1992 PLP 1827 (MLD)

MAMOON KAZI, J.‑‑ Mst. Zohra the petitioner in this case filed a suit for permanent injunction before the learned Fifth Senior Civil Judge, Karachi South against respondent No.2, Ahmed Bashir, inter alia praying therein that: "(a) The defendant, his agents, attornies, servants, or any person (s) working under him or through him from continuing with his illegal activities whereby the defendant is causing harrassment and interference in the peaceful living and disturbance of her peaceful life and from illegality dispossessing the plaintiff from her properties and also entering the house of the plaintiff, whereby it tantamounts to invasion on the personal life of the plaintiff. (b) Any other further relief which this Hon'ble Court may deem fit and proper under the prevailing circumstances. (c) Cost of the suit." The allegations made in the plaint were, however, denied by the said respondent and an application was also filed by him requesting the Court to institute proceedings against the applicant under section 193, P.P.C. for making a false statement in the plaint on oath. The details in respect of the alleged false statement are mentioned in the complaint filed as Annexure "B" with the present application.

2. Thereafter, a show‑cause notice in respect of the said application was served upon the applicant but the applicant filed a petition in this Court under section 561‑A, Cr.P.C. challenging the said show‑cause notice which was disposed of by this Court on 5‑6‑1988 and the proceedings initiated against the applicant were quashed. However, it was observed in the said order that the trial Court could initiate fresh proceedings against the applicant under sections 195 and 476, Cr.P.C. if after giving of the final decision in the suit it comes to the conclusion that any statement on oath given by the applicant was false. The judgment of this Court in the case is reported in 1988 MLD 2862.

3. Thereafter, proceedings were once again initiated against the applicant and a fresh show‑cause notice in the matter was issued to her but similar proceedings were once again initiated in this Court under section 561 A, Cr.P.C. which were disposed of by a learned Single Judge of this Court vide his order, dated 21‑4‑1991. It was observed by the learned Single Judge in the said judgment as under:‑ "I have gone through the order, dated 5‑12‑1990 and find that it contains detailed discussion of the events in the case which led to the issuance of show‑cause notice to the petitioner for his prosecution under section 193, Cr.P.C. read with section 467, Cr.P.C. Such detailed discussion at the stage, when only show‑cause notice was being issued in the case was not necessary. Accordingly while dismissing the petition, I clarify that any observation made by the learned Judge in his order, dated 5‑12‑1990 with regard to merits of the case will not be taken into consideration at the, trial of the petitioner, and he will decide the case strictly on the basis of evidence which may be recorded in the case without being influenced in any manner with the observation made in the order, dated 5‑12‑1990."

4. After passing of the aforesaid order, respondent No.2 once again moved the learned trial Court for issuance of a fresh show‑cause notice and consequently, a third show‑cause notice, dated 7‑5‑1991 has been issued to the applicant calling upon her to show cause as to why she should not be prosecuted for giving false statement before the learned trial Court. It is this notice, which has once again been challenged by the applicant in the present) petition.

5. I have heard Mr. M. Umer Qureshi, learned counsel for the applicant and Mr. Raja M. Irshad, learned counsel for the respondent No.2 and Miss Navin Merchant, learned counsel for the State.

6. It may be pointed out at the very outset that even Mr. Raja M. Irshad has very candidly conceded that the show‑cause notice cannot be sustained under the law because it fails to provide reasonable details in respect of the alleged false statement said to have been made by the applicant. However, the learned counsel has argued that this should not preclude the learned trial Court from issuing a fresh show‑cause notice if any case under the said provisions of law is made out against the applicant. Mr. M. Umer Qureshi, on the other hand, has vehemently argued that there is no prima facie case established against the applicant from the circumstances of the case.

7. In order to appreciate the respective contentions made by the learned counsel, it is necessary to reproduce subsection (1) of section 476, Cr.P.C., which after its amendment by the Law Reforms Ordinance, 1972 reads as follows:‑ "476.‑‑‑(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 trials in Chapter XXII:" It is pertinent to note that the section begins with the words "when any offence referred to in section 1.95, subsection (1), clause (b) or clause (c) has been committed..:'. Consequently, it is imperative for the Court to be first satisfied that an offence referred to in the subsection has been committed by the accused. Such a conclusion, no doubt, is not to be reached by the Court taking cognizance of an offence under the said section after holding of g full‑fledged trial against the accused but the Court is first required to form a prima facie opinion in the matter after taking into consideration the circumstances of the case. Although, according to subsection (1) of section 476, the Court is empowered to take cognizance of the offence and try the same in accordance with the procedure prescribed for summary trials in Chapter XXII of the Code of Criminal Procedure but it would be in consonance with the principles o natural justice to first issue a show‑cause notice to the accused providing him an opportunity to explain the circumstances of the case against him. It is only after such show‑cause notice has been issued and the accused has been heard that the Court would be satisfied that prima facie, the offence alleged against the accused has been committed. It would thus be seen that mere allegations made against the accused that he has committed an offence in relation to the proceedings in the Court would not be sufficient and the Court must satisfy itself in regard to the existence of a prima facie case against the accused. The observations made by the learned Civil Judge in his order, dated 5‑12‑1990 clearly show that cognizance has been taken by him against the applicant because the allegations made by her in her plaint could not be established by her at the trial. He consequently, appears to have concluded that statements made by the applicant on oath in her plaint were false and consequently she was liable to be prosecuted for committing an offence of perjury under section 193, P.P.C. It may be pointed out that the truth or falsehood of a statement made in the plaint cannot be determined on such grounds. In order to make out a prima facie case of perjury against any person, it must be shown by positive evidence or by circumstances of the case that a false statement has been made by him in relation to the proceedings in the Court. Thus nothing can be spelt out from the order passed by the learned Judge on 5‑12‑1990 to indicate that he has proceeded against the applicant after establishment of a prima facie case against her.

8. The upshot of the discussion, therefore, is that although the said show cause notice dated 7‑5‑1991 is quashed but it is left open to the learned Civil Judge to take action against the applicant in respect of the alleged offence provided a prima facie case against her is established as has been just pointed out in this judgment. N.H.Q./Z‑18/K Proceedings quashed.