1969 P Cr (PLP)

Ramchand for Respondent. The respondent was working as an assistant in the office of the Deputy Commissioner, Sanghar. His right to hold that office having been questioned, he filed Suit No. 8 of 1965 in the Court of the Additional District Judge, Tharparkar at Sanghar for a declaration that the Deputy Commissioner, Sanghar had no right to question his holding that office and prayed for a permanent injunction restraining him from interfering with that right. Along with the suit, he filed an application under Order XXXIX, rules 1 and 2 of the Civil Procedure Code, on the 20th of February 1965, of which a notice was given to the appel lant. On the 13th of March 1965, when the matter came up for hearing, some statement was made by the Advocate of the Government that the plaintiff had already been removed from the post and, therefore, the application for injunction had become infructuous. The plaintiff challenged the correctness of that statement and in support he filed the affidavit dated the 13th of March 1965. The learned Court, after hearing the parties, granted the injunction in his favour restraining the appellant from interfering with his right to hold the post of an assistant in his office.

2. The Government filed an application under section 476, of the Criminal Procedure Code in the trial Court, praying for an enquiry against the respondent on the ground that the affidavit, dated the 13th of March 1965, was false and he deliberately used it for taking advantage. The trial Court by a very short order dismissed that application in these words :‑ "Heard A. P. P. Mr. Muhammad Ashraf and Mr. Ramchand. It is neither expedient nor in the interests of justice to hold an enquiry in the alleged offence. There does not appear to be intentional suppression of facts. The application is dismissed." The Government has filed this appeal against the said order and has questioned its correctness inter alia on the ground that there was no material before the trial Court to have come to the conclusion that the respondent was not guilty of intentionally suppressing the true facts as deposed by him in the impugned affidavit.

3. I agree with Mr. Manzoor Hussain, the learned counsel appearing for the State that, the impugned order of the learned Sessions Judge cannot be upheld in law. It is true that section 476 of the Criminal Procedure Code gives ample discre tion to the Presiding Officer to hold or not to hold an enquiry but the exercise of that discretion must be judicious in character. Admittedly, no evidence was taken in regard to the allegations made by the appellants in their applications, and consequently there was no material before the learned Court to have come to the impugned conclusion that there was "no intentional suppression of facts" on the part of the respondent.

4. It needs no emphasis to have to point out that when an application is properly made to a Court of law on certain allegations, then so long as those allegations are not disposed of, it cannot be said that the Court had properly exercised its jurisdiction. Reference may be invited in this connection to the case of A. A. Zari, Advocate v. Sharaf Faridi, Advocate (P L D 1965 S C 22) wherein Lordships their on identical facts have made the following observation :‑ "The gravamen of the charge by Mr. Zari against Mr. Sharaf Faridi had nothing to do with the prospects of success or failure of the complaint against Hanif and Muzaffar, or whether certain evidence could or could not be led in that case. A serious question was raised whether it was at all appropriate for an Advocate to formulate a statement of facts to be made by an accused person, strengthened by the allegation (support ing evidence being specifically mentioned) that the statement which was being so procured was a false statement. It could only be established by evidence whether or not the statement was false. A substantial charge of an act of professional misconduct having thus been formulated, and the existence of evidence in support being indicated, it was contends d that the High Court, within its powers under section 10 (2) of the Bar Councils Act, was obliged to entrust the enquiry to the Bar Council, for it was not possible to contend that an allegation that an Advocate put a false statement into the mouth of an accused person was not an allegation of professional misconduct."

5. In the result, I hold that the impugned order of the trial Court cannot be maintained. It is set aside. The case is remanded back to that Court for enquiry into the application of the appellants in accordance with law as contained in section 476 of the Criminal Procedure Code. Case remanded: