SALAHUDDIN PANHW AR, J.---The appellant, who is also a practicing advocate, has challenged the validity of the impugned conviction while arguing that same is in excess of jurisdiction and even no procedure has ever been followed by trial court; impugned convicti on has been recorded at the back of the appellant hence he was never provided a proper hearing; sentence has been recorded with reference to section 476, Cr.P.C. but no procedure, so required for conducting summary trial has been followed; the fine amount i.e. Rs,500/- also brings this out of section 480, Cr.P.C. hence learned trial court judge has no exception to follow summary trial procedure which, prima facie , was never followed hence he prayed for setting aside of the same. He also denie d to have committed any act of deliberate insult or interference in judicial proceedings.
2. The learned DPG, on his turn, could not controvert the claim of appellant that impugned conviction was recorded at the back of the appellant.
3. I have heard both the appellant and learned DPG and have also gone through the available material carefully .
4. Since, question so raised for setting aside the impugned conviction directly relates to a guarantee, provided by the Article 10-A of Constitution as well deviation from procedure is also complained hence it would be proper to refer the impugned judgment/order which is as under:- "1. Whereas today viz 20-01-2018 at about 10:00 a.m., civil appeal No,212/201 1 re: Qamar -ul-Islam v. Salim Asmi was called for hearing of restoration application in open court in presence of Mr. Qamar -ul-Islam the appellant who was appearing in person in above case, Mr. Rajender K. Chabbira Advocate for respondent, Court Staff, members of the Bar and litigants, the appellant Qamar-ul-Islam did not respond repeated query of court about his case and appeared to be hard of hearing. On this, another member of bar sitting near the rostrum was requested to convey query of court to Mr. Qamar -ul-Islam who did so. Ultimately , Mr. Qamar -ul-Islam stated that he had not brought his office file of above case and requested for handing him judicial file to refresh his memory . He was accordingly given the judicial file for perusal and he sat for purpose. Meanwhile, undersigned called C.M.A. No, 41/2017 and C.R. No, 53/2017 re: Karam Dad v. Sajid Hussain for hearing and while the hearing was in progress, at about 10:35 a.m., Mr. Qamar -ul-Islam Advocate came to the rostrum and interrupting the hearing shouted at the undersigned "Why you had asked another lawyer to tell me query of court Batameez Admi". On this, learned member of the bar Mr. Naseer Khokhar , Advocate, Mr. Latif-ur -Rehman Sari van. Advocate, Mr. Mubeen Aziz Sarwari Advocate, Mr. Naveed Ali Advocate, Mr. Kamm Dad Advocate, Mr. Muhammad Salman Khan Advocate, Mr. Farooq Hayat and Mr. Abdul Qadeer Memon ADPP who were present in courtroom refrained Mr. Qamar -ul-Islam from interrupting the court and addressing the Presiding Officer in contemptuous manner but he did not stop.
2. On this, undersigned told Mr. Qamar -ul-Islam Advocate that he had offered willful insult to the undersigned during conduct of judicial proceedings hence he had committed offence punishable under section 228 of P.P.C. for which undersigned was framing charge upon him hence he must reply the charge in writing and should not leave the court room until then. Hearing this, Mr. Qamar -ul-Islam Advoc ate again repeated "how you asked another lawyer to tell me and he will not stay in court" and then he walked out of court room without offering any written reply to the charge communicated to him in the open court.
3. In view of the above facts and circumstances, accused Qamar -ul-Islam Advocate by interrupting a judicial proceeding and by offering willful insult to the undersigned being Presiding Judge of Court as such Public Servant and by not replying the said charge by slipping away from the court room specified despite direction to stay, has clearly committed the offence defined and punishable under section 228, P.P.C. and there was no need to serve him show cause notice as observed in the reported cases of Syed Mukhtiar Siddiqui v. The State (1998 PCr.LJ 1932) and The State v. Muhammad Akbar Cheema hence I hereby convict the accused Advocate Qamar -ul-Islam son of Samiullah having ledger No, 7508/1 1C/KAR, resident of 864, Street No,
28. Khayaban-e-Badar , Phase-VI, DHA, Karachi for such offence in exercise of powers conferred by section 476 of Cr. P. C. and sentenc e him to simple imprisonment till rising of the court and to pay a fine of Rs, 500/- in case of failure of accused to pay such fine; he shall suffer further simple imprisonment for one day .
Since accused has slipped away from the court room hence let this order be comm unicated to him through learned General Secretary of KBA Karachi so also copy of this order be. forwarded through Hon'ble District and Sessions Judge Karat In South for information and also to worthy Secretary of Sindh Bar Council for necessary action in the matter . Let the reference of transfer of cases of convict accused from this court be also made.
5. A perusal of the impugned judgment with reference contentions, raised by appellant, has given rise to number of leg question, which I shall attend but first would like add here role of Bar and Bench in administration of justice is inevitable. The lawyers, being officer of the Court, are under an obligation rather duty to respect the Court's authority and if they fail to act in a mann er consistent with their status, the Court is not debarred from exercising powers necessary manage and control proceedings before it. Here, it would be, advantageous to refer relevant portion of the case of Director of Criminal and Penal Prosecutions v. Robert Jodoin (SC of Canada) 2017 SCMR 1444 wherein it is observed as:- "(22) As for law societies, the role they play in this regard is different from, but sometimes complementary to, that of the courts. They have, of course, an important responsibility in overseeing and sanctioning lawyers' conduct, which derives from their primary mission of protecting the public (section 23 of the Professional Code, CQLR, c.C- 26). However , the judicial powers of the courts and the disciplinary powers of law societies in this area can be distinguished as this Court has explained as follows:- The court's authority is preventative--to protect the administration of justice and ensure trial fairness. The disciplinary role of the law society is reactive. Both roles are necessary to ensure effective regulation of the profession and protect the process of the court.
Such authority of the Court to properly administer the justice is not open to any exception hence any invasion thereto cannot be expected to have been ignored by Legislatures. The specific inclusion of the Chapter XI of the Code (P.P.C.) is a prima facie acknowledgment of such a fact. It has heading as "Of false evidence and offences against Public Justice". Such Chapter does include section in question i.e. 228, P .P.C. which reads as:- "228. Intentional insult or interruption to public servant sitting in judicial proceeding . Whoever intentionally offers any insult, or causes any interruption to any public servant, while such public servant is sitting in any stage of a judicial proceeding shall be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to three thousand rupees, or with both."
The law provides no exception to an advocate even as the word "whoever" has been used. Thus, if whosoever , he may be, intentionally offers any insult or causes any interruption to a public servant during course of conduct of judicial proceeding by such public servant, would be guilty of an of fence within meaning of section 228, P .P.C.
6. Since, this is not an ordinary offence hence the Code (Cr.P.C.) itself provides for proceeding with such offence.
The relevant is Chapter XXXV of the Code. The provision of section 476 of the Code provides procedure for proceedings with such of fences, including the section 228, P .P.C. It reads as: "476. Procedure in cases mentioned in Section 195: (1). When any offence referred to in sectio n 195, subsection (1), clause (b) or claus e (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."
It may be clarified here that when offence, though referred to in section 195, Cr.P.C., is committed in a proceeding in any Civil, Revenue or Criminal Court, then the court would not necessarily require to follow the condition mentioned in the section 195(1)(b) and (c) of the Code that: "..except, on the complaint in writing of such Court or of some other Court to which such Court is subordinate, or" but can competently take cognizance and even try the same but by following procedure, so laid in section 476, Cr.P.C. Reference may well be made to the case of Irshad Ahmed v. The State (1992 SCMR 1229 ) wherein at Rel.
Page-1237 held as: "The objection of the learned counsel for the appellant that 'a condition in clause (1)(b) of section 185, is that the trial of the offences mentioned therein cannot take place except as provided therein; namely , "on complaint in writing of such Court or of some other Court to which such Court is subordinate". The argument is obviously untenable. This condition cannot be relatable to the cognizance under section 476, Cr.P.C. read with section 195, Cr.P.C. is only to the extent of lifting up the specification of the offences there in and does not extend to the conditions laid therein, This view is supported by the fact that the cognizance under section 476, Cr.P.C. is by the same Court or in relation to the proceed ings wherein the offence has been committed. The condition relating to submission of a complaint in section 195, Cr.P.C. could not have been visualized in the manner suggested by Me learned counsel; namely , that the same Court should make a complaint of the offence to Itself under section 476, Cr.P.C., read with section 195, Cr.P.C. This was never intended and that is why the reference under section 476 or section 195 Cr .P.C. is in the simple language as follows:- "Where any offence 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 trial in Chapter XXII."
7. Now, while proceeding further , I would say that this Chapter also includes the section 480 which directly deals with of fence, falling within meaning of section 228, P .P.C. It reads as:- "480. Procedure in certain cases of contempt: (1) When any such offence 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."
"482. Procedure where Court considers that case should not be dealt with under section 480: (1) If the Court in any case considers that a person accused of any of the offences referred to in section 480 and committed in its view or presence should be imprisoned otherwise than in default of payment of fine, or that a fine exceeding two hundred rupees should be imposed upon him, or such Court is for any other reason of opinion that the case should not be disposed of under section 480, such Court, after recording the facts constituting the offence and the statement of the accused as hereinbefore provided; may forward the case to a Magistrate having jurisdiction to try the same, and may require security to be given for the appearance of such accused perso n before such Magistrate, or if sufficient security is not given, shall forward such person in custody to such Magistrate."
If both sections 476 and 480 of the Code are read together , it makes it clear that the Court can competently take cognizance in either of two provisions. The provision of section 476, Cr.P.C. gives competence to the Court to pass any sentence, so detailed in clauses (a) to (c) of section 476, Cr.P.C. but after summary trial, as provided by Chapter XXII. The discretion to award any sentence, however , would not be available with the Court if the cognizance is taken under section 480 of the Code nor the Court would require to follow the procedure, as provided by Chapter-XXII but will have to follow the procedure, provided by section 481. Cr.P.C. In short, main difference in either of two provisions is that of competence of the Court in awarding the sentence as well procedure for recording the sentence . In former (476, Cr.P.C.) the Court has discretion to pass any sentence (476(a) to (c)) after summary trial but in later (480, Cr.P.C.) only the court can competently detain the accused and award a sentence of a fine, not exceeding two hundred rupees, on very day. Such material deviation in procedure and in awarding sentence was defined in the case of Irshad Ahmed v . The State ( 1992 SCMR 1229 ) at relevant page-1235 as: "Prima facie, this argument is attractive but as these provisions fall under the Chapter heading "Proceedings in case of certain Offences affecting the Administration of Justice", various situations were visualized by the framers of the Code in enacting the various provis ions contained in the said Chapter . If a Presiding Judge is of the view that the default/delinquency is of very casual nature he might also not take the same as more seriously than visualized under section 480, Cr.P.C. And there and then before rising of the Court, convict and award the minor punishment provided in section 480, Cr.P.C., even though otherwise as in the present case (section 228, P.P.C. entails maximum of 6 months' S.I. or fine upto 1,000 or both) the of fence might be punishable with graver sentence .
The next provision i.e. section 482, Cr.P.C. visualized slightly graver situation. Where the Presiding Judge might consider the limited sentence under sectio n 480, Cr.P.C. as in appropriate and a graver sentence might be justified and also that he should not involve himself in a prolonged regular trial as distinguish from the proceedings under section 480 Cr .P.C. he has the option to forward the case to a Magistrate.
Depending upon the nature of the delinquency of the person concerned the Presiding Judge has still another option of not forwarding the case to a Magistrate and thus abdicating his own authority to punish the delinquency , but at the same time he consider that the punish ment limited under section 480, Cr.P.C., would be too lenient in the facts and circumstances of the case. He has here the option to act under section 476, Cr.P.C. But here he will have to go through the entire process of trial instead of simplified proceedings permissible under section 480, Cr . P.C . While proceedings under section 476, Cr.P.C. the Court would have more power vis-a-vis, the limit of punishment as compared to section 480, Cr .P.C. and section 482, Cr .P.C. as is apparent from its provisions reproduced below:- 476-(1) When any offence 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."
8. In other words, the Court enjoys absolu te discretion in such like offence either to take cognizance under section 476 or 480, Cr.P.C. but once taken shall be left with no option but to follow the procedure. If the court is of opinion that though cognizance is taken under section 480 of the Code but finds the accused entitled for a punishment in excess to limit of 'not exceeding two hundred rupees' then shall have to send the case to other Court so that accused could enjoy guaranteed right of fair-trial. Same would be the situation when the cognizance is taken under section 476, Cr.P.C. Taking cognizance under this provision also means that the Court may award any legal sentence hence it (court) legally cannot deprive the accused from the right of fair-trial and the court is left with no option but to follow the procedure of summary trial. Such conclusion is guided from the case of Irshad Ahmed supra as well Muhammad Mushtaque v . The State ( PLD 2003 SC 19 ) wherein it is held as:- "7. There is nothing in section 228, P.P.C. read with. section 476, Cr.P.C. which prevents the Court in whose presence an offence under section 228, P.P.C. is committed relating to judicial proceedings from trying the said offender . There is nothing in section 228, P.P.C. that in case an offence under section 228, P.P.C. is committed by an offender and if he is to be tried for the said offence and convicted on the same date then in view of section 480, Cr.P.C. he would only be tried and sentenced to fine of rupees two hundred . A perusal of the relevant provisions as reproduced above would show that, it was optional for the Court concerned in whose presence an offence has been committed either to proceed for an offence under section 228, P.P.C. read with section 476, Cr.P.C. or to proceed against the of fender under section 480 or 482, Cr .P.C.
9. Reverting back to merits of the case, it appears from impugned judgment of conviction that since per the trial court judge, the appellant had committed an offence under section 228, P.P.C. hence the trial court had an option either to proceed under section 476 or 480, Cr.P.C. The impugned judgment of conviction further shows that trial court claimed to have taken cognizance under section 476, Cr.P.C. Legality of choosing procedure under section 476 of Code, I would say, may be protected as legal. However , what further appea rs from perusal of the impugned judgment that the trial Court passed the sentence on very same date without following procedure, as provided in Chapter-XXII of Code hence legality of such part requires to be examined which prima facie does not appear to satisfying the condition so insisted in section 476, Cr .P.C. in following words i.e: ...................and try the same in accordance with the procedure prescribed for summary trials in Chapter XXII."
10. I would also attend another aspect so prima facie, appearing from perusal of the impugned judgment that the appellant had left the Court when the trial Court judge informed him (appellant) about framing of charge under section 228, P.P.C. On such leaving of the appellant, the trial court awarded the impugned sentence while holding that there is no need for serving him with show cause notice. The learned trial court judge was competent to have ordered for detaining the appellant, if cognizance was being taken under section 480 of Code but since the cognizance was taken under section 476, Cr.P.C. hence it is pertinent to say that such approach of the learned trial court judge was unwarranted under the law because once cognizance was taken under section 476, Cr.P.C. then it was no more a matter of serving with a show cause but the trial court judge was required to have conducted a summary trial which, I would say, cannot be conducted at the back of the accused. In case, the accused leaves/absconds away from the Court of law the Court is always required to follow the procedure as provided in the Code itself for compelling the attendance of such an accused. Even otherwise, an act of absconding or leaving cannot be treated as an admission of guilt which, as by now a settled principle of law, could, at the most, be taken as a circumstance against the accused. This however would not be sufficient for awarding a sentence whether it is a normal or summary trial. Reference may be made to the case of Rahimullah Jan v. Kashif and others (PLD 2008 SC 298 ) wherein it is held as:- "8. In so far as the abscondence of respondent Kashif is concerned it may be stated that mere absconsion is not conclusive proof of guilt of accused person. It is only a suspicious circumstance against an accused that he was found guilty of the of fence. However , suspicion after all are suspicions. The same cannot take place of proof."
11. Needless to add here that the summary trial is also meant to provide a complete right of fair-trial hence involvement of an accused for an offence, falling within meaning of Chapter-XXII of the Code, would never be sufficient to award sentence on mere assumption but requirement of fair-trial shall always to be satisfied even if the alleged offence is one, mentioned in Chapters-X and XI of the Code (P.P.C.). Refe rence may be made to the case of The State v . Wali Dad [PLD 1962 (W .P) Peshawar 2031 wherein it is observed as:-
5. As pointed out above, the case was previously heard as a warrant case, but on remand, it was taken up on the summary side by the learned trial Magistrate. Section 262, Cr .P.C. reads as:- "In trials under this Chapter , the procedure prescribed for summons-cases shall be followed in summons-cases, and the procedure prescribed for warrant-cases shall be followed in warrant-cases, except as hereinafter mentioned."
6. A plain reading of this section would show that after remand the case was taken on the summary side by the trial Magistrate, but since it was a warrant case, the Magistrate was bound to have followed the procedure prescribed for warrant cases. The same view was taken in a case 'Munna v. Emperor (1), wherein it was held that "the object of Chapter XXII, Criminal P.C. is to shorten the record and the work of the Magistrate in making the record: it is not intended to deprive the accused-person of any of the rights under Chapter XX or XXII, Criminal P.C. Hence in a warrant case tried summarily , an accused, after he is examined, is entitled to re-call prosecution witnesses for further cross-examination".
7. Section 265, Cr.P.C. entitles an accused person to request the Court to summon the prosecution witnesses already examined for further cross-examination and the court shall summon such witnesses for further cross- examination. From section 265, Cr.P.C. and the authority cited above, it is obvious that an accused person, after the framing of a charge and his examination under section 342, Cr.P.C. is entitled to recall the prosecution witness es for further cross-examination, and he cannot be deprived of this right by any Magistrate arbitrarily , as has been done in this case, and so the order of the learned trial Magistrate dated the 29th of July 1961 is set aside.
12. Besides mere gravity of offence alone would never be sufficient for a deviation from following the procedure, so detailed by the Code itself. Reference in this regard may also be, made to the case of Azeem Khan and another v.
Mujahid Khan and others( 2016 SCMR 274 ) as: "32. It is also a well embedded principle of law and justice that no one should be construed into a crime on the basis of presumption in the absence of strong evidence of unimpeachable chara cter and legally admissible one.
Similarly , mere heinous or gruesome nature of crime shall not detract the Court of law in any manner from the due course to judge and make the appraisal of evidence in a laid down manner and to extend the benefit of reasonable doubt to an accused person being indefeasible and inalienable right of an accused. In getting influence from the nature of the crime and other extraneous consideration might lead the Judges to a patently wrong conclusion. In the event the justice would be casualty .
The manner , in which the learned lower court judge has recorded the conviction at the back of the accused on mere assumption, without following the procedure of summary trial leaves me with no option but to hold the impugned conviction as not sustainable. Any deviation from substantial procedure cannot be stamped particularly when the same can be portrayed as infringement of guaranteed right of fair-trial.
13. In consequence to what has been discussed above, the impugned judgment is hereby set aside and appellant is acquitted of the charge.