ORDER SHEET

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Cr. Rev. Appln. No.S- 108 of 2009

 

Date                 Order with Signature of Hon’ble Judge

 

For hearing of main case

 

 

18.03.2019

Mr. Nusrat Hussain Memon Advocate for applicant.

Mr. Shafi Muhammad Mahar, D. P.G

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Irshad Ali Shah, J;- The facts in brief necessary for disposal of instant Criminal Revision Application are that a complaint was made by the applicant with Hon’ble Chief Justice Sindh containing certain allegations against Mr. Gurmukh Das G. Gehani, the then Judicial Magistrate, Ubauro. It was assigned to learned Sessions Judge, Ghotki, for enquiry and report, who in his report dated 23.04.2001 found such complaint to be false. On the basis of such enquiry report, Hon’ble High Court of Sindh at Karachi desired for legal action against the applicant for making a false complaint against the judicial officer. Consequently, the applicant was put on notice by learned Sessions Judge, Ghotki, to show cause within seven days, as to why he should not be prosecuted for having committed an offence punishable under Section 182 PPC. Reply to such notice was furnished by the applicant. It was not found satisfactory. Consequently, SHO, PS, Ubauro was directed by learned Sessions Judge, Ghotki, to record an FIR against the applicant for having committed an offence punishable under Section 193 PPC. In pursuant to above said direction, an FIR crime No.159/2001 was lodged by ASI Munir Ahmed Kolachi with PS Ubauro. It was for an offence punishable under Section 182, 193 & 211 PPC. The applicant was then reported upon by the police to face trial for the above said offence.

2.                    Applicant did not plead guilty to the charge and prosecution to prove it examined Ghulam Rasool Shaikh, the then Office Superintendent, District Court, Ghotki, he produced entire documentary evidence relating to complaint and enquiry together with FIR of the present case, complainant ASI Munir Ahmed, he produced mashirnama of arrest and recovery, PW Mashir PC Rasheed Ahmed and then closed the side.

3.                    The applicant in his statement recorded under Section 342 Cr.PC denied the prosecution allegation by pleading innocence, he did not examine anyone in his defence or himself on oath in disproof of the prosecution allegations.

4.                   On evaluation of evidence so produced by the prosecution, learned 1st Judicial Magistrate, Ubauro, vide judgment dated 06.12.2005 convicted and sentenced the applicant as under;

“…..for an offence punishable u/s 182 PPC and sentence him to suffer R.I for five months and for an offence punishable u/s 193 PPC sentence him to suffer RI for two years and fine of Rs.5000/-. In case of default of payment of fine the accused shall suffer further R.I for two months both sentences awarded to accused for offence under section 182, 193 PPC shall run concurrently.”

5.                    The applicant being aggrieved of above said judgment of conviction impugned the same by way of filing an appeal, it was dismissed the same vide judgment dated 19.12.2009.

6.                    The applicant being aggrieved of dismissal of his appeal, has impugned the same before this Court by way of instant Criminal Revision Application.

7.                    I have considered the above arguments and perused the record.

8.                    It is contented by learned counsel for the applicant that the applicant being innocent has been involved in this case falsely by his enemies otherwise he has nothing to do with the complaint allegedly made with Hon’ble Chief Justice Sindh. By contending so, he sought for acquittal of the applicant by setting aside impugned judgments of learned trial and appellate courts.

9.                    Learned DPG for the State sought for dismissal of instant Criminal Revision Application by contending that no illegality is committed by learned trial and appellate court while awarding conviction to the applicant.

10.                  I have considered the above arguments and perused the record.

11.                  The offence which the applicant has allegedly committed is relating to contempt of lawful authority of public servant and against public justice. Its cognizance is governed by Section 195 Cr.P C, which reads 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 of certain offences against public justice: of any offence punishable  under any of the following sections of the same Code, namely, Sections 193, 194, 195, 196, 199, 200, 205, 206, 207, 208, 209, 210, 211 and 228, when such offence is alleged to have been committed in, or in relation to, any proceedings 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.

(2)  In clause (b) and (c) of the sub-section (1), the term "Court" includes a Civil, Revenue or Criminal Court, but does not include a Registrar or Sub-Registrar under the [Registration Act, 1908].

(3)  For the purposes of this section, a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from the appealable decrees or sentences of such former Court, or in the case of a Civil Court from whose decree no appeal ordinarily lies to the principal Court having ordinary original civil jurisdiction within the local limits of whose jurisdiction such Civil Court is situate :

Provided that--

(a)        where appeals lie to more than one Court, the Appellate Court of inferior jurisdiction shall be the Court to which such Court shall be deemed to be subordinate; and

(b)        where appeals lie to a Civil and also to a Revenue Court, such Court shall be deemed to be subordinate to the Civil or Revenue Court according to the nature of the case or proceeding in connecting with which the offence is alleged to have been committed.

(4)  The provisions of sub-section (9), with reference to the offences named therein, apply also to criminal conspiracies to commit such offences and to the abetment of such offence, and attempts to commit them.

(5)  Where a complaint has been made under sub-section (1), clause (a), by a public servant, any authority to which such Public servant is subordinate may order the withdrawal of the complaint and, if does so, it shall forward a copy of such order to the Court and, upon receipt thereof by the Court, no further proceedings shall be taken on the complaint.”

 

12.                  The bare perusal of above provision of law would reveal that the cognizance of offence disclosed therein (which includes Section 182, 193 and 211 PPC) shall not be taken except on a complaint in writing. In the instant matter, no complaint in writing is made against the applicant by any authority competent to do so. In that situation, it will safe to conclude that the cognizance of the offence for prosecution of the applicant for offence punishable under Section 182, 193 and 211 PPC on police report (FIR) was illegal. No conviction which is based on illegal proceedings could legally be maintained.

13.                  If for the sake of arguments, it is believed that the proceedings of the instant case on FIR were maintainable, even then the evidence which is brought on record by the prosecution is not enough to make a conclusion that the prosecution has been able to prove its case beyond shadow of doubt simply for the reason that learned District and Sessions Judge Ghotki who allegedly conducted the inquiry and found the applicant to be guilty for making false application with the Honourable Chief Justice Sindh has not been examined by the prosecution.

14.                  In view of the facts and reasons discussed above, the impugned judgments passed by learned trial and appellate Courts are set aside, consequently, the applicant is acquitted of the offence for which he was charged, tried and convicted by learned trial court.

15.                  The instant Criminal Revision application is disposed of in above terms.

 

Judge

 

ARBROHI