1. ' This revision application is meant to call in question the order of Addl. Sessions Judge Peshawar dated 23-1-76 dimissing the appeal of applicant against the order of 'Mr. Muhammad Faroo4 Khan Civil Judge Peshawar by which he convicted him under section 228, P. P. C. And sentenced to a fine of Rs, 200 or in default to one month's S. I.
2. ' The background of the case is that one Mst. Wazirzadi had filed in Court of Mr. Muhammad Farooq Khan, Civil Judge, Peshawar a rent-application against Ghulam Haidar; this application was fixed for 4-6-76, but the purpose for which it was so fixed is not discernible from the record, that during the proceedings the applicant, who claimed to have been pursuing the case on behalf of also Wazirzadi is said to have insulted" the Reader of the Court and at this the Civil Judge proceeded against him under section 480, Cr. P. C. And convicted him as under :- "You Ghulam Ghaus son of Azad Gul has insulted the Reader Bakhshish in the open Court and hence you committed offence under section 228, P. P. C. You are hereby convicted and sentenced to Rs, 200 fine under section 480, Cr. P. C. Or in default you are sentenced for one month simple imprisonment."
3. ' Section 480 Cr. P. C. And 228 P. P. C. Respectively read as under :- "480, (I) When any such offence as is described in section 175, section 178, section 180 or section 228 of the PakistanPenal Code is committed in tile view or presence of any civil criminal or revenue Court, the Court may cause the offender to be detained in custody, and at any tie 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 he sooner paid."
4. "228. Whoever intentionally offers any insult, or causes any interruption to any public servant, while such servant is sitting in any stage of a judicial proceeding, shall be pumshed with simple imprisonmeut for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both."
5. ' Now by reading these two sections together, it is obvious that whilal section 480, Cr. P. C gives to Court jurisdiction to proceed against an accused, section 228, P. P. C. Enumerates the types of conduct which would, on the partj o a delinquent, amount to an offence. The words "whoever intentionally oilers any insult, or causes any interruption to any public servant, while such public savant is sitting in any stage of a judicial proceeding" appearing in section 228, P. P. C. Would seem to be the touch-stone on which the offending conduct of an accused has to be tested. The underlying principle, which by the necessary intendment of Legislature seems to have been laid down therein is that before proceeding against an accused the presiding officer must bring on record all the necessary facts bearing upon the offending conduct of delinquent) which, in his view, had caused him insult or interruption while sitting in any stage of a judicial proceeding. With this principle, there can be no compromise. After all the order of presiding officer, in case he convicts an accused, is appealable. And therefore it would be all the more necessary for him to mention, for the benefit of appellate Court, all facts leading him to the conclusion that the accused had committed an offence under section 228, P. P. C.
6. ' To put it somewhat differently, if the impugned order of presidin officer is, in a given case, found merely to have reproduce the words of said section, there being no mention in it of the facts leading to that conclusion, the appellate Court would have no means to know as to what the accused had actually said or done which led to his conviction subsequently. It is obvious that in that eventuality the petitioner's right of appeal would become illusory and he would be deprived of that valuable right.
7. ' Be that as it may, the Legislature has by way of abundant caution, incorporated the said principle in section 481, Cr. P. C. Which reads as under:- "481.---(1) In every such case the Court shall record the facts constituting the offence, with the statement, if any made by the offender, as well as the finding and sentence.
(2) If the offence is under section 228 of the Pakistan Penal Code, the record shall show the nature and state of the judicial proceeding in which the Court interrupted or insulted was sitting, and the nature of the interruption or insult."
8. ' The case-file would, however, show that the learned Civil Judge had not only failed to mention any facts leading to the conclusion that the petitioner had, in open Court, insulted his Reader, but his impugned order is wholly silent as to the stage of the proceeding in which the petitioner had misbehaved. This by itself, in my view would therefore, suffice to hold that the entire proceedings taken against the petitioner were wholly without jurisdiction, more so when the learned counsel for State conceded that the learned Judge also bad failed to afford to petitioner an opportunity to defend himself.
9. ' A reference to some case law on the point nevertheless seems to me to be necessary for the guidance of Courts below:- ({) In the case of Ramlal v. Emperor AIR 1931 Nag. 193 the accused was convicted by trial Court under section 228, P. P. C. For having interrupted judicial proceedings. However, when his case came up before the High Court in revision, it was discovered that the record of the case did not reveal the type of interruption, nor indeed did it show the nature or stage of the proceedings. In order to tide over this difficulty, the learned counsel for State seems to have argued that the omission would be curable, But the High Court did not agree with him, holding that compliance with the provision of section 480, Cr. P. C. Was mandatory and thus the omission would be incurable.
(ii) In the case of Arumugam Cheayar v. Emperor AIR 1928 Rang. 280 the trial Court had convicted the accused under section 228, P. P. C. But had omitted in its order to comply with the requirement of section 480, Cr. P. C, although the case-diary did show its compliance.
10. ' In spite of this position, however, and relying. On the language of section 480, Cr. P. C, it was held by the High Court that the impugned order was unsustainable.
(iii) In the case of Kukati Narasa iteddi v. State AIR 1915 Mad. 330 in the proceedings before High Court, it was discovered that the accused had insulted the presiding officer at his face. But even so, his conviction was set aside, for the learned presiding officer had not, in compliance with requirement of section 481, Cr. P. C. Stated in his order toe nature and stage of the proceeding during which he was insulted.
(iv) In the case of Jatta-Mal v. Emperor AIR 1928 Lah, 357, it was discovered, as a fact, by the High Court that the accused had misbehaved with the presiding officer. However, the presiding officer had failed to show in his order the nature and stage or the judicial proceedings during which he was insulted. And on that basis, his impugned order was quashed and the sentence of accused set aside.
11. ' This being the well-settled legal position of which, however, the learned Civil Judge does not seens to have been aware, the impugned order must be viewed with disfavour. The fact, however, is that he is a new incumbent. But this would rather go against him. In a case of this nature, which involved the liberty of a citizen, he should have refrained from proceeding against him so rashly and negligently, consequently holding him guilty and sentencing him to imprisonment.
12. ' This revision application is, therefore, allowed, the impugned order is set aside and it is directed that if the petitioner has already paid the fine of Rs, 200, it would be refunded to him.
13. ' The learned counsel for accused pointed out to me at this stage that the learned Civil Judge has passed against his client the remarks of ``goonda", without any inquiry or evidence whatever, and the same should also be quashed. For this purpose, he has made a prayer in this application. But this relief cannot be granted to him in these proceedings. He agrees that after his client was convicted by the learned Civil Judge, he filed in the Court of District Judge an application for the transfer of his case to the Court of another Judge. And on that application, which the learned District Judge had marked to the learned Civil Judge for his comments, he opined that his client was "goonda". From all this it would be clear that the said proceedings are altogether independent.
14. However, since the grievance has been brought to my notice, I would, in the suo motu jurisdiction of this Court, take notice of it and direct that the record of the case would be requisitioned from trial Court with notice to state to show cause as to why the impugned remarks of the learned Civil Judge should not be quashed.