2004 PLP 1792 (SCMR)

TASSADUQ HUSSAIN JILANI, J.

This appeal is directed against the judgment of the Lahore High Court, dated 24-5-2000 vide which appellant's appeal against the judgment of the learned Special Judge (Central) Lahore dated 8-5-2000 was dismissed. Vide the latter judgment the learned Special Judge having tried the appellant under section 193, P.P.C. read with section 476, Cr.P.C. had convicted the appellant under the afore-referred charge and sentenced him to three (3) months' R.I. and a fine of Rs.2,000 and in default of payment thereof to further undergo R.I. for one month.

2. Facts in brief are that appellant was Line Superintendent in WAPDA. A case was registered vide F.I.R. No.72 of 1996 under sections 161/409/109, P.P.C. read with section 5(2) of the Prevention of Corruption Act II of 1947 at Police Station F.I.A. Crime Circle, Lahore on 26-9-1996 against one Meraj Din Meter Reader on the allegation that by abusing' his official position he reversed the reading of Electricity Meter of Tube-well (of Muhammad Idrees. Consumer) from 1741 to 0000071 in lieu of illegal gratification of Rs.2,

000. During investigation a technical report was prepared which was signed by Muhammad Amin appellant and Muhammad Siddique, Line Man. The report corroborated the allegations levelled in the F.I.R. to the effect that on 20-7-1996 the concerned meter was checked and it was found that the meter had been reversed. The said case ended in acquittal as all the prosecution witnesses turned hostile and the learned trial Court allowed the application under section 265-K, Cr.P.C. of the accused held as under:-- "Neither the complainant nor the P. Ws. have supported the prosecution story. All of them have turned hostile. There is no probability of the accused even if the formal evidence is recorded (There is no probability of conviction)."

3. The charge against the appellant in the instant case was that he resiled from his report given during investigation of the afore-referred case. During the trial in the said case while appearing as P.W.2 the appellant stated as under:-- "On 26-9-1996 I was posted as L.S. WAPDA Sub-Division No.1, Hafizabad. On the same day Akram Shad A.D. F.I.A. came to me. I did not accompany him to the site but I signed technical report Exh.P.B. at the instance of Assistant Director F.I.A. I signed the technical report on 26-9-1996." In cross-examination he further stated as under:

"There is no date on the report Exh. P. B. but the date is mentioned on the top. Under my signatures on the report there is no date: Line Superintendent cannot give technical report and the same is sought from MNT Department."

4. Learned trial Court while issuing notice to the appellant under section 193, P.P.C. read with section 476, Cr.P.C. adopted a summary procedure and convicted him by holding as under:-- "... In his reply to the notice he took the same plea that he give the technical report under undue influence of Muhammad Akram Shad A.D. but this fact is not sufficient to resile from the execution of the technical report especially when he admitted that the report was made in the office where about 150 employees were present. Muhammad Siddique, Lineman also signed the same. Muhammad Amin did not make any complaint to any of his officers orally or in writing that the technical report was obtained by Muhammad Akram Shad A.D. under coercion. Thus, it is proved that Muhammad Amin, Line Superintendent gave false evidence intentionally only to benefit the accused."

5. Appellant's learned counsel in support of the appeal submitted that appellant has been convicted for telling the truth; that report Exh.P.B. submitted during inquiry was signed by the appellant under pressure; that the report in any case was not submitted in any judicial proceedings and that the conviction cannot be sustained in law.

6. Learned counsel for the State defended the impugned judgment by submitting that the appellant had deliberately tried to help the accused in the case registered vide F.I.R. No.72 of 1996; that the earlier report was signed by him and it was on the basis of said report that the meter reader was challaned who was acquitted because of the concession given by the appellant while appearing as P.W.2.

7. We have heard learned counsel for the parties and have given our anxious consideration to the submissions made. The questions, which require consideration, in this case are as under:-- "(i) what are the fundamental elements of the charge under section 191, P.P.C ? (ii) has the prosecution discharged the burden of proof in establishing the offence"? ` It would be appropriate to refer to section 191, P.P.C. which reads as under:

"

191. Giving false evidence.

Whoever being legally bound by an oath or by an express provision of law to state the truth, or being bound by law to make a declaration upon any subject, makes any statement which is false, and which he either knows or believes to be false or does not believe to be true, is said to give false evidence." A close look at the afore-referred provision would indicate that the primary elements of the offence are as follows:-- (a) that a person is legally bound by oath or by an express provision of law to state the truth; (b) that he knowingly makes a statement which is false or which he believes is not true.

8. The only evidence which the trial Court relied to convict the appellant was Exh.P.B., the report of the Technical Committee to which the appellant was a signatory and appellant's own statement while appearing as P.W.2 in the trial of the main case. The burden was on the prosecution to prove that the statement made by the appellant in the Court was false and that the earlier report Exh.P.B. which was signed by the appellant was correct. No effort was made by the prosecution to prove that Exh.P.B., the earlier report was correct. The trial Court as also the Lahore High Court failed to appreciate that the appellant had given explanation as to why he had signed Exh.P.B.; that neither the second signatory of Exh.P.B. namely Muhammad Siddique, Lineman nor any other witness had appeared in support of the said report and that the case having not been proved ended in acquittal and the State did not file any appeal. The report Exh.P.B. was prepared during inquiry preceding the registration of the case, and the value of the said report was not more than that of a report submitted or statement made by a prosecution witness under section 161, Cr.P.C. It is in evidence that the report qua tampering of an electric meter is prepared by MNT Department of WAPDA, appellant had specifically stated so in his cross-examination and the said deposition had not been challenged. There is nothing in evidence to indicate that under the law it was the appellant Line B Superintendent who was to give the technical report. Even otherwise to hold that a witness making a statement under section 161, Cr.P.C. cannot resile from his statement even if he wants to come out with a C truth, besides being harsh does not reflect the correct position of law. In Ganduri Joseph Tangaraj v. The State AIR 1965 Andh. Pra. 402 the prosecution of a witness on charge under section 193, P.P.C. was quashed and it was held at page 404 as under:-- "The version of the accused in the Sessions Court was that those earlier statements made by him before the police were false and that he had made such false statements on pressure by the police. The earlier statements made before the police form the only basis relied o by the learned Sessions Judge in his complaint for proving that the deposition of the accused Tangaraj as witness in tie Sessions case must be false, and that Tangaraj must have committed an offence under section 193, I.P.C. In the judgment itself, the learned Sessions Judge has simply stated: "It is not possible to readily accept his explanation that he made false allegations in his report on account of the pressure of the police. Even if the explanation were not accepted, it would not necessarily follow that the statements, which he had made before the police, were true or must be acted upon as true to the extent of holding that thereby the deposition in the Sessions case must be false. The statements made before the police may be true or may be false. If there is no basis to positively hold that they were false and if the possibility existed of their being either true or false, there can be no positive finding that the deposition in the Sessions Court is false and the accused would have to be given the benefit of doubt. Therefore, considering the basis on which the complaint is made, there is no possibility of proving the case beyond reasonable doubt "

9. Before parting with this judgment we may add that in the instant case, the contradictory statements made by the appellant were in two different proceedings i.e. the earlier one before the police and the later in the Court during judicial proceedings. Even if, a witness makes contradictory statements while appearing in Court he cannot be charged under section 191, P.P.C. unless he fails to reconcile the true statement. E It is always open to the witness to correct himself in a judicial proceeding, but correction has to be immediate and prompt. A witness has a locus poenitentiae to correct himself and that would not amount to perjury. In the case Hit Narayan Singh v. Emperor AIR 1926 Pat. 517 a witness made a deposition in cross-examination inconsistent with his deposition in examination-in-chief but reconciled the inconsistency by giving a tenable explanation. The Court in the afore-referred circumstances held that he could not be charged under section 193, I.P.C.

10. For what has been discussed above, we allow this appeal, set aside the impugned judgment and acquit the appellant of the charge under section 193, P.P.C. He stands discharged of the bail bond. S.A.K./M-139/S T Appeal accepted.