On 12th October 1977, a case under section 307/326/109, P. P. C. Was registered against the applicants and their accomplices at Chaman. Precisely the allegations were that the applicants and their accomplices had tried to forcibly occupy the agricultural land belonging to the complainant party whereupon a fight ensued and Abdul Samad, a member of the complainant party, was injured by a gunshot allegedly fired by Qurban, who is absconding. The report of the offence was lodged by Naib-Tehsildar, Chaman who also arrested the applicants on the same date. The case is now under investigation. Nearly two months after the registration of the case, a private complaint to the same effect was also filed by one of the complainants before the Assistant Commissioner., Chaman acting under the delegated powers of Deputy Commissioner, Chaman who referred the same for investigation and report to Naib-Tehsildar, Dobandi, vide order dated 5th December 1977.
2. On 18th December 1977, the applicants approached this Court for bail and were successful in obtaining ad interim bail. Today the case has come up for the confirmation of bail, which is strenuously opposed by learned Assistant Advocate-General.
3. The main objection to the confirmation of bail is with regard to the jurisdiction of this Court, which according to learned A: G. Was ousted on 5th December 1977, as soon as the Assistant Commissioner, Chaman directed enquiry in the case on the basis of said private complaint which order according to him, is an order of cognizance within the meaning of section 4 of the Criminal Law (Special Provisions) Ordinance II of 1968 (hereinafter called the "Ordinance") and causes ouster of jurisdiction of all ordinary Courts including this Court. On the other hand Mr. Munawar Ahmed Mirza, the learned counsel for the applicants contends that the said order can be deemed to be an order taking cognizance of the offence as envisaged by section 4 of the Ordinance as the case was already under investigation when this order was passed and the stage of taking cognizance would arise when complete or incomplete challan is put up before the Deputy Commissioner by the investigating agency. Hence according to him the order in question having been passed upon an uncalled for and irrelevant complaint made during the pendency of the case is only a miscellaneous order and the jurisdiction of this Court is therefore intact and shall remain so until the case is referred to a tribunal under section 5 of the Ordinance after taking cognizance in the manner hereinbefore mentioned.
4. In the light of the contentions of the learned counsel the questions that arise for determination are as under :-
(a) From what stage the proceedings would be deemed to have commenced in a case under the Ordinance so as to exclude the operation of the Code of Criminal Procedure (hereinafter referred to as the "Code").
(b) What was an order of 'cognizance' and on which stage of a case triable under the Ordinance it could be passed, and
(c) Whether an order passed by the Deputy Commissioner directing enquiry in the case on a private complaint during the pendency of the investigation by regular investigating agency could be regarded as an order of "cognizance" within the meaning of section 4 of the Ordinance.
5. Since important questions of law likely to affect a large number of cases falling under the Ordinance were involved, I requested Mr. I. H. B. Hanafi and Mr. Aslam Chishti to appear as amicus curiae and assist the Court which they very ably did. .
6. Before proceeding with the discussion on the above points I deem it necessary to reproduce below the relevant parts of sections 3, 4 and 5 of the Ordinance for convenience of reference; "Section 3. Trial of scheduled offences.-(1) Notwithstanding anything contained in any other lave for the time being in force, no scheduled offence shall be tried except in the manner provided by this Ordinance.
(2) Except as otherwise provided in this Ordinance, the provisions of the Evidence Act, 1872 (1 of 1872), and the Code of Criminal Procedure, 1898 (V of 18981, shall not apply to any proceedings under this Ordinance.
Section 4. Cognizance of scheduled offences.-( PLD 1968 Lah. 1455) The Deputy Commis--sioner shall have exclusive jurisdiction to take cognizance, of a scheduled offence committed within the district to which he is appointed for the time being ; and such cognizance may be taken by him.
(a) upon receiving a complaint of facts which constitute such offence ;
(b) upon a report in writing of such facts made by a Police Officer ; or
(c) upon information received from any person other than a Police Officer or upon his own knowledge or suspicion that such offence has been committed Provided that cognizance of an offence under section 14 shall not be taken except upon a complaint made by the husband of the woman, or in his absence, by some person who had the care of such woman on his behalf at the time when such offence was committed.
(2) When the Deputy Commissioner takes cognizance of a scheduled offence under clause (c) of subsection (1), he shall, before constituting a Tribunal under section 5, inform the accused that he is entitled to have the case decided by another Deputy Commissioner, and if the accused, or any of the accused, if there be more than one, objects to the case being decided by the Deputy Commissioner who has taken cognizance, the matter shall be reported to the Commissioner, who shall transfer the case to another Deputy Commissioner, and the Deputy Commissioner to whom the case, is so transferred shall proceed in the matter, provided in section 5."
Section 5. Question of guilt or innocence to be referred to Tribunal.-The Deputy Commissioner taking cognizance of a scheduled offence shall constitute a Tribunal in accordance with section 6 and refer the question of the guilt or innocence of the person or persons accused of such offence to the decision of such Tribunal."
Section 3 of the Ordinance deals with the trial of scheduled offences as is evident from sub- paragraph (1) of this section. Sub-paragraph (2) provides that the provisions of the Evidence Act and the Code shall not apply to any proceedings under this Ordinance. I propose to discuss the meaning and scope of the term "proceeding" used in section 3 in the light of the scheme of the Ordinance, so as to determine the stage from which the application of the Code and Evidence Act ceases and a case can be deemed to have been drawn within the ambit of the Ordinance. This term has not been defined in the Ordinance or the Code. However we find a highly valuable discussion on this word held in the light of its various dictionary meanings and the case law in Jan Muhammad and another v. Home Secretary, Government of West Pakistan and others (1). It is a Full Bench case emanating from a matter under West Pakistan Criminal Law (Amendment) Act, 1963 which is also a special law and closely resembles to the Ordinance in its scheme. The relevant discussion on the subject is reproduced below with advantage :- "According to the Shorter Oxford Dictionary "proceeding" means to move onward, to go on with an action, a discourse, an investigation. It further means: the investigation or carrying on of an action at law, a legal action of process, any act done by an authority or a Court of law, any step taken in a case by either party." In Shat Kirpal Singh v. Risuldar Ajalpal Singh and others a Full Bench of the High Court of Judicature at Lahore observed that the word "suit", proceeding and other words of similar connotation have different meanings in different statutes and it is not possible to lay down a general rule of interpretation which may be applicable to all cases. In each particular case the question has to be decided in reference to the context and that meaning is to be preferred which will best fit in with it." In Stroud's Legal Dictionary Vol. III, page 1561, it is pointed out that "proceeding" may mean according to the context either "any action" or "any proceeding in the action". According to Emperor v. Fazalur Rehman and others the term "proceeding" includes: "the whole bundle of actions taken and recorded by the Court from the moment of taking cognizance of the case until its disposal." According to Prem's Judicial Dictionary, Vol. III, 1310 the word "proceeding" can be given a narrow or a wide import depending upon the nature and scope of an enactment in which it is used and in the particular context of the language of the enactment in which it appears. It may in some enactments mean an action or that which initiates an action and in other enactments it may also mean a step in an action." It is further mentioned therein that in Pryor v. City Offices Co., the phrase "in any proceeding" was construed as a general phrase meant to cover every step in an action and is equivalent to the word "action" In R. S. C. Order LXIV rule 13, 'proceeding' is used as meaning "a step in an action, i.e., semble attempt 'towards' and not `after judgment' Houlstom v.
Woodward. In the American publication 'Words and Phrases' at page 83, the term 'proceeding' is defined: "The term 'proceeding' is a very comprehensive term, and generally speaking, means a legal right, and hence it necessarily embraces the requisite steps by which judicial action is invoked." A 'proceeding' would include every step taken towards the further progress of a cause in Court or before a Tribunal, where it may be pending. It is the step towards the objective to be achieved, say for instance the judgment in a pending suit. The proceeding commences with the first step by which the machinery of the law is put into motion in order to take cognizance of the case. It is indeed a comprehensive expression and includes all possible steps in the action under the law, from its commencement to the execution of the judgment."
From the above discussion, it is evident that among others the word proceeding would require such construction which may be best suited and best fitted in the scheme of a particular enactment. Generally it would mean "all what is done in a case" and would include every step and transaction commencing from the first step whereby the machinery of law is put into action up to the stage of the case where it concludes and doe not require any further action. This last stage would not necessarily mean the stage of judgment, for, it may further include all steps taken till the stage of the execution of the judgment. It would be relevant to mention here that the Ordinance of 1,963 also made a provision only for the trial of offences like this Ordinance and in that Ordnance also the first step taken towards the disposal of the offence commenced from the taking of cognizance of the offence as is the case here. Moreover that Ordinance also did not provide for the pre-trial stages of the case and the first step that was to be taken to draw a base within the ambit of the Ordinance commenced with the taking of cognizance. Accordingly in the light of the scheme of the Ordinance the interpretation of the word `proceeding' given in the case of Emperor v. Fazlur Rehrhan and others (AIR 1937 Pesh. 52) above, i.e. "whole bundle of actions taken and recorded by the Court from the moment of taking cognizance of the case until its disposal" would be most relevant. In order to understand the meaning and scope of this term as used in sections 3 and 28 of the Ordinance with further accuracy, we may better advert to the preamble of the Ordinance as well which is as under; "An Ordinance to make a special provision for trial of certain offences in certain areas of West Pakistan."
From the recital of the preamble it is manifest that the Ordinance provides for the trial of offences, so that proceedings in a case under the Ordinance can only be taken to cover that aspect of the case which deals with trial of cases. Hence, all what is done in this regard starting from the commencing point of the Ordinance with the taking of cognizance of offence upto the stage of the execution of the judgment is proceeding. It is thus obvious that the moment cognizance of an offence is taken by the District Magistrate acting under the Ordinance its operation commences to the exclusion of the Code and Evidence Act, by virtue of sections 3 and 28 of the Ordinance. This discussion provides answer to the first question that I had formulated above.
7. The next question that arises for consideration is as to what is meant by the word "cognizance" and at what stage of a case' it is taken or can be taken in the Ordinance. What is 'cognizance of an offence is again a decatable point as this term has neither been defined in the Ordinance nor in the Code. All what is said in the Ordinance is that cognizance of an offence can be taken in the following three manners :-
(a) upon receiving a complaint of facts which constitute such offence ;
(b) upon a report in writing of such facts made by Police Officer ; or
(c) upon information received from any person other than a Police Officer or upon his own knowledge or suspicion that such offence has been committed :- Section 190 of the Code which is in pari materia with section 4 of the Ordinance also provides similar conditions for taking cognizance of an offence. It says that a District Magistrate, Sub- Divisional Magistrate or any Magistrate of First Class specially empowered in this behalf could take cognizance of any offence (a) upon receiving a complaint of facts which constitute such offence,
(b) upon a report in writing of the facts made by any Police Officer, and (c) upon information received from any person other than a Police Officer or upon his own knowledge or suspicion that such offence had been committed. The Code has made ample provision for the investigation of the cases by the Police and also for enquiries in private complaints, but the Ordinance at the appropriate place. Presently I would examine the meaning of the word cognizance, occurring in the Ordinance and the Code with reference to the stage when it can be taken in the cases covered by the Ordinance and would also discuss the case law on the point. According to the Concise Oxford Dictionary "cognizance" means being aware, notice, sphere of observation or concern, and taking of cognizance means "attend to", not allow to go unobserved, or dealing with a matter legally or judicially. In Wharton's Law Lexicon the word "cognizance" has been defined as knowledge upon which a Judge is bound to act without having it proved evidence. The Shorter Oxford English Dictionary defined this word when used in legal parlance to mean "knowledge as attained by observation or information, perception, notice, observation or right of dealing with any matter judicially. In Ballentines Law Dictionary, "cognizance" is defined to mean acknowledge--ment, recognization or the assumption of jurisdiction.
8. Adverting to the case-law on the point ; Mr. I. H. B. Hanafi, placed before me a large number of cases dealing with the subject. In Ghulam Rasool v. Crown (PLD 1949 Bal. 17) the Judicial Commissioner, Baluchistan with reference to section 190 of the Code held that the Magistrate takes cognizance of an offence when he applies in his mind to the suspected commission of offence. In Badsha Mia and others v. The State (PLD 1958 Dacca 598) we find elaborate discussion on this point. It was a case emanating from a private complaint and it was held by the Division Bench of Dacca High Court with reference to sections 190 and 200 of the Code that "Magistrate takes cognizance only if he applies his mind to proceed under section 200". In this case Superintendent and Remembrancer of Legal Affairs, West Bengal v. Abani Kumar Banerjee (52 Cr. L J 806), P. R.
Chari v. The State of Uttar Pradesh (52 Cr. L J 775) and Bharat Kishore Lal Singh Deo v. Judhistir Modak (30 Cr. L J 1056) which exhaustively deal with the term in question were also taken into consideration. From the discussion on the point in this case it transpires that only when a Magistrate after having gone through the complaint, the reading of which should necessarily constitute an offence as is a prerequisite both under section 4(1) of the Ordinance and 190 of the Code, makes up his mind to proceed either to refer it for enquiry and report under section 200 of the Code or proceeds with the trial of the case himself by issuance of process to the accused only then he would be said to have taken cognizance of offence as in that event it is evident that he did so after consciously applying his mind to the facts narrated in the complaint. He may in case he is satisfied that circumstances calling for any action including issuance of process immediately against the accused do not exist he may postpone the issuance of the process and order further enquiry in the matter. In such a case it would be deemed that he has deferred the question of taking cognizance for a further date. For further enquiry he may make a probe in the case himself or refer the case to some other Magistrate or to police agency. The crux of the matter, however, that the Magistrate is not in all circumstances bound to take 'cognizance' of the offence as soon as a complaint is placed before him though he may do so if he feels satisfied that the facts therein do constitute an offence, having been committed within the limits of his territorial jurisdiction. If he is of such view he may immediately take 'cognizance' and proceed further in the matter in the manner discussed above. If he is not so satisfied and considers the complaint to be false or frivolous he candrop the idea of proceeding further and reject the complaint. That would~ mean that he declined to take cognizance of the offence after application/ of mind to the facts of the case which is a must in all circumstances. An this connection Abdul Haleem v. Raja Qurban Hussain (PLD 1965 Lab. 570) may also be mentioned. It is another case emanating from a private complaint. In this case the Magistrate upon receiving the complaint recorded the statement of the complainant under section 200 of the Code and then ordered that the papers be forwarded to the police for necessary action. The view taken was that the Magistrate after recording the statement of the complainant took 'cognizance' of the offence and being satisfied that sufficient material existed on record to justify taking of 'cognizance' assumed jurisdiction in the matter and then referred the case to the police for further enquiry. The procedure so adopted was not considered against law. It is thus evident that in the case of a private complaint as also in other cases it always the satisfaction of the Magistrate about the commission of the offence and his decision to proceed in a particular way which can be termed as conscious application of mind to the facts of the case and may be followed by an order of "cognizance" in suitable cases. In Muhammad Nawaz Khan v. Noor Muhammad and others (PLD 1967 Lab. 176) it was held that a Magistrate will be deemed to have taken cognizance of the offence only when he has decided to proceed against the offender with a view to determine his guilt and such stage would arrive in a case investigated by the police only when the police had submitted a challan under section 173. From this case also it is evident that taking of cognizance was not a routine affair but it implied conscious application of mind with a view to proceed with the case in a particular way. Now precisely what is the criterion to Judge in a case as to whether a particular order passed on a private complaint immediately after its submission or after some enquiry or upon the receipt of police challan or challan by similar agency including his own knowledge or suspicion, was in fact an order of cognizance or was an order of miscellaneous or routine type. In my humble opinion three things would help us to know the mind of the Magistrate to discover the nature of such an order. The first thing that shall have to be seen is as to what was the stage of the case and secondly whether any material was placed before the Magistrate or could possibly be placed before him at that stage, and thirdly the language of the order recorded by him. If the order in question was passed at a stage when it could actually be passed and also it was after conscious application of mind to the material placed before him and the language of the order also disclosed such intention of the Magistrate then it is to be regarded as an order of cognizance. About the stage of case I would be discussing later. On the contrary such order, even if it purports to be an order of cognizance, which could not be passed as the stage for passing such order had not arrived yet would not be the order of cognizance. This test is necessary to be applied to the cases covered by the Ordinance as it has come to the notice of the superior Courts on a number of occasions that colourful or mala fide orders were passed by Deputy Commissioners at irrelevant stages of a case only to oust the jurisdiction of ordinary Courts in the matters of bail, etc. A safeguard against such orders is therefore necessary.
Resuming the discussion on the meaning of the word 'cognizance' I may refer to Allah Dad Khan and another v. Mumtaz Hussain (PLD 1969 Quetta 49) which is a caseunder the Ordinance and specifically deals with section 4 thereof. In this case it was held that "the expression 'taking cognizance of an offence' has neither been defined in the Code nor the Ordinance. Cognizance is taken of an offence when a Court, competent for the purposes applies its mind to the evidence with the intention of initiating judicial proceedings against an offender in respect of an offence . . . . : ' In this case the above referred Dacca case was also taken care of and quoted with approval. Next important case in the line also arising out of the Ordinance that was placed before me was Ali Sher and others v. The State (PLD 1970 Kar. 790). The main question that arose for adjudication in this case was as to what was the stage when the Code ceased to operate in the cases triable under the Ordinance, and with regard to this aspect of the case it was held that no sooner the cognizance of an offence was taken by the Deputy Commissioner, the case was drawn within the ambit of the Ordinance and by virtue of section 28 thereof the operation of the Code came to a close. In these circumstances it was held that a bail application submitted under section 498 of the Code after the taking of cognizance under Ordinance was liable to dismissal for want of jurisdiction. With respect to the act of taking cognizance the relevant observation is as under :- "Respectfully following the above interpretation of the phrase taking cognizance it seems to me that the moment a case involving the alleged commission of scheduled offence is placed before the Deputy Commissioner and he takes judicial notice of the facts constituting, such offence, the case is drawn into the ambit of the Ordinance for the reason that the Deputy Commissioner has taken cognizance thereof, within the meaning of section 4 of Ordinance."
In this case the following important discussion with regard to the meaning of this term finding place in Gopal Marwari v. Emperor (AIR 1943 Pat. 245) was quoted with approval;--- "Taking of cognizance does not involve any formal action or indeed action of any kind but occurs as soon as, the Magistrate, as such, applies his mind to the suspected commission of an offence.
The word 'Cognizance' is used in the Code to indicate the point when a Magistrate or a Judge first takes judicial notice of an offence . . . . ."
In Ali Sher's case it was further held that the appointment of tribunal for the trial of the case may or may not be a simultaneous act. However, with regard to this aspect of his Lordship's view I may humbly add that the Deputy Commissioner should appoint the tribunal immediately after he has taken cognizance of the offence or within a reasonable period thereafter as otherwise an accused person who has been refused relief in the matter of bail by the Courts functioning under the Ordinance is left with absolutely no remedy and prolongation of the period is between the act of taking cognizance and the appointment of tribunal for the trial of cases would prejudice the interest of the accused and in certain cases it has been found that such period was unjustifiably prolonged.
Adverting to the meaning of word cognizance again I may refer to Syed Muhammad Azeem v. The State and others (PLD 1970 Quetta 27). In this case it was held that the powers of the Magistrate taking cognizance were not restricted to the cases where the police submitted its challan under section 173 but if the Magistrate considered that the available evidence was sufficient he could take cognizance of an offence even at a stage when the police had sought remand of the accused and investigation was not yet complete. In this case again emphasis is on the fact that the taking of cognizance depended upon the consideration of the material brought before the Magistrate or collected by himself and then deciding as to whether a case necessitating the trial of the offender existed or not. From the above discussion it is apparent that the word 'cognizance' means taking judicial notice of an offence and when a Magistrate takes notice of an offence he consciously applies his mind to the facts of the case with a view to find if a case necessitating trial of offender exists or not. This application of mind is naturally on the basis of the material either collected by himself if it was case of private complaint or was put up under section 173 by the police. The third event of taking 'cognizance' can be on the basis of his own knowledge or suspicion that an offence was committed. In such a case also he would proceed almost in the same manner as he would have proceeded in a case arising out of a private complaint. On what stage and on what basis such application of mind can take place would be a question which I would presently attempt to deal. Since under section 4 of the Ordinance, as we have already seen, the cognizance can be take firstly on the basis of a complaint of facts constituting an offence secondly upon the report in writing by the Police Officer, and thirdly upon the information, knowledge or suspicion of the Magistrate as is the case under section 190 of the Code, therefore, in the light of the above discussion it can be said without any fear of contradiction that the District Magistrate can take cognizance (a) if it is a private complaint/and he is satisfied that it discloses prima facie the commission of the offence and then proceed further in the following three manners :-
(a) he may himself try the case, or
(b) entrust the case to some other Magistrate for enquiry, or
(c) send it to the police within the meaning of section 156(3) of the Code, and
(b) If it is a police case on the basis of a complete or incomplete challan submitted to him by the police and (c) in cases where he wishes to proceed upon his own knowledge or information or suspicion he would reduce into writing necessary details and after giving a choice to the offender to have the case decided by him or by some other District Magistrate as provided by subsection
(2) of section 4 of the Ordinance he may either (i) refer the case to the police for further investigation, etc. Or may refer it to some other Magistrate or send it to the tribunal for trial directly.
That is to say that in the cases falling under category 'C' also he would proceed in either of three manners in which he would have proceeded in a case emanating from a private complaint.
Though the cases falling under this category are not identical to the cases emanating from a private complaint but as they are distinguishable from the cases in which police makes a report and enters upon investigation, therefore they can be regarded to have a resemblance of cases falling under category (a) and similar procedure can be adopted for their disposal also.
9. Mr. Aslam Chishti, convassed with great emphasis that all the three sources from which three different categories of cases arises, as described in section 4 of the Ordinance, are distinctly separate and indepen--dent of each other and a case could not belong to more than one category, i.e. a case would be based either on a private complaint or on a police report or on Magistrate's own suspicion etc., but it cannot be so that a case may be based on a private complaint as well as a police report as is the effort of learned A. A.-G. To prove in the instant that is, although the case is already with the investigation agency and the stage for taking cognizance would arise when that agency has put up a complete or incomplete challan or the material collected by it is placed before the Magistrate for application of mind but during the pendency of such investigation a private complaint to the same effect could also be lodged to form basis for taking cognizance. I entirely agree with Mr. Chishti. In my mind it is quite clear that since the investigating agency of the Government is already investigating into the offence the stage of taking cognizance would arrive when a complete or incomplete challan or some material is otherwise submitted to the District Magistrate in any shape or form as a result of investigation, giving him an opportunity to apply his mind to the sufficiency or otherwise of the material in order to make up his mind whether a case was made out or not, or whether it was necessary to allow further material to be collected or to drop the proceedings. The private complaint in such circumstances is simply to be treated as a miscellaneous application an order of investigation passed thereon a miscellaneous order, for there can neither be two orders of cognizance i.e. One which would be passed on the basis of the examination of the material collected by the police in the case and the other order already passed on the complaint nor can there be two different independent forums for the investigation of a case at time. This view finds answer for the third question framed by me above In this regard Mr. Yousaf Chaudhry's argument that the order passed on the complaint is order of cognizance is wholly without substance. He referred to me State v. Shah Muhammad and 48 others (PLD 1972 Quetta 76) and argued that in this case as well the report of the offence had been lodged with the City Police Station, Quetta which was being investigated into but subsequently the Magistrate passed the following order treating the case to be one falling under paragraph `c' of section 4 of the Ordinance (case arising from own knowledge etc). It was held to be a colourful order by the Sessions, Judge, Quetta passed only to oust the jurisdiction of ordinary Courts. Accordingly he granted bail to the accused but a Single Judge of former Sind and Baluchistan High Court held that such order could be regarded as an order of cognizance barring the jurisdiction of the ordinary Courts. Consequently the order of bail passed by the Sessions Judge, Quetta was vacated :- "Whereas it has come to my knowledge that a clash between the members of two political parties, viz. Pakhtoon Zulmai and Pakhtoon Ghazi took place on 19-5-1972, as a result of which one person lost his life and two were injured by bullet shots. Since the alleged occurrence has taken place within my jurisdiction as Deputy Commis--sioner under the West Pakistan Ordinance II of 1968, and whereas the offences are scheduled offences; now therefore, I Mir Nausherwan Khan, P. S. C., Deputy Commissioner (under Ordinance II) hereby take cognizance of the offence under section 4(l)(c) of the Ordinance No. II of 1968."
I have carefully examined the circumstances of this case and I am clearly of the view that so- called order of cognizance passed by the Magistrate was a colourful and mala fide order and had been passed with in-genuine intention of causing ouster of jurisdiction of the ordinary Courts. It is so because the case fell under paragraph (b) of section 4 of the Ordinance being a police case and enquiry was also being made by the police when this order was passed. The Deputy Commissioner could not therefore treat it to be case falling under paragraph (c) .Of section 4 of the Ordinance also and say that he had come to know about the commission of the offence, etc. And, as such, he took cognizance of the offence on the basis of his own knowledge. He should have waited till the police had put up before him complete or incomplete challan. In case he was in some hurry to draw the case within the ambit of the Ordinance be should have directed the police to expedite investigation but in no case he could by colourable exercise of his power oust the jurisdiction of the ordinary Courts. All the three paragraphs of section 4 of the Ordinance are independent and if a case falls in one category it cannot also fit into the other category. The order passed as such was colourful order liable to be struck down being without jurisdiction. To support this contention reliance can be placed on State v. Zia-ur-Rehman (PLD 1973 SC 49) and Federation of Pakistan v. Saeed Ahmed Khan and others (PLD 1973 SC 151) and matters connected therewith. Accordingly I record my respectful disagreement with the view taken in that case. I may also add that in the light of the test provided as above for judging if an order could be regarded as an order of cognizance passed under the Ordinance merely the use of the word `cognizance' at an irrelevant stage should not confuse us. It is a judicial act of great importance and can only be taken to have been accomplished when circumstances of a case justify it.
11. Now adverting to the question as to which stage would be for the ouster of the jurisdiction of the ordinary Courts in the Ordinances cases it can be safely said, following the view taken in All Shar's case that as soon as the cognizance of an offence has been taken the Code and I Evidence Act cease to operate. As to when in cases falling under three difference categories namely paragraph A, B and C of section 4 of the Ordinance cognizance can be taken enough has been said already.
However to sum up the discussion on this point I may once again mention that in a case (a) emanating from a complaint when complaint is submitted or afterwards if taking of cognizance is deferred till the collection of further material (b) in case of police report when material is brought before the Magistrate in the shape of complete or incomplete challan, or in any other shape or under any name, and (c) in cases based on own knowledge etc. When the Magistrate either sends the case to the police for investigation or treats it in a manner as if it were a private complaint, These are the stages when cognizance of an offence can be taken or would be deemed to have been taken if other prerequisites were available and from this stage the case would be deemed to have been drawn within the ambit of the Ordinance, excluding the governance of the case by the Code.
12. As far as the effect of the private complaint made during the pendency of investigation of the case by the police is concerned I have already made observations that it is absolutely of no consequence. Such document can at best be referred to the investigating agency to form part of the existing record and can be pressed into service in case it discloses any new fact or the name of any new offender, etc. However it has no separate entity in such circumstances and no order of cognizance can independently be based upon it.
13. About the pre-trial stage, suffice it to say that since the Ordinance has nothing to do with the cases till they are drawn within the ambit of the Ordinance in the manner hereinbefore mentioned, the provisions of the Code would apply in entirety in all cases in which regular police is entrusted with the investigation of the case and general principles thereof would apply to other agencies such as levies force, and the executive authorities, investigating into the cases in this province.
14. Since the confirmation of bail has not been opposed on factual grounds I feel no hesitation in allowing the application and confirming the bail already granted to the accused persons.
15. Before I part with the case I must record my thanks to both the Amicus Curiae for rendering best assistance to me in the case. I also thank Mr. Munawar Ahmed Mirza and Mr. Yousaf Chaudhry for their valuable assistance in the case.