' This judgment will dispose of Criminal Appeal No,55 of 1996 filed by Attique-ur-Rehman who was convicted under section 205, P.P.C. And sentenced to two years' R.I. With a fine of Rs,10,000 and in default of payment of fine to undergo R.I. For six months by learned Additional Sessions Judge, Faisalabad vide his judgment dated 16-1-1996.
2. Brief facts of the case were that there was a bail before arrest application titled "Hafeez-ur- Rehman etc. v. The State "arising out of case F.I.R. No .219, dated 30-9-1994 under sections 440/448/452/379/511/148 and 149, P.P.0 registered in Police Station "D" Type Colony, Faisalabad.
Hafeez-ur-Rehman and Shafique-ur-Rehman, accused were granted interim bail before arrest on 8-1-1996 and application was adjourned to 16-1-1996 and on the said date instead of Shafiq-ur- Rehman, Attique-ur-Rehman, present appellant appeared. This was pointed out by learned counsel for complainant upon which learned Additional Sessions Judge issued a show-cause notice and thereafter, charge was framed and according to the prosecution, appellant pleaded guilty and he was sentenced as mentioned above.
3. Learned counsel for appellant submits that learned Additional Sessions Judge has not followed the procedure as mentioned in section 243, Cr.P.C. Further, submits that appellant was not given time to engage a counsel and that admission of the appellant was not recorded in the words of appellant. Also submits that option with the learned Additional Sessions Judge was only under section 476, Cr.P.C. And had to follow the procedure as required under section 195, Cr.P.C. Learned counsel has relied on 1991 PCr.LJ Note 66 at page 47. Further, submits that learned Additional Sessions Judge in fact issued show-cause notice first and thereafter, framed the charge which is also an irregularity not curable under section 537, Cr.P.C. Adds that ingredients of section 205, P.P.0 are not attracted.
4. Learned Assistant Advocate-General Mr. Khalid Naveed Dar submits that learned Additional Sessions Judge has not mentioned section 476, Cr.P.C. But the procedure which he has adopted is according to section 262, Cr.P.C. But has exceeded limits by awarding sentence of two years as in such like matters sentence should have been 3 months.
5. I have heard learned counsel for parties at great length. Section 205, P.P.C reads as under:--- "205. False personation for purpose of act or proceedings in suit or prosecution. Whoever falsely personates another, and in such assumed character makes any admission or statement, or confesses judgment,' or causes any process to be issued or becomes bail or security, or does any other act in any suit or criminal prosecution, shall be punished with imprisonment of description or a term which may extend to three years or with fine, or with both."
' If one goes through section 205, P.P.C., in my view, same is not attracted to facts and circumstances of the present case. Moreover, the procedure adopted by learned Additional Sessions Judge is against the spirit of section 195 and section 476, Cr.P.C. Section 195, Cr.P.C. May advantageously be reproduced here:--
195. Prosecution for contempt of lawful authority of public servants: Prosecution for certain offences against public justice: Prosecution for certain offences relating to documents given in evidence.--
(1) No Court shall take cognizance---
(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;
(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 proceedings 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 proceedings i,e, any Court in respect of a document produced or given in evidence in such proceedings, 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), the term 'Court' includes a Civil, Revenue or Criminal Court, but does not include a Registrar or Sub-Registrar under the Registration Act, 1908.
(3) For the purposes of this section, a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from the appealable decrees or sentences of such former Court, or in the case of a Civil Court from whose decree no appeal ordinarily lies, to the principal Court having ordinary original civil jurisdiction within the local limits of whose jurisdiction such Civil Court is situate; ' Provided that--- (a)
(b) ....................................................................................................................
(4) The provisions of subsection (1), with reference to the offences named therein, apply also to criminal conspiracies to commit such offences and to the abetment of such offences, and attempts to commit them.
(5) Where a complaint has been made under subsection (1) clause (a), by a public servant, any authority to which such public servant is subordinate may order the withdrawal of the complaint and, if it does so, it shall forward a copy of such order to the Court, and upon receipt thereof by the Court, no further proceedings shall be taken on the complaint.
' Section 476, Cr.P.C. Reads as under:--
476. Procedure in cases mentioned in section 195.--- (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 proceedings 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 trials 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 Sessions, 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 Court of Collector;
(c) 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 Ciminal 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 proceedings 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 Sessions, or District Court, or a Court, exercising the powers of a Court of Sessions or a District Court, to the High Court; and
(c) 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 ...................................................................................................................
It is, thus, crystal clear That the procedure which had been adopted by learned Additional Sessions Judge is against the spirit of section 195 and that of section 476, Cr.P.C. Moreover, the learned Additional Sessions Judge first ought to have framed the charge, which has not been done in the instant case, and thereafter, he should have issued show-cause notice. The learned Additional Sessions Judge also did not allow opportunity to appellant to engage a counsel.
' In view of the provisions of law reproduced hereinbefore, and the facts and circumstances of the case in which the learned Additional Sessions Judge passed the impugned judgment, this appeal is accepted and conviction and sentence awarded to appellant by learned trial Court is set aside.
Appellant is on bail. His bail bond shall stand discharged.