1992 PLP 1464 (MLD)

This revision calls in question the older passed by the IInd Additional Sessions Judge, Karachi (South) dated 8‑9‑1991, declining to take action against the respondents for alleged offence of perjury. It may be pointed out that the applicant was tried for an offence punishable under Article 3/4, Prohibition (Enforcement of Hudood) Order, 1979, as he was found to be in possession of 5.85 Kgs. of heroin and convicted by the learned trial Court. He was sentenced to suffer R.I. for 10 years and to pay a fine of Rs.10,000 or in default to undergo R.I. for two years. The applicant was also awarded sentence of whipping in additions to the aforesaid sentence. The applicant appealed against his conviction to the Federal Shariat Court, which allowed the appeal, and acquitted the applicant and while doing so it made the following observations in its judgment: "We have carefully scrutinised the entire record and found that the prosecution witnesses could not stand the test of Tazkiyah‑al‑Shuhood and have made false statements to their own knowledge." It again observed in the said judgment:‑‑ " ... We are clear in our minds that the prosecution witnesses have deliberately concealed the true facts and have attempted to secure convictions of the accused through misrepresentation. The recovery is not proved beyond doubt." Thereafter the applicant moved the learned trial Court to take action against the respondents under section 476, Cr.P.C. but the learned trial Court has declined to take such action. The reasons have been stated by it as follows:‑‑ "I have perused the judgment of the Hon'ble Federal Shariat Court. The Hon'ble Federal Shariat Court has not issued any direction to proceed against the opponents for perjury but has only ordered that the copy of the judgment be sent to the Provincial Government. If the Honourable Federal Shariat Court was of the opinion that it is a clear case of perjury then the Court may have given direction to this Court to proceed against the, opponents witnesses but that has not been done. The authorities referred by the learned counsel for the applicant has no applicability as PLD 1982 SC

291. The Hon'ble Federal Shariat Court has given clear direction to consider the propriety of the prosecution which has not been done in the present matter. In such circumstances no case is made out for perjury." Mr. Hameed Ahmed Ayaz, learned counsel for the applicant has not been able to show that the order passed by the learned trial is open to exception. The learned counsel has placed reliance upon Mst. Karim Khatoon v. The State PLD 1984 SC 44 wherein it has been observed that the Court should not take a light or lenient view of cases of perjury but again, the discretion to take action vests in the trial Court. The learned trial Court in the impugned order has opined that it was not a clear case of perjury and, therefore, it declined to take action as desired by the applicant. In Shahzada Muhammad Umar Baig PLD 1970 SC 139, it was held that the discretionary orders passed by the subordinate Courts, cannot be interfered with in the exercise of revisional jurisdiction unless the same are found to be fanciful or arbitrary. The learned counsel for the applicant has failed to show that the order passed by the learned trial Court in this case is either fanciful or arbitrary. In the result, I find no force in this revision application and the same isle dismissed in limine. N.H.O./N‑410/K Revision dismissed