' Through this application under section 561-A, Cr.P.C., applicant Muhammad Ahmed Baig has sought quashment of the proceedings of criminal trial being conducted by Ilnd Judicial Magistrate, Karachi (East) upon a complaint dated 3-9-1998, lodged by Serishtedar, Special Judge for STA, Karachi (East) against the applicant in the said Court.
2. Succinctly stated the background of the case is that the applicant was the Investigating Officer in respect of Crime No,9/1992 under section 13-D of Arms Ordinance of Police Station Landhi, Karachi (East), which was pending trial before learned Special Judge for STA, Karachi (East) as Special Case No,784 of 1997, State v. Abdul Jalil. On 11-5-1998, the applicant was bound down for his attendance and production of witnesses as well as case property before the said trial Court, viz. Special Judge for STA, Karachi (East) on the next date of hearing, viz. 11-7-1998, but the applicant failed to attend the Court. He also did not produce the case property and witnesses and no intimation was sent to the trial Court either. The said trial Court issued. a show-cause notice to the applicant as to why action is not taken against him for offences under Sections 174,175 and 228, P.P.C., but the applicant did not respond. Learned Special Judge, therefore, by his order dated 29-8- 1998 directed that a complaint be filed against the applicant for offences punishable under sections 174, 175 and 228, P.P.C. Before the Court having jurisdiction. The Serishtedar of learned Special Judge forwarded the complaint to Judicial Magistrate Court No,II, Karachi (East), who eventually took cognizance and an application was moved for acquittal of the applicant under section 249-A, Cr.P.C., but the same was dismissed.
3. Mr. Jawed Haider Kazmi, learned counsel for the applicant, submitted that in view of the law as it existed on the relevant day, learned Judicial Magistrate, Karachi (East) had no jurisdiction, therefore, the proceedings of trial would be a nullity. He relied on PLD 1983 FSC 225 (Mumtaz Khan v.
The State). In order to support his contentions, he placed reliance on the respective provisions of Legal Reforms Act, 1997, whereby section 28 and section 29 were amended and in consequence of such amendments, only an Executive Magistrate could, try the offences under sections 174, 175 & 228, P.P.C. Mr. Fazalur-Rehman Awan, learned State Counsel, conceded that in consequence of the aforesaid amendment the Judicial Magistrate at the relevant time had no jurisdiction. He added that the offence had actually taken place within the territorial limits of District Karachi (South) where the Court of STA, Karachi (East) is situated and as such the Court having jurisdiction to try this offence could only be a Court within District Karachi (South) as contemplated under section 177, Cr.P.C.
4. It may be noted that the Legal Reforms Act, 1997 had come into force with effect from 3-7-1997 and, inter alia, the following provisos were added to sections 28 and 29, Cr.P.C. Respectively: "28. Offences under Penal Code.---Subject to the other provisions of this Code any offence under the Pakistan Penal Code may be tried: (a)
(b)
(c) By any other Court by which such offence is shown in the eighth column of the Second Schedule to be triable: ' Provided that the offences falling under Chapters VIII, X, XIII and XIV of the Pakistan Penal Code (Act XLV of 1860), except offences specified in section 153A and section 281 of the said Code, shall be tried by the Executive Magistrates and the expression "Magistrate" used in the said eighth column shall mean exclusive Magistrate of the respective class.
29. Offences under other laws.----(1) Subject to the other provisions of this Code, any offence under any other law shall when any Court is mentioned in this behalf in such law: (i)..
(ii).
(2) When no Court is so mentioned, it may be tried by the High Court or subject as aforesaid by any Court constituted under this Code by which such offence is shown in the Eighth Column of the Second Schedule to be triable: Provided that the offences punishable with imprisonment for a term not exceeding three years, with or without any other punishment, shall be tried by the Executive Magistrates."
5. The provisions of section 29, Cr.P.C. As quoted above, would not be applicable to the instant case as they relate to offences covered by laws other than Pakistan Penal Code, therefore, the argument that an offence punishable with imprisonment for a term not exceeding 3 years was to be exclusively tried by Executive Magistrate cannot be sustained as regards the offence under section 228, P.P.C. The proviso to clause (c) of section 28 however, includes offences falling under chapter X of Pakistan Penal Code, as such offences under sections 174 and 175, P.P.C. Were triable by the Court of Executive Magistrate. To that extent the learned counsel is correct in making a submission that the cognizance could not be taken of the aforesaid offences by the Judicial. Magistrate.
6. As regards section 228, P.P.C, the learned Special Judge, Karachi (East) was competent to forward the complaint within the meaning of section 476-A, Cr.P.C. To any Court having jurisdiction.
It may be emphasized that in column 8 of the Schedule to Code of Criminal Procedure the power under Chapter XXXV, Cr.P.C., which contains section 476-A, Cr.P.C., has been saved, notwithstanding this power the said Court has to forward the complaint to a "Court having jurisdiction". As rightly pointed out by Mr. Fazal-ur-Rehman Awan the Judicial Magistrate, Karachi
(East) had no territorial jurisdiction in the matter as the applicant was bound down by Special Judge, Karachi (East) in the Court which is situated in District Karachi (South). Obviously, in the circumstances a Judicial. Magistrate of Karachi (South) had jurisdiction to try the case and not a Judicial Magistrate of Karachi (East).
7. In view of the above discussion it follows that on both counts the Judicial Magistrate, Karachi
(East) was not competent to take cognizance of the case and in such an event the trial would be a futile exercise. Indeed the proceedings in such an event will amount to abuse of process of Court..
Consequently, the proceedings before the said Judicial Magistrate are quashed. The learned Special Court will still be within its powers to forward the complaint to the competent Court. The application is allowed.