2009 PLP 655 (MLD)

ABDUL RASHEED KALWAR, J.

This constitutional petition filed by the petitioner is for setting aside the order, dated 16-7-2008 passed by the Court of Vth Additional District Judge Karachi East in FRA No.59/07 Khalid Ahmed v. Maulana Shaikh Muhammad as well as the order, dated 2-4-2007 passed by the trial Court i.e. Vth Senior Civil Judge and Rent Controller Karachi East in Rent Case No.755 of 1999 Execution No.1 of 2002 Khalil Ahmed v. Muhammad Sharif. The petitioner had moved application under section 476, Cr.P.C. before the Court of Vth Senior Civil Judge/Rent Controller Karachi East against the respondent No.1 alleging therein that he had committed perjury for making false and frivolous statement during the course of proceedings in Rent Case No.775 of 1999 on 7-2-2003. He had asked the Court to take cognizance of perjury and proceed against respondent on the strength of the provision of law in 476, Cr.P.C. 195, Cr.P.C. and 193, P.P.C. The Rent Controller dismissed this application saying that sections 476, Cr.P.C., 195, Cr.P.C. and 193 P.P.C. were not applicable. The petitioner preferred First Rent Appeal No.59 of 2007 the Court which was dismissed by Vth Additional District Judge Karachi East holding that provisions of section 476, Cr.P.C. were not applicable to the proceedings in the Court of Rent Controller Finally petitioner preferred this petition/revision. Petitioner has reiterated his grounds mentioned in the petitioner and the contentions raised before the two Courts below, saying that both lower Courts have erred in applying provision of section 476, Cr.P.C. other relevant section of P.P.C. and Criminal Procedure Code and thereby failed to punish the respondent No.1 for perjury which is very much proved from the material available on record. In support of his contention he has relied on 2001 PCr.LJ 1976 (Abdullah Tang v. Saleem), 1973 Law Notes 548 Lah. (Asad Mumtaz v. Naima Khanum), AIR 1923 Nagar

258. On 15-1-2000 after hearing the petitioner in person and Mr. Saleem Akhtar Additional Prosecutor General this petition was dismissed in limine for the following reasons. The petitioner had pressed into service provision of section 476, Cr.P.C.,. 195 Cr.P.C. and 193 P.P.C. and through his application before the lower Courts. In order to understand the nature of these provisions, same are reproduced as follow:-

476. Procedure in cases mentioned in section 195.

(1) When any offences 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. (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; (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 Magistrate of the first class, a Civil Court other than a High Court, a District Court, or a Court exercising the powers of a District Court or Revenue Court not interior to the 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 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 is subordinate within the meaning of subsection (3) of section 195. (4) Any person sentenced by the 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 case of a sentence by a Court of Sessions or District Court, or a Court exercising the powers of a Court of Session or a District Court, to the High Court, and in any other case, to the Sessions Judge. (5) The provisions of Chapter XXXI shall, so far as they are applicable, apply to appeal under this section and the appellate Court may alter the finding or reduce or enhance the sentence appealed against. While referring to the provision of section 23 of the Sindh Rented Premises Ordinance it appears that section 480, Cr.P.C. has been applied, section 476, Cr.P.C. is not found mentioned in any provision of Sindh Rented Premises Ordinance. Section 23 of Sindh Rented Premises Ordinance is follows:- (23). Judicial Proceedings.

The Controller and the appellate authority shall be deemed to be a Civil Court within the meaning of section 480 of Code of Criminal Procedure, 1898 (Act V of 1898). After going through provisions of section 23 Sindh Rented Premises Ordinance lets have a glimpse of section 480 which is reproduced:--

480. Procedure in certain cases of contempt.

(1) When any such offences as is described in section 175, section 178, section 179, section 180 or section 228 of the Pakistan Penal Code is committed in the view or presence of any Civil, Criminal or Revenue Court, the Court may cause the offender to be detained in custody and at any time before the rising of the Court on the same day may, if it thinks fit, take cognizance of the offence and sentence the offender to fine, not exceeding two hundred rupees, and, in default of payment, to simple imprisonment for a term which may extend to one month, unless such fine be sooner paid. On comparison of sections 480 and 476, Cr.P.C. we will see that section 476 deals with the procedure in cases under section 195 Cr.P.C. subsection (1) clause (b)(c). The clause (b) of section 195 Cr.P.C. subsection (1) covers sections 193, 194, 195, 196, 199, 200, 205, 206, 207, 208, 209, 210, 211, 228, P.P.C. The clause (c) of subsection (1) of section 195 Cr.P.C. pertains to sections 463, 471, 475, 476, P.P.C. These sections according to the first schedule are providing punishment for following offences:-- Section of P.P.C. covered under section 195(1)(b) Cr.P.C. and 476 Cr.P.C.

193. Giving or fabricating false evidence in a judicial proceeding Giving or fabricating false evidence in any other case Shall not arrest without warrant Ditto Warrant Ditto Bailable Ditto Not compound Able Ditto Imprisonment of either description for 7 years and fine Imprisonment of either description for 3 years and fine Court of Session or Magistrate of the first Class

2. Magistrate of the first class 194 Giving or fabricating false evidence with intent to cause any person to be convicted of a capital offence If innocent person be thereby convicted and executed Ditto Ditto Ditto Ditto Not bailable Ditto Ditto Ditto Imprisonment For life or rigorous imprisonment for 10 years and fine Death, or as above Court of Session Ditto 195 Giving or Fabricating false evidence with intent to procure conviction of an offence punishable with 3 imprisonment for life or with imprisonment for 7 years or upward Ditto Ditto Not bailable Ditto The same as For the offence Ditto 196 Using in a Judicial proceeding evidence known to be false or fabricated Shall not arrest without warrant Warrant According as the offence Or giving Such evidence is bailable or not None compound able The same as for giving or fabricating false evidence Court of Session or Magistrate Of the first Class 199 False statement made in declaration which is by law receivable as evidence Ditto Ditto Bailable Ditto The same as for giving false evidence Ditto 200 Using as true any such declaration known to be false Ditto Ditto Ditto Ditto Ditto Ditto 205 False personation for the purpose of any act or proceeding in a suit or criminal prosecution, or for becoming bail or security Shall not arrest without warrant Ditto Ditto Ditto Imprisonment Of either description for 3 years, or fine or both Magistrate Of the first class 206 Fraudulent Removal or concealment etc. of property to prevent its seizure as a forfeiture or in satisfaction of a fine under sentence, or in execution of a decree Ditto Ditto Ditto Ditto Imprisonment of either description for 2 years, or fine or both Magistrate Of the first or second class 207 Claiming property without right, or practising description touching any right to it, to prevent its being taken as a forfeiture, or in satisfaction of a fine under sentence or in execution of a decree Ditto Ditto Ditto Ditto Ditto Ditto 208 Fraudulently Suffering a decree to pass for a sum not due or suffering decree to be executed after it has been satisfied. Ditto Ditto Ditto Ditto Ditto Magistrate of the first class 209 False claim in a Court of justice Ditto Ditto Ditto Ditto Imprisonment of either description for 2 years, and fine Ditto 210 Fraudulently Obtaining a decree for a sum not due, or causing a decree to be executed after it has been satisfied. Ditto Ditto Ditto Ditto Imprisonment of either description for 2 years, or fine, or both Ditto 211 False charge of offence made with in- tent to injure If offence Charged be Punishable With imprisonment for 7 years or upwards If offence charged be capital, or punishable with imprisonment for life. Ditto Ditto Shall not arrest without warrant 'Ditto Ditto Warrants Ditto Ditto Bailalbe Ditto Ditto Not compoundable Ditto Imprisonment of either description for years and fine. Imprisonment of either description for 7 years, and fine Ditto Court of Session, or Magistrate of the first class Court of Session 288 Intentional insult or interruption to a public servant sitting in any stage of a judicial proceeding Shall not arrest without warrant Summons Bailable Ditto Simple imprisonment for 6 months or fine of 3,000 rupees, or both The Court In which the offence Is committed subject to the provision of chapter XXXV. Sessions of P.P.C. covered under section 195(1)(c), Cr.P.C. and 476, Cr.P.C. are as follows:- "

463. Forgery.

Whoever makes any false document or part of a document with intent to cause damage or injury, to the public or to any person, or to support any claim or title, or to intend to commit fraud or that fraud may be committed, commits forgery. 465 Forgery Shall not . arrest without warrant Warrant Bailable Not com- poun dable Imprisonment of either description for 2 years, or fine, or both Magistrate of the first class 471 Using as Genuine a Forged document which is known to be forged. When the forged document is a promissory note of the Central Government. Ditto May arrest without warrant Ditto Ditto Ditto Ditto Ditto Ditto Punishment for forgery of such document Ditto Same Court as that by which the forgery is triable Court of Session Ditto 475 Counterfeiting a device or mark used for authentic- eating documents described in section 467 of the Pakistan Penal Code or possessing counterfeit marked material. Ditto Ditto Ditto Ditto Imprisonment for life, or imprisonment of either description for 7 years, and fine Court of Session 476 Counterfeiting a device or mark used for authentic- eating' documents other than those described in section 467 of the Pakistan Penal Code or possessing counterfeit marked material. Ditto Ditto Not Bailable Ditto Imprisonment of either description for 7 years, and fine Ditto The section 480 of Criminal Procedure Code is limited to offences which are defined under sections 175, 178, 179, 180 and section 228, P.P.C. The first schedule of Cr.P.C. C in respect of these offences are reproduced first as follows:-- 175 Intentionally Omitting to Produce a document to a public servant by a person legally bound to produce or deliver such document Shall not arrest without warrant Summons Bailable Not compoundable Simple imprisonment for 1 month, or tine of 1,500 rupees, or both The Court in which the offence is committed, subject to the provisions of Ch. XXXV or, if not committed in a Court a Exh. Magistrate of the first or second class 178 Refusing oath when duly required to take oath by public servant Ditto Ditto Ditto Ditto Simple imprisonment for 6 months, or fine of 3,000 rupees, or both The Court In which the offence is committed, subject to the provisions of Ch.XXX; or, if not committed in a Court a Ex. Magistrate of the first or second class 179 Being legally bound to state truth, and refusing to answer questions Ditto Ditto Ditto Ditto Ditto Ditto 180 Refusing to Sign a statement made to a public servant when legally required to do so. Shall not arrest without warrant Summons Bailable Not compoundable Simple imprisonment for 3 months, or fine of 1,500 rupees, or both The Court In which the offence is committed, subject to the provisions of Ch. XXXV; or, if not committed in a Court a Magistrate of the first or second class From nature of allegation it appears to be one of giving false evidence which is defined under section 193, P.P.C. and falls with the category of offence falling under sections 476 and 195, Cr.P.C. The sections of P.P.C. i.e. 175, 178, 179, 180 and 228 falling under the category of section 480, Cr.P.C. do not cover the allegation of the petitioner. Legislature has intentionally avoided to apply section 476 in the proceedings under section of Sindh Rented Premises Ordinance. Therefore same cannot be applied by Courts which has not been provided by the provision of S.R.P.O. In my humble view both the Courts below were correct in giving finding on the subject and dismissing the applicant's application. With profound respect the case-law cited as AIR 123, 258, 1973 Law Notes 588 Lah. do not pertain to Sindh Rented Premises Ordinance and scheme of section 23 of Sindh Rented Premises Ordinance was not before these Courts. Case of Abdullah Tang had dealt with section 19 of Sindh Rented Premises Ordinance and section 476, Cr.P.C. I have gone through this case-law of this Court decided by my learned brother Ghulam Rabbani, J. in said case the provisions of section 23 of Sindh Rented Premises Ordinance and section 480, Cr.P.C. have not been discussed, therefore, with profound respect, dictum in this case-law cannot be made applicable to the present circumstances of the case. This constitutional petition has limited scope. As a general rule High Court does not interfere in concurrent findings of the trial Court on the one hand and does not substitute the findings of the lower Courts with its own findings on the other. In order to reach just and right conclusion, the matter has been thoroughly probed into, Legal implication of inclusion of section 480, Cr.P.C. and exclusion of section 476 Cr.P.C. in S.R.P.O. has been discussed hereinabove which resulted into the conclusion that petition was liable to be dismissed which I had done vide short order, dated 15-1-2009. S.A.K./K-5/K Petition dismissed.