1993 P Cr (PLP)

3. The Additional Sessions Judge took exception to the following statement of the appellant:,- "I did not see the dead body." and issued him a notice to show cause as to why he may not be prosecuted for perjury, an offence punishable under section 193, P.P.C. The appellant disputed the allegation by furnishing the following explanation:-- "It is incorrect that I have falsely deposed that I had seen the dead body when it was being taken by Edhi Ambulance." On the same day, viz. 14-7-1991, the learned Additional Sessions Judge convicted the appellant for the offence under section 193, P.P.C. in the following words:-- "It appears that the witness is in habit of changing statement and today in Court he has changed his statement twice. Accordingly I find that he is guilty of offence under section 193, P.P.C. and, therefore, I do hereby convict him to undergo S.I. for six days from today. He may betaken into custody and remanded." It is in these circumstances that the present appeal has been filed.

4. I have heard Mr. Umar Farooq Khan, learned counsel for the appellant and Mr. Abdul Hakeem Bijarani, learned AA.-G. for the State. I have also gone through the record of this case carefully.

5. Section 476, Cr.P.C. as it stands after the enforcement of Law Reforms Ordinance, 1972, reads as follows:-- "Procedure in cases mentioned in section 195.

(1) When an offence referred to in section 195, subsection (1), clause (b) or clause (c), has been committed in, or in relation to a proceeding in any Civil, Revenue or Criminal Court, the Court may take cognizance of the offence and try the sere in accordance with the procedure prescribed for summary trial in Chapter XXII. (2) ............................................................................................... (3) ............................... . (4) ............................................... .. (5) ............................... ..

6. Admittedly appellant Sadiq Masih was tried and convicted for the offence under section 193, P.P.C. an offence falling under clause (b) of subsection (1) of section 195, Cr.P.C., and consequently he could have been tried by the Additional Sessions Judge himself. The amended section empowered the Court to take cognizance of an offence referred to in clause (b).6r clause (c) of subsection (1) of section 195, Cr.P.C., if the same has been committed in or in relation to, a proceeding in any Civil, Revenue or Criminal Court and pass sentence under subsection (2) thereof. The scheme of amended section was considered in the case of Rahim Bakhsh, and another v. The State reported in P L D 1983 LA. 397 and it was held:-- "A reference in passing may be made to the provisions of sections 476 and 476-A, Cr.P.C., as they stand after amendment by the Law Reforms Ordinance, 1972. The scheme of section 476 in its present form appears to be at when an offence referred to in subsection (1), clause (b) or (c) of section 195, Cr.P.C., has been committed in, or in relation to, a proceeding in any Civil, Revenue or Criminal Court, then that Court may take cognizance of the offence and try the same in accordance with the procedure prescribed for summary trials. Under section 476-A, however, such Court may, after recording the facts constituting the offence and the statement of the accused person, forward the case to a Court having jurisdiction to try the case and may require security to be given for the appearance of such accused person before such Court, or, if sufficient security is not given, shall forward such person in custody to such Court. Then subsection (2) thereof provides that a Court to which a case is forwarded under this section shall proceed to hear the complaint against the accused person in the manner hereinbefore provided. On a combined reading of, those two provisions, it appears plain that a Court referred to in section 476 read with section 195, Cr.P.C. may itself take cognizance of the offence or forward the case under section 476-A, Cr.P.C., to a Court having jurisdiction to try the case."

7. In the case of S.M. Rehmatullah v. The State reported in P L D 1986 Kar. 560 a learned Judge of this Court examined section 476, as amended and observed as follows:-- "From the plain reading of section 476(1), Cr.P.C., it is clear that any offence referred to in section 195, subsection (1), clause (b) or clause (c) the Court, may take cognizance of the offence and try the same in accordance with the procedure prescribed by the summary trials in Chapter XXII, but in other cases as referred in 195(1)(a) the cognizance could be taken on complaint."

8. Section 260, Cr.P.C. deals with summary trials. Section 262, Cr.P.C., lays down that in summary trials the procedure prescribed in Chapter XX shall be followed, except as hereinafter mentioned. Section 263, Cr.P.C., dispenses with the recording of evidence and the drawing up of a formal charge, in cases where there is no appeal. However, in such cases also the Court should be careful to prepare the statement as required under this section. Section 264, Cr.P.C. provides in clear terms that in appealable cases the Court shall record the substance of the evidence and also the particulars mentioned in section 263 and shall, before passing any sentence, record a judgment in the case. From a combined reading of the above sections it is apparent that although it is not obligatory to frame a formal charge, it is necessary to do so to enable the accused to understand what the matter is upon which he has to show cause, and then to meet the case put up against him. It was obviously for this reason that a similar view was taken in the case of Shamshad Ahmad v. The State reported in 1991 P Cr. L J 1012. Two cases of Indian jurisdiction, viz. Mukandi Lal v. State through Municipal Board, reported in A I R 1952 All. 212, and New Raginaya Goods Mart and another v. State reported in A I R 1960 J&K 108m also support this view. 9 Admittedly no evidence was recorded against the appellant who was also not provided an opportunity in terms of section 342, Cr.P.C., to explain his position. In view of these legal infirmities the impugned order cannot beg, sustained.

10. Even otherwise the appellant has supported the case of the prosecution in material particulars. If the witness is honestly confused the Courts should ignore such inadvertent slips. After all there could be no reason to make an admission which was in no way favourable to the accused facing trial. In somewhat similar circumstances it was observed in the case of Mian Muhammad Jan Shah v. The State reported in P L D 1962 Pesh. 48, that where the false statement made in Court was not material to a decision of a case the prosecution of the witness for perjury was not called for.

11. Thus, from whatever point of view the matter may be looked at, the conviction of the appellant cannot be maintained. The impugned order is, therefore, set aside and the appeal is accepted. The appellant who is on bail is discharged, from his bail-bond. N.H.Q./S-955/K Appeal accepted.