Azam Beg Mirza, P. C. S. (Retd.) filed this petition under section 417 (2), Cr. P. C. Against the order of Mr. Zulfiqar Ali Toor, Magistrate Section 30, Lahore, dated 27th September 1981, whereby he accepted the application of Shahid Shall Advocate, filed under section 249-A, Cr. P. C. And acquitted him of the charge under section 500, P. P. C.
2. Azam Beg Mirza filed complaint against Tajammal Hussain, Deputy Chief (Mineral), Industries and Commerce Section, Planning and Develop--ment Division, P-Block. Islamabad, and Shahid Shall Advocate, under sections 5110, 504/109, P. P. C. On 13th November; 1980. He made state--ment on 23rd November, 1981, The learned Magistrate issued process against Shahid Shafi Advocate for offence under section 500, P. P. C. No prima facie case was found against Tajammal Hussain. The petitioner complainant did not file any revision petition against the order of learned Magistrate dated 5th February, 1981, whereby no process had been issued against Tajammal Hussain and only Shahid Shafi was summoned as an accused person. Shahid Shafi Advocate filed an application under section 249-A. Cr. P. C. With a prayer that the complaint be dismissed and he be acquitted of the charge under section 500, P. P. C. This petition was accepted vide impugned order.
3. The petitioner contended that the petition under section 249-A, Cr. P. C. Could not be accepted as the provisions of section 249-A, Cr. P. C. Were not attracted in this case. The said section would come into play only if the Court was of the opinion that the charge was ground--less or there was no probability of the conviction of the accused that Shahid Shall Advocate could not claim complete privilege and there was a distinction between privilege and complete privilege that the cases referred to by Shahid Shafi Advocate were not applicable.
4. It was pointed out by the learned counsel for respondents that the petition under section 417 (2), Cr. P. C. Was not maintainable against Tajammal Hussain as he had not been summoned by the learned Magis--trate and the petitioner did not file any revision petition against order dated 5th February, 1981, whereby he was dropped; that the petitioner during the hearing of the application under section 249-A Cr. P. C., on the top of his voice imputed undesirable remarks to him and the Civil Judge; that Shahid Shall Advocate had no malice against the petitioner and thus mens rea was missing.
5. I have considered the contentions of the petitioner and the learned counsel for the respondents.
Since no process bad been issued against Tajammal Hussain and the petitioner did not file any revision petition's against order dated 5th February, 1981, the present petition against him under section 417 (2), Cr. P. C. Was not maintainable.
6. Shahid Shall Advocate was acquitted on the ground that his case was covered under section 146
(3) of the Evidence Act.
It is provided in section 146 (3) of the Evidence Act that when a witness is cross-examined he may in addition to the questions herein--before referred to, be asked any question which tend to shake his credit, by injuring his character, although the answer to such questions might tend directly or indirectly to criminate him or might expose or tend directly or indirectly to expose him to a penalty or forfeiture. The Court has been given power under section 148 of the Evidence Act to allow or disallow a question when it is put with the object of discrediting the witness by injuring his character. Questions referred to in section 148 of the Evidence Act are not to be asked unless the person asking them has reasonable ground for thinking that the imputation which it conveys is well-founded. If any such question is asked without reasonable ground by an Advocate, the Court is competent to report the circumstances of the case to the High Court or other authority to which such Advocate is subject in the exercise of his profession. The Court can also forbid any question which it regards as indecent or scandalous, although such questions may have some bearing on the questions before the Court, unless they relate to the facts in issue, or to the matters necessary to be known in order to determine whether or not the facts in issue existed. The Court can also forbid any question, which appears to it to be intended to insult or annoy, or which though proper in itself, appears to the Court needlessly offen--sive in form. 1n the later portion of the cross- examination, Shahid Shafi Advocate had asked the petitioner if be had prepared the false bills in connivance with the contractor. This suggestion was denied and the petitioner stated that Shahid Shah Advocate was telling a lie. Shahid Shafi Advocate asked the next question to the petitioner if he was removed from the service, to which the petitioner gave the following reply --- This is a ridiculous question that I had been dismissed from the job. I had not been dismissed.-- - A note had been given by the learned Civil Judge that the petitioner was in a state of rage and was trying to hold Shahid Shafi Advocate by his collar and also told him that he would see him when he came out of the Court room.
7. An Advocate owes a bundle of duties. He owes duties to his client, duties to his opponent, duties to the Court, duties to the profession and duties to the public and the State. But, primarily, he owes a duty to his client. He has a difficult position. He has to support his thesis, which it is for him to contend for. An Advocate, in the discharge of his duties to his client, must not be hampered by any fear of offending the c opposite party or any witness. On certain occasions, he is obliged to put question, which appears to be insulting or annoying. From the record it appears that the petitioner was asked by Mr. Shahid Shaft Advocate if he was removed from service. According to the Advocate, he had put such question on the instructions of his client. If the question had been inde- -cent or scandalous or insulting or annoying, the Court would have acted under the provisions of sections 148, 150, 151 and 152 of the Evidence Act, and would have forbidden Shahid Shaft Advocate from putting such question. The question had been put to shake the credit of the statement of the witness by injuring his character and hence the case of the Advocate was covered under section 146 (3) of the Evidence Act. The learned Magistrate, for valid reasons, accepted the application of Shahid Shafi Advocate, filed under section 249-A, Cr. P. C. The petition for special leave to appeal filed under section 417 (2), Cr: P. C. By Azam Beg Mirza, is dismissed.