P L D 1960 Dacca 19 (PLP)

3. The learned Magistrate in an elaborate judgment came to the finding that the kabuliyat was fabricated by the accused, without any knowledge and. consent on the part of the complai nant, in order to establish a false claim over the land in question, and that the story of payment of salami and rent to the complai nant by the accused was wholly unacceptable. The learned Magis trate, therefore, held that the prosecution had proved its case beyond all reasonable doubt, and convicted and sentenced the opposite party to suffer rigorous imprisonment for six months, and to pay a fine of Rs. 100, in default, to suffer further rigorous imprisonment for one month under section 193 of the Pakistan Penal Code, by his order, dated the 11th of November 1957.

4. There was an appeal by the accused. The learned Addi tional Sessions Judge in appeal came to the conclusion that mere execution and registration of a kabuliyat did not confer any title to a person unless there was clear evidence on record that the kabuliyat was acted upon, and that, as section 193 provided punishment only for fabrication of false evidence for the purpose of using the same in any judicial proceeding, and there being no evidence regarding the use of this document in any stage of the judicial proceeding, "there could not be any conviction on `expec tant' use of any alleged fabricated document in a judicial proceeding in future. The punishment would only be if it is found that the accused used any fabricated document in evidence in any stage of a judicial proceeding." On these findings, the learned Additional Sessions Judge held that no case was made out against the accused, and accordingly he acquitted the accused of the charge under section 193.

5. The complainant thereafter moved this Court in the exercise of its criminal revisional jurisdiction and obtained the present Rule.

6. Mr. Abdus Salam Khan, Advocate, appearing on behalf of the petitioner, has contended before this Court that the learned Additional Sessions Judge has obviously taken a view which is manifestly illegal, and that there has been a grave miscarriage of justice, and, as such, in the interest of justice the order of acquittal should be set aside, and the case should be sent back for rehearing of the appeal according to law.

7. Mr. Abdus Salam, Advocate, appearing for the opposite party, has, however, contended that as it was a case between one individual and another, even if there was an error of law, the High Court should not interfere with the order of acquittal. He has referred to two decisions in support of his contention which will be considered in due course.

8. The relevant portion of section 193 of the Pakistan Penal. Code runs as follows: "Whoever intentionally . . . . . fabricates false evidence for the purpose of being used in any stage of a judicial proceeding, shall be punished . . . . . ." Now, what is fabricating false evidence has been defined in section 192 of the Penal Code. The word "fabrication" refers to "fabrication of false evidence", and if the evidence fabricated is intended to be used in any stage of a judicial proceeding, the offence is committed as soon as fabrication is complete ; it is immaterial that the judicial proceeding has not been commenced, or that no actual use has been made of the evidence fabricated. The learned Advocate for the opposite party concedes that the learned Additional Sessions Judge committed a clear error of law, and ignored the provisions of section 193 of the Penal Code.

9. The next question is whether this Court should interfere with such an order of acquittal. The learned Advocate for the opposite party has cited the decision of Ellis, C. J., and Badiuz zaman, J., in the case of Nurul Islam v. Saibuddin and others (P L D 1956 Dacca 188), where their Lordships quoted the principle to be followed in revision cases against orders of acquittal. The relevant passage runs as follows: "The Revisional Jurisdiction conferred on the High Court under section 439 of the Code of Criminal Procedure is not to be lightly exercised when it is invoked by a private complainant against an order of acquittal against which the Government has a right of appeal under section 417 of the Code of Criminal Procedure. It could be exercised only in exceptional cases where the interest of public justice required Interference for the correction of a manifest illegality or for the prevention of gross miscarriage of justice. The jurisdiction is not ordinarily invoked or used merely because the lower Court has taken a wrong view of the law or mis-appreciated the evidence on record.". So, it is an established principle of law that this power should be exercised only in exceptional cases where the interest of justice; requires such interference for the purpose of correction of a manifest illegality. The view taken by the learned Additional, Sessions Judge was on the face of it illegal, and there has been undoubtedly a gross miscarriage of justice. Mr. Salam for the opposite party has also cited the case of Pahelwan Singh v. Sahib Singh (22 Cr. L J 597), where also the same principle has been enunciated. The learned Advocate has referred to the observation of his Lordship [at page 598],. "It is laid down as a general rule, and a binding rule that except in the most serious cases, and in the event of grave mis carriages of justice, no High Court shall interfere in revision in such matters. The case before me is of the most trivial. Whether the decision was right or wrong, it is idle to suggest that there has been a miscarriage of justice. As far as law and order are concerned, as far as the peace of the district is concerned, and as far as the interest of the people are concerned, it is absolutely immaterial whether the accused person was convicted or acquitted." " '

10. The facts of that case are not before this Court nor is it known what was the offence complained of. Mr. Salam has con tended before this Court that it was a question between the, complainant and the accused, and the peace of the district and the interests of the people were not affected in any way. But I am unable to accept this contention of the learned Advocate for the opposite party. An offence under section 193 of the Penal Code is contained in Chapter XI of the Penal Code, where it deals with offences against public justice. Again, if these cases are allowed to be let off on an erroneous view, as the learned Additional Sessions Judge has done, then no man in this country would be safe. False evidence may be created, but if the accused is not punished, because, as yet no judicial proceeding was started, the result will be that the public peace will suffer, and the people will be seriously affected. I am, therefore, of opinion that there has been a manifest illegality in this particular case, and this Court should interfere with the order of acquittal for the prevention of gross miscarriage of justice, and in the interest of public peace and order.

11. In the result, this Rule is made absolute; the order of acquittal passed by the learned Additional Sessions Judge on the 31st of December 1957, is set aside ; and the case is sent back to the Appellate Court for fresh hearing and disposal of the appeal in accordance with law. As the particular Judge has formed an opinion regarding this case, it is directed that the appeal be heard and disposed of by the Sessions Judge himself. K. B. A./A. H. Rule made absolute.