Muhammad Bakhsh (40) an employee of Revenue Office (Electricity Department), Lyallpur and his brother Wali Muhammad (47) a businessman, were convicted by Chaudhry Muhammad Khalil Bhatti, Magistrate exercising powers under Section 30, Cr. P. C. Lyallpur, under section 228 of the Pakistan Penal Code and were sentenced to undergo simple imprisonment for six months each. In addition, they were also ordered to pay a fine of Rs. 1,000 each, or in default to suffer further simple imprisonment for a month and a half each. Aggrieved, they preferred an appeal to the Additional Sessions Judge, Lyallpur, who by judgment 25th June 1969, maintained the conviction and the sentence regarding payment of fine, but reduced the sentence of imprisonment to the period already undergone. They have now come up in revision to have their conviction and sentences set side.
2. The petitioners were attorneys of their sister Mst. Zainab Bibi in respect of an ejectment case filed by her against Sarfaraz Hussain and others. The ejectment case was pending decision with Malik Muhammad Ramzan, Rent Controller, Lyallpur. At one stage the matter in controversy was pending in the High Court, and had been remanded to the Rent Controller for further proceedings. On 1st June 1968, Malik Muhammad Ramzan, Controller, recorded the statements of the said attorneys and the statement of the counsel for Sarfraz and others. At the conclusion of the statements, the petitioners, it is alleged, shouted: aj jjkl* urA ^ oydl-u." and started leaving the Court room. The learned Controller, considered that this utterance amounted to contempt, and, therefore, ordered the petitioners to stay inside. They, however, left the Court room.
On 3rd June 1968, the Controller, addressed a complaint to the Magistrate having jurisdiction.
3. The trial Court believed the prosecution evidence and held that the petitioners uttered the aforesaid expression. The Court further held that this amounted to contempt. Accordingly, he convicted and sentenced them, as indicated earlier.
4. On appeal, it was urged before the learned Sessions Judge, that the provisions of section 476, Cr.
P. Code, had not been complied with. It was stressed that the Controller was not a 'Court' but was only persona designata. The learned Additional Sessions Judge concluded that the Controller was persona designata, but in view of section 16(2) of the West Pakistan Urban Rent Restriction Ordinance VI of 1959, was deemed to be a 'Court'. Accordingly, repelling the contention, he dismissed the appeal with modification in the sentence, as stated above.
5. In the present revision petition, the petitioner, assailed the conviction and sentences on the following grounds:--
(a) The Rent Controller did not comply with the provisions of section 476, Cr. P. C. with the result that the proceedings, taken on the basis of his complaint were illegal and without
(b) The Rent Controller was a persona designata and, for purposes of section 195, Cr. P. Code, was not a 'Court' with the result that the criminal proceedings, initiated with that complaint were not competent.
(c) The statements made by the prosecution witnesses suffer from material discrepancies.
(d) The reference to 'Fraud in Courts' was made with reference to the observations made in the order passed by the High Court.
In any case, it was averred, the petitioners did not have the criminal intent to bring the Controller into ridicule.
6. I have heard Chaudhry Ghulam Rasul Waraich, learned counsel for the petitioners and Chaudhury Inayat Ullah Cheenm for the State and have also perused the judgments recorded by the Courts below. I am satisfied that the expression attributed to the petitioners, was, as a fact, uttered by them. The Courts have given good grounds for the same and I agree with them.
7. The expression objected to consist of three parts, namely,
(a) "frauds are being committed in Courts;" ip) "these proceedings are not acceptable to us" ; and
(c) the petitioners' conduct namely, shouting and leaving the Court room.
We now proceed to examine if the entire episode is tantamount to "contempt". The expression that "frauds are being committed in Courts" is certainly objectionable, and if the Controller was a Court, the insinuation was obvious. However, it was a generalised statement and was not pointedly directed to the Presiding Officer. The expression was not equivalent to "This Court is committing fraud". If the petitioners felt dissatisfied with the proceedings, they should not have expressed the same in the face of the Presiding Officer. Still to feel satisfied or dissatisfied with the proceedings is every party's right. The aggrieved party is entitled to express the dissatisfaction and agitate the matter in appeal. The expression was made in bad taste indeed. But it could, as well, have been ignored. The petitioners left the Court room that is to say, decided not to take part in the proceedings. The Controller was competent to dismiss the petition for non-prosecution. The cumulative effect is that although the conduct of the petitioners, was reprehensible, the episode would well have been ignored. In matters, of contempt, generally, the Courts, are not very sensitive.
Since the Controller, considered that this conduct, amounted to contempt, we proceed to examine if the procedure adopted by him to have the petitioners punished was in accordance with law.
7-A. It had been held in PLD 1965 SC 459 that a Controller is not a Court.
8. Section 16(2) of the West Pakistan Urban Rent Rcstric tion Ordinance VI of 1959 reads: Section 480 of the Criminal Procedure Code runs thus: "When any such offence as is described in 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."
When an offence, punishable under section 228 of the Pakistan Penal Code is committed in the view of the Controller, the Controller by virtue of section 16 of the said Ordinance, is a Court, and can straightaway convict and sentence the offender. The Controller need not take proceedings, under section 476, Cr. P. C. or file a complaint with any Magistrate. In the instant case, the Controller did not take action under section 480, Cr. P. C. He, however, appears to have taken action in pursuance of section 476, Cr. P. C. read with section 195 ibid. However, without making a formal inquiry, he made a complaint to the Magistrate for trial, of the oflencjjers under section 228, P. P. C.
9. Section 476, Cr. P. Code, provides: "When any Civil, Revenue or Criminal Court, is..................... of opinion that it is expedient in the interests of justice that an inquiry should be made into any offence referred to in section 195, subsection (1), clause (b) or clause (c), which appears to have been committed in or in relation to a proceed ing in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary record a finding to that effect and make a complaint thereof in writing signed by the Presiding Officer of the Court and shall forward the same to a Magistrate of the First .Class.......................................... "
Section 195, Cr. P. C. provides :-- "No Court shall take cognizance .... of any offence punish able under section 288, P. P. C., when such offence, is alleged to have been committed in relation to any proceedings, in any Court, except on the complaint in writing of such Court, or of some other Court to which such Court is subordinate."
Evidently, section 16(2) of the Rent Restriction Ordinance, does not provide that for purposes of section 195, Cr. P. Code, the Controller, shall be deemed to be a Court. Had such been the intention of the Legislature, section 195, Cr. P. Code, would also have been mentioned in section 16(2) of the said Ordinance. Likewise, had the Controller, been deemed to be a Court, then an offence punishable under section 228, P. P. C. having been committed in his view, he was competent, in pursuance of section 476 read with section 195, Cr. P. Code to send a complaint to the Magistrate and the Magistrate would be competent to commence trial on the basis of such a complaint.
Since, according to section 16(2) of the Ordinance, the Controller was not a Court, he could not treat himself as a Court, and therefore, could not refer the matter in pursuance of section 476 read with section 195, Cr. P. C. to a Magistrate for trial of the offenders under section 228, P. P. C. The proceedings, taken by the Magistrate on the basis of the complaint were incompetent.
10. Since the Controller was not a Court, and sections 476 and 195, Cr. P. Code, were inapplicable, the objection that the Controller before making the complaint did not hold any formal inquiry, is of no consequence.
11. Although the provisions of sections 195 and 476, Cr. P, Code, treated as inapplicable yet the fact remains that the Controller, made a complaint to the Magistrate, and the Magistrate under section 190, Cr. P. C. was competent to take cognizance of it. The complaint filed by the Collector, as an individual (as distinguished from a Court) put at its best, is that the petitioners, defamed the Controller, insinuating that the proceedings, taken by him were "fraud". The offence, if any, was p punishable under section 500 of the Pakistan Penal Code. Assuming that Malik Muhammad Ramzan made a complaint in his individual capacity, it is remarkable that he did not examine himself in support of it. In any case, the trial Court, did not try the petitioners for an offence under section 500, P. P. C. In the instant case, the complaint was proceeded with not as one made under section 190, Cr. P. Code, but as if it had been made under section 476 read with section 195, Cr. P. C.
The convic tion, is therefore, not sustainable.
12. In the result, I accept the revision petition, set aside the conviction and sentence of the petitioners and : acquit them of the charge levelled against them. The fine, if already paid by them, shall be refunded. .