1. ' AZIZULLAH M. MEMON, J.--- This criminal appeal is directed against the impugned order dated 18th March, 2006 passed by 1st Additional Sessions Judge, Karachi (South) in S.C. No,410 of 2005, whereby the appellant was remanded to custody and reply submitted by him to the show-cause notice issued by the said learned Court was "dismissed".
2. ' The facts giving rise to filing of the present criminal appeal are to the effect that a murder case bearing S.C. No,410 of 2005 was pending before the said Additional Sessions Judge against accused, namely Muhammad Arif and others; its date of hearing was fixed 13-3-2006 and Syed Bashir Hussain Shah was appearing for the accused of the said Sessions case, who attended the Court on the said date of hearing at the first instance, but when case was called at later stage a medical certificate, issued by appellant Dr. Waqar Ahmed Ramejo was, produced before the Court, wherein it was stated by the appellant that the learned counsel was suffering from severe sore throat, fever, flu and cough and was advised rest for three days viz. From 13-3-2006 to 16-3-2006; five witnesses of the prosecution were in attendance in he said Sessions Case on the said date of hearing viz. 13-3-2006 for recording their evidence, but could not be examined due to absence of learned defence counsel; hence the said learned Additional Sessions Judge issued notice to the appellant to show cause "as to why you have issued a fictitious medical certificate which caused hindrance in proceedings of the present case"; it was specifically stated in the said show-cause notice that earlier at 10-00 a.m. On the same day i.e. 13-3-2006 Mr. Syed Bashir Hussain Shah, Advocate had attended the said Court when he was given time of 11-30 a.m. Proceeding with his case and when he had not complained about any sickness so as to be unable to proceed with the said case but then all of a sudden the medical certificate was produced at 11-00 a.Rn., issued by the appellant and while three witnesses of the prosecution had appeared having come from Lahore and Kasur respectively which "caused hindrance in proceeding of the present case".
3. ' The appellant submitted his reply to the said show-cause notice on 18-3-2006 denying the allegation of having issued fictitious and false medical certificate; the learned Additional Sessions Judge recorded in the impugned order that the appellant stated before the learned Judge that "he is not issuing certificates for rest generally but some time he issues rest certificates to Advocates coming to him as patients".
4. ' Learned counsel for the appellant has further referred to the diary sheet of the said Sessions Case dated 18-3-2006, wherein the order appears to have been passed by the learned trial Judge to the effect that reply to the show-cause notice having been furnished, the impugned order having been passed, the appellant was directed to be taken into judicial custody for three days when Mr. S.M.
5. Zafar, Advocate filed power for the appellant with an application under sections 496/497, Cr.P.C. On behalf of the appellant, while P.Ws. Muhammad Rafiq, Muhammad Naseem and Muhammad Rasheed were present along with Dr. Robina Hussain and Investigating Officer of the case; it was further recorded that the learned Advocate for the appellant showed his willingness to pay Rs,6,000 for fine, to the private P.Ws. As they came from Lahore and Kasur, Rs,6,000 have been paid by the'Doctor to the P.Ws. And they are bound down for the next date of hearing Dr. Has been excused.
6. Put off to 5th April, 2006 for evidence. Custody sent back. P.Ws. To attend".
7. ' Learned counsel for the appellant has argued that the action against the appellant by the learned Judge was illegal since very beginning inasmuch as the show-cause notice itself does not mention as to under what provisions of law the appellant was charged when the show-cause notice was issued against him, that no charge was framed against the appellant nor he was afforded a chance to record a plea to any such charge; further that it is not known that under what provisions of law learned Additional Sessions Judge proceeded against the appellant; he has further argued that entire proceedings were taken illegally and the order of taking him into custody was also illegal and further that subsequent review of the said order to convert the punishment of remanding the appellant to custody for three days into payment and recovery of fine of Rs,60,000 from him is also illegal.
8. ' Learned counsel for the appellant has placed reliance on 2003 PCr.LJ 1847; PLD 2003 Kar. 260; 2005 YLR 3297; 1987 PCr.LJ 1423 (Quetta); 1999 M LD 1423; PLD 1991 Kar. 355; 1997 M LD 2086 (Lahore); 1988 PCr.LJ 2344; 2001 PCr.LJ 222 (Lahore); 2001 YLR 1107 (Lahore); 2000 SCM R 1856; 1995 CLC 1632; PLD 2003 SC 19; 2006 YLR 3076 (Karachi); NLR 1993 Criminal 270; 1991 M LD 487 (Karachi); 1986 PCr.LJ 59; 1992 SCM R 1229; 1999 PCr.LJ 61 (Peshawar); PLD 1951 BJ 85; 1985 M LD 1396 (Lahore) and 1987 PCr.LJ 74 (Karachi).
9. The settled principles of law are to the effect that whenever accused is charged for having committed an offence, a formal charge necessarily is to be framed against him, then he is to be afforded with an opportunity to explain the same by means of recording his plea in the words which may be used by him, and -then in case of a plea of not guilty, evidence is necessarily to be recorded in support of the charge whereafter statement of accused is to be recorded to afford him opportunity to explain the evidence which may come against him in support of the said charge, and then after hearing him, a proper judgment is to be passed pronouncing either this acquittal or conviction, as the case may be.
10. ' Such a procedure having not been adopted by the learned Additional Sessions Judge, the impugned orders are hereby set aside vith direction that the case, is remanded to learned Additional Sessions Judge to proeeed with the case against the appellant afresh, and to decide the guilt, or otherwise, of the appellant afresh.