2008 PLP 347 (YLR)

HASNAT AHMAD KHAN, J.

Through this petition the order/judgment dated 20-7-2007 passed by the learned Additional Sessions Judge/Ex-officio Justice of Peace Gojra, whereby the petitioner was found guilty of making false statement/declaration and sentenced to suffer R.I. for 10-days and a fine of Rs.1000 in default whereof to undergo for 3-days, has been called into question.

2. Brief facts which culminated' into the impugned order are that Sh. Munsaf Ali petitioner filed an application under Section 22-A (6), Cr.P.C. for registration of case before the learned Additional Sessions Judge/Ex-officio Justice of Peace, Gojra, against one Shaukat Ali and another on the charges of committing fraud. Said application was dismissed vide order dated 22-6-2007. The petitioner filed yet another application before the same learned Judge/Ex-officio Justice of Peace for seeking the self-same relief by appending a false certificate claiming therein that previously no such application had been submitted by him. During the pendency of second application, submitted by the petitioner, for registration of case, the opposite party i.e. Shaukat Ali etc. appeared before the Ex-officio Justice of Peace and contested the application on the ground of suppression of afore-mentioned fact. On learning about the said suppression of fact and appending of false note on the petition, the petitioner was called upon to show cause as to why he had given false marginal note on his second application under Section A22--A(6), Cr.P.C. The petitioner duly submitted reply to the said show cause notice. Through said reply he advanced the plea that the said alleged false note was not given/tendered by the petitioner rather it was given and signed by his counsel without asking the petitioner as to whether he had earlier moved an application on the subject. He further claimed that he was not aware of affixion of the required note. Further more he maintained that his counsel did not bring to his notice the making of aforementioned note by him on the second application. However, he beseeched pardon from the court for submitting false note. The learned Ex-officio Justice of Peace being not satisfied with the said reply proceeded to convict and sentence the petitioner as mentioned above. The impugned order was consequently challenged before this Court through the revision petition in hand which was admitted to regular hearing vide order dated 27-7-2007 and the operation of the impugned order was suspended on the same day.

3. In support of this petition learned counsel for the petitioner has contended that the impugned order has been passed without application of judicial mind; that the petitioner could not be punished for the act of his counsel who had given the alleged false note without inquiring about the filing of earlier application by the petitioner; that the marginal note on the basis of which the petitioner has been convicted was not signed by the petitioner, therefore, he could not be convicted; that before proceeding against the petitioner neither the charge was framed against the petitioner nor the evidence was recorded, therefore, the impugned order has been illegally passed against the petitioner and that the reply to show cause notice, which was self-explanatory was illegally brushed aside by the learned Additional Sessions Judge/Ex officio Justice of Peace.

4. Conversely, the learned Deputy Prosecutor General has lackadaisically opposed this petition.

5. Heard. Record perused.

6. After hearing the parties d have straightway noticed that while passing the impugned order, the learned Ex-officio Justice of Peace had failed to mention the provision of law under which the petitioner was convicted' and sentenced. He that as it may, chapter No. XI of P.P.C. provides the offences and punishment for giving false evidence. Section 191, P.P.C. defines the offence of giving false evidence. The definition provided through said Section is reproduced as under:- "Giving false evidence.

Whoever being legally bound by an oath or by an express provision of law to state truth, or being bound by law to make a declaration upon any subject, makes any statement which is false, and which he either knows or believes to be false or does not believe to be true is said to give false evidence." Section 192, P.P.C. appearing in said chapter relates to the offence of fabricating false evidence. Punishment for giving false evidence has been, provided under Section 193, P.P.C. Prima facie, it appears that the case of the petitioner is not covered by the said provisions of law. At the most 'it can be said that his case is covered under Section 197, P.P.C. according to which any person issuing or signing false certificate can be tried for said offence. The plain reading of said Section indicates that the person who issues or signs any certificate required by law to be given or signed can be tried for said offence. Admittedly the certificate was not signed by the petitioner himself rather the same was signed by his counsel by giving following note:- (Sd.) A perusal of the said note further, indicates that while appending said note learned counsel for the petitioner had not clarified that said note was given under the instructions of his client: It is established law that the penal provisions of law are construed and interpreted strictly. It is cardinal principle of law, that the benefit of every doubt has to go to the accused. The petitioner had specifically advanced the plea that the certificate was not given by his counsel under his instructions. The perusal of findings made by the Ex-officio Justice of Peace reveals that the same were passed on airy-fairy observations and extraneous reasons. I have further concluded that the said court had failed to proceed against the counsel who has appended the false certificate though he was duty bound to inquire from his client before appending certificate to the effect that the petition was the first one. In case the note was given on the instructions of his client, the counsel was bound to narrate said fact making specific reference to his instructions in this regard. Besides that, after learning the fact of suppression of filing of earlier application, the second petition could have been dismissed simply on that ground. The impugned order show that due to the appending of the false certificate the petition was in fact dismissed simply on the said ground.

7. Besides, while passing the impugned order the learned Additional Sessions Judge/Ex-officio Justice of Peace committed number of other illegalities also inasmuch as no charge was framed against the petitioner which was sine qua non for holding the petitioner guilty. Without framing charge it cannot be said that the petitioner was fully aware of the charge, which was to be defended by him. Therefore, it can be safely held that the petitioner was seriously prejudiced in putting up his defence. Similarly no evidence was recorded against the petitioner. The contention of the learned Deputy Prosecutor General that it was a case of summary trial held under Section 260, Cr.P.C. cannot be accepted as the same relates to the trial by a Magistrate. Even otherwise according to said Section fourteen categories of the offences which can be summarily tried have been mentioned in the said section. Though it has not been specified that under which provision of law the petitioner has been convicted but presuming that the petitioner was convicted under Section 197, P.P.C. the said offence is not covered by any of the clauses of Section 260, Cr.P.C. As far as sub-clause (1)(a) of said Section is concerned, that authorizes the Magistrate to summarily try the offences not punishable with death, transportation or imprisonment for a term exceeding six months. While the offence under Section 197, P.P.C. can be punished for a term which may extend to seven years. Therefore, the said contention of the learned Deputy Prosecutor General is devoid of force.

8. There is another aspect of the case i.e. the petitioner was mainly convicted considering the fact that he had tendered unqualified apology, indirectly said plea was treated as a confession within the meaning of section 243, Cr.P.C. which reads as under:

"Conviction on admission of truth of accusation.

If the accused admits that he has committed the offence with which he is charged, his admission shall be 'recorded as nearly as possible in the words used by him; and, if he shows no sufficient cause why he should not be convicted, the Magistrate may convict him accordingly." A perusal of said provision of law would reveal that for convicting any accused under section 243, Cr.P.C. his admission should be recorded as nearly as possible in the words used by him but in this case no admission was recorded by the learned trial court what to talk of recording the same in the words used by the accused/petitioner. There is yet another pre-condition for recording conviction under section' 243, Cr.P.C. according to which after recording admission of the accused the court cannot convict him without providing him yet another opportunity to show cause as to why he should not be convicted, therefore, by no stretch of imagination it can be treated that conviction is this case was recorded under section 243, Cr.P.C. Reliance in this regard is placed on a case of Sharif Khan v. The State (1991 P.Cr.L.J. 1761).

9. Besides, while convicting the petitioner, the learned Ex-officio Justice of Peace had failed to consider that while entertaining the first as well as second application the said Judge was not performing or discharging any judicial function rather it was performing administrative function, on this account also the impugned judgment is bad. Reliance in this regard is placed upon the judgment of a Full Bench of this Court passed on Khizer Hayat and others v. Inspector General of Police (Punjab), Lahore and others (PLD 2005 Lahore 470).

10. Considering the provisions of section 413, Cr.P.C. the objection of maintainability of this revision petition is ruled out. At the conclusion of the arguments both parties had made a prayer for remanding he case to the learned Additional Sessions Judge/Ex-officio Justice of Peace but in view of the observations made above and the fact that besides the dismissal of his application under Section 22-A (6), Cr.P.C. the, petitioner has already suffered a lot for above-said act as he has undergone the rigors of proceedings faced before the learned Ex-officio Justice of Peace as well as during the pendency of this petition, there is no need to remand the case. Consequently', this revision petition is accepted and the impugned order/judgment to the extent of awarding conviction and sentence to the petitioner is set aside. N.H.Q. /M-578/L??????????????????? ??????????????????????????????????????????????? Revision Petition accepted.