' The Criminal Appeal arises from the judgment of learned Special Judge, Excise and Taxation, Lahore whereby he on 22-12-1977 convicted Madam Zeba under section 51(2) and section 52 of the Income-tax Act, 1922, and sentenced her to three months' S.I. On each count with the direction that the sentences shall run concurrently.
2. The charge against the accused/appellant was that she concealed her true income and filed incorrect return pertaining to 1968-69. She denied the charge and claimed to be tried.
3. To prove its case prosecution examined two witnesses. Sharik Mahmood, Income-tax Officer appeared as P. W.1 and Miss Safia Chaudhry, Income-tax Officer, as P.W.2. They supported the allegations against the appellant.
4. When examined under section 342, Cr.P.C. The appellant denied all incriminating circumstances.
In defence Abdul Qadir Khan was produced who stated that he had paid Rs,10,000 to the appellant in connection with film 'Tim Milay Piyar Mila' before July, 1968.
5. The learned counsel for the appellant submits that Rs,10,000 were actually paid to the appellant before 1st July, 1968 and as such she could not have shown this income in the relevant return pertaining to the year 1968-69, yet she having filed revised return of her true income within the given time therefore, she could not have been prosecuted. Conversely the learned counsel for the State has supported the judgment of the trial Court.
6. I have considered the arguments advanced by the learned counsel for the parties and perused the record with care. I find that prosecution has failed to prove that the disputed income was received by the appellant during the assessment year 1969-70; that from the statement of the defence witnesses it is very much obvious that the money was paid to her in the assessment year 1968-69; that I do not see any inherent infirmity in the statement of the defence witnesses; that it has been admitted by Sharik Mahmood P.W.1 that the appellant had filed revised retun under M.L.R.
32 showing an excess income of Rs,2,60,000 including income for the assessment year 1968-69.
7. For what has been found above, I am of the view that this appeal has to be accepted on the short ground that the appellant having filed revised return under M.L.R. 32 no action of any kind whatsoever should have been taken against her for the submission of incorrect return on the concealment of her income pertaining to assessment year 1968-69.
8. The upshot of the above discussion is that there being no satisfactory basis to uphold the conviction, the same is hereby set B aside and the accused/appellant is acquitted of the charge.
9. Before parting with the judgment I feel constrained to observe that the bailable warrants which are usually issued by the High Court through District Magistrate/any subordinate Court, in cases other than appeal against acquittal, are not in accordance with law. The language used therein that "YOU ARE HEREBY DIRECTED to cause the aforesaid accused to be arrested and brought before you and admit him to bail" has virtually converted bailable warrant into non-bailable warrant. It seems to me that the Lahore High Court Office has been/is using form No, H.C.J.D/B. 41 which is meant for the arrest of accused/respondent under section 427, Cr.P.C. Issued in appeal against acquittal under section 417, Cr.P.C. Without any discrimination. Resultantly, the person/persons against whom bailable warrants is/are issued are first arrested then brought before the District Magistrate/any subordinate Court and thereafter, admitted to bail. This frustrates the very object of the issuance of bailable warrant. In the relevant Schedule-V of Criminal Procedure Code, no particular form of bailable/non-bailable warrant of arrest to be issued by the High Court has been prescribed. The relevant provisions of law and the general forms of warrant for arrest (bailable/non-bailable) may be re-produced advantageously.
Section 75.-- ' Form of Warrant of Arrest.--(1) Every warrant of arrest by a Court under this Code shall be in writing, signed by the Presiding Officer, or in the case of a Bench of Magistrates, by any member of such Bench; and shall bear the seal of the Court.
(2) Any Court issuing a warrant shall remain in force until it is cancelled by the Court which issued it, or until it is executed. Section 76-- ' Court may direct Security to be taken.--(1) Any Court issuing a warrant for the arrest of any person may in its discretion direct by endorsement on the warrant that, if such person executes a bond with sufficient sureties for his attendance before the Court at a specified time and thereafter until otherwise directed by the Court, the Officer to whom the warrant is directed shall take such security and shall release such person from custody.
(2) The endorsement shall state:-
(a) the number of sureties;
(b) the amount in which they and the person for whose arrest the warrant is issued, are to be respectively bound; and
(c) the time at which he is to attend before the Court.
(3) (Recognizance to be Forwarded).--Whenever security is taken under this section the Officer to whom the warrant is directed shall forward the bond to the Court."
SCHEDULE V II-WARRANT OF ARREST (Section 75)
' To (name and designation of the person or persons who is or are to execute the warrant).
' WHEREAS....... Of......... Stands charged with the offence of (state the offence), you are hereby directed to arrest the said....................... And to produce him before me. Herein fail not. Dated this day of 18
(Seal) (Signature)
(Section 76)
' This warrant may be endorsed as follows:- ' If the said shall give bail himself in the sum of with one surety in the sum (or two sureties each in the sum Of to attend before me on the day of and to continue so to attend until otherwise directed by me, he may be released.
' Dated this day of 18 (Signature)
The plain reading of the aforesaid provisions of law and the forms of warrants given in Schedule V of Criminal Procedure Code, indicate that when a bailable warrant is ordered to be issued by the High Court, it has to be endorsed on the warrant that if such person executes a bond with sureties for his attendance before the Court at specified time and thereafter until otherwise directed by the Court, the Officer executing the warrant shall take such security and shall not arrest him or release such person from custody as the case may be. It is desirable that Form of warrant "Stereo No,H.C.J.D. /B. 41" shall be used only in State appeal against acquittal and in other cases Forms of warrants as prescribed in the Schedule and reproduced above, be used.