ABDUL RASHID SHAH Versus STATE

1. By this Criminal Revision, the order dated 17th January, 1991 passed by A.C. and SDM City Karachi, South, convicting the appellant under section 228, P.P.C. and sentencing him to suffer S.I. for one month, and the judgment dated 29th August, 1991 passed by the learned Ist Additional Sessions Judge, Karachi, South, dismissing the Criminal Appeal No.3/1991 filed by applicant Abdul Rashid Shah have been challenged.

2. The brief facts giving rise to the present revision application are that applicant Abdul Rashid Shah was Inspector/S.H.O., P.S. Kalri in January, 1991. It appears that on 3‑1‑1991 the applicant appeared before the learned Assistant Commissioner/S.D.M. City South Karachi, in connection of some P.E. and there was some untoward incident which is clear from the complaint, filed by the learned S.D.M. before the Assistant Commissioner and S.D.M. Eidgah, South, Karachi, which reads a4 under:‑‑

3. " Complaint u/s224 P P C against the Accused Inspector Abdul Rashid Shah :

4. This is to bring to the notice of the learned Court an offence which took place in the premises of the City Courts.

5. On 3‑1‑1991, at about 11‑30 a.m. Inspector Abdul Rashid Shah appeared in this Court to submit his reply against a show‑cause notice for the purpose of preliminary enquiry in a case under section 221, P.P.C. During the course of enquiry, he insulted and abused the Court and when ordered to be taken into custody through Naib‑Qasid Hafizur Rehman and Gunman Ghulam Shabbir, he resisted his arrest, pushed them, and ran away while abusing the Court, with the help of the staff of Kairi P.S. which came with him.

6. The above act of the said accused amounts to resistance to a lawful apprehension under the orders of the Court making him liable to punishment under section .224 of Pakistan Penal Code. He is also liable to be punished a/s. 228, P.P.C. for which he will be tried by this Court separately.

7. Process has been issued against the accused for 6‑1‑1991 who will be produced before your learned Court immediately on his production in case a/s. 228, P.P.C. before this Court.

8. It is, therefore, requested that a case under section 244, P.P.C. may kindly be registered against him and tried according to law.

9. (Sd.)

10. 6‑1‑1991

11. (Muhammad Younus Dagha) SDM City

12. Process was issued against the accused who got bail before arrest from Sessions Court, thereafter he surrendered before the learned Judge on 17‑1‑1991, and moved an application which reads as under:‑‑

13. "It is respectfully prayed before your honourable Court that I have come to know that your Hon'ble Court has called for hearing, I therefore, surrender my appearance today for trial, today the 17th January, 1991.

14. Thanking you. S.H.O.

15. Abdul Rashid Shah.'

16. The learned Magistrate was pleased to pass the following order on the above application.

17. "The accused applies for early hearing. Put up the case file today.

18. (Sd.)

19. 17‑1‑1991 SDM City."

20. On the same day, a charge was framed against the accused/applicant which reads as under:‑‑

CHARGE

21. I, Mohammad Younus Dagha, S.D.M.City, hereby charge you, Abdul Rashid Shah as follows:‑

22. That you on 3rd day of January, 1991 at about 11‑30 a.m. while appearing in response to a show‑cause notice in a preliminary enquiry under section 221, P.P.C. became infuriated, when asked to behave according to the decorum of the Court and intentionally insulted me by saying that "I damn care about your Court" and further abused the Court and the Presiding Officer in a very vulgar and unmentionable manner while leaving the Court, and thereby committed an offence under section 228, P.P.C. and within my cognisance.

23. And I hereby direct that you be tried on the said charge.

24. (Sd.)

25. Asstt. Commissioner & SDM City

26. Karachi South.

27. The charge is read and explained to the accused and he was questioned as follows:‑‑

28. Q. Do you plead guilty or have any defence to make?

29. A. I admit my mistake and pray for mercy of the Court.

30. Q. Why did you not ask for pardon earlier and why did you not appear .. earlier?

31. A. I now accept my mistake and tender my apology. I was under mental problems those days.

32. Q. Do you have cause to show why you should not be convicted under section 228, P.P.C.?

33. A. I pray for pardon.

34. (Sd.)

35. 17/1/91

36. SDM CITY."

37. After recording the above plea, learned SDM was pleased to convict and sentence the applicant as described above.

38. The accused/applicant filed an appeal before the learned Sessions Judge, being Cr.A.No.3/ 1991, which came up before the learned Ist Additional Sessions Judge, Karachi, who was pleased to dismiss the appeal, and present revision application is directed against the above two judgments.

39. I have heard Mr.A.Q. Halcpota, learned counsel appearing for the applicant, Mr.S. Shaukat H. Zubedi, learned A.A: G. for the State, and have gone through the R & Ps. It was contended by Mr. A.Q. Halepota that the application moved by the applicant was wrongly considered as an application for ante‑dating the case, and the applicant never pleaded guilty before the S.D.M. In order to elaborate his contention, Mr. A.Q. Halepota, learned counsel appearing for the applicant has further contended that the charge as well as plea Exh.7 at page 43 of the R & P of the lower Court clearly show that the signature of the applicant was obtained on a blank paper and charge and plea were typed and written later, and therefore, the judgment was liable to be set aside. He has further contended that once the applicant/accused had left the Court, it was mandatory to draw complaint which was not done in the present case, and therefore, there was non‑compliance of mandatory provisions of law. He has further contended that the learned Additional Sessions Judge has failed to take into consideration the above points raised before him and, as such, the two judgments are liable to be set aside.

40. Mr. Shaukat H. Zubedi, learned AA.‑G. appearing for the State has conceded, that once the accused/applicant is alleged to have left the Court before action under section 228, P.P.C. was taken against the applicant, the learned S.D.M. had to draw complaint against the accused later on. He also agreed with the contention of Mr. A.Q. Halepota, that the signatures of the applicant appear to have been obtained on blank paper, and thereafter, the charge was typed and plea was recorded in hand which is clear from the fact that the signature of the applicant appears on the bottom of back page of charge although sufficient space was available at pages 1 and 2. In view of the above circumstances, he was also of the view that the conviction of the applicant was liable to be set aside.

41. I have considered the contentions. The bare reading of the complaint dated 6‑1‑1991, filed by the learned A.C. and S.D.M. City South, Karachi, before the S.D.M., Eidgah, Karachi, and the charge itself clearly show that the accused/applicant had left the Court on 3rd January, 1991, before any action was taken against him under section 228, P.P.C. It is also an admitted position that no complaint was drawn/filed and peon and gunman of the Court were examined without there being any complaint, and in the absence of the applicant.

42. The application moved by the applicant on 17‑1‑1991, was an application for surrender before, the Court, and it was not application for ante dating the matter, and the learned S.D.M. misinterpreted the said application If the learned S.D.M. was doing his Court work in the chambers, then too, the reader, some advocates and some litigants must be present but none of them was either cited or examined as witness. The witnesses examined by the learned S.D.M. before issuing process against the applicant were only his gun man and his peon. The charge clearly indicates that the signature of the applicant was obtained on the foot of the blank paper, and thereafter, the charge was typed and plea was recorded in hand wherein number of questions were put in to cover up the space but the same could not be covered with the result that 3/4th of the back page remained blank and lines were drawn over that space. This clearly supports the contention of Mr. A.Q. Halepota, that the accused/applicant did not plead guilty. His signatures were obtained on blank paper, and thereafter, every thing was manipulated for the reason one can very well understand. Since the applicant is said to have left the Court, the learned S.D.M. took action under section 482, Cr.P.C. and in such a situation though the proceedings were summary in nature under section 476, Cr.P.C. he ought to have examined witnesses and give "opportunity to the applicant to cross -examine them but in order to avoid all these formalities being complied with, the learned S.D.M. thought it fit to obtain signature of the applicant and thereafter to prepare charge plea. No doubt the allegations against the according to the learned . S.D.M. 1‑‑' section 482, Cr.P.C. Though procedure under section 476, Cr.P.C. is summary in nature it was necessary to examine certain witnesses. There is conflict between the gist of allegations prepared by the learned Magistrate, and the statements of Hafizur Rahman his Naib‑Qasid, and Ghulam Shabbir, Gunman. C In view of section 195‑B, Cr.P.C. it was necessary for the learned Magistrate to have drawn the complaint and the provision was mandatory. Section 195(1)(b) E reads as under.‑‑

43. "195. Prosecution for contempt of lawful authority of public servant; , Prosecution for certain offences against public justice; prosecution for certain offences relating to documents given in evidence (1) No Court k`" shaft take cognizance:‑‑

(a) .......................................

44. ......................................

(b) 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, 211 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."

45. The bare reading of the above provision will show that the provision is mandatory. The evidence of Gunman and Naib‑Qasid of learned S.D.M. does not show as to what actually happened inside the Chamber.

46. The learned Additional Sessions Judge has also failed to take note of the important fact about the manipulation of charge plea as to how the signatures of the applicant were obtained which is clear from the space left on the back page of the charge and plea before the signature of the applicant appears. It appears that the learned Magistrate was very much annoyed with the applicant which is clear from his subsequent actions, although he was not debarred from taking proceedings under section 476, Cr.P.C. against the applicant but in all fairness looking to the subsequent events, the learned S.D.M. ought to have sent the complaint to some other Magistrate for taking action against the applicant. I am not satisfied with the subsequent events and proceedings which took place before the :earned S.D.M.

47. A judicial officer has no doubt to maintain the dignity of his Court, but he must not be too sensitive specially when he is the complainant and judge of his own cause.

48. In view of the above discussion, the Criminal Revision No.68 of 1991 is allowed, the judgments of two Courts below are set aside and the applicant is C acquitted of the charge.

49. I had decided the above matter by a short order on 24‑11‑1991, and these are the reasons for the same.

50. N.H.Q./A‑1196/K Revision petition allowed.