This revision is directed against the order of the District Magistrate, Quetta-Pishin, dated the 16th of April 1969, and the order passed by the E. A. C. Pishin Sub-Division acting as Deputy Commissioner, on the 30th of March 1968, whereby it was directed that the case against the petitioners be registered under Ordinance II of 1968.
2. Briefly the facts of the case are that a fight took place on the 29th of June 1967, between trio parties of Syeds in village Nasozai, Tehsil Pishin, over the use of watercourse belonging to both the parties for the flow of water from the tubewell of the complainant party. Several persons from both sides took part in the fight. Five persons on each side got injured and one Ibrahim Shah on the complainant side died three days later in the hospital. A report was lodged at Levies Post on the same day which was recorded by Yaru Jamadar Levies and 25 persons were arrested. The Naib Tehsildar, Pishin, started investigation in the case and he submitted his report on the 16th of August 1967, to the E. A. C. (Magistrate First Class) Pishin. On the 18th of August 1967, the E. A. C. Ordered that the report of Naib Tehsildar was not complete and satisfactory and he directed the Tehsildar to investigate further in the matter.
3. On the other hand, the accused party filed a com--plaint under section 307/326, P. P. C. On the 2nd of September 1967, in the Court of the E. A. C. (Magistrate 1st Class) Pishin. This was also sent to the Tehsildar for inquiry.
4. The learned Sessions Judge, Quetta granted bail to Syed Gut Muhammad, Syed Haider Shah and Syed Mubarik Shah on the 21st of September 1967. The learned E. A. C. Pishin vide his order dated the 22nd of September 1967, after examin--ing this case, granted bail to Syed Sher Muhammad, Abdul Rahman and Syed Muhammad Azam.
5. On the 16th of January 1968, Quetta-Kalat Ordinance It of 1968 was promulgated in the region and the learned E. A. C. Pishin acting as Deputy Commissioner directed the registration of the case under the new Ordinance against the accused persons on the 30th of March 1968. On the 22nd of April 1968, an application was submitted on behalf of the accused to the learned F. A. C. That they should be tried on the regular side and that he should proceed with the inquiry of the case. Since he had already passed the order of registration of the case under the new Ordinance on the 30th of March 1968, the learned E. A. C. Wrote a letter to the District Magistrate, Quetta, on the 1st of May 1968, asking from him his opinion in the matter. The learned District Magistrate Quetta-Pishin, issued notice to the parties and after hearing them he dismissed the application of the accused party for their trial under the ordinary law on the 16th of April 1969.
6. Four-fold objections were raised against the -passing of these orders:-
(1) That the District Magistrate had no jurisdiction to pass the impugned order.
(2) That the E. A. C. Having taken cognizance in the matter under section 190(1)(b) of the Code of Criminal Procedure long before the proclamation of Ordinance II of 1968, these proceedings were, therefore, exempted from the apple--cation of the new Ordinance under section 82 of the said Ordinance.
(3) That the E. A. C. Did not hear the accused persons before registering the case under new Ordinance on the 30th of March 1968, and the order is violative of principles of natural justice.
(4) That Ordinance II of 1968 is not only a procedural law but a substantive law which cannot be applied retros--pectively unless it is specifically so mentioned in the Ordinance.
7. Before dealing with the objections raised on behalf of the petitioners, a preliminary objection was raised by learned counsel for the complainants that revision under section 439, Cr. P. C. Was not competent. A similar question was examined by their Lordships of the Supreme Court in P. S. L. A.
No. K-19 of 1968 (State v. Allah Rakhio Khan) on the 4th June 1963. While rejecting the plea of the State their Lordships observed as under: --- "In essential respects, the jurisdiction sought to be exercised here is no different from that available in the writ jurisdiction to quash an order which is ultra vires. The action over which the High Court has purported to exercise control is an action in limine qua the diversion of a matter, of which the ordinary Courts are seized, into the special jurisdiction under the Frontier Crimes Regulation but until the matter has so passed, the action of the District Magistrate is, prima fade an action on an authority under the Criminal' Procedure Code, and is subject to revision by the High Court."
8 The learned Assistant Advocate-General as well Malik Karam Elahi Khan Advocate appearing on behalf of the other respondents frankly conceded that the District Magistrate has no jurisdiction to pass the order. Once he has delegated his powers to the E. A. C. He alone was competent to pass the order unless the case is transferred to the District Magistrate by the Commissioner. The learned E. A. C. Could not refer the case for advice to the District Magistrate. None of the parties made any application to the District Magistrate either under the Ordinance or under the ordinary law. The order passer by the District Magistrate, therefore, is one without law full authority.
9. The offence took place on the 29th of June 1967, on which day the accused were arrested. In view of section 167 of the Code of Criminal Procedure these persons had to be produced before a Magistrate within 24 hours and had to be remanded to police custody for a number of times until they were released on bail on the 22nd of September 1967, as no remand could exceed beyond fifteen days as provided by section 344 of the Code of Criminal Procedure. On each occasion the learned Magistrate had to give reasons for the grant of remand. The order has to be made by a Court and reasonable cause for remand would be done if the Court considers that sufficient evidence has been obtained which raises a suspicion that the accused may have committed an offence and it further appears likely that further evidence may be obtained by a remand it is thus legitimately presumed that a number of remand orders must have been passed by a Court. In these circumstances, it cannot be said that cognizance had not been taken in the matter under section 190 (1)(b) of the Code of Criminal Procedure long before the proclamation of Ordinance II of 1968. It is the application of the mind of a Court to the facts of a particular case which may amount taking cognizance in the matter. When the remand is applied for, for the first time, a report is submitted by the Investigating Agency obviously under section 167 of the Code of Criminal Procedure, that investigation cannot be com--pleted within 24 hours and there are grounds for believing that the accusation or information is well-founded against the persons C arrested. This information has to include copies of the entries in the diary relating to the case. These papers along with the accused have to be transmitted to the Magistrate. Each time when a request for remand is made to the Court under section 344, Cr. P. C., the Court has to apply its mind to the evidence already obtained against the accused and has to be satisfied for the grant of the custody of the accused to the police for the collecting of further evidence in the case. Obviously, this can be done when the Court has taken cognizance of the offence. By virtue of section 170 of the Code of Criminal Procedure, if the Station House Officer finds that there is suffi--cient evidence against an accused person, he sends his report along with the accused to the Magistrate empowered to take cognizance of the offence for his commitment or trial. It is not necessary that cognizance of an offence be taken on a police report contemplated by section 173 of the Code of Criminal Procedure after the completion of the investigation. The Magistrate can proceed against the accused when he receives the report under section 170 of the Code of Criminal Procedure. The remand order can only be made by a Magistrate who has the jurisdiction in the case and only when the police has obtained sufficient evidence against the accused. It is thus clear that the cognizance of the offence which a Magistrate is empowered to take under section 190 (1)(b) of the Criminal Procedure Code, does not necessarily mean that it is restricted only to those cases where the police submits complete challan under section 178, Cr. P. C. I am of the opinion that the object o sending the accused to a Magistrate under section 170, Cr. P. C is not merely to obtain remand order under section 344, Cr. P. C., o but the Magistrate may, if he so likes, take cognizance of the offence. He may or may, not commence the inquiry or trial till the final completion of the investigation, but there is nothing wrong in the Magistrate's taking cognizance of the offence where sufficient evidence has been obtained. Reasonableness of taking cognizance in the presence of reasonable grounds about the accused having committed the offence may not be so apparent. To my mind there can be such reasonable grounds for suspicion only when there is some good evidence against the accused. This evidence may not be considered sufficient to bring home E the guilt to the accused, but the police can never be the final Judge of sufficiency of the evidence obtained during the investigation. It is the function of the Court to l determine it.
10. It is presumed that all official acts are done in accordance with the law. It cannot, therefore, be said that the accused had not at all been produced before any Magistrate for taking th---remand for any period in between the time of their arrest and the release on bail and the Court never did apply its mind to the question of sufficiency of evidence in the case. It is a pre-requisite for making the remand order. The mere fact that the investigation was not completed or the E. A. C. Directed that further investigation is necessary, does not neces--sarily mean that the Magistrate never took cognizance of the offence. In this view of the matter, it is quite obvious that the order passed by the E. A. C. On the 30th of March 1968, F taking cognizance of this old 'offence under the new Ordinance is one without lawful authority, since the Magistrate had already taken cognizance of the offence under the normal law These proceedings were thus protected by virtue of section 32 of~ Ordinance II of 1968.
11. Adverting to the objection that the learned E. A. C. Had not heard the accused persons before ordering the registra--petition of the case under the new Ordinance, learned counsel appearing on their behalf vehemently argued that the order is violative of principles of natural justice. He relied on Jan Muhammad v. Hone Secretary, Government of West Pakistan and others (PLD 1968 Lah.
1455), in which a reference made under section 3 of the West Pakistan Criminal Law (Amendment)
Act, 1963, by the Commissioner to the Tribunal without hearing the accused was held to be illegal.
The Full Bench judgment of this Court had the approval of the Supreme Court in Home Secretary, Government of West Pakistan and others v. Jan Muhammad and another (PLD 1969 SC 333).
Though section 3 of the West Pakistan Criminal Law (Amendment) Act does not specifically provide hearing by the Commissioner before reference to the Tribunal, as in the instant case, it was, therefore, imperative for the Magistrate to have heard the accused whose right of trial under the normal law he intended to take away by his order.
12. I would now deal with the last submission of the learned counsel for the petitioners regarding the retroactivity of the Ordinance. Admittedly the offence took place on the 29th of June 1967 and the Ordinance was promulgated on the 16th of January 1968. Before the promulgation of this Ordi-- nance Quetta and Kalat Civil and Criminal Law Ordinance III of 1965, was in force in the area. The new Ordinance specifi--cally provides not only the procedure for the trial of offences but the law is substantive in its nature when it provides punish--ments for various offences. Section 14 of the said Ordinance f deals with cases of adultery and provides punishment for the same. Even otherwise the Legislature clearly intended to apply the law prospectively. For this purpose reference be made to section 33 of the Ordinance which provides that nothing in this) Ordinance shall affect the continuation of any proceedings by or before any Magistrate, Court or other authority in respect of any offence taken cognizance of before the commencement of this Ordinance. There can thus be no dispute that the Ordinance in question is a substantive law and is not retroactive in its origin. It admittedly takes away the right of trial from the accused by normal Courts and the right of appeal to High Court and Supreme Court if they are tried and convicted under this Ordinance. Reference is made to interpretation of Laws by Crawford where it is stated that as a general rule, legislation which relates solely to procedure or to legal remedies will not be subject to the rule that statutes should not be given retro--active operation. Similarly, the presumption against retrospective construction is inapplicable. Therefore, in the absence of a contrary Legislative intention, stat4tes pertaining solely to proce--dure or legal remedy may affect a right of action no matter whether it came into existence prior to or after the enactment of the statute, Similarly, they may be held applicable to proceedings pending or subsequently commenced. In any event, they will at leas; presumptively apply to accrued and pending as well as to future actions Yet a statute which relates to procedure or to legal remedy if it interferes with vested rights or impairs the obligations of contracts will be subject to the general rule, already discussed, against retroactive operation.
Such a statute, even though it relates to procedure and presumptively is entitled to retroactive effect, should not be permitted to cut of existing rights without, at least allowing the litigants a reasonable time within which to protest themselves against the restrictions imposed by the super- -seding status In Hutchinson v. Jauncey ((1950) All E L R 165), the question re--garding the retrospective effect of a statute in regard to pending proceedings has been examined. Where existing rights were likely to be disturbed the finding was that such a law could not be retrospective. The dictum of the Supreme Court of Pakistan in Adnan Aizal v Capt. Sher Afzal (PLD 1969 SC 187) is also against the retros--pective operation of a statute which touches some rights in existence at the time of passing of such legislation. Their Lord--ships of the Supreme Court in detail examined the proposition and commented at length upon, matter of procedure. The obser-- vation is reproduced: --- "On the other hand, if it be more than a matter of procedure, if it touches a right in existence at the passing of the Act; then in accordance with a long line of authorities extending from the time of Lord Coke to the present day, the legislation would not operate retrospectively, unless the Legislature had either `by express enactment or by necessary intendment" given the legislation retroactive effect."
13. Coming to the conclusion, as I did earlier, that the Ordinance is not only a procedural law, the matter now goes a step further and thus it is clear that the Magistrate having taken cognizance of the offence committed in Tune 1967, long before the coming into force of Ordinance II of 1968, was not empowered to take cognizance of this offence under Ordinance II of 1968. A question will now arise whether the Magistrate had taken cognizance under the normal law or under Ordinance III of 1965, which was then in operation in the area. Surely, the offence with which we are dealing is one which was described as a "scheduled offence" in Ordinance III of 1965 and the District Magistrate had the exclusive jurisdiction over "scheduled offences", whether committed before or after the coming into force of this Ordinance III of 1965, but section 3 (3) specifically provided that the District Magistrate shall take cognizance o the offence from the scheduled offences after giving the parties an opportunity of being heard. Unfortunately, the order passed by the E. A. C. Acting as a District Magistrate on the 30th of March 1968, was not passed after hearing the accused persons and, therefore, it suffers from this lacuna and thus could not be treated as a valid order even under Ordinance III of 1965.
14. The upshot of the` discussion made above is that both the orders passed by the District Magistrate as well as the E. A. C. Acting as District Magistrate directing the registration of this case under Ordinance II of 1968, are without lawful authority and these invalid orders are liable to be set aside in the exercise of jurisdiction under section 439 of the Code of Criminal Procedure. I order accordingly.
S. A. H.