P L D 1986 Peshawar 39 (PLP)

Habibur Rehman for Petitioners. Khawaja Nazir Ahmad, Asstt. A.‑G. for the State. Nemo for Respondents Nos. 2 and

3. Date of hearing: 27th October, 1985. By this single order I shall dispose of the five Criminal Miscellaneous Petitions, bearing Nos. 224, 226, 227, 228 and 229, of the year 1983, as common question of law and facts arises in all these petitions which are directed against the order dated 8.11‑1983 made by the learned Sessions Judge, Mansehra whereby the appeals filed by the petitioners herein were dismissed and the revision petitions filed by the complainant party for enhancement of the sentence accepted against the order dated 16‑1‑1983 of Magistrate, 1st Class, Mansehra who while convicting the petitioners under section 182, P. P. C. sentenced each one of them to pay a fine of Rs. 300 or in default to suffer S. I. for one month.

2. These petitions are for the quashment of the aforesaid orders of the learned two Courts below and arise in the following circumstances: One Habibur Rehman son of Abdul hanan, resident of `Bai Tarli', made on 19‑8‑81 a report at Police Station Battal charging therein Said Khan, Miskeen and Mst. Zewar Jan for the murder of Ali Zaman, the brother of the first informant. Upon the report so made a case was registered under section 302/34, P. P. C. against the accused Said Khan, Miskeen and Mst. Zewar Jan, whereafter during the investigation the petitioners gave statements to the police under section 161; Cr. P. C. supporting the report made by the first informant, though none of them claimed to be an eye‑witness to the occurrence. The accused persons were arrested but were later granted bail by the Court. They were then sent up to stand trial before the Court of competent jurisdiction on the charge of murder and it was during the pendency of the trial that Ali Zaman, who was said to have been murdered by the said persons, suddenly appeared in the village vvhereafter the challan was cancelled and the case was dismissed. The S. H. O. then lodged a complaint under section 182, P. P. C. against the first informant, who is not before this Court, and all the witnesses who had given statements to the investigating agency under section 161, Cr. P. C. All of them were convicted by the learned Magistrate, Mansehra under. section 182, P.P.C. and each one of thetas was sentenced to pay a fine of Rs. 300 or in default to suffer one month S. I. on pleading guilty to the charge. They appealed to the Court of Sessions and the complainant‑party, dissatisfied as it was with the inadequacy of the sentence awarded to the accused by the learned Magistrate, also filed revision petitions before the said Court against each one of them. The appeals were dismissed but the revision petitions were accepted by the learned Sessions Judge, who enhanced the fine from Rs. 300 to Rs. 500 in each case. It is against the said orders of the learned Sessions Judge that the petitioners have filed these Criminal Miscellaneous Petitions for quashment of the orders made; by the two Courts below and fox their acquittal. To complete the narration, Habibur Rehman, the first in. formant, had also filed revision petition in this Court but since he had set the investigating machinery of the police into motion, the learned counsel representing him, who is also counsel for the petitioners herein, did not press that revision petition which was accordingly dismissed in limine.

3. The learned counsel representing the petitioners argued that the police was not competent to file complaint under section 182, P. P. C. against the persons who had given statements to the Investigating Officer under section 161, Cr. P. C. and for that reason the conviction of all the petitioners herein having been recorded and sentence awarded on that basis by the learned Courts below was illegal and need be quashed. The learned counsel further argued that the learned Magistrate framed the charge against the accused /petitioners, to which they pleaded guilty, and also mentioned certain facts in his impugned order which did not exist in the statements/examination of the accused, thus failing to comply with the provisions of sections 242 and 243, Cr. P. C. and for that reason also the conviction of the petitioners was bad in law.

4. The learned Assistant Advocate‑General halfheartedly argued that since the petitioners had given information to the police in respect of a heinous crime when they were examined, which they did not believe to be correct, they could be prosecuted under section 182, P. P. C. In reply to the next argument of the learned counsel for the petitioners the learned Assistant Advocate‑General, however, frankly conceded that the provisions of sections 242 and 243, Cr. P. C. were not faithfully complied with by the learned Magistrate who convicted the petitioners under section 182, P. P. C. and since it was an illegality committed by the learned trial Magistrate, the conviction of the petitioners was not sustainable.

5. It is undisputable that in this case the investigating agency of the police had already come into motion when the first information conveyed to them by Habibur Rehman had been recorded as first report and on its basis the investigation had started. It was during the Investigation of the case that the petitioners herein were examined by the Investigating Officer who reduced their depositions into writing. These depositions recorded under section 161, Cr. P. C. were neither made on oath nor signed by any one of the petitioners, nor had they the opportunity to see that the same were correctly recorded by the police. Under the law as it no stands the petitioners were under no obligation to state the truth before the police and it would, therefore, be wrong to hold them liable under section 182, P. P. C. on that basis. That being so, they could not be prosecuted under section 182, P. P. C. for giving false statement to the police.

6. For the aforesaid reason, and also because the provisions of sections 242 and 243, Cr. P. C. were not faithfully complied with by the learned Magistrate, who committed incurable illegality, as rightly conceded by the Assistant Advocate‑General, the convictions recorded by the learned trial Magistrate on the petitioners and the sentence awarded to them by him being illegal were not sustainable, and so was the order made by the learned Sessions Judge in revision petitions filed by the complainant side. While accepting all these petitions, I hereby quash the conviction of the petitioners as also the sentence awarded to them by the learned two Courts below. The fine deposited by the petitioners shall be returned to them. H. A. K. Conviction and sentence quashed.