P L D 1957 (W (PLP)

HABIBULLAH KHAN, J.‑--This is a revision petition by one Aqil Hussain Shah F. C. Police, who has been convicted under section 193 P. P. C. and sentenced to 3 years' R.

1. His appeal was dismissed by the Appellate Court. The brief facts of the case giving rise to the petition are, that one Ghulam Qadir was challaned to Court for the murder of his relation Mst. Bhag Bhari, who after receiving injuries made a dying declaration to an A. S. I. and then died after about 15 minutes or half an hour. The petitioner who was, more or less, a formal witness made the following statement in the Court of the enquiry Magistrate "I had accompanied the A. S. I. Aulad Hussain Shah from the Police Post Kiri Khaisor to the scene of occurrence. We found Mst. Bhag Bhari lying dead in her house. I was deputed by the A. S. I. to accompany the dead body to the D.

1. Khan mortuary for P. M. Examination. No body inter fered with the dead body on the way. After P. M. Examination, the Lady Doctor gave me a shirt Exh. P. 5/A, the shalwar Exh. P. 5/B, a head‑wear, that is chuni Exh. P. 5/C, and a piece of cloth Exh. P. 5/D and some ornaments Exh. P. 4, all the articles belonging to the deceased, and I gave them to the Investigating Officer along with P. M. Report." It appears that at the trial in Sessions Court the defence took up the position somewhat desperately, that the deceased did not make any dying declaration to the A. S. I., and the learned defence counsel cross‑examined to that end some of the prosecution witnesses, who had preceded the petitioner. The petitioner was prosecution witness No. 12, and in answer to the questions put to him by the Public Prosecutor in his examination‑in chief, he made the following statement:‑ "During the days of occurrence I was attached to Police Post Kiri Khaisor and had accompanied P. W. Aulad Hussain Shah A. S. I. to the spot, where we found Mst. Bhag Bhari lying wounded in her house and she was able to speak, I had accompanied the dead body of the deceased from the spot to the mortuary and nobody had interfered with it on the way. The clothes . . . . . . . given to me by the Doctor were handed over by me to the Investigating Officer." The learned defence counsel seeking advantage of his previous statement made in the enquiry Court put a question to the petitioner in cross‑examination and he gave the following answer: "My statement was recorded by the committing Magistrate and it is incorrectly recorded therein that we found Mst. Bhag Bhari lying dead in her house." Nobody including the learned Sessions Judge took notice of the apparent contradiction in the two statements of the petitioner. Ghulam Qadir accused was convicted under section 302 P. P. C. for the murder and was awarded death sentence. His appeal was dismissed by the Judicial Commis sioner's Court and his death sentence was confirmed. The learned judges, however, directed the prosecution of the peti tioner for perjury. Accordingly, the learned Session Judge drafted a complaint under section 195 Criminal P. C. against the petitioner, who following a trial was found guilty under section 193 P. P. C. and convicted. I note with regret that both, the trial Magistrate who convicted the petitioner, and the Sessions Judge who dismissed his appeal, misapprehended the facts of the case, and failed to consider a very important legal aspect of the matter. "Intention" forms the most essential ingredient of an offence of perjury under section 193 P. P. C. For a conviction under this section it is not enough that a certain statement made by a witness should be false, but it also must be proved positively, that the false statement was made "intentionally". "Intention" may be proved either directly from the existence of certain facts and circumstances, or it may be deduced from the contradictory statements. But that such an "intention" must be proved affirmatively is quite clear from the wording of the section. In the present case, both the lower Courts have merely emphasised the fact, that the petitioner made two contradictory statements, one of which was apparently false, and that therefore he was guilty of perjury, but they overlooked to consider the important point, whether the contradictory state ments were made by the petitioner "intentionally". For the conviction of an accused person on a charge of perjury, a clear and distinct finding must be given, that he "intentionally" made a false statement; and in the absence of such a finding, the conviction cannot be sustained. It was this aspect of the law which the Courts below failed to grasp, and the result was that they did not give any distinct finding, that the petitioner had "intentionally" made contradictory state ments. It need hardly be pointed out here that the examination of the record does not reveal any "intention" on the part of the petitioner to make a false statement designedly. On the other hand, it appears from the proceedings held in the inquiry Court as well as the trial Court, that in the former the prosecution Sub‑Inspector did not particularly have in his mind the point, whether Mst. Bhag Bhari was alive or dead when the petitioner reached the spot with the A. S. I. when he was examining him, while in the Sessions Court the Public Prosecutor had realised the significance of the question in view of the position taken up by the defence, and he there fore particularly asked the petitioner, whether Mst: Bhag Bhari, was alive or dead, when he visited her house with the A. S. I. I have no doubt whatsoever in my mind, that the error in the petitioner's statement in the enquiry Court proceeded from inadvertence, and was not due to any "intention", much less "dishonest intention" to damage the prosecution case. Consequently, for the reason given above, the petition is accepted, the conviction and sentence are set aside, and the petitioner is acquitted of the charge. He should be set free at once. If he has been dismissed from service on ground of this conviction, he may be reinstated. A. H. Petition accepted.