P L D 1999 Peshawar 66 (PLP)

This Criminal Appeal No.29 of 1998 is directed against the judgment and order dated 9‑7‑1998 passed by the learned Sessions Judge, Lakki whereby the appellant Abdul Haleem son of Sadu Khan was convicted under section 193, P.P.C. and sentenced to two years rigorous imprisonment and fine of Rs.10,000 or in default thereof further one year simple imprisonment.

2. The short background of the case is that the appellant on 18‑5‑1996 made a report to Muhammad Shafique I.H.C. Police Post Gambila in the form of Murasila on the basis of which F. I. R. No. 119 was registered in Police Station Tajori, wherein he had charged accused Sherbaz, Amin Khan, Hakeem Khan and Sher Muhammad for the murder of Shah Nawaz and causing injuries by firing to Fazal Raheem. The F.I.R. was also signed by the appellant.

3. On commencing trial in the Court of Sessions Judge Lakki, the appellant appeared as prosecution witness and during recording his statement he resiled from the F.I.R. and the Public Prosecutor, therefore, requested the Court that the appellant be declared hostile who was accordingly declared so and the Public Prosecutor was allowed to cross‑examine the appellant.

4. The learned Sessions Judge, therefore, served a show cause notice on the appellant under section 476, Cr.P.C. as to why he should not be prosecuted for perjury within the meaning of section 193, P.P.C. He was given copies of documents under the relevant law and the appellant filed his written statement to meet the charge on 23‑5‑1998. The charge was framed against him to which he pleaded not guilty and claimed trial. The trial commenced and the prosecution examined Shah Alam Khan Reader of the Court of Sessions Judge, Lakki in whose statement Order Sheet dated 18‑4‑1998, the statement of appellant (then as complainant) recorded as P.W.9 on 18‑4‑1998 and a copy of the F.I.R. were exhibited as Exh.P.W.1/1 to Exh.P.W.I/3 respectively. This witness was, however, not cross‑examined though the opportunity was given. The learned Public Prosecutor closed his evidence on the same day and the statement of the appellant was recorded under section 342, Cr.P.C. in which he denied perjury. He did not produce any defence. The trial was concluded and the appellant, after hearing the arguments of parties, was found guilty of perjury by the learned Sessions Judge and was convicted under section 193, P.P.C. and sentenced to undergo two years' R.I. and a fine of Rs.10,000 or further one year S.I. in default of payment of fine.

5. The learned counsel for the appellant urged two grounds. Firstly that the conviction of the appellant under section 193, P.P.C. is not warranted by law as the appellant did not resile from any statement recorded during judicial proceedings, i.e. his resilience was not from any sworn statement like a statement under section 164, Cr.P.C. He maintained that the case of the appellant, at the most, could come under the mischief of section 183, P.P.C.. Secondly that there was a compromise between the legal heirs of deceased and the accused party in case F.I.R. No. 119 which was the subject‑matter of perjury proceedings and the accused in that case were acquitted due to compromise. Therefore, according to the learned counsel, the appellant is entitled to acquittal. In support of his contentions, reliance was placed on the cases reported in PLD 1986 Pesh. 32 and 1996 PCr.LJ page 286.

6. The learned State counsel, on the other hand, supported the impugned order of the Court below and opposed the submissions of the learned counsel for the appellant. He relied on 1998 PCr.LJ 1630 and PLD 1984 Supreme Court 44.

7. I have anxiously considered the submissions of the learned counsel for the appellant and have gone through the record of the case thoroughly. I regret my inability to agree with the first submission of the learned counsel for the appellant. The learned counsel is oblivious of the fact that the appellant was examining himself on oath on 18‑4‑1998 when he was appearing as prosecution witness No.9. He in his cross‑examination said as follows:‑‑ "It is correctly recorded in my report that on the day of occurrence I alongwith the deceased Fazal Rahim left our house for labour, went to Adda Malang, there the deceased Shah Nawaz and Muhammad Zaman were also present, who were also waiting for the bus and in the meanwhile the present accused emerged on the scene and made firing at Fazal Rahim and Shah Nawaz with which both were hit. After the firing I took Fazal Rahim then injured in a datsun to Civil Hospital Naurang but on the way he succumbed to his injuries." . As against this he stated in this examination‑in chief that, "on the day of occurrence I alongwith other labourers total numbering 10/12 came from my house and were going to Gul Imam for labour and came to Adda Malang and were waiting for transport. In the meanwhile I heard the fire shots at which I ran away from the spot. I had not care that who had made the firing. "

8. The simple analysis of his statement shows that in his cross examination, the appellant has admitted the involvement of accused in a double murder case and admitted himself as an eye‑witness to the occurrence, but in his examination‑in‑chief he expressed his ignorance. This in fact is, on the part of the appellant, resilience from a sworn statement. It is not the case of the appellant that he straight away drew back from the F.I.R. His cross‑examination which is a part of judicial statement goes in line with the F.I.R, whereas in examination‑in‑chief he resiled from the F.I.R. In such a situation, I am clear in my mind that case of the appellant is fully covered by section 193 of P.P.C.

9. In my aforeexpressed opinion, I feel myself supported, in principle, by the august Supreme Court in case of Khair Din v. The State PLD 1982 Supreme Court

291. In that case, while dismissing the petition for special leave to appeal, their Lordships, in the ultimate para. of the judgment, observed as follow:‑‑ "Before parting with the case we would like to observe that after making a complaint against the petitioner and moving the machinery of law against him, Muhammad Sharif complainant (P.W.2) has prima facie perjured himself at the trial, in order to help the accused petitioner and brazenly denied his statements s made before the Police Inspector and the Magistrate. The fact that such persons are hardly ever proceeded against for perjury has given rise to an impression in the general public that any one can make a false statement in a Court of law with impunity. This feeling is not only justified, but has the effect of under‑mining public confidence in the judicial process. We are, therefore, of the view that this is a fit case in which the trial Court should consider the propriety of prosecuting Muhammad Sharif complainant for perjury. A copy of this judgment should be sent to the learned trial Court for appropriate action."

10. In the cited case, Khair Din who was convicted under section 161, P.P.C. read with section 5(2) of Prevention of Corruption Act (II of 1947) was employed as a Food Inspector in the Food Department and had demanded illegal gratification from Muhammad Sharif, who aggrieved by such demand, approached Circle Officer, Anti Corruption Establishment and the Circle Officer recorded his statement and then he was produced before the Magistrate nominated for conducting the raid and the Magistrate then also recorded the statement of Muhammad Sharif. Both the statements were signed by him. However, during the trial of Khair Din, the complainant resiled from his statement to favour the accused but still on the strength of other evidence Khair Din was convicted whose matter went up to Supreme Court and leave was refused to him. In that case too, there was no statement under section 164, Cr.P.C. but still the august Supreme Court taking a serious note of the matter observed that it was a fit case for proceedings under section 183, P.P.C. No proceedings under section 183, P.P.C. were suggested.

11. Perjury is one of the most heinous social and moral offence. It is not only an offence punishable under law but has been declared a heinous offence by the Holy Qur'an and the offender has been condemned in very strong words besides being punished for perjury. Sura Nisa, Verse 135 ref. In Sura Baqara it is a clear Qura'nic injunction that (And do not suppress the evidence). In view of its wickedness of high degree, perjury must be arrested with strong hands so as to check the growing tendency of giving false statements in the Courts and to cast. off the impression that one can give false statement in the Court with impunity.

12. In view of the above discussion, I hold that the appellant was guilty of perjury and was rightly held so and correctly convicted under section 193, P.P.C. The judgment of the learned trial Court is well‑founded and does not'' suffer any infirmity so as to warrant any interference by this Court.

13. With regard to the quantum of punishment, I feel that in the peculiar circumstances of this case that the accused in F.I.R. No. 119 dated 18‑5‑1996 were acquitted not because of perjury of the appellant but due to the compromise between the parties and, as such, the resilience of the appellant could not be considered as a contributory factor to the acquittal of the said accused. I, therefore, reduce the punishment of the appellant from two years' R.I. to one year R.I. and fine from Rs.10,000 to Rs.2,000, or in default of payment of fine' further two months simple imprisonment, which shall meet the ends of justice and in my view is more akin to the rule of propriety. With this modification in the quantum of punishment, which shall also meet the second point of arguments of the learned counsel for appellant, the appeal is dismissed. The appellant is present on bail, he be taken into custody and sent to judicial lock‑up to suffer the said sentences. N.H.Q./416/P Sentence reduced