2023 P Cr (PLP)

AALIA NEELUM, J.

The appellant-Babu Khan son of Jafar Ali, caste Rajput, resident of Mangat Neecha Tehsil and District Hafizabad was convicted under section 182, P.P.C. by the learned District and Sessions Judge, Hafizabad vide order dated 04.12.2012 for filing false complaint No. CG.651/2010 (Mark-A) before the Lahore High Court Lahore and sentenced him to undergo 04-months' rigorous imprisonment with the direction to pay Rs.3000/- as fine and in case of default in payment thereof, to further undergo 07-days simple imprisonment.

2. Feeling aggrieved by the order dated 04.12.2021 passed by the learned District and Sessions Judge, Hafizabad, the appellant has assailed his conviction through filing instant appeal bearing Criminal Appeal No.1974 of 2012.

3. Briefly, the facts of the case are that the appellant had filed complaint No.CG.651/2010 (Mark-A) before the Lahore High Court Lahore with the allegations that he paid Rs.1,50,000/- to Kashif Ijaz, Stenographer for job of his son in judiciary in presence of Jamshed and Mahmood. Thereafter he demanded back his money but he (Kashif Ijaz, Stenographer) refused to return the same. Whereupon, Lahore High Court Lahore sent the above said complaint (Mark-A) to the District and Sessions Judge, Hafizabad through letter No.5107-DG/HR&VC/CG.651/2010 dated 23.02.2012 (Mark-B) for submission of report regarding worth of the allegations. However, during the proceedings in view of letter dated 23.02.2012 (Mark-B), the appellant appeared in person and got recorded his statement (Mark-C) that the matter with Kashif Ijaz, Stenographer was settled and he did not want to pursue his complaint. Whereupon, in view of statement of the appellant, the learned District and Sessions Judge, Hafizabad submitted his report vide office letter No.786/D-16 dated 05.04.2012 (Mark-D) to the Lahore High Court Lahore. Thereafter, Lahore High Court Lahore vide letter No.22562-SMIT/HC/CG.651/2010 dated 13.09.2012 (Mark-E) directed the learned District and Sessions Judge, Hafizabad to hold an inquiry and call the complainant to prove the allegations with evidence or face the legal consequences for making false complaint. Thereafter, learned District and Sessions Judge, Hafizabad ordered regular inquiry against Kashif Ijaz, Stenographer and deputed Mr. Ch. Ghulam Rasool, Additional Sessions Judge, Hafizabad as inquiry officer vide office order dated 04.10.2012 (Mark-G) and on receiving inquiry report (Mark-H) along with statement of the complainant/appellant (Mark-I), the proceedings under section 476, Cr.P.C. for summary trial of the appellant for the offence under section 182, P.P.C. was registered on 04.12.2012 and on the same day learned District and Sessions Judge, Hafizabad gave oral notice for written reply for the same day, and after recording his statement, the appellant was convicted and sentenced for making false statements before learned District and Sessions Judge, Hafizabad. Hence, instant appeal.

4. I have heard the arguments advanced by the learned counsel for the appellant as well as learned Deputy Prosecutor General and have minutely perused the record available on the file.

5. The offence under section 182 of the Pakistan Penal Code has been mentioned in section 195(1) of the Code of Criminal Procedure and in case of commission of an offence under this section a complaint had to be filed by the public servant concerned. It was not the position in instant case that a complaint had been made in respect of an offence which did not at all come within the purview of section 195(1)(a) of the Code of Criminal Procedure.

6. The appellant had filed the complaint No.CG.651/2010 (Mark-A) before the Lahore High Court Lahore with the allegations that he paid Rs.1,50,000/- to Kashif Ijaz, Stenographer for job of his son in judiciary in presence of Jamshed and Mahmood. Thereafter he demanded back his money but he (Kashif Ijaz, Stenographer) refused to return the same. Whereupon, Lahore High Court Lahore sent the above said complaint (Mark-A) to the District and Sessions Judge, Hafizabad through letter No. 5107-DG/HR&VC/CG.651/2010 dated 23-02-2012 (Mark-B) for submission of report regarding worth of the allegations. During the proceedings in view of letter dated 23-02-2012 (Mark-B) the District and Sessions Judge, Hafizabad summoned the appellant. The appellant appeared in person and got recorded his statement (Mark-C) that the matter with Kashif Ijaz, Stenographer was settled and he did not want to pursue his complaint. Whereupon, in view of statement of the appellant, the learned District and Sessions Judge, Hafizabad submitted his report vide office letter No.786/D-16 dated 05-04-2012 (Mark-D) to the Lahore High Court Lahore. Thereafter, Lahore High Court Lahore vide letter No. 22562-SMIT/HC/CG.651/2010 dated 13-09-2012 (Mark-E) directed the learned District and Sessions Judge, Hafizabad to hold an inquiry and call the complainant to prove the allegations with evidence or face the legal consequences for making false complaint. The complainant/appellant was summoned by the learned District and Sessions Judge, Hafizabad and on 04-10-2012 complainant/appellant got recorded his statement (Mark-F) on oath and he retreated above said statement. On the basis of statement (Mark-F) dated 04-10-2012, the learned District and Sessions Judge, Hafizabad ordered regular inquiry against Kashif Ijaz, Stenographer and deputed Mr. Ch. Ghulam Rasool, Additional Sessions Judge, Hafizabad as inquiry officer vide office order dated 04-10-2012 (Mark-G). Thereafter, Mr. Ch. Ghulam Rasool, Additional Sessions Judge, Hafizabad submitted inquiry report dated 26.11.2012 (Mark-H) along with statement of the complainant/appellant (Mark-I) revealing that he resiled from his stance and the complainant be proceeded for filing a false complaint against Kashif Ijaz, Stenographer. After receiving inquiry report dated 26.11.2012 (Mark-H) the learned District and Sessions Judge, Hafizabad in pursuance of office order dated 04.10.2012 (Mark-G) and letter No.15968/MIT/HC dated 05.07.2011 initiated proceedings under section 476, Cr.P.C. for summary trial of the appellant for the offence under section 182, P.P.C. on 04.12.2012. On the same day i.e. 04.12.2012 learned District and Sessions Judge, Hafizabad gave oral notice for written reply, for the same day, to the appellant and on the same day after recording his statement, he was convicted and sentenced for making false statements before learned District and Sessions Judge, Hafizabad on 30.03.2012 (Mark-C) and 04.10.2012. Admittedly, the appellant was convicted and sentenced on the basis of statements made before learned District and Sessions Judge, Hafizabad on 30.03.2012 (Mark-C) and 04.10.2012. It could be seen from the order dated 04.12.2012 that emphasis has been lied on the statement of the appellant made on 04.12.2012 and specifically mentioned in the order dated 04.12.2012 that the appellant had conceded to have filed the complaint on the instant of Jamshaid (his nephew), whereas as per certified copy of statement of the appellant dated 04.12.2012 available on the record, it reveals that no such statement was made by the appellant. By reproducing the deposition of the appellant, there will be no room thereafter for ambiguities or uncertainties. The appellant made following statement on 04.12.2012:-

7. The offence under section 182 of the Pakistan Penal Code has been mentioned in section 195(1)(a) of Criminal Procedure and in case of commission of an offence under this section a complaint had to be filed by the public servant concerned. It was not the position in the present case that a complaint had been made in respect of an offence for making false statement.

8. In the instant case no complaint under section 182 of the Penal Code for the trial of the accused for that offence was made by the public servant. The argument was that on the basis of inquiry report the appellant could not have been tried and convicted for an offence under section 182, Pakistan Penal Code, because the public servant did not lodge the complaint for trial under section 182, Pakistan Penal Code as required by section 195(1)(a) Criminal Procedure Code.

9. Besides, section 476, Criminal Procedure Code, 1898 applied only to offences mentioned in section 195(1)(b) and (c) of Criminal Procedure Code, 1898 and not to those mentioned in section 195(1)(a) of Criminal Procedure Code, 1898. In other words, if the offence in question does not fall within the purview of section 195(1)(b) and (c) of the Code of Criminal Procedure 1898, a court has no jurisdiction to make a complaint under section 476, Criminal Procedure Code, 1898.

10. Section 195(1)(a) of the Code of Criminal Procedure provides that no court shall take cognizance of any offence punishable under sections 172 to 188 of the Pakistan Penal Code except on the complaint in writing of the public officer concerned or of some other public servant to whom he is subordinate. Section 476 of the Code of Criminal Procedure prescribes the procedure to be followed where a Court is moved to lay a complaint, and that applies only to offences mentioned in sections 195(1)(b)(c) of Criminal Procedure Code, 1898 and not to those mentioned in section 195(1)(a) of Criminal Procedure Code, 1898. Thus, in the present case, the District and Sessions Judge, Hafizabad could have made a complaint in respect of an offence under section 182, P.P.C. before the jurisdictional Magistrate in accordance with law and the jurisdictional Court was not debarred from taking cognizance of that offence.

11. For the sake of convenience, the relevant provision prescribed under section 182 of the P.P.C. is extracted hereunder:- Section

182. False information with intent to cause public servant to use his lawful power to the inquiry of another person. Whoever gives to any public servant any information which he knows or believes to be false, intending thereby to cause, or knowing it to be likely that he will thereby cause, such public servant. (a) to do or omit anything which such public servant ought not to do or omit if the true state of facts respecting which information is given were known by him, or (b) to use the lawful power of such public servant to the inquiry or annoyance of any person, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both. From perusal of the provision prescribed under section 182 of the P.P.C., the essential ingredients of this section are:- (i) giving of an information to a public servant. (ii) the information must have been known or believed to be false by the giver; and (iii) the information must have been given with the intention to cause, or knowing it to be likely that it will cause, such public servant; (a) to do or omit anything which he ought not to do or omit to do if the true facts were known to him; or (b) to use his lawful power to the injury or annoyance of any person. Section 195 of the Cr.P.C. is an exception to the general rule that any person, having knowledge of commission of an offence, made such a law in motion by a complaint, even though he is not presently interested or affected by the offence. It mandates that no Court has jurisdiction to take cognizance of the offences mentioned therein unless there is a complaint in writing required under that section. Section 195 of the Cr.P.C. is extracted hereunder:- Section

195. Prosecution for contempt of lawful authority of public servants: Prosecution for certain offence against public justice: Prosecution for certain offences relating to documents given in evidence: (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 public 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 proceedings in any Court, except on the complaint in writing of such Court or of some other Court to which such Court is subordinate; or (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. (2) In clauses (b) and (c) of the subsection (1), the term "Court" includes a Civil, Revenue or Criminal Court, but does not include a Registrar or Sub-Registrar under the [Registration Act, 1908]. (3) For the purposes of this section, a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from the appealable decrees or sentences of such former Court, or in the case of a Civil Court from whose decree no appeal ordinarily lies to the principal Court having ordinary original civil jurisdiction within the local limits of whose jurisdiction such Civil Court is situate: Provided that-- (a) where appeals lie to more than one Court, the Appellate Court of inferior jurisdiction shall be the Court to which such Court shall be deemed to be subordinate; and (b) where appeals lie to a Civil and also to a Revenue Court, such Court shall be deemed to be subordinate to the Civil or Revenue Court according to the nature of the case or proceeding in connecting with which the offence is alleged to have been committed. (4) The provisions of subsection (1), with reference to the offences named therein, apply also to criminal conspiracies to commit such offences and to the abetment of such offence, and attempts to commit them. (5) Where a complaint has been made under subsection (1), clause (a), by a public servant, any authority to which such Public servant is subordinate may order the withdrawal of the complaint and, if does so, it shall forward a copy of such order to the Court and, upon receipt thereof by the Court, no further proceedings shall be taken on the complaint. From a close look at the provision prescribed under section 195(1) of the Cr.P.C, it would be evident that there is legal bar to any Court taking cognizance of offences punishable under section 182 of the P.P.C. except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate. The provisions prescribed under section 195 of the Cr.P.C. would show that there is an absolute bar against the court taking cognizance of the offences mentioned therein except in the manner provided there under. A cognizance of offence under section 182, P.P.C. can only be taken on written complaint in the manner provided under the provision.

12. Here, in the present case, the learned District and Sessions Judge, Hafizabad has not taken cognizance of the offence punishable under section 182 of the P.P.C. in a separate complaint case on receiving an inquiry report dated 26.11.2012 (Mark-H) and the cognizance has been taken by himself under section 476 of the Cr.P.C instead of making it to the jurisdictional Magistrate. The manner in which the cognizance of the offence has been taken cannot be approved. The learned District and Sessions Judge, Hafizabad was debarred from taking cognizance of the offence under section 182 of the P.P.C. in view of the provisions prescribed under section 195 of the Cr.P.C. Since a complaint was not filed by the court in relation to proceedings taken on the complaint (Mark-A) of the appellant sent to the District and Sessions Judge, Hafizabad through letter No. 5107-DG/HR&VC/CG.651/2010 dated 23-02-2012 (Mark-B) by the Lahore High Court Lahore for inquiry.

13. Thus, in view of above discussions, this appeal is allowed. The impugned order dated 04.12.2012 passed by the learned District and Sessions Judge, Hafizabad in proceedings of complaint is hereby set aside. The appellant-Babu Khan is on bail, he is not required to surrender and the bail bonds and surety submitted by him stand discharged. SA/B-18/L Appeal allowed.