SHAHID HAMEED DAR, J.---The appellant has challenged his conviction under section 228, P.P.C. and sentence of 10 days rigorous imprisonment with fine of Rs.2000/-, in default whereof to undergo rigorous imprisonment for one day, thereunder through the titled appeal, as awarded to him, vide judgment dated 27-4-2005, passed by the learned Additional Sessions Judge, Sialkot.
2. Precisely, the relevant facts of the case are that one Allah Ditta was tried for the murder of Ghulam Khan, being accused of case FIR No.11/1999, dated 7-2-1999, under sections 302, 148, 149, P.P.C., Police Station Kotli Said Mir, District Sialkot and he was acquitted of the charge vide judgment dated 27-4-2005 pronounced by Mr. Tariq Mehmood lqbal Khan, learned Additional Sessions Judge, Sialkot. Learned trial Judge, on one hand acquitted said Allah Ditta and on the other, handed down the impugned conviction and sentence to the appellant summarily by holding him guilty of showing intentional insult to the order of the court and interrupting the judicial proceedings of the trial of Allah Ditta. The appellant was served with a show cause notice under section 228, P.P.C. on 25-4-2005 to explain as to why he should not be prosecuted for having shown defiance to order dated 21-4-2005 of the court and unnecessarily protracting the proceedings of the trial of Allah Ditta accused (since acquitted). The written reply to the show cause notice submitted by him was found unsatisfactory wherefore he was convicted and sentenced in mentioned terms by the learned trial court.
It has been contended by the learned counsel for the appellant that the conviction of the appellant is not sustainable in the eye of law as the procedure provided under section 480, Cr.P.C. for the trial of the offence under section 228, P.P.C. was not followed by the learned Additional Sessions Judge; further contended that section 480, Cr.P.C. enjoins that a civil, criminal or revenue court may take cognizance of the offence and sentence the offender to six months simple imprisonment or fine which may extend to Rs.3000/- or with both, if an offence under section 228, P.P.C. appears to have been committed in its view or presence; there did not exist any circumstance which might call for trial of the appellant under section.
228, P.P.C.; the law and its procedure have been trampled over through the impugned judgment by the learned trial court which may be set aside and appellant may be acquitted of the charge.
Learned Deputy District Public Prosecutor believed that the contention of the learned counsel for the appellant was not without force as learned Additional Sessions Judge should have strictly followed the procedure, as provided under section 480, Cr.P.C., while trying the appellant under section 228, P.P.C.
After hearing learned counsel for the parties and perusing the record, it is observed that the language of the show cause notice under section 228, P.P.C., delivered to the appellant by the learned Additional Sessions Judge Sialkot on 25-4-2005 looks somewhat grinding as it emits a readable impression that the learned trial court was predetermined to punish the appellant right from the word go. It would be advantageously pertinent to reproduce the text of the show cause notice so as to assess, how "impartially and justifiably" it had been delivered to the appellant for tendering reply thereto. It reads:-- "25-4-2005.
Present:-Accused Allah Ditta in police custody with learned counsel.
Learned DDA for State.
PW Akhtar Ali C/429 in police custody examined. In view of his examination, he is relieved from the custody, however his matter is referred to DPO, Sialkot for departmental action against him for non-appearance in the court despite his personal service on 21-4-2005. The Ahmad is directed to send a copy of process showing his service of process and copy of this order to the DPO, Sialkot for compliance.
The remaining sole PW Khizar Hayat SI has not entered into appearance who is stated to have gone Faisalabad in connection with Investigation of any murder case but this court is mindful to observe dissatisfaction with the report on the ground that process was delivered Dasti on 21-4-2005 to Muhammad Afzal ASI, who despite knowing the fag-end of the trial of this case neglected this fact and as per routine practice, proceeded to the posting area of the PWs on 24-4-2005 as reflected from rapat No.5 dated 24-4-2005, registered at Police Station Kassuki, Distt. Hafizabad which further embeds in the mind of the court that police officials are always in practice to create obstruction and impediments in the speedy trial of the case but this court is not last sight to the situation that without strong hands, the usual practice and negligent attitude of police, cannot be curbed down, accordingly, this court has no other option but to give a show cause notice to Muhammad Afzal ASI under section 228, P.P.C. to explain as to why he should not be proceeded in accordance with law and as to why he should not be dealt in accordance with law. He will submit his written reply in this connection while appearing in person on 26-4-2005 and he is also delivered the process of PW Khizar Hayat for its execution positively. Meanwhile, the salary of current month of the process server is, hereby, attached. A robkar in this context be sent to the DPO Sialkot and concerned account office for compliance. A report in this context be also procured.
Now to come up for remaining prosecution evidence on 26-4-2005. The process server is bound down to ensure the appearance of the PW in the court."
6. The judicial record of the trial of Allah Ditta accused is also before us along with the record of the case/trial of the appellant, which have been minutely gone into so as to adjudge, if appellant, an ASI in the police force, did his job responsibly or not. Learned trial court indicted Allah Ditta accused (since acquitted) for offence under sections 302, 148, 149, P.P.C. on 26-3-2005 and delivered the final judgment of acquittal on 27-4-2005, meaning thereby that trial of the accused (since acquitted) concluded within one month. Let us have a look at the order-in-issue, passed on 21-4-2005. On the said day, Ashfaq Hussain SI/investigating officer was recorded as PW-11, besides Muhammad Afzal ASI, (appellant) was recorded as process server qua the fact that some of the prosecution witnesses and the complainant had permanently settled in Afghanistan having abandoned their residences in Pakistan. On his statement, learned trial court closed the evidence of the complainant and some of the prosecution witnesses. Akhtar Ali constable/PW did not turn up for examination despite having been served upon, therefore, non-bailable warrant of arrest was issued against him. His salary was also ordered to be attached. Learned trial court adjourned the case for 25-4-2005 for recording remaining prosecution evidence with the direction that the process issued be routed through the SHO concerned for ensuring timely service of the prosecution witnesses. It was also said in order dated 21-4-2005 that statements of the accused, Allah Ditta under section 342, Cr.P.C. and under section 340(2), Cr.P.C. shall be recorded on the next date of hearing i.e. 25-4-2005.
7. What happened on 25-4-2005 and whether the appellant showed any lethargy in carrying out the said order of the learned trial court, the answer to it may be found from the order of the said day. It reveals that Akhtar Ali 429/C, whose non-bailable warrant of arrest had been issued was produced in handcuffs and he was examined as a PW forthwith. Khizar Hayat SI, the remaining sole PW, did nOt enter appearance, having gone to Faisalabad in connection with the investigation of a murder case. The report submitted by the process server (appellant) in this context was found dis satisfactory and he was straightaway held delinquent in the discharge of his duty. Learned trial court after passing a few bitter remarks about the working of the police as a whole, observed that the "negligent attitude" of the police should be dealt with drastically. A show cause notice under section 228, P.P.C. was ordered to be issued to the appellant and he was directed to tender his reply on 26-4-2005.
Through the said order on 25-4-2005, the appellant was also delivered the process of Khizar Hayat SI/investigating officer PW for service. The process server, who the appellant was, surprisingly received the punishment of attachment of his salary for the "current month" the same day, with a separate direction to the DPO Sialkot to comply with the direction of attachment of his salary by taking up the matter with the accounts-office. What happened thereafter, can be visualized from order dated 26-4-2005 which shows production of Khizar Hayat SI/investigating officer before the court and his examination as PW-13. Some expert reports were submitted by the learned public prosecutor who closed the prosecution case forthwith. The statement of the accused under section 342, Cr.P.C. was recorded then and matter was adjourned to the next date i.e. 27-4-5005 and on the said day, Allah Ditta accused was acquitted of the charge.
8. The circumstances detailed as above hardly show any laziness on the part of Muhammad Afzal AS1 (appellant) while carrying out the directions of the learned trial court.
It cannot be gathered from order dated 21-4-2005 that notice of the prosecution witnesses had been handed down to the petitioner dasti nor any such clue may be found from the proceedings of the said day that the appellant had been directed by the trial court in a particular manner to do the duty of the process server. In its order dated 25-4-2005, learned trial court has, however mentioned about delivery of the process of Khizar Hayat SI/SHO
(PW) to Muhammad Afzal ASI (appellant) for its execution but no such direction can be found from order dated 21-4-2005. The process specifically given to the appellant for service of Khizar Hayat SI/investigating officer was certainly executed as he turned up before the court on the following day, 26-4-2005 and examined as PW-13. One fails to understand as to why to the learned trial court found order dated 21-4-2005 a circumstance to burden the appellant with a notice under section 228, P.P.C. There may be many a factors and mixed feelings in the mind of the trial court about the working of the police but it was certainty not an occasion to issue a notice in the said perspective and, seek reply thereto just within 24 hours, let alone he would have been held guilty and awarded the impugned sentence. Everything appears to have been done gratuitously in undue haste, without any plausible reason and justification by the learned trial court. The procedure provided under section 480, Cr.P.C. for dealing with such a proposition of law and the fact was thrown to the winds and Muhammad Afzal (appellant) was unluckily chosen to bear the brunt of the fury of the court. The procedure adopted and judgment given by the trial court cannot be approved of by any stretch of imagination. The impugned judgment, therefore, is annulled and appellant is acquitted of the charge. He is present on bail and he is discharged of his liabilities as to the surety bond. Allowed.