1990 PLP 1519 (MLD)

Zawar Hussain Jafferi A: A.G. for the State. Date of hearing: 27th March, 1990. Appellant Muhammad Ishaque was a prosecution witness in Crime No. 168 of 1987, `A' Section P.S. Sukkur, under section 147‑148‑302‑324‑323‑504/149 P.P.C. against Mehrab and others. During the course of investigation the Special Magistrate, Municipal Corporation Sukkur recorded his statement under section 164, Cr.P.C. on oath in presence of accused persons who were afforded an opportunity of cross‑examination. The appellant had fully implicated accused Mehrab and others in his statement recorded under section 164, Cr.P.C. The case proceeded before Vth Additional Sessions Judge, Sukkur, where the appellant was examined as prosecution witness and his evidence was recorded on oath on 22‑4‑1989. It is alleged that the appellant who was an eye‑witness to the occurrence in which his father Abdullah was murdered, resiled from his statement previously recorded under section 164, Cr.P.C. He was declared hostile and was confronted with his 164, Cr.P.C. statement. It was concluded that the appellant had given false evidence at the trial with a view to save the accused from the charge. Consequently the learned Additional Sessions Judge took cognizance of the offence in terms of subsection (1) of section 476, Cr.P.C. and on 23‑4‑1989 convicted the appellant for the offence under section 193 P.P.C. and sentenced him to suffer R.I. for six months and to pay a fine of Rs.1,000 or in default to suffer R.I. for three months more. By this appeal filed under section 410, Cr.P.C., the appellant has questioned the legality and propriety of his conviction and sentence.

2. I had the advantage of full arguments on the subject from both the sides. The learned counsel for the appellant who has appeared before me referred to several points but eventually confined his arguments in the main on the following contentions: (i) That both the statements, viz. 164, Cr.P.C. statement recorded by a Magistrate and the statement of appellant recorded by Additional Session Judge were on solemn affirmation and not on oath, having no legal sanctity and consequently the conviction of the appellant for perjury was not warranted by law. (ii) That holding trial against the appellant before the conclusion of murder case against Mehrab and other has caused serious prejudice to the appellant, thereby vitiating his trial.

3. Section 6 of the Oaths Act, 1873, as it stands after the amendment made by the Federal Laws (Revision and Declaration) Ordinance, 1981, provides as follows:‑‑ "(1) Where the witness or interpreter is a Muslim, he shall make an oath. (2) Where the witness or interpreter is riot a Muslim, he shall make an oath or, if he has an objection to making an oath, an affirmation."

4. The appellant in his statement recorded under section 342, Cr.P.C. has admitted in clear terms that his evidence recorded before Additional Sessions Judge was on oath. I cannot do better than to quote his own words which are as follows:‑‑ "I had given my honest statement on oath before this Court. I cannot give false statement in respect of death of my father."

5. The perusal of 164, Cr.P.C. statement also shows that it was recorded on oath. The pro forma is in Sindhi language which starts in the following words: which means on oath or on solemn affirmation. The cases reported as Muhammad Tahir v. The State P L D 1984 Pesh. 56, and Nazar Muhammad v. The State P L D 1986 Pesh. 32, which are relied upon by learned counsel for the appellant are, therefore, distinguishable. Even otherwise section 13 of the Oaths Act, 1873, cures such lapses in the following words:‑‑ "No omission to take any oath or make any affirmation, no substitution of any one for any other of them, and no irregularity whatever in the form in which any one of them is administered, shall invalidate any proceeding or render inadmissible any evidence whatever, in or in respect of which such omission, substitution or irregularity took place, or shall affect the obligation of a witness to state the truth."

6. The above curative and validating provision is unqualified in its terms and there is nothing in it to suggest that it is to apply where the omission to administer the oath to a witness occurs per incuriam. The case of Muhammad Sugal Esa Mamasan Rer Alalah v. The King, reported in AIR 1946 Privy Council 3, provides a complete answer to the objection raised on behalf of appellant.

7. Even otherwise where a person gives false evidence, the fact that no oath was administered to him is no bar to his prosecution under section 193 P.P.C. The case of Moti Ram v. Emperor, reported in A I R 1925 All. 410, is relevant on this point in which following observations were made:‑‑ "The second point is that as a matter of fact no oath was administered to the applicant. Assuming that such was the case the applicant was bound to state the truth before a Court of justice."

8. As to the second contention, I have carefully examined the case reported as Nazar Muhammad v. The State P L D 1986 Pesh. 32, but I have not discovered the result which apparently a critical examination by my brother Inayat Elahi Khan, J had produced. Section 476, Cr.P.C. was substituted by Law Reforms Ordinance, 1972, with a view to take a prompt and adequate action by adopting summary procedure. The conclusions drawn by learned Additional Sessions Judge are borne out from the record and there was no reason for him to have deferred the prosecution of the appellant till the disposal of main case, viz. Crime No. 168 of 1987, `A' Section P.S, Sukkur, under sections 147‑148‑302‑323‑504/149' P.P.C., against Mehrab and others.

9. It appears that parties had compromised out of Court and in order to secure the release of accused persons in an offence which is compoundable under Islamic laws, but cannot be compromised under the law of land, the appellant who is the real son of deceased Abdullah resiled from his 164; Cr.P.C. statements which was recorded on oath. He was, therefore, rightly convicted.

10. The question of sentence has engaged my anxious consideration. The perjury is one of the heinous offences but looking to the customs prevalent in our society and taking into consideration the fact that such compromise is permissible by Holy Quran, the appellant deserves maximum leniency. The appellant was remanded to custody on 23‑4‑1989 and he remained in custody till 3‑5‑1989 where he was released on bail by this Court. In this view of the matter, I would reduce the sentence of imprisonment to that already undergone by the appellant. The sentence of fine is, however, maintained. The appellant shall suffer R.I. for one month in lieu thereof. He is allowed one month's time to deposit fine before the trial Court. The trial Court shall take necessary steps to remand the appellant to custody, if the fine of Rs.1,000 is not deposited within the aforesaid time.

11. With this modification in sentence, the appeal is otherwise dismissed. N.H.Q./M‑1116/K Order accordingly.