The petitioners feel aggrieved by an order passed by the District Magistrate, Sheikhupura, under section 17 of the Con--ciliation Courts Ordinance, 1961, in his capacity as Controlling Authority, transferring the case pending against them before the Conciliation Court under sections 504/323/34, P. P. C. To the Court of Mr. Iftikhar Ahmad Qureshi, Magistrate 1st Class. The legality of the impugned order is challenged on the grounds firstly, that as shown by the record, the order was passed by the District Magistrate in his capacity as Deputy Commissioner, Sheikhupura, and not as Controlling Authority and secondly, that the provision contained in section 350 of the Cr. P. C. Being inapplicable to a case so transferred to an ordinary Court, Mr. Iftikhar Ahmad Qureshi, learned Magistrate could not proceed afresh by holding de novo trial.
2. Having considered the contentions raised by the learned counsel and having also heard the learned counsel for the State, I am clearly of the view that the petition merits dismissal on more than one grounds. In the first instance, it cannot be denied than the case against the petitioners was exclusively triable by a Conciliation Court before whom it was pending. Section 17 of the Conciliation Courts Ordinance gives ample power to the Controlling Authority to transfer such a case to an ordinary criminal. Court .If the public interest or the ends of justice so demand. A perusal of the impugned order clearly indicates that the order was passed by the Deputy Commissioner in his capacity as Controlling Authority as he described himself Deputy Commissioner Controlling Authority. Even otherwise the expression Controlling Authority as defined in section 2(c) of the Conciliation Courts Ordinance, means tile Deputy Commissioner in the case of a Union Council in West Pakistan. As such I am in no manner of doubt that the impugned order was passed by the Deputy Commissioner in exercise of the powers vesting in him under section 17 of the Conciliation Courts Ordinance as Controlling Authority. The propriety or advisibility of the' transfer. Order has not been challenged before me and even other--wise it is abundantly clear to me that since another connected case under section 324, P. P. C. In regard to the same occurrence was already pending before Mr. Iftikhar Ahmad Qureshi, M. I. C. It was not only proper but even otherwise expedient in the interest of justice and in particular to avoid any possible conflict of judgment; by the two forums, that the two cases should have been consolidated in the same Court and the trial in both should have been held by Mr. Iftikhar Ahmad Qureshi. The conciliation Court had obviously no jurisdiction to try the case pending before Mr. Qureshi under section 324, P. P. C. And as such, the 1two cases could not be consolidated before the Conciliation Court.
3. As regards the next legal contention that the provision contained in section 350 of the Cr. P. C. Is inapplicable to a case so transferred is wholly misconceived. Although the Conciliation Court would not be bound by the procedural provisions contained in the Criminal Procedure Code, nevertheless, once the case is transferred to an ordinary criminal Court it has no option but to adhere to the procedure laid down in the Code of Criminal Procedure. Although it appears that the word "Magistrate" as used in section 350 of the Cr. P. C. Would not cover a Concilia--tion Court, yet it is inconceivable that the Court to whose file the case has been transferred could adopt any other procedure except the one laid down in the Code.
4. The next contention raised in this regard by the learned counsel for the petitioner was that as a result of the omission of clause (a) to the proviso to subsection (1) of section 350,Cr.P. C., the learned Magistrate was not competent to hold de novo trial is equally devoid of force. In fact the omitted clause (a) only safeguarded the right of an accused person to demand that a certain witness or witnesses already examined may be resummoned C and reheard. It .Did not either deal with or in any manner fetter the discretion of the learned Magistrate, to whose file the case has been transferred, to hold a de novo trial as clearly provided in the main provision contained in subsection (1) ibid. It reads as follows:- "350(1) Whenever any Magistrate, after having heard and recorded the whole or any part of the evidence in an inquiry or a trial ceases to exercise jurisdiction therein, and is succeeded by another Magistrate who has and who exercised such jurisdiction, the Magistrate so succeeding may act on the evidence so recorded by his predecessor, or partly recorded by his predecessor, or partly recorded by himself or he may re-summon the witnesses and recommence the inquiry or trial provided as follows:-
(a) in any trial the accused may, when the second Magistrate commences his proceedings, demand that the witnesses or any of them be re-summoned and re-heard;
(b) ... ... ... ... ... ... ... ...
(2) ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ..."
As stated earlier proviso (a) was omitted by the Code of Criminal Procedure West Pakistan (Amendment Act) 1.964.
5. The upshot of the above discussion, therefore, is that the impugned order is wholly unexceptionable. The petition fails and is hereby dismissed.