Muhammad Asif Atta Vs The State etc

HCJDA 38

JUDGMENT SHEET

IN THE LAHORE HIGH COURT, LAHORE.

JUDICIAL DEPARTMENT

CRIMINAL APPEAL No.40068/2020 Asif Atta vs. The State, etc.

Date of hearing 15.01.2025 Appellant by Malik Shabbir Ahmad, Advocate with appellant on bail.

State by Syed Muntazir Mehdi Bukhari, Assistant District Public Prosecutor

MUHMAMMAD AMJAD RAFIQ, J:- Instant appeal assails order dated 04.09.2020 passed by learned Additional Sessions Judge- I, Lahore whereby appellant while posted as Station House Officer police station Ghalib Market, District Lahore was convicted under section 174 of Pakistan Penal Code 1860 (PPC) and sentenced to undergo seven days’ imprisonment.

2.Proceedings culminated into above sentence were in fact pending in petition for cancellation of pre-arrest bail granted to Muhammad Irfan accused in case FIR No.347, dated 02.04.2017 under section 489-F PPC, police station Ghalib Market, District Lahore when learned Additional Sessions Judge directed the appellant to produce said accused before him and on his failure many times he was issued a warning and then a show cause notice as to why he should not be sentenced to seven days’ imprisonment under section 174 PPC for not complying the orders of the Court, but the appellant again did not appear. Thus, he was convicted and sentenced as mentioned above.

3.Learned counsel for the appellant states that learned judge was not legally authorized to convict the appellant directly rather filing of complaint before the Court of competent jurisdiction was inevitable for trial of offence against accused/appellant. In this respect, he has placed reliance on case reported as “S.M. REHMATULLAH versus THE STATE” (PLD 1986 Karachi 560). Thus, prayed for acceptance

of appeal and setting aside the impugned order dated 04.09.2020. Learned Assistant District Public Prosecutor conceded the legal position as explained by learned counsel for the appellant.

4.Arguments heard. Record perused.

5.Contempt of lawful authority of a public servant & false evidence and offences against public justice are regulated under Chapters X & XI of PPC which consist of sections 172 to 190 & 191 to 229. In order to initiate proceedings in certain offences mentioned in above chapters, section 195 Cr.P.C prescribes special procedure; relevant part of section is as under;

195.(1) No Court shall take cognizance: -

(a)Prosecution for contempt of lawful authority of public servants: Of any offence punishable under Sections 172 to 188 of the Pakistan Penal Code, except on the complaint in writing of the public servant concerned, or of some other public servant to whom he is subordinate;

(b)Prosecution for certain offences against public justice: Of any offence punishable under arty of the following sections of the same Code, namely Sections 193, and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, except, on the complaint in writing of such Court or of some other Court to which such Court is subordinate; or (c) Prosecution for certain offences relating to documents given in evidence: Of any offence described in Section 463 or punishable under Section 471, Section 475 or Section 476 of the same Code, when such offence is alleged to have been committed by a party to any proceeding in any Court in respect of a document produced or given in evidence in such proceeding, except on the complaint in writing of such Court, or of some other Court to which such Court is subordinate.

Procedure for trial of offences mentioned in section 195, sub-section (1), clause (b) or clause (c) is regulated under section 476 of Cr.P.C. relevant part is reproduced;

476.Procedure in cases mentioned in Section 195: When any offence referred to in Section 195, sub-section (1), clause(b) or clause (c), has been committed in or in relation to a proceeding in any Civil, Revenue or Criminal Court, the Court may take cognizance of the offence and try the same in accordance with the procedure prescribed for summary trials in Chapter XXII.

(emphasis supplied)

Crl. Appeal No.40068 of 2020 3

This section directs summary trial under chapter XXII of Cr.P.C; but if the court considers that such offence committed before it should be tried by other court, it can forward the case to the Court having jurisdiction, as mandated under section 476-A of Cr.P.C.

6.On the other hand, offences mentioned under section 195, sub- section (1), clause (a) of Cr.P.C., (Sections 172 to 188 PPC) are variously regulated for trial. Procedure for offences under sections 175, 178, 179, 180, as well as section 228 PPC (though section 228 PPC can also be dealt with under section 476 Cr.P.C) has been given in section 480 of Cr.P.C. which is under;

480.Procedure in certain cases of contempt: (1) When any such offence as is described in Section 175, Section 178, Section 179, Section 180 or Section 228 of the Pakistan Penal Code is committed in the view or presence of any Civil Criminal or Revenue Court, the Court may cause the offender to be detained in custody and at any time before the rising of the Court on the same day may, if it thinks fit, take cognizance of the offence and sentence the offender to fine not exceeding two hundred rupees; and, in default of payment to simple imprisonment for a term which may extend to one month, unless such fine be sooner paid.

This section authorizes the Court to detain any person in custody till the rising of Court or sentence him to a fine of Rs. 200 and in default, simple imprisonment up to one month; but if for such offences Court opts to imprison the person otherwise than default of payment of fine or to impose fine exceeding Rs. 200, shall forward the case and person in custody to Magistrate having jurisdiction to try the offences as mentioned in section 482 of Cr.P.C., which is reproduced here for reference;

482.Procedure where Court considers that case should not be dealt with under Section 480: (1) If the Court in any case considers that a person accused of any of the offences referred to in Section 480 and committed in its view or presence should be imprisoned otherwise than in default of payment of fine, or that a fine exceeding two hundred rupees should be imposed upon him, or such Court is for any other reason of opinion that the case should not be disposed of under Section 480, such Court, after recording the facts constituting the offence and the statement of the accused as hereinbefore provided, may forward the case to a Magistrate having jurisdiction to try the same, and may require security to be given for the

Crl. Appeal No.40068 of 2020 4

appearance of such accused person before such Magistrate, or if sufficient security is not given, shall forward such person in custody to such Magistrate.

7.Another option for some of the offences mentioned in section 480 of Cr.P.C., is available to the Court, which is explained in section 485 of Cr.P.C., as under;

485.Imprisonment or committal of person refusing to answer or produce document: If any witness or person called to produce a document or thing before a Criminal Court refuses to answer such questions as are put to him or to produce any document or thing in his possession or power which the Court requires him to produce, and does not offer any reasonable excuse for such refusal, such Court may, for reasons to be recorded in writing, sentence him to simple imprisonment, or by warrant under the hand of the Presiding Magistrate or Judge commit him to the custody of an officer of the Court for any term not exceeding seven days, unless in the meantime such person consents to he examined and to answer, or to produce the document, or thing. In the event of his persisting in his refusal, he may be dealt with according to the provisions of Section 480 or Section 482, and in the case of a High Court, shall be deemed guilty of a contempt.

(emphasis supplied) Above section authorizes the Court to pass sentence of seven days’ imprisonment in case any witness or person refuses to answer questions put to him or to produce any document or thing, and also does not offer any reasonable excuse for such refusal. Thus, such situation attracts offences punishable under sections 175 & 179 of PPC and not under section 174 PPC. The learned judge had probably misread above section while convicting the accused/appellant.

8.All offences in bracket of section 172-188 PPC shall ordinarily be tried under chapter XX of Cr.P.C., on a complaint, if the Judge or Magistrate does not attend offences under sections 175, 178, 179 & 180 of PPC within the purview of procedure prescribed under section 480 of Cr.P.C; but when such offences are committed before himself or in contempt of his lawful authority, or is brought under his notice, as such Judge or Magistrate (except Judge of High Court) in the course of a judicial proceeding, he shall not try it himself. This command of law is incorporated in section 487 of Cr.P.C. which is as under;

487.Certain Judges and Magistrates not to try offences referred to in Section 195 when committed before themselves: (1) Except as provided in Sections 476, 480 and 485 no Judge of a Criminal Court or Magistrate, other than a Judge of a High Court, shall try any person for any offence referred to in Section 195, when such offence is committed before himself or in contempt of his authority, or is brought under his notice, as such Judge or Magistrate in the course of a judicial proceeding.

In the present case learned Additional Sessions Judge has sentenced the appellant under section 174 of PPC for his failure to produce the accused against whom notice was issued on petition for cancellation of his bail. Section 174 falls in category of offences mentioned in section 195, sub-section (1), clause (a), therefore, learned Additional Sessions Judge was not authorized to sentence the appellant by himself, rather complaint should have been forwarded to the Magistrate having jurisdiction in the matter, and on receiving such complaint concerned Magistrate is not required to record statement of Judge as mentioned in section 200 of Cr.P.C., rather follow the process contained in section 200 to 204 Cr.P.C., and provisions relating to trial as the case may be.

9.Keeping in view the proposition settled above, it is held that learned Additional Sessions Judge was not legally authorized to pass the impugned order; consequently, it is set aside. However, if learned Judge desires, can initiate fresh proceedings in accordance with law.

(MUHAMMAD AMJAD RAFIQ)

JUDGE

Approved for reporting.

Judge Signed on __________ Ishtiaq