' SALEEM AKHTAR, J.---This appeal with the leave of the Court challenges the order dated 14-2-1993 passed by the learned Single Judge of the High Court of Sindh at Sukkur in Miscellaneous Application No, 183/1991 filed by the appellant whereby it was ordered that the proceedings against the appellant/surety under section 193, P.P.C. Must be taken by the High Court.
2. The brief facts are that the appellant stood surety for an accused person, namely, Tariq Mahmood for a sum of Rs,1,75,000 who was facing trial under section 302/34, P.P.C. Before the Sessions Judge, Sukkur. Since the above accused person had absconded, the Sessions Judge issued notice to the appellant being surety and after hearing, forfeited bail bond amount by his order dated 31-3-1990. Against the above order the appellant filed Criminal Revision No, 27 of 1990 in the High Court. It appears that in the above criminal revision the appellants filed a death certificate issued by the Union Council, Moinuddinpur, Tehsil Gujrat, Punjab to the effect that the above accused person had expired. The above certificate was contested by the complainant party whereupon the matter was referred to the Deputy Commissioner, Gujrat with the direction to hold inquiry about the above controversy. He submitted his report through his letter dated 21-11-1990 informing the High Court that the death certificate was forged one. Eventually above Criminal Revision No, 27 of 1990 was heard and was partly allowed by learned Single Judge of the High Court through his judgment dated 14-1-1991 whereby the forfeited amount was reduced to Rs,75,000.
3. It appears that on 31-1-1991, the complainant Shahbaz Khan moved above Misc. Application No, 183 of 1991 under section 476, Cr.P.C. Praying therein action be taken against the appellant for producing forged evidence which was allowed by an order dated 22-8-1991 and it was ordered that the charge would be framed against the appellant under section 193, P.P.C.. After that the appellant filed Misc. Application- Na. 1425 of 1991 for recalling the above order but the same has been declined through the impugned order.
4. Leave was'granted to consider whether in view of clause (b) of section 195, Cr.P.C. The High Court have made a complaint under section 193, P.P.C. A to the competent Court for trial and it could not have ordered the trial by itself.
5. The learned counsel for the appellant in support of his contention referred to section 195, Cr.P.C., relevant portion of which is reproduced as follows:-- "195. (1) No Court shall take cognizance---
(a) Prosecution for contempt of lawful authority of public servants.---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;
(b) Prosecution for certain offence against public justice. ---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) Prosecution for certain offence relating to documents given in evidence.-- 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.
(2) In clauses (b) and (c) of subsection (1), term "Court" includes a Civil, Revenue or Criminal Court, but does not include a Registrar or Sub-Registrar under the Registration Act, 1908 (XVI of 1908).
' According to the learned counsel in terms of subsection (1), clause (b) of section 195, Cr.P.C., as the appellant is sought to be prosecuted under section 193, P.P.C. When the offence is alleged to have been committed in or in relation to any proceeding in the High Court, the High Court should have made a complaint in writing for initiating an action and only then cognizance could be taken by the Court of Session or that trial Court under section 193, Cr.P.C. The learned counsel for the State has contended that in view of section 476, Cr.P.C. The High Court was competent to initiate and try the case summarily. Sections 476 and 476-A, Cr.P.C. May be relevant for purposes of the present controversy, which are reproduced as follows:-- "476. Procedure in cases mentioned in section 195.---(1) When any offence referred to in section 195, subsection (1), clause (b) or clause (e), 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 trial in Chapter XXII.
(2) When in any case tried under subsection (1) the Court finds the offender guilty, it may, notwithstanding anything contained in subsection (2) of section 262:-
(a) pass any sentence on the offender authorised by law for such offence, except a sentence of death or imprisonment for life, or imprisonment exceeding five years, if such Court be a High Court, a Court of Session, a District Court or any Court exercising the power of a Court of Session or a District Court;
(b) sentence the offender to simple imprisonment for a term which may extend to three months, or to pay a fine not exceeding one thousand rupees, or both, if such Court be a Court of a Magistrate of the first class, a Civil Court other than a High Court, a District Court, or a Court exercising the powers of a District Court, or a Revenue Court not inferior to the Court of Collector;
(e) sentence the offender to simple imprisonment for a term not exceeding one month, or to pay a fine not exceeding fifty rupees, or both, if such Court be a Criminal Court or a Revenue Court other than a Court referred to in clause (a) or clause (b).
(3) The powers conferred on. Civil, Revenue and Criminal Courts under this section may be exercised in respect of any offence referred to in subsection (1) and alleged to have been committed in relation to any proceeding in such Court by the Court to which such former Court is subordinate within the meaning of subsection (3) of section 195.
(4) Any person sentenced by any Court under this section may, notwithstanding anything hereinbefore contained, appeal:--
(a) in the case of a sentence by the High Court, to the Supreme Court;
(b) in the case of a sentence by a Court of Session or District Court, or a Court exercising the powers of a Court of Session or, a District Court, to the High Court; and
(e) in any other case, to the Sessions Judge.
(5) The provisions of Chapter XXXI shall, so far as they are applicable, apply to appeals under this section and the Appellate Court may alter the finding or reduce or enhance the sentence appealed against.
476-A. Forwarding of cases for trial by Courts having jurisdiction.---(1) If the Court in any case considers that the person accused of any of the offences referred to in section 476, subsection (1), and committed in, or in relation to, any proceedings before it, should not be tried under that section, such Court may, after recording the facts constituting the offence and the statement of the accused person, as hereinbefore provided, forward the case to a Court having jurisdiction to try the case, and may require, security to be given for the appearance of such accused person before such Court, or, if sufficient security is not given, shall forward such person in custody to such Court.
(2) The Court to which a case is forwarded under this section shall proceed to hear the complaint against the accused person in the manner hereinbefore provided."
' In support of his contention Mr. Korai referred to Karim Bakhsh v. The State (1991 PCr.LJ 1337), but the observations made in it are not relevant. In this case it was observed that section 195 (1) (e), Cr.P.C. Will apply only when the offence is alleged to have been committed by a party to a proceeding as indicated in clause (e) of section 191, Cr.P.C. And as in that case the accused was not a party to the proceedings, the conviction awarded to him was set aside and the case was remanded. The second case relied upon by the learned counsel is, namely, Ghulam Murtaza v. The State (1991 M LD 1759). This judgment also is not applicable as it was held that under the provisions of sections 195 and 475, Cr.P.C. The learned trial Judge could not have tried the appellant under section 174, P.P.C. Himself. In the present case the appellant is being tried under section 193, P.P.C.
Both these cases do not support the contention of the learned counsel for the appellant. We have noticed a judgment of Peshawar High Court, namely, Sher Adat Khan and another v. Sahib Din and 2 others (1989 PCr.LJ 1299) where it was observed that the Court in which forgery or perjury is committed, can proceed against the accused under section 476, Cr.P.C.
6. The appellant has been charged of an offence under section 193, P.P.C. Which provides punishment for intentionally giving false evidence in any stage of a judicial proceeding or for fabricating false evidence for the purpose of being used in any stage of a judicial proceeding. It is an admitted position that the document alleged to have been forged was filed by the appellant for the purposes of obtaining relief. The alleged offence, therefore, was allegedly committed in a judicial proceeding in the High Court. Section 195, Cr.P.C. Prohibits taking cognizance of any offence by the Courts which have been mentioned in clauses (a), (b) and (c) of subsection (1) of section 195, Cr.P.C., except on a complaint by a public servant or Court as mentioned therein. As clause (b) inter alia refers to sections 193, 194 and 195, P.P.C., cognizance of offence under these provisions can be taken on a complaint in writing by the Court in which the offence has been committed.
However, section 195, Cr.P.C. Has to be read with section 476, Cr.P.C., which provides procedure in cases mentioned in section 195 (1) (b) (c), Cr.P.C. Every civil, criminal or revenue Court is empowered and has the discretion to take cognizance of the offence referred in section 195 (1) (b) or (c), which has been committed in or in relation to a proceeding before it and try the same in accordance with the procedure prescribed for summary trial in Chapter XXII, Cr.P.C. Such procedure can be adopted by the Court at its own discretion, which should be exercised judiciously and not arbitrarily, taking into consideration the facts and circumstances of the case. Such summary procedure is intended to prevent the abuse of the process of law and to punish the offender by a summary trial which is necessary to establish confidence in Court, authority of Court and process of law. The false and fabricated evidence which diverts or is intended to divert the course of justice or abuse the process of law and Court, shakes the confidence of people in the administration of justice which should be zealously guarded. Section 476, Cr.P.C. Thus provides a procedure other than the one mentioned in section 195, Cr.P.C., and authorises the Court to try the case itself. We approve the view expressed in Sher Adat Khan and another v. Sahib Din and 2 others (1989 PCr.LJ 1299). The above interpretation of section 476, Cr.P.C., finds support from section 476-A, C.P.C., which empowers the Court that in case it considers that the accused should not be tried under section 476 (1), Cr.P.C., then the Court may, after recording the facts constituting the offence and the statement of the accused person, forward the case to a Court having jurisdiction to try it.
Therefore, during the trial before the Court under section 476 (1) the accused will have a chance to point out that it is not a fit case for trial by the Court summarily and it will be within the discretion of the Court to accept the plea or to reject it.
7. The learned counsel for the appellant contended that the death certificate was not obtained by the appellant nor was he aware of it. However, the fact remains that it was produced by him in Court for obtaining relief. We, however, refrain from making any observation on this aspect of the case as it shall be considered and decided by the trial Court trying the offence under section 193, P.P.C..
8. The learned counsel for the appellant contended that section 476, Cr.P.C. Would apply only if on the date of hearing the Court takes cognizance of the offence and passes sentence before rising.
The learned counsel has not been able to show any provision of law or authority in support of this contention which is completely misconceived. Section 476 does not contemplate such a procedure nor such limitations have been placed on the power of the Court while trying the offender summarily. Section 480, Cr.P.C. Empowers the Court to detain and sentence the offender at any time before it rises in respect of offences under section 179, 180, or 280, P.P.C. Committed in view of or in presence of the Court. This provision can hardly be pressed in service. The appeal is dismissed.