1992 P Cr (PLP)

5. In his statement recorded under section 342, Cr.P.C. the applicant disputed the case of the prosecution. According to him the F.I.R. lodged by him was correct, but the police did not investigate it properly and at the instance of Mr. Masood Ahmad Abbasi, Advocate with whom he has got recorded enmity, involved him falsely in this case. The applicant did not step into the witness-box in disproof of the charge. He also led no defence.

6. On the assessment of evidence available on record the learned A.C.M., Court No.1 (Central), Karachi, found the applicant guilty for the offence under section 182, P.P.C. and sentenced him to suffer R.I. for two months. The applicant challenged his conviction and sentence recorded/awarded on 30-I1-1989 before Sessions Judge-(Central), Karachi, to Cr. Appeal No.3 of 1989. The learned Sessions Judge maintained the conviction but reduced the sentence to R.I. for seven days already undergone by the applicant (although he had never remained in custody even for a day as the trial Court had suspended his sentence at the time of recording conviction, which order was confirmed by learned Sessions Judge). It is in these circumstances that the applicant has invoked the revisional jurisdiction of this Court. M.4.

7. I have heard Mr. S. Hasan Azhar Rizvi, learned counsel for applicant and Mr. Jalaluddin Baluch, learned counsel for State. I have also gone through the record of this case carefully.

8. In order to make out a case under section 182, P.P.C. the prosecution is bound to prove the following points:-- (i) that the accused gave some information; (ii) that the person to whom such information was given was a public servant; (iii) that the information so given was false; (iv) that the accused when giving it knew or believed it to be false; (v) that the accused intended or knew that his information will cause the public servant to do or omit to do anything which such public servant ought not to do or omit if true facts were known by him; and (vi) that the accused gave such information to the public servant so that he may use his lawful powers to the injury or annoyance of any person.

9. Quite admittedly the applicant had lodged F.I.R. (Exh.4/A) which bears his signature. There is also no dispute that the person to whom this information was given was a public servant. There is, however, nothing on record to prove that the information so given in the F.1.R. (Exh.4/A) was false or that the applicant knew or believed it to be false. Out of the three witnesses examined by the prosecution in support of the charge one, namely, Shahabuddin (P.W.2) has not supported the case of the prosecution. He has acted as Mashir of Wardat and has produced the Mashirnama (Exh3/A). He is a close neighbour of the applicant and his evidence shows that the incident of theft had really taken place. In order to appreciate properly the question falling for determination, it will be appropriate to reproduce his cross-examination, which is as follows:-- "I am income-tax payee. The report was not falsely lodged by him. From my personal observation and circumstances I can say that it was actually a theft case. If I was not so satisfied I would not have accompanied the accused to police station ..... "

10. This witness was not declared hostile and consequently there is no reason to suspect his words when he testified that the theft in the shop of applicant/complainant had really taken place.

11. Mirza Muhammad Hanif A.S.I. (P.W.3) who had investigated the case lodged by the applicant found it false mainly for the following reasons:-- (i) The Atta (flour) lying on the ground at the place of incident had no footprints. (ii) The applicant did not pursue his case properly and he did not visit the police station in connection with the report (Exh.4/A) lodged by him. (iii) The valuable goods were lying at the place of occurrence, which were not removed by the culprits, and this appeared to be improbable.

12. None of the above facts which formed the basis of the opinion of Mirza Muhammad Hanif A.S.I. (P.W.3) is, however, proved from the record. The police officer has admitted in clear terms that he did not mention about the absence of footprints on Atta (flour) lying on the ground and the presence of other valuable goods in Mashirnama of Wardat (Exh3/A) prepared by him when he inspected it soon after the lodging of F.I.R. About the visits of the applicant the police officer has belied his own version by stating as follows:-- "The accused has visited the Thana and seen for about 20 or 25 times in connection with influencing me and to get Masood Abbasi arrested. I see Exh.6/C, which bears my signature. It is correctly written in it that the accused had never come to pursue the ease for a single day ... It is correct that I had not reported the matter about influencing me to my higher officers in writing...."

13. It is thus obvious that Mirza Muhammad Hanif A.S.I. (P.W3) has magnified trifling matters into serious allegations and it is extremely unwise to accept anything from his lips simply because the Assistant Commissioner/S.D.M. concerned had accepted his recommendations for disposing of the case lodged by the applicant as false.

14. In the case of Ananga Mohun Dutta v. Emperor reported in A I R 1919 Cal. 501, a Division Bench took the following view:-- "In this case a Rule has been issued to show cause why the prosecution of the petitioner under section 182, I.P.C., should not be quashed. It appears that in his complaint the petitioner made no statement which can be said to be false. It is not denied that the Hukka was stolen from his house. As to the person or persons who stole it, all that he said in his complaint was that he suspected two persons. That does not amount to giving false information: The Rule is accordingly made absolute and the proceedings against the petitioner are quashed."

15. In the case of Ali Ahmad v. Emperor reported in A I R 1922 Lah. 313, Moti Sagar, J. remarked that it is not sufficient to find for a conviction under section 182 that the accused person has given information which he did not believe to be true, but it is necessary that it should be found positively that he knew or believed the information to be false.

16. This view was reiterated in the case of Zahoor Ahmad v. The State reported in P L D 1975 Lah. 264, wherein it was made clear that in order to constitute an offence under section 182, P.P.C. positive knowledge or belief of accused about falsity of information was necessary. This important ingredient is, however, lacking in this case.

17. The last two points referred to in para. 8 ante, have also got force. The perusal of the F.I.R. (Exh.4/A) makes it clear that the applicant had not nominated anybody as suspect or culprit. Mirza- Muhammad Hanif, A.S.I. (P.W.3) who has investigated the case has, however, testified that in his 161, Cr.P.C. statement the applicant has shown suspicion against Mr. Masood Ahmad Abbasi, Advocate (P.W.1) with whom he had previous litigation. This question was considered in the case of Sultan v. C. De M. Wellbourne, reported in A I R 1925 Rang. 364, wherein it was held that a statement by a witness to the police officer, in the course of an investigation under Chapter 14 of the Criminal P.C. and recorded under section 161, Criminal P.C. is not information given to the police under section 154 and therefore, even if it is `?false, the witness is not liable to be prosecuted under section 182, I.P.C. This view gets support from the cases of Sudarson Barhambhat v. Emperor reported in A I R 1947 Pat.64 and Shambhoo Nath Gupta v. State reported in

18. A point which was touched upon by learned counsel for applicant during the course of arguments may now be dealt with. It is contended that before launching the prosecution against him the applicant was entitled to a show-cause notice. Reliance is placed upon the case of Muhammad Murad v. The State reported in 1983 P Cr. L J 1097. The facts of the reported case arc entirely different and in that case the prosecution of the accused was instituted under section 182, P.P.C. on the basis of false information supplied by him to the police. In that case the accused had also filed a direct complaint which was still pending and it was in this context that a notice before the prosecution under section 182, P.P.C. was considered necessary. The rule of natural justice which is the basis of the above contention has to be construed in the light of statutory provisions. Again as laid down by High Court of Patna in the case of Sheopujan Chaudhry v. State of Bihar reported in A I R 1956 Pat. 212, the principles of natural justice cannot be imprisoned within the straight jacket of any fixed formula, but must be assessed in the context of the circumstances of each particular case.

19. For all the above reasons, I am not satisfied that the report (Exh.4/A) lodged by applicant was false or that the applicant had the requisite intention or knowledge. His conviction and sentence are, therefore, set aside and he is acquitted from the charge. In the result the revision application is accepted. N.H.Q./I-201/K Revision accepted.