2005 PLP 1785 (YLR)

Syed Madad Ali Shah for Applicant. Muhammad Azim Panhwar for the State. This revision application is directed against the judgment dated 17-3-2005 passed by the learned Sessions Judge, Tharparkar at Mithi dismissing Criminal Appeal No.4 of 2004, whereby the applicant had assailed the judgment dated 16-12-2004 passed by the learned Civil Judge and Judicial Magistrate Deeplo convicting the applicant under section 182, P.P.C. and awarding sentence of two months' R.I. and to pay fine of Rs.1,000 or in default of payment of fine to suffer simple imprisonment for one month more. The main contention of Syed Madad Ali Shah learned counsel for the applicant is that before initiation of any proceedings under section 182, P.P.C. the issuance of show-cause notice and seeking explanation from the person proposed to be proceeded against is the mandatory requirement, which has not been complied with in this case. In support of his contention he has placed reliance on a single Bench judgment of this Court in the case of Muhammad Murad v. The State 1983 PCr.LJ 1097 wherein it has been held that before any action is taken under section 182 or 211, P.P.C. it is necessary to issue show cause notice to the accused against whom the proposed action is to be taken. The learned counsel for the applicant has submitted that it is an admitted fact that no such show-cause notice was issued and consequently the two judgments of the learned Courts below are not sustainable in law. In addition to the above he has pointed out that in this case a direct complaint was also filed by the applicant and the accused persons were though acquitted by way of giving benefit of doubt, but it was not held by the Court that the complaint or allegations therein were false. This issue has also been decided in the judgment cited above wherein it has been held that in cases where the direct complaint is filed it is only after the complaint is disposed of as false that the Court concerned can direct filing of complaint against the petitioner under section 211, P.P.C. Mr. Syed Madad Ali Shah learned counsel for the applicant has submitted that while acquitting the accused persons in this case the trial Court has not given any finding that the complaint was false. Mr. Muhammad Azim Panhwar learned counsel for the State has not denied the contention that no show-cause notice was issued and has further accepted that while acquitting the accused persons in direct complaint the trial Court had extended benefit of doubt to the accused persons and had not held that the complaint was false. The learned State counsel has frankly conceded that in view of the judgment in the case of Muhammad Murad (supra) the conviction and sentence awarded to the applicant by the learned two Courts below are not sustainable in law. In the above circumstances, the judgments of the learned two Courts below impugned in this revision application are hereby set aside and the accused stands acquitted of the charge. The revision application is allowed accordingly. The applicant is present on bail granted by this Court, his bail bond stands discharged. H.B.T/M-217/K Petition allowed.