' IBAD-UR-REHMAN LODHI, J.---Once in 2008 as a result of the General Elections held in the country, the present appellant was declared as a returned candidate from the Constituency of NA-178, Muzaffargarh. Although during scrutiny process, no objections were filed to call-in-question the eligibility or qualification of the appellant to be a valid candidate before the Returning Officer and naturally no appeal was preferred before the Election Tribunal constituted for the said purposes.
Also after the appellant was notified as being returned candidate, his such election was not challenged by means of any election petition. However, a rival candidate of the appellant in the said elections filed a Constitutional petition in this Court viz. Writ Petition No,607 of 2008, which was dismissed in limine on 26-2-2008 and the findings so arrived at were called in-question before the august Supreme Court of Pakistan through Civil Petition No,287 of 2008, in which detailed proceedings were taken; but before final verdict was yet to come in the said petition, the appellant opted to resign from his membership in the Parliament and, thus, the petition was not finally decided on merits by the Hon'ble Supreme Court of Pakistan. For ready reference, which would be relevant for the present purposes, some extracts from the judgment dated 25-3-2010 rendered in Civil Petition No,287 of 2008 are re-produced herein below:--- "15. However, on account of his confessing repentance shown through the resignation tendered by him and also on account of the fact that we are not called upon, in these proceedings, to punish him for his above-noticed acts, we have decided to exercise restraint in the said connection. This would, however, not preclude anyone else from moving in the matter if it is so desired.
20. Since, as has been mentioned above, Jamshed Dasti respondent had resigned his seat in the National Assembly, therefore this petition is converted into an appeal and allowed as a result whereof all the orders and decisions rendered in the matter by the concerned authorities and even the impugned judgment of the Lahore High Court are set aside as being of no legal consequences. It may be added that the legal questions raised in this petition are being left unanswered as having been rendered only of academic nature."
' On having been resigned by the appellant from his Constituency, the electors of the same were again called for by the Election Commission for a by-election in which the appellant again contested and again declared as a returned candidate.
2. Since the appellant again attained the status of a Parliamentarian, he became under attack of a campaign rendered by the Election Commission of Pakistan to verify the alleged fake/invalid degrees of the Parliamentarians, which resulted in filing of a Private Complaint No,1 of 2013 by the Regional Election Commissioner, Multan, on the directions of the Election Commission of Pakistan under the provisions of section 94(2) of the Representation of the People Act, 1976, complaining the commission of crime by the appellant, under section 78(3)(d), which is punishable under section 82 and cognizable under section 94 of the Representation of the People Act, 1976 read with sections, 199, 200 and 471 of the Pakistan Penal Code, 1860. Paras-v to vii of the complaint are of significance for the present purposes, which are reproduced' herein-below:--- " (v) That Jamia Rizwia, Multan is not an approved degree/sanad awarding Islamic Institute and Asnad issued by the said Jamia are not recognized by the Higher Education Commission.
(vii) That the Asnad were got scrutinized by the Nazim, Tanzeem-ulMadaris Ahl-e-Sunnat Pakistan and reported vide his certificate dated 23-2-2008 that all the above mentioned Asnad with the name of respondent had never been issued by Tanzeem-ulMadaris. Copy of letter of Nazim, Tanzeem-ul-Madaris. Copy of certificate at Annex-F.
(vii) That the Hon'ble Supreme Court of Pakistan in its judgment passed on 25-3-2010 in C.P.
No,287 of 2008 titled "Nawabzada Iftikhkar Ahmad Khan Babar versus Chief. Election Commissioner, Islamabad and others" has held that the respondent--managed to sneak into it by making a false statement on oath and by using bogus, fake and' forged documents polluting the piety of this pious body... He is guilty, inter alia, of impersonation ----posing to be what he was not i,e, a graduate. He is also guilty of having been a party to the making of false documents and then dishonestly using them for his benefit knowing them to be false...."
3. From the interim orders maintained by the Sessions Judge, Muzaffargarh, which is the trial Court in the present case, it is evident that the complaint was filed on 19-3-2013 and it was fixed for preliminary arguments on 26-3-2013, when the complainant sought an adjournment and again for the purposes, of advancing preliminary arguments, the matter was ordered to be adjourned for 3- 4-2013. It seems that the file was placed before the Sessions Judge on 29-3-2013, a date which was not fixed for any proceeding and the trial Judge passed the following order on 29-3-2013:- "Present:--- None.
' The complaint is put up before me today in view of telefax dated 28-3-2013 received at 10-14 p.m., conveying the order of their Lordship of the august Supreme Court of Pakistan, Islamabad, passed in Suo Motu Review Petition No,36 of 2013 in Civil Petition No,287 of 2008 titled "Jamshed Ahmad Dasti versus Chief Election Commissioner, Islamabad and others". The operative part of the Order reads as under:--- "2. .... We direct the learned Sessions Judge, Muzaffargarh, who is now seized with the matter to decide to proceed his case on day to day basis as early as possible but not later than 4th of April, 2013. In this view of the matter, the instant petition is disposed of.
2. In view of said order of their Lordship, follow-up notice be issued to the complainant and he be also informed telephonically for 30-3-2013.
Dated 29-3-2013."
' As is evident from the above, the file was taken up by the Sessions Judge on 29-3-2013 in absence of any concerned party and even the complainant was ordered to be issued follow-up notice telephonically for the next day i,e, 30-3-2013. On which date, as per the showing of the order after hearing the preliminary arguments, bailable warrants of arrest were ordered to be issued for summoning the accused-appellant for 1-4-2013 and the matter was not fixed for 31-3-2013 (Sunday a close holiday). In addition to issuance of bailable warrants for appearance of the accused in the complaint, trial Court also directed the complainant to furnish requisite attested copies of the documents relied upon and annexed with the complaint on 1-4-2013 (the stage, when even the charge was not framed, but the evidence of the complainant was summoned). In pursuance of the warrants issued, the accused-appellant appeared on 1-4-2013 and copies of relevant documents were delivered and he was granted a time of one hour before framing of charge and, after expiry of that one hour, charge was framed under the provisions of section 82 of the Representation of the People Act, 1976 and sections 200, 468 and 471 of the Pakistan Penal Code, 1860. By means of interim order on 1-4-2013, it is noted by the trial Judge that evidence of the complainant was recorded and thereafter on the same day, the statement of the accused as contemplated under section 342 of the Criminal Procedure Code, 1898 was recorded. It did not end here: The statement of D.W.1 was also recorded on the same day i,e, 1-4-2013, and after getting the documents in defence evidence, on 3-4-2013, the arguments from both the sides were shown to have been heard by the trial Judge and the impugned judgment was passed on the following day i,e, 4.4-2013, whereby, the appellant was convicted under section 82 of the Representation of the People Act, 1976 and sentenced to 3 years' R.I. With a fine of Rs,5,000/- and in default in payment thereof he shall suffer one month S.I. With regard to other charges viz. Under sections, 200, 468 and 471 of P.P.C., it were the findings of the trial Court that the prosecution has failed to prove the guilt against the accused with regard to such offences, therefore, he was ordered to be acquitted in such offences.
4. We have only one appeal before us, whereby, the appellant has challenged his conviction and sentence as was announced by the Sessions Judge, Muzaffargarh, on 4-4-2013, in Private Sessions Complaint No,352-7SJ of 2013 and Private Complaint Trial No,7 of 2013. The complainant of the case has not challenged the findings of the trial Court acquitting the accused-appellant in offences under sections, 200, 468 and 471 of P.P.C.
5. After hearing the learned counsel for the appellant, as well as, the learned Standing Counsel for Federation of Pakistan and the learned Additional Prosecutor-General, we have announced the acceptance of appeal' and ordered the release of the appellant by means of a short order on 10-4- 2013. Herein below are the reasoning of said order:---
(a) For criminal trial initiated on the basis of a complaint, procedure, has been provided in case of Magisterial trial under sections 241 to 247 of Cr.P.C. And if the trial is before the Sessions Judge, the same would be conducted under sections 265-A to 265-H of Cr.P.C. We would be concentrating on the procedure provided in Chapter XXII-A of Cr.P.C. Within the meaning of section 265-C of Cr.P.C., the complainant shall within three days of the order of the Court for issuance of the process to the accused is obliged to file in the Court for supply to the accused as many copies of the complaint and any other document of the file with the complaint, as the number of the accused and such copies shall be supplied free of cost to the accused not later than seven days before the commencement of the trial. Under section 265-F of Cr.P.C., in case the accused does not plead guilty or the Court in its discretion does not convict him on his plea, the Court shall proceed to take all such evidence as may be produced in support of the prosecution and here even if the complainant is a public servant, he is not absolved of such duty in producing the evidence and hearing the complainant by the Court, which exemption has been provided only to a "Court", if complaint has been made by a Court or public servant in discharge of his official duties.
(b) In the present case, the proceedings, which were started on 19-3-2013, when the complaint was filed, at one stage, were ordered to be fixed for 3-4-2013, but the period in between 26-3-2013 and 3-4-2013 experienced a turbulence, when it is evident from the interim order passed by the trial Court on 29-3-2013, which started to proceed with the complaint on day to day basis in order to decide it by not later than 4-4-2013. The proceedings carried out thereafter definitely seem to be result of a panic and sense of fear with the Sessions Judge, Muzafarrgarh, who presumably decided not to follow any statutory law and to ignore all settled principles of a fair and just trial and tried to accomplish the task.
(c) By, way of Constitution (Eighteenth) Amendment Act, X of 2010, Article 10A was inserted in the Constitution. The supreme law of the country provides a right of fair trial to a person for the determination of his civil rights and obligations or in any criminal charge against him entitling him to a fair trial and due process. The words "fair trial" and "due process" are of much significance, which both have completely been violated in the trial under question.
(d) Necessary components of a trial are, framing of charge, recording of evidence, statement of accused, defence evidence, arguments and the announcement of final verdict. The term "trial" was although defined in Criminal Procedure Code, 1898 by giving the meaning to the trial as "the proceedings taken in Court after a charge has been drawn up and includes punishment of the offender", but in Criminal Procedure Code, 1898, this definition has been omitted and from such omission, we, at the most, can say that the expression of trial has no fixed meanings. Nevertheless we cannot deviate from the settled principles of law providing different stages and process of a trial including recording of evidence of the witnesses. Article 2(c) of the Qanun-e-Shahadat Order, 1984 provides the definition of "evidence", which means that all statements, which the Court permits or requires to be made before it by witnesses in relation to matters of fact under inquiry. In Rafiq's Law Dictionary by Mohammad Abdul Basit, the judicial evidence includes all evidence given by the witnesses in the Court. Sardar Muhammad Iqbal Khan Mokal in his book "Law Terms and Phrases" has provided a definition of the evidence as a process, where all statements, which the Court permits or requires to be made before it by the witnesses, and in Judicial Dictionary by Daulat Ram Prem, the word "evidence" signifies the facts relevant, which are brought before the Court through witnesses and documents.
(e) During the trial of the offences triable under the provisions of the Representation of the People Act, 1976, the trial Court cannot avoid the "trial" as in section 94(2) of the Act, the requirement of trial is a mandatory one. In the trial of the present case, neither the complainant got his statement recorded nor any witness has been produced by the complainant to prove the assertion of the complaint. Only the statement of the learned counsel representing the complainant was recorded, where under he has produced certain documents in evidence and the trial Judge got exhibited all such documents without looking into the fact as to whether same were admissible under the provisions of Qanun-e-Shahadat Order, 1984 or not.
(f) In view of the definition of evidence as hereinabove provided the statement of a witness or at least the statement of the complainant as his own witness was necessary to give the proceedings carried out before the trial Court a colour of a trial, but strangely no evidence of any witness was recorded and some documents were entertained in the statement of a learned counsel representing the complainant.
(g) An Advocate is basically an officer of the Court and the first and foremost duty of an Advocate is towards the Court, towards the. Clients, and towards the public-at-large. After promulgation of the Legal Practitioners and Bar Councils Act, 1973, the Pakistan Bar Council, the supreme body to regulate the affairs of Bar Associations and its Members has provided Canons of Professional Conduct and Etiquette providing that it is an indispensable condition of protection of the rights of the citizens is the existence in society of a community of Advocates and in order to effectively discharge these high duties, Advocates were expected to conform to certain norms of correct conduct in their relations with the members of the profession, their clients, with the Courts and the members of the public generally. Chapter 1, clause (13) of the said Canons provides that when an Advocate is a witness for his client except in formal matters, such as the attestation or custody of an instrument and the like, he should; leave the trial of the case to the other Advocates. Except when essential to the ends of justice, an Advocate should avoid testifying in Court on behalf of his client.
(h) What happened in the trial of the present case was, that the learned counsel representing the complainant has in fact appeared in the witness-box and placed on record all the exhibited documents, but in spite of that he was formally not given the status of a witness the accused denying the prosecution allegations levelled against him was not afforded any opportunity to cross-examine the said witness. If the statement of learned counsel for the complainant is not considered as a statement of witness, then this is a case of no evidence on behalf of the complainant. Even the documents, which were inducted in the record do not qualify to be of any worth for their inclusion in the evidence without some permissible mode. Some documents are shown to have been certified copies, but when probed as to which authority put a certificate on the said documents, it reveals that it was the complainant, who certified such documents. The complainant had no authority whatsoever under any law to certify the documents. Most of the documents are private documents. Neither their author nor signatory nor custodian were ever permitted to be called to appear in evidence to prove the existence of such documents.
(i) The findings of the Hon'ble Supreme Court of Pakistan arrived at on 25-3-2010 have been mainly made the basis of the trial and conviction ignoring the findings of the apex Court itself in para-20 of the said judgment as re-produced herein-above.
(j) All what happened did require a full-fledged trial, which was never conducted and by ignoring all such settled principles, which could lead to an impression that just and fair trial was to be afforded to the accused in a criminal proceedings, have been avoided.
(k) If the impugned judgment is allowed to remain in field, it would not add any good to the repute of an independent judiciary.
(1) The prosecution has failed to prove its case and to bring home guilt to the accused/appellant.
(m) The impugned judgment suffers from self-contradiction as on one hand, the appellant has been convicted in the corrupt practices committed as envisaged under section 78(3)(d) of the Representation of the People Act, 1976, whereas, under the charges of offences under sections 200 468 and 471 of P.P.C., using as true a document knowing it to be false, forgery for the purpose of cheating and using as genuine a forged document not only the appellant was acquitted, but also the complainant seems to be satisfied with such acquittal and has not preferred any appeal.
(n) From whatever angle the impugned judgment analyzed, it suffers from ill regularities irregularities and, thus, is not sustainable.
6. These are the reasons of our short order announced on 10-4-2013.