly he contended that as the Ordinance was not in operation in the areas of Quetta City and Cantonment on 3rd May, 1972 when cognizance of the alleged offences was taken by the Assistant Commissioner, Quetta therefore this order was Illegal and secondly, that by the mere perusal of the complaint it was apparent that the ingredients of the alleged offences were missing therefore on this ground also the Assistant Commissioner, Quetta could not competently take cognizance of the offences.
5. Dealing with the first argument of the learned counsel, we may observe that this is undisputed position that on 3rd May, 1972 when tile complaint was filet and the cognizance of the offences was taken by the Assistant Commissioner, Quetta, the Ordinance was not in force in Quetta City where the offences were allegedly committed, as it had been withdrawn earlier on 30th April, 1972. It was again re-enforced on 22nd' May, 1972 and therefore during the period from 30th April, 1972 to 22nd May, 1972 the cases in respect of the scheduled offences i.e. Offences under the Pakistan Penal Code were to be tried by the ordinary Courts constituted under the Code of Criminal Procedure.
Here it may be added that on 22nd May, 1972 when the Ordinance was re-enforced in the areas where from it was earlier withdrawn it was not given substantive-cute-procedural law in nature, and all substantive laws operate prospectively and not retroactively. The nature of the Ordinance was discussed in Mohammed Azam v. The State (PL D 1970 Quetta 27) also and it was held to be substantive as well as procedural law. In view of this legal position the finding of the revisional authority that since the Ordinance had come into force after only twenty two days and as the complaint had remained pending during this period, therefore, the irregularity, if any, committed by the Assistant Commissioner, Quetta in passing the Impugned order of cognizance was cured is wholly devoid of substance. Of course, a finding of such a nature could be worth considera-- petition only if we were to agree to the proposition that the Ordinance was re-enforced after twenty-two days with retrospective effect. Since neither it was done so nor it could possibly be done by the Legislature therefore the decision of the revisional authority in this respect is not sustainable. What is material for the purposes of deciding as to which law would govern a criminal case and by which forum the case would be tried is the date, of the taking of cognizance of the offence by the Magistrate. Since on the date of the taking of cognizance by the Assistant Commissioner the' Ordinance was not in force its subsequent enforcement and that too without retrospective effect would not be legally sufficient to fetch the proceedings within the ambit of the Ordinance. The complaint was, in such circum--stances, liable to be tried under the law which was in force on that date i.e. The ordinary law of the country. Mr. Mohammad Moquim Ansari, the learned counsel for the third respondent however strenuously argued the since the petitioners submitted to the jurisdiction of the Assistant Commissioner, Quetta therefore he validly acquired jurisdiction to try the case. This argument is altogether devoid of force. It is not for the parties to choose the law which would govern their cases or to select the forum suitable to them for the trial of their cases. It is also not for the parties to confer such jurisdiction upon Courts which they do not enjoy by virtue of law, It is, on the other hand the law giving agency which decides the forum in which the cases are to be decided and the law which would govern the cases, therefore even if the petitioners submitted to the jurisdiction of the Assistant Commissioner it would not mean that he acquired that jurisdiction which the law did not confer upon him. In Mohammad Afzal v. Board of Revenue (PLD 1967 SC 31) a similar question arose for adjudication and it was hold by their Lordships of the Supreme Court that by mere fact that the petitioner in that case submitted to the authority of a tribunal in the capacity of a respondent did not confer jurisdiction upon the tribunal.
It was also attempted to be argued before us that since the Ordinance was applicable on the date when the offences were allegedly committed therefore the proceedings could be drawn under the Ordinance. In fact as we have, already remarked the relevant date for deciding se to which forum is to deal with a criminal case is the date on which cognizance has been, taken by the Magistrate and not the date of the commission of the offence. It would be seen in the instant case that the cognizance was taken by the Assistant Commissioner, Quetta on 3rd May, 1972 therefore the case a to be tried by the forum which the law in force on that day determined for the trial of cases. The date of commission of offence bas no relevancy whatsoever in this regard. In State v. Shah Mohammad and others (PLD 1972 Quetta 76) it was held that the Ordinance contemplated the time of taking cognizance and not that of the commission of the offence. It would also be beneficial to make an observation here that as held in the case of A.I Sher v. The Stare (PLD 1970 Kar. 790) the Ordinance was only to apply to a case from the stage of the taking of cognizance and at all previous stages the case remained under the pale of jurisdiction of ordinary law. On this score as well it cannot be said that since the Ordinance was in force when the offences were committed therefore it would be a deciding factor for the selection of forum for trial.
6. Mr. Ansari last contended that the petitioner should not be heard challenging the jurisdiction of the Assistant Commissioner, Quetta as he had caused considerable delay in challenging his jurisdiction. We are unable to agree with him. An order passed or action taken without jurisdiction remains as such until set aside and therefore it deserves to be struck down at any time when it comes to the notice of the Court through an aggrieved party. The efflux of the time is unable to improve the state of an illegal order. Moreover there being no hard and fast rules in relation to time for o challenging such orders through writ petitions it would amount to perpetuating an illegality if a petition was dismissed only on the ground of latches in such situation and particularity when the delay is not alarming. The instant case, however, does not fall within the later category and therefore the delay, if any, cannot be regarded fatal to the case. We are accordingly of the view that the order impugned in this petition is patently illegal and without jurisdiction and the Assistant Commissioner who is also a first class Magistrate should have proceeded with the trial of the case in accordance with the procedure laid down by the Code of Criminal Procedure instead of applying the Ordinance to the same.
7. Mr. Munawar Ahmed Mirza, the learned counsel for the petitioners neat contended that since the complaint and the statements of the witnesses recorded during the course of preliminary inquiry did not make out a prima facie case against the petitioners, therefore on this score as well the Assistant Commissioner, Quetta could not take cognizance of the offences. We are conscious of the fact that in this case neither we are exercising jurisdiction under section 561-A of the Code of Criminal Procedure nor we are sitting as an appellate Court and therefore it is beyond the scope of our jurisdiction to appraise the evidence and that too at a stage when the case has not B progressed a bit from the preliminary stage and there is every possibility of further improvement, when evidence is recorded. All what we can do at this stage is to have a glance on the complaint to find out as to whether a prima facie case exists or not. He referred to a decision of the erstwhile High Court of Sind & Baluchistan in Writ Petition No. 24 of 1972 wherein it was held that the act of taking cognizance by the District Magistrate should not be a mechanical act and that he should satisfy himself before taking cognizance of an offence that from the perusal of the complaint a prima facie case was made out against the accused person. We entirely agree with this view but while putting the complaint in this case to this test we are of the view that it does disclose a prima facie case and therefore it is a fit case for trial. However, we may observe here that in future if the petitioner finds that it was a fit case for the quashment of the proceedings he can invoke the jurisdiction of this Court under section 561-A of the Code of Criminal Procedure as the case would be tried under the ordinary law.
For the foregoing reasons we allow the petition and declare the impugned order as illegal and without jurisdiction. The complaint shall be heard and decided by a Magistrate having jurisdiction in the matter in accordance with the procedure laid down by the Code of Criminal Procedure. In the circumstances of the case we shall make no order as to costs.