1988 P Cr (PLP)

The appellant was charged under section 193, P.P.C. and was tried before the learned Ex‑officio Additional Sessions Judge, at Karachi, who has convicted and sentenced him to undergo R.I. for 1 years, and also to pay a fine of Rs.3,000 in default thereof to further period of three months.

2. The brief facts of the case are that on 10‑3‑1985 the appellant apprehended one Muhammad Iqbal and recovered 2 kilograms of heroin from his possession in the presence of two Mashirs. Luring the trial of the said case (Crime No. 58/85), the present appellant was examined on 10‑12‑1986 as prosecution witness being the investigating officer of the case. While giving evidence in the court, he stated that the person, who was sitting on the bench having beard was the accused. The case was adjourned, as the Bench Clerk, and the learned defence counsel stated that in fact the person who was standing was the accused. The further examination of the appellant was reserved and the case was adjourned to 14‑1‑1987 for ascertaining the real fact. On 14‑1‑1987 the appellant stated before the Court that, pit is correct to suggest that on the last date of hearing I had stated on oath that the accused having beard is brother of the accused present in Court namely Muhammad, but today I say that accused Iqbal is accused and Muhammad having beard is not accused'. Since both these statements were on oath, therefore, the appellant was served with a show‑cause notice who submitted his reply. This explanation of the appellant was found unsatisfactory and therefore, the charge under section 193, P.P.C. was framed against him to which he pleaded guilty. At the trial, the prosecution examined P.W.1 Muhammad Sualeheen, who has deposed that he was Bench Clerk of the Ex‑Officio Additional Sessions Judge, Karachi. He has produced statement of appellant Raja Altaf Hussain as exhibit

15. Notice under section 476, Cr.P.C. given to the appellant has been produced as exhibit 1, reply to the show‑cause notice given by the appellant has been produced as exhibit

2. After the close of prosecution. case the statement of the appellant was recorded under section 342, Cr.P.C. in which he has denied the allegation and has further stated that he was continuously on duty for 24 hours performed at different places, therefore, he was disturbed and was not fit to give true statement. He has examined himself in his defence and has deposed that on 10‑3‑1985 he was posted as Sub‑Inspector at C.I.A. Centre. He had arrested accused Muhammad Iqbal and recovered two kilograms of heroin from his possession. He had received the summons of this Court for appearing in the Court on 10‑12‑1936. He remained on duty for 15 days continuously in Grangi area and, therefore, was not in proper senses and could not identify the accused properly. He requested the learned A P P to take adjournment for 5/6 days as he not fit to give statement today, but he was told that summons have been served on him and it is a matter of 5 minutes, and therefore, he gave evidence. On that day, the brother of the accused was also present in Court and since the faces of both brothers were similar to each other, therefore, he could not identify the accused properly. On 14‑1‑1987 he was in senses, as he had taken full rest and identified the proper accused. Accused was Muhammad Iqbal who was present in Court alongwith his brother Muhammad. In cross‑examination he has fully supported the prosecution and has further admitted to have committed mistake on 10‑12‑1986 in recognizing the accused. The learned trial Court, while taking into, consideration the deposition of the appellant made in the case of State v. Muhammad Iqbal convicted the appellant as described above.

3. I have heard Mr. Azizullah K. Shaikh, learned counsel for the appellant, Mr. M.A.I. Qarni, learned counsel for State and have gone through the R & P of the case. The contention of Mr. Azizullah K. Shaikh was that the learned trial Judge has failed to consider the statement of the appellant given in defence, which has occasioned miscarriage of justice. It was further contended that the appellant had corrected himself in the same statement and, therefore, he could not be convicted under section 193, P.P.C. In support of his contention he has relied upon Maharaja Prasac v. King Emperor A I R 1924 All. F.

83. Mr. M.A.I. Qarni, learned counsel appearing for the State has contended that the appellant had deliberately made a false statement and therefore, he was rightly convicted under section 193, Cr.P.C. I have considered the contentions of the learned counsel. The accused in Crime No. 58/85 was arrested by the appellant on 10‑3‑1985 and his statement was recorded on 10‑12‑1986 i.e. after one year and nine months. He had corrected himself in the same deposition. It was held in A I R 1924 All. 83 that "A witness is entitled to locus poenitentiae and an opportunity to correct himself and if, when he gets that opportunity he recalls to his mind fact about which he had made a statement which was not quite accurate, a prosecution for perjury will hardly be desirable. No statement made by a witness in a deposition can be regarded as complete statement until the deposition is finished and corrected, if necessary, for till then it is open to the witness to qualify any statement or to correct himself." In A I R 1933 PC page 124 it was held, "It should be unnecessary to point out that a man may make a statement in the belief that it is true though good reason exists for knowing it to be false, for unfortunately man's beliefs are not always influenced by a good reason." In the present case the statement was not completedonl0‑12‑1986 and the further examination‑in‑chief of the appellant was reserved. On the next date of hearing the appellant corrected himself and identified the actual accused. The learned trial Judge has not given any reason for discarding explanation and the evidence of the appellant given in his defence. He has not even considered, the deposition of the appellant given by him as a defence witness.

4. In view of the above discussion, I am of the considered view that since the appellant had corrected himself during the same deposition and his explanation that he was on duty for 15 days continuously and was not in fit state of mind to give evidence on 10‑12‑1986, could be possible and, therefore, no offence of purgery was committed. The appeal is, therefore, allowed, the conviction and sentence of the appellant is set aside and he is acquitted. I had allowed this appeal on 20‑4‑1987 by a short order, and these are the reasons for the same. M.Y.H./A‑243/ K Appeal allowed.