2026 MLD 1176

Agha Faisal Fayyaz Versus State

Citation2026 MLD 1176

CourtLahore High Court

Judge(s)Tanveer Ahmad Sheikh

Order

Tanveer Ahmad Sheikh, J .--- Through this petition under Sections 435/439 of Cr.P.C., read with Section 561-A of Cr.P.C., the petitioner has assailed the order dated 01.02.2023, passed by the learned Addl. Sessions Judge Sahiwal, whereby application of the petitioner for initiating the proceedings under Section 476 of Cr.P.C. against respondent No.2 (Abdul Qadir) was dismissed.

2. Actual and factual background of the matter in hand was that respondent No.2 (Abdul Qadir) entered into an agreement with petitioner for the purchase of certain piece of land and paid earnest money. Possession of land was handed over to respondent No.2 (Abdul Qadir), who established a housing colony over the land in dispute without obtaining NOC from the concerned quarters. A criminal case bearing FIR No.79/2021, for the offences under Section 420 of P.P.C and certain offences of the Punjab Local Government Act, 2013 was registered against respondent No.2 (Abdul Qadir) under the authorship of Khalid Zia (Enforcement Inspector Metropolitan Cooperation) regarding the aforesaid illegal and unlawful housing colony. Respondent No.2 (Abdul Qadir) moved his petition for pre-arrest bail in the above said case before the court of learned Addl. Sessions Judge, Sahiwal and during the proceedings of aforesaid pre-arrest bail, respondent No.2 (Abdul Qadir) produced a document i.e. NOC of flood area. On the basis of said document, his pre-arrest bail was confirmed by the learned Addl. Sessions Judge, Sahiwal vide order dated 09.04.2021. Thereafter, the petitioner moved an application on 27.08.2022 under Section 476 of Cr.P.C. for initiating the proceedings under Section 193 of P.P.C against respondent No.2 (Abdul Qadir), which was dismissed by learned Addl. Sessions Judge, Sahiwal, vide order dated 01.02.2023 mainly on the ground that private party cannot be allowed to initiated proceedings for the satisfaction of his personal vendetta and grudge. It was further held in the impugned order that where a private party applied before the Court to prosecute his opponent, it could be safely presumed that malice was behind the application filed by the private person and reliance in this regard was placed upon 2005 MLD 1103 and C.P. No.3127/2020, titled Qazi Naveed Ul Uslam v. District Judge, Gujrat etc.

3. Arguments heard. Record perused.

4. Section 476 of Cr.P.C. empowers a court to take the cognizance of certain offences mentioned in Section 195 of Cr.P.C., if committed in or in relation to the proceedings before the court and to try the same in accordance with the procedure prescribed for summary trial. For the understanding of the complete mechanism of summary trial, thorough and combined study of provisions of Sections 195(1)(a)(b)(c), 476, 260(1)(b)(c), 261, 262(1)(2), 263, 264, 265(1), 413 and 414 of Cr.P.C and critical analysis thereof is required, which are being produced below for the facility of reference:-

195. Prosecution for contempt of lawful authority of public servants (1) No Court shall take cognizance- a) 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 publish servant to whom he is subordinate. 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, 210, 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. c) 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.

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 (sections 260 to 265).

2. When in any case tried under subsection (1) the Court finds the offender guilty, it may, notwithstanding anything contained in subsection (2) of section 262- a) pass any sentence on the offender authorized 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 High Court, a District Court or a Court exercising the powers of a District Court, or a Revenue Court not inferior to 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 a 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 by the Court to which such former Court in subordinate within the meaning of subsection (3) of section 119.

(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 the 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 (sections 404 to 431) shall, so far as they are applicable, apply to appeals under this section and the Appellate Court may alter the finding or reduce or enhance the sentence appealed against.

260. Power to try summarily,- (1) Notwithstanding anything contained in this Code,- a) b) any Magistrate of the first class specially empowered in this behalf by the Provincial Government, and c) any Bench of Magistrates invested with the powers of a Magistrate of the first class and especially empowered in this behalf by the Provincial Government, may, if he or they think fit, try in a summary way all or any of the following offences;

(b) ..

(d) ..

(e) ..

(f) ..

(g) ..

(h) ..

(i) ..

(j) ..

(k) ..

(l) ..

(m) ..

(2) ..

261. Power to invest Bench of Magistrate invested with less power, The Provincial Government may [on the recommendation of the High Court) confer on any Bench of Magistrates invested with the powers of a Magistrate of the second or third class power to try summarily all or any of the following offences.

(a) ..

(b) ..

(d) ..

262. Procedure prescribed in Chapter XX applicable.

(1) In trials under this Chapter, the procedure [in Chapter XX (sections 241 to 250A) shall be followed except as hereinafter mentioned).

(2) Limit of imprisonment. No sentence of imprisonment for a term exceeding three months shall be passed in the case of any conviction under this Chapter.

263. Record in cases where is no appeal, in cases where no appeal lies, the Magistrate or Bench of Magistrates need not record the evidence of the witnesses or frame a formal charge, but he or they shall enter in such form as the Provincial Government may direct the following particulars;--

(a) the serial number;

(b) the date of commission of the offence;

(d) the name of the complainant (if any),

(e) the name, complained and residence of the accused.

(f) the offence complained of and the offence (if any) proved, and in cases coming under clause (d), clause (e) and clause (f) or clause (g) of subsection (1) of section 260, the value of the property in respect of which the offence has been committed.

(g) the plea of the accused and his examination (if any);

(h) the finding, and, in the case of a conviction, a brief statement of the reasons therefore;

(i) the sentence or other final order; and

(j) the date of which the proceedings terminated.

264. Record in appealable cases. (1) In every case tried summarily by a Magistrate or Bench in which an appeal lies, such Magistrate or Bench shall record the substance of the evidence and also the particulars mentioned in section 263, [and shall, before passing any sentence, record judgment in the case.

265. Language of record and judgment.

(1) Records made under section 263 and judgments recorded under section 264 shall be written the presiding officer, either in English or in the language of the Court, or, if the Court to which such presiding officer is immediately subordinate directs, in such officer's mother-tongue.

(2)

(3)

(4)

413. No appeal in petty cases. Notwithstanding anything hereinbefore contained, there shall be no appeal by a convicted person in cases in which a High Court passes a sentence of imprisonment not exceeding six months only or of fine not exceeding two hundred rupees only or in which a Court of Session passes a sentence of imprisonment not exceeding one month only, or in which a Court of Session or [a] Magistrate of the first class passes a sentence of fine not exceeding fifty rupees only.

Explanation: There is not appeal from a sentence of imprisonment passed by a such Court or Magistrate in default of payment of fine when no substantive sentence of imprisonment has also been passed.

414. No appeal from certain summary convictions. Notwithstanding anything hereinbefore contained, there shall be no appeal by a convicted person in any case tried summarily in which a Magistrate empowered to act under section 260 passes a sentence of fine not exceeding two hundred rupees only.

Careful study of said provisions of the law leads to a conclusion that Section 195 of Cr. P.C. relates to the prosecution of certain offences for contempt of lawful authority of public servant and offences against the public justice, and relating to the documents given in evidence.

Said offences have been divided into three categories.

Section 195(1) (a) dealing with first category refers to offences under sections 172 to 188 of P.P.C and contemplates that cognizance of the same shall only be taken on a complaint in writing of public servant concerned or of his immediate superior.

Whereas clause B of subsection (1) of Section 195 enumerates certain offences of perjury, disobedience to court orders, or other types of contempt of the court etc. including offence under section 228 of P.P.C committed in or in relation to judicial proceedings and provides that cognizance of the same can only be taken on a complaint by the court or of some other court to whom the said court is subordinate.

Clause C of subsection (1) of Section 195 also deals with the taking of cognizance of offences of forgery etc. relating to the documents committed in or in relation to judicial proceedings, on a complaint of the court or his immediate superior courts.

It is general rule that anybody may set the law into motion and Section 195, Cr. P.C. is an exception to the said general rule, which is complementary with Section 476 and both are always to be read in conjunction with each other.

Section 476 of Cr. P.C. authorizes a "court" to take the cognizance of offences referred to in Section 195(1) (b) and (c) by itself, if committed in or in relation to the judicial proceedings and empowers the court to try the same in accordance with the procedure prescribed for summary trail in Chapter XXII (Sections 260 to 265).

Meaning thereby that when the offences mentioned in clauses B and C of Section 195 of Cr.P.C. are committed during the judicial proceedings of a court, the court has two options; i.e. either to sent a complaint to the competent court, or to initiate the proceedings itself and try the same summarily under section 476 of Cr.P.C.

Sections 260 to 265 of Cr. P.C. contemplate the procedure of summary trial.

Section 260 of Cr. P.C. is a "non-obstantee clause" having overriding effect, which empowers Magistrate of the 1st Class and bench of the Magistrate to try the certain offences enumerated therein in a summary way.

Under section 261(1) of Cr.P.C. the provincial government may on the recommendation of the High Court confers powers of summary trail on a Magistrate of the 2nd class or the 3rd class.

Section 262(2) empowers the court to pass a sentence of not more than three months in a summary trail on conviction.

Section 263 of Cr. P.C. speaks that in cases, where no appeal lies, the trail court need not to record the evidence of the witnesses or frame the formal charge, but the court may mention the other particulars i.e. serial No. date of commission of the offence, the date of reporting the matter. name and particulars of complainant, nature of the offence, the plea of the accused, the finding/conviction/etc. and the sentence and date of its announcement.

The said particulars shall be mentioned by the court in the form prescribed by provincial government.

Section 264 of Cr. P.C. requires the court to record substance of the evidence and other particulars mentioned in Section 263 of Cr.P.C. and to record a judgment in those cases where appeal lies, which means that in the summary trial for offences amenable to appeal, all the requirements almost of regular trial provided by Chapter XX (sections 241A to 250A) shall be observed.

5. The other question to be considered by me is as to in which of the cases appeal lies against judgment/conviction/sentence passed in a summary trial. For that purpose help and guidance shall be sought from Chapter XXXI (sections 404 to 431) of Cr.P.C.

6. Section 413 thereof provides that there shall be no appeal by a convicted person, if he has been sentenced to a period not exceeding six months or to a fine not exceeding 200 Rs. by Hon'able High Court, or sentenced to a period of imprisonment not exceeding one month passed by a court of Sessions, or sentenced to a fine not exceeding 50 Rs. passed by Sessions Court or a Magistrate of 1st Class.

7. Under Section 414, Cr.P.C. Which is also a "non-obstantee clause", if a person tried summarily by a Magistrate empowered under section 260 of Cr.P.C. and is sentenced to a fine not exceeding 200 rupee, he cannot file any appeal.

8. Nutshell of above discussion is that if a court of Sessions desires to pass a sentence of a period more that one month or of a fine exceeding 50 rupee, and a Magistrate passing the sentence exceeding 50 rupee, they are supposed to fulfill the requirement of Section 264 of Cr. P.C. and are required to record substance of evidence, and other particulars mentioned in Section 263 and also pass a judgment, as such in said cases a summary trial would be conducted almost in the manner prescribed for a regular trial.

9. So far as right of the appeal available to a person tried under section 476 of Cr.P.C. is concerned, the non-absentee clause i.e. 476(4) of Cr.P.C. gives right of appeal to a convicted person, notwithstanding the other provision of Cr. P.C, to the Hon'able Supreme Court, if sentenced by Hon'able High Court, and to Hon'able High Court if sentenced by Court of Session, and to court of Session in any other case irrespective of quantum of sentence.

Section 476(4) of Cr.P.C. is a special provision inserted only to create right of appeal to a person tried under section 476, Cr.P.C. It can't be used to determine the maintainability of appeal by a person sentenced in a summary trial, because for that purpose Chapter XXXI (sections 404 to 431) shall be restored to, If somebody claims for the sake of arguments that provision of Section 476(4) shall be followed instead of chapter XXXI of Cr.P.C. It shall be misconceived construction of legislative intent, and in that eventuality each and every case shall become amenable to appeal, and court shall have to follow Section 264 of Cr. P.C. in every summery trial under section 476, Cr.P.C. and shall be bound to record evidence and pass a judgment.

Conclusion to be drawn would be that a person tried under section 476 of Cr.P.C. shall be entitled to file an appeal to immediate superior Court irrespective of quantum of sentence.

10. The learned Additional Sessions Judge, while dismissing the application of petitioner observed as under:- that a private party cannot be allowed to initiate the proceedings under Section 476 of Cr.P.C. for the satisfaction of his personal vendetta and grudge. Where a private party applied before the to prosecute his opponent, it could be safely presumed that malice was behind the application filed by private party

11. Respondent No.2 (Abdul Qadeer) produced a forged N.O.C. before the court of learned Additional Sessions Judge and got his ad-interim pre-arrest bail confirmed. A person, who plays such like mischief with the court believing that he is above the law and he can do whatever he likes and nobody can ask him, hardly entitles to any leniency. Law does not place any legal bar against the private persons to move the court for taking action under Section 476 of Cr.P.C. Even a court must take action suo motu in this regard, when such like fact comes to its notice and no good reason exists for not prosecuting the perjurer. I have sought guidance from case titled Muhammad Fareedun v. The State (1987 SCMR 1962) and Muhammad Sayab Khalid v. Major Aurangzeb Khan (PLD 1981 SC (AJ&K) 86).

12. I am of the view that respondent No.2 (Abdul Qadeer) made mockery of the court of learned Additional Sessions Judge, therefore, the court was required to initiate action against him under Section 476 of Cr.P.C.

13. For the reasons recorded above, the impugned order dated 01.02.2023 is not sustainable in the eye of law. Therefore, I set aside the same and remand the case to the learned court of Additional Sessions Judge, for decision afresh with the direction that application moved by petitioner under Section 476 of Cr.P.C. shall be deemed to be pending and the learned court shall hold proper inquiry and take action against respondent No.2 in accordance with the procedure discussed above.

14. Criminal Revision accepted. Case remanded.

JK/F-13/L Revision allowed.