1. ' Appellant S. M. Rehmatullah has filed this appeal under section 476(4)(b), Cr. P. C. Against the judgment, dated 27-11.1984 of Sessions Judge, Karachi whereby appellant has been convicted under section 174 and sentenced to suffer imprisonment till rising of Court and to pay fine of Rs. 500 in default to suffer R. I. For two months more.
2. ' Appellant is Inspector in F. I. A. He was required to appear in the Court of Sessions Judge, Karachi on 15-11-1984 in a case State v. Shamim Ahmed. He neither attended the Court nor sent any intimation about his absence. A notice under section 174 was issued. He appeared on 27-11-1984 and charge was framed on the same day. He stated as under :- "I was served for 15-11-1984 but I had gone to Sind where I fell ill. Hence I could not attend this Court on 15-11-1984. I pray to be excused."
3. ' Mr. Ilyas Khan, Advocate has not disputed the facts of the case but has taken the legal plea that conviction is bad in law on the ground that under section 195(1)(a), Cr. P. C. In the offences punishable under sections 172 to 180, P. P. C. No cognizance can be taken except on the complaint in writing of the public servant concerned or of some other public servant to whom he is subordinate. He has argued that summary procedure could only be adopted so far the offences come under the purview of subsections (b) & (c) of section 195(1), Cr. P. C. He has referred to the cases reported in PLD 1978 Lah. 1410, PLD 1979 Lah. 587 and AIR 1942 Oudb 425.
4. ' Mr. Hayat Qureshi appearing for the State does not support the judgment.
5. ' The appellant was absent on the date of hearing. The only question in this appeal is whether appellant could have been tried and convicted by the trial Court as contemplated in section 476, Cr. P. C. In a case of Sheo Mangan Singh v. Emperor (1) as under : "This is a reference by the learned Sessions Judge Gonda recommending that the conviction of Sh:o Mangan Singh under section 174, Penal Code, be set aside Sheo Mangan Singh was summoned as prosecution witness in a case under section 110, Cr P. C. The police reported that he refused to take the summons and said that he would not attend Court. In fact he did not attend the Court on the date fixed. The learned Judge has made this reference on the ground that conviction under section 174, Penal Code is bad because there was no complaint made by the public servant concerned as required by section 195 (a), Cr. P. C. Under the said section no Court shall take cognizance of any offence under sections 172 to 188, Penal Code, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is subordinate. An offence under section 174, Penal Code is against the public servant before whom the accused fails to appear. So in this case the complaint should have been made by the Magistrate in whose Court the case under section 110, Cr. P. C., was pending and who had summoned the accused. Admittedly there was no such complaint of the Sub-Inspector. The Magistrate had no jurisdiction to convict the accused as the case was not started by competent person. I, therefore, accept the reference and order that the conviction of Sheo Mangan Singh he set aside and he be acquitted. The fine if paid will be refunded."
6. From the plain reading of section 476(1), Cr. P. C. It is clear that any offence referred to in section 195, subsection (1), clause (b) or clause (c) the Court may take cognizance of the offence and try the same in accordance with the procedure prescribed by the summary trials in Chapter XXI I, but in other cases as referred in 195(1)(a), the cognizance could be taken on complaint. The appeal is allowed, sentence is set aside the case is remanded with the directions that proper procedure be adopted as stated above.
(1) AIR 1942 Oudh 425