ALLAH WADHAYO Versus THE STATE

This appeal is directed against the judgment, dated 15‑2‑1984 of Mr. Rahmat Hussain Jafferi, the then 1st Additional Sessions Judge, Hyderabad whereby he convicted the appellant under section 193, P.P.C. and sentenced him to suffer R.I. for 12 months and to pay a fine of Rs.1,000 or in default of payment of fine to undergo R.I. for 6 months more.

2. Appellant Allah Wadhayo was a witness in Sessions Case No. 299 of 1982 under sections 307, 148 and 149, P.P.C., which was tried by the learned 1st Additional Sessions Judge, Hyderabad. Statement of the appellant was recorded on oath as a witness on that very day. The appellant was earlier examined as a witness in the P.E. as well because the case was filed as a direct complaint. In the statement before the learned 1st Additional Sessions Judge, in the Court, he stated that he had heard cries and gunshot reports coming from the house of the complainant. He went there and saw that the complainant had a scratch on his arm from which he was bleeding. He saw a crowd of persons from whom he identified 5‑6 persons namely Allahdad, Abdul Ghani, Kassim, Mubarak and Shafi Muhammad. Some of them were armed with hatchets and some with Lathis. He then went away. The learned 1st Additional Sessions Judge confronted him with his statement under section 202, Cr.P.C. in which he stated that he had seen accused Allahdad and 11 others fighting with Mst. Kamalan and Ramzan when he entered into the house of the complainant. He had further stated in the P.E. that accused Kassim of that Sessions Case had caused hatchet injury to Mst. Kamalan when she tried to save P.W. Ramzan. He further went on to say that he had seen the accused Hadi Bux armed with a gun. The appellant on being confronted with the above statement recorded under section 202, Cr.P.C. could not give any satisfactory explanation except that he stated that he did not remember to have said so in his earlier statement.

3. The learned Additional Sessions Judge found the explanation unsatisfactory and directed his prosecution under section 193, P.P.C. and took cognizance of the case against the appellant under section 476, Cr.P.C. after writing the statement of accusations which reads as under:‑

"The explanation was called upon from the witness as to why he had given two different statements on oath, one before this Court and the other recorded under section 202, Cr.P.C. The witness has stated that it was due to lapse of several months, therefore, he did not remember as to. what he had stated earlier. He has stated that the statement recorded in this Court is perfectly correct and the incident was witnessed by him, in the manner, in which he had deposed today in this Court. The explanation has been considered in the light of his earlier statement recorded under section 202, that was also before this Court. The explanation is not satisfactory and it appears that the witness has stated lies before the Court of law. Therefore, I take the cognizance under section 476, Cr.P.C. and direct that the witness be prosecuted under section 193, P.P.C. A case be registered against him.

(Sd.) Rahmat Hussain Jafferi,

1st Addl. Sessions Judge, Hyd."

A charge was framed against the appellant under section 193, P.P.C. to which he pleaded not guilty and claimed to be tried. A clerk of the Court was examined. He produced certified true copies of the two relevant statements. In his statement under section 342, Cr.P.C. the appellant admitted to have given both the statements and could not give any satisfactory explanation whatsoever of the inconsistencies and the contradictions in the two statements. He did not examine any defence witness. Hence he was convicted by the learned 1st Additional Sessions Judge on the same day and sentenced as shown above.

4. Mr. Madad Ali Shah, counsel for the appellant, has attacked the judgment on various grounds. First of all he has referred me to section 195, Cr.P.C. and has contended that the Court could not have taken cognizance of this offence except on a complaint in writing of the concerned Court or some other Court to which it was subordinate as provided under clause (b) of subsection (1) of section 195, Cr.P.C. His second contention was that the learned trial Court had not supplied the statements and documents to the appellant as required under section 241‑A, Cr.P.C. seven days before commencement of trial. His third and last contention was that the trial was conducted in such a haste that the principles of natural justice were violated and gross injustice was done to the appellant.

5. I find that there is no substance in the first two contentions while the third contention merits consideration. In order to fully appreciate his first contention it will be useful to reproduce section 476, Cr.P.C. as amended by the Law Reforms Ordinance, 1972:‑

"476. Procedure in cases mentioned in section 195. (1) When any offence referred to in section 195, subsection (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.

(2) When in any case tried under subsection (1) the Court find the offender guilty, it may, notwithstanding anything contained in subsection (2) of section 262:‑

(a) pass any sentence on the offender, authorised by law for such offence, except a sentence of death, or, imprisonment for life, or imprisonment exceeding five years, if such Court be a High Court, a Court of Session, a District Court or any Court exercising the power of a court of Session or a District Court;

(b) sentence the offender to simple imprisonment for a term which may extend to three months, or to pay a fine not exceeding one thousand rupees or both, if such Court be a Court of a Magistrate of the first class, a Civil Court other than a High Court, a District Court, or a Court exercising the powers of a District Court, or Revenue Court not inferior to the Court of Collector;

(c) sentence the offender to simple imprisonment for a term not exceeding one month, or to pay a fine not exceeding fifty rupees, or both, if such Court be a Criminal Court or Revenue Court other than a Court referred to in clause (a) or clause (b).

(3) The powers conferred on Civil, Revenue and Criminal Courts under this section may be exercised in respect of any offence referred to in subsection (1) and alleged to have been committed in relation to any proceeding in such Court to which such former Court is subordinate within the meaning of subsection (3)' of section 195.

(4) Any person sentenced by any Court under this section may, notwithstanding anything hereinbefore contained, appeal:‑

(a) in the case of a sentence by the High Court, to the Supreme Court;

(b) in case of a sentence by a Court of Session, or District Court, or a Court exercising the powers of a Court of Session or a District Court, to the High Court; and\

(c) in any other case, to the Sessions Judge.

(5) The provisions of Chapter XXXI shall, so far as they are applicable, apply to appeal under this section and the Appellate Court may alter the finding or reduce or enhance the sentence appealed against."

The perusal of the amended section would show that now it was not necessary for the Court to hold a preliminary inquiry nor to record a finding nor to make a complaint and to forward it to a First Class Magistrate. However, if the Court decided not to try the case itself then it had to make a complaint and forward the same to a First Class Magistrate having jurisdiction. In cases which were not covered by section 476, Cr.P.C. also a complaint was to be filed by the Court or officer concerned or superior Court or superior officer concerned. For such situation section 195 Cr P. C. has provided for filing of a complaint. Mr. Madad Ali Shah has relied upon a ruling reported in 1984 P Cr. L J 2797 in which a similar situation had arisen in a case before my learned brother Justice Z.C. Valiani, It was held that in a case where no complaint as required under section 195(1)(b), Cr.P.C. in writing was filed by the trial Court, cognizance of offence under section 193 P.P.C. could not be taken in the circumstances. The conviction A and sentence was, therefore, set aside. This ruling has not taken into account the words of the amended section 476, Cr.P.C. vis‑a‑vis the wordings of the previous un amended section thereof. Even otherwise the present case is distinguishable from the above ruling because the statement of accusations was written by the learned Additional Sessions Judge and signed by him on the basis of which he had initiated the proceedings. This statement of accusations could be treated as enough compliance of the requirements of section 195(1)(b), Cr.P.C. even if the same is taken to apply to a case when the Court decides to try the accused itself under section 476, Cr.P.C. as it fully answers the definition of word 'complaint' given in S. 4(1)(h), Cr.P.C.

6. So far as the second contention of Mr. Madad Ali Shah is concerned, it may be pointed out that subsection (1) of section 241‑A, Cr.P.C. does not apply to a cage in which the complaint has been made by a Court or by a public servant acting or purporting to act in the discharge of his duties.

7. The third contention of the appellant's counsel is, however, hound. The learned lat Additional Sessions Judge, even if he was not bound to follow the procedure provided under section 241‑A, Cr.P.C., at least he had to follow the rules of natural justice. He should have given sufficient time to the appellant to mentally prepare himself to show cause against the notice given to him, as to why action should not be taken against him for giving false evidence. It is by now settled law that sufficient time should be given to a person to show cause against any action proposed to be taken against him which includes time for consultation with an Advocate etc. I find that the learned 1st Additional Sessions Judge has not given sufficient time and opportunity to the appellant to prepare himself to answer the charge and to defend the case in which he was going to be tried. It is not proper for a Court to call upon a witness immediately after his evidence is over to submit his reply and on the basis of that reply to start the trial then and there and to bring it to an end on the same day. I feel that this is a case in which the Appellate Court should come to the assistance of the appellant. In this connection reference may be made to P L D 1982 Kar. 975.

8. I, therefore, allow the appeal and set aside the conviction and sentence of the appellant and remand the case for retrial. The learned Sessions Judge, Hyderabad is directed to try the case himself or to make it over to the First Additional Sessions Judge, or any other Addl. Sessions Judge.

M. Y. H. Appeal allowed.