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Criminal Appeal No. 345 of 1965, decided on 19^th March 1968.

S. 476‑--Exercise of discretion under S. 476 must be judicious in character‑Application praying for enquiry against accused on ground that he gave a false affidavit and deliberately used it for taking advantage‑--Trial Court not taking any evidence in regard to allegation and consequently having no material before it, but coming to conclusion that "there Was no intentional suppression of facts on part of accused" and dismissing application. Order of trial Court, held, not maintainable.

It is true that section 476 of the Criminal Procedure Code gives ample discretion to the Presiding Officer to hold or not to hold an enquiry, but the exercise of that discretion must be judicious in character.

It needs no emphasis to have to point out that when an application is properly made to a Court of law on certain allegations, then so long as those allegations are not disposed of, it cannot be said that the Court had properly exercised its jurisdiction.

A. A. Zari, Advocate v. Sharof Faridi, Advocate P L D 1965 S C 22 ref.

Where, on an application under section 476; Cr. P. C. the trial Court did not take any evidence in regard to allegations made against the accused and consequently, despite having no material before it, came to the conclusion that there was no intentional suppression of facts on the part of the accused and dismissed the application:

Held, the impugned order of the trial Court cannot be maintained.

Manzoor Hussain for the State.

Ramchand for Respondent.

Date of hearing: 19th March 1968.

The respondent was working as an Assistant in the office of the Deputy Commissioner, Sanghar. His right to hold that office having been questioned, he filed Suit No. 8 of 1965 in the Court of the Additional District Judge, Tharparkar at Sanghar for a declaration that the Deputy Commissioner, Sanghar had no right to question his holding that office and prayed for a permanent injunction restraining him from interfering with that right. Along with the suit, he filed an application‑under Order XXXIX, rules I and 2 of the Civil Procedure Code, on the 20th of February 1965 of which a notice was given to the appellant. On the 13th of March 1965, when the matter came up for hearing, some statement was made by the Advocate of the Government that the plaintiff had already been removed from the post and, therefore, the application for injunction had become infructuous. The plaintiff challenged the correctness of that statement and in support he filed the affidavit dated the 13th of March 1965. The learned Court, after hearing the parties, granted the injunction in his favour restraining the appellant from interfering with his right to hold the post of an Assistant in his office.

2. The Government filed an application under section 476 of the Criminal Procedure Code in the trial Court, praying for an enquiry against the respondent on the ground that the affidavit, dated the 13th of March 1965, was false and he deliberately used it for taking advantage. The trial Court by a very short order dismissed that application in these words

"Heard A. P. P. Mr. Muhammad Ashraf and Mr. Ramchand. It is neither expedient nor in the interests of justice to hold an enquiry in the alleged offence. There does not appear to be intentional suppression of facts. The application is dismissed."

The Government has filed this appeal against the said order and has questioned its correctness inter alia on the ground that there was no material before the trial Court to have come to the conclusion that the respondent was not guilty of intentionally suppressing the true facts as deposed by him in the impugned affidavit.

3. I agree with Mr. Manzoor Hussain, the learned counsel appearing for the State that, the impugned order of the learned Sessions Judge cannot be upheld in law. It is true that section 476 of the Criminal Procedure Code gives ample discretion to the Presiding Officer to hold or not to hold an enquiry, but the exercise of that discretion must be judicious in character. Admittedly, no evidence was taken in regard to the allegations made by the appellants in their applications, and consequently there was no material before the learned Court to have come to the impugned conclusion that there was no intentional suppression of facts" on the part of the respondent.

4. It needs no emphasis to have to point out that when an application is properly made to a Court of law on certain allega tions, then so long as those allegations are not disposed of, it cannot be said that the Court had properly exercised its jurisdic tion. Reference may be invited in this connection to the case of A. A. Zari, Advocate v. Sharaf Faridl, Advocate (P L D 1965 S C 22) wherein their Lordships on identical facts have made the following observation:

"The grave-man of the charge by Mr. Zari against Mr. Sharaf Faridi had nothing to do with the prospects of success or failure of the complaint against Hanif and Muzaffar, or whether certain evidence could or could not be led in that case. A serious question was raised whether it was at all appropriate for an Advocate to formulate a statement of facts to be made by an accused person, strengthened by the allegation (supporting evidence being specifically mentioned) that the statement which was being so procured was a false statement. It could only be established by evidence whether or not the statement was false. A substantial charge of an act of professional mis conduct having thus been "formulated, and the existence of evidence in support being indicated, it was contended that the High Court, within its powers under section 10(2) of the Bar Councils Act, was obliged to entrust the 'enquiry to the Bar Council, for it was not possible 'to contend that an allegation that an Advocate put a false statement in the mouth of an accused person was not an allegation of professional misconduct."

5. In the result, I hold that the impugned order of the trial Court cannot be maintained. It is set aside. The case is remanded back to that Court for enquiry into the application of the appel lants in accordance with law as contained in section 476 of the Criminal Procedure Code.

Case remanded.

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