' Ghulam Murtaza, Excise Constable, was a P.W. In case F.I.R. No,37 dated 16-4-1987 under Article 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979, P.S. Wanhbachran, District Mianwali. During trial before the Sessions Judge, he was summoned and served for 31-8-1988 to make statement.
He failed to do so. He appeared on the next date of hearing i.e, 22-9-1988. Learned trial Judge summarily tried him under section 476, Cr.P.C. For having committed an offence under section 174, P.P.C. Ghulam Murtaza while making statement did not deny that he had been served to appear before the Court on 31-8-1988. He, however, pleaded that he had fallen ill on that date. He produced a photostat copy of the medical certificate issued by Dr. Sher Afghan Khan on 28-8-1988 for complete rest from 28-8-1988 to 2-9-1988. Learned trial Judge, however, did not accept the explanation and convicted him under section 174, P.P.C. He was sentenced to S.I. For seven days plus to pay a fine of Rs, 200 in default whereof to further undergo S.I. For seven days.
' Ghulam $urtaza has challenged his conviction.
2. Learned counsel for the appellant questioned the jurisdiction of the Sessions Judge to have tried the appellant under section 174, P.P.C. In support of the argument he referred to clause (1)(a) of section 195, Cr.P.C. Which runs as follows:-- "(1) No Court shall take congizance;
(a) of any offence punishable under sections 172 to 188 of the Pakistan Penal Code, except on the complaint in writing of the public servant concerned, or of some other public servant to whom he is subordinate;"
' In order to press his point, he also referred to clause (1) of section 476, Cr.P.C. Which runs as follows:- "(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 rials in Chapter XXII."
Clause (b) and clause (c) of subsection (1) of section 195, Cr.P.C. Are as follows:-- "(b) of any offence punishable under any of the following sections of the same Code, namely, sections 193, 194, 195, 196, 199, 200, 205, 206, 207, 208, 209, 210, 211 and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, except on the complaint in writing of such Court or of some other Court to which such Court is subordinate; or
(c) of any offence described in section 463, or punishable under section 471, section 475 or section 476 of the same Code, when such offence is alleged to have been committed by a party to any proceeding in any Court in respect of a document produced or given in evidence in such proceeding, except on the complaint in writing of such Court, or of some other Court to which such Court is subordinate."
3. It is obvious from the provisions of section 195, Cr.P.C. And section 476, Cr.P.C. Referred to above that the learned trial Judge could not have tried the appellant under section 174, P.P.C. Himself and that if he was of the view that the appellant had committed some offence he should have sent the same for trial to a competent Court after having got drafted the complaint. The conviction of the appellant, in the circumstances, vide judgment dated 22-9-1988 is bad having been passed without jurisdiction. The same is set aside. A period of three years has already passed. If the Sessions Judge still thinks that the petitioner shduld be brought to book, he may proceed in accordance with law.