Muhammad Tariq Abbasi, .7:- By way of this appeal, order dated 15.1.2005, passed by the Add tional Sessions Judge, Jampur, District Rajanpur has been called in question, whereby the appellant was convicted under Section 173 PPC and sentenced to simple imprisonment for ten days.
2. The facts are that a case FIR No. 136, dated 1.4.2004, registered under Article 10/16 Prohibition (Enforcement of Hadd) Ordinance (VII of 1979), at Police Station Jampur, District Rajanpur, was under trial, in the cciurt of learned Additional Sessions Judge, Jampur; the court issued proclamations under Section 87 Cr.PC, against Zafar Ahmad accused and for service, sent to the concerned Police Station; the said process was returned by Sajid Mehrnood Constable (appellant), with a report of due service, but during probe made by the learned Judge, it revealed that the proceedings made were fake, hence the impugned order was passed. Consequently, the appeal in hand.
3. The learned counsel for the appellant has argued that the proceedings of the learned Trial Court, which resulted into passing of the impugned order, being against the prescribed criteria settled under the law, are not sustainable, hence the impugned order may be set aside and the appellant may be acquitted .
4. On the other hand, the learned Additional Prosecutor General has half-heartedly, opposed the appeal, however admitted that the proceedings of the learned J edge, resulting into the impugned order could not be termed to he justified.
5. Arguments of both the sides have been heard and record has been perused.
6. The appellant, due to his above mentioned fault, was convicted by the learned Additional Sessions Judge under Section 173 PPC and sentenced in the above mentioned terms. The said provision reads as under:- "173. Preventing service of summons 2r other proceeding, or preventing publication thereof Whoever, in any manner intentionally prevents the serving en himself, or on any other person, of any summons, notice or order proceeding from any public servant legally competent, as such public servant, to issue such summons, notice or order, or intentionally prevents the lawful affixing to any place of any such summons notice or order, or intentionally removes any such summons.
Notice or order, from any place to which it is lawfully affixed, or intentionally prevents the lawful making of any proclamation under the authority of any public servant legally competent as such public servant to direct such proclamation to be made, shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to *[one thousand five hundred rupees], or cith both' or, if the summons, notice, order or proclamation is to attend in person or by agent, or to produce a document in a Court of Justice, with simple imprisonment for a which may extend to six months, or with fine which may extend to *(three thousand rupees], or with both."
7. From plain reading of the above mentioned provision, it is clear that if anyone obstructs service of the procsses, then could be proceeded against, but in the situation in hand, the appellant was entrusted with the proclamations and he allegedly made a false report, hence in my opinion, the above mentioned provision was not attracting against tl-e appellant.
Furthermore, to proceed for an offence under Section 173 PPC, Section 195 Cr.PC provides a special procedure. For convenience, said provision of Cr.PC is repn)duced herein below:- "195. Prosecution for contempt of lawful authority of public servants: Prosecution for certain offences 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 Cod,: namely sections 193, 194, 195, 196, 199, 200, 205, 206, 207, 208, 209, 210, 211 and 228, Khen such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, except on the complaint in writing of s ich Court or of some other Court to which suet; 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 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 clause(b) and (c) of the sub-section(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 proceedings in connection with which the offence is alleged to have been committed.
(4) The provisions of sub-section(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 it 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.
9. Under Section 476 Cr.PC, a criteria for the proceedings, in the cases mentioned in Section 195 Cr.PC has been settled. The said provision speaks as under:- "476. Procedure in cases mentioned in section l 195. (1) When any offences referred to in section sub-section(1) clause(b) or clause(c), has been cot lemitted in, or in relation to a proceeding in any Civil, Revenue Dr Criminal Court, the Court may take cognizance of the offence and try the same in accordance with the procedure precribed for summary trials in Chapter XXII.
(2) When in any case tried under sub-section(1; the Court finds the offender guilty, it may, notwithstanding anything contained in sub-section(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 Seision or a District Court;
(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 p Dwers of a District Court or Revenue Court not 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 sub-section(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 sub-section(3) of S. 195.
(4) Any person sentenced by any Court, under this section may, notwithstanding anything herein before contained, appeal;
(a) in the case of a sentence by the High Court, to the Supreme Court; in case of a sentence by a Court of :Session or District Court, or a Court exercising the powers of a Court of Session or a District Court, tu the I ligh Court, and in any other case, to the Session 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 cr enhance the sentence appealed against]."
10. From the above mentioned Section 476 Cr.PC, it is clear that a court can itself carry on the proceedings and convict a guilty, if offences referred to in Section 19!5 Cr.PC, subsection(1) clause(b) or (c) are committed. Waning thereby that the offences mentioned under sub- section(1), clause(a) of Section 195 Cr.PC could not be dealt with under Section 476 Cr.PC. In this way, it is crystal clear that the learned Additional Sessions Judge was not competent to himself carry on the proceedings under Section 173 PPC, rather E complaint in writing should have been made by him. In view of the above, it can rightly be said that the proceedings 0= the learned Additional Sessions Judge, resulting into pressing of the impugned order are without jurisdiction, which, in view of the law laid down by the Hon'ble Supreme Court of )akistan in the cases of "Khyber Tractors (PVT.) Ltd. Through Manager Versus Pakistan through Ministry of Finance, Revenue and Economics Affairs, Islamabad" (PLD 2+)05 Supreme Court 842) and "S.M Waseem Ashraf Versus Federation of Pakistan through Secretary Ministry of Housing and works, Islamabad and others."
(2013 SCM R 338) are not sustainable in the eye of law. In the case of Khyber Tractors (Supra), the Honible Supreme Court observed as under:- "---Question of jurisdiction of a forum always considered to be very important and any order passed by a Court or a forum, having no jurisdiction, even if it is found to be correct on merits, is not sustainable---Jurisdiction of a Court lays down a foundation stone for a judicial or a quasi-judicial functionary to exercise its powers/ authority and no sooner the question of jurisdiction is determined in negative, the whole edifice, built on such defective proceedings, is bound to crumble down."
11. For what has been discussed above, as the procedure adopted by the learned Additional Sessions Judge, whereby he himself issued a show cause notice and then convicted and sentenced the appellant, for commission of offence under Section 173 PPC, being against the mandate of the above mentioned provisions is not justified and vale, hence, the appeal in hand is accepted, the impugned order set aside and the appellant is acquitted in the matter. He, by way of suspension of sentence is at large and as suck his surety is discharged.