2017 PLP 8 (YLRN)

MUHAMMAD JUNAID GHAFFAR, J.

Through applications listed at Serial Nos.1 and 2 filed under section 476, Cr.P.C., the plaintiff has prayed to take cognizance against witnesses of defendant No.2 namely Zubair Hussain Qureshi and Nadeem Ahmed and initiate criminal proceedings under section 193, P.P.C. for giving false evidence in the instant matter. Counsel for the plaintiff submits that during cross-examination both the aforesaid witnesses have given false evidence in respect of one Mr. Khalil-ur Rehman Khan, who had conducted the survey in question to the effect that whether he lives in Pakistan or not. He has referred to cross-examination of Zubair Hussain Qureshi, whereby, the witness was asked as to whether Khalil-ur-Rehman Khan does not live in Pakistan any longer, to which the witness replied that "No" he is in Pakistan. Similarly he has also referred to cross-examination of Mr. Nadeem Ahmed, who was asked as to whether Khalil-ur-Rehman Khan does not live in Pakistan any longer, to which he replied as "Yes". On the basis of these submissions, the Counsel contended that one of these witnesses has given a false statement in respect of presence of Mr. Khalil-ur- Rehman, whereas, the said Mr. Khalil-ur-Rehman Khan was a key witness, insofar as the plaintiff's case is concerned and has not been produced deliberately before the Court as a witness. I have heard the Counsel and perused the record. The Counsel was, at the very outset, confronted as to how the listed applications are maintainable at this stage of the proceedings, whereas, apparently the Court has neither examined that part of evidence as is being relied upon, and how such criminal proceedings be initiated against the two witnesses simultaneously, to which the Counsel could not give a satisfactory reply. Both these applications have been preferred on behalf of the plaintiff by invoking the provisions of section 476, Cr.P.C. read with section 193, P.P.C., both of which reads as under: [

476. Procedure in cases mentioned in section 195.

(1) When any offences 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 same in accordance with the procedure prescribed for summary trials in Chapter XXII. (2) When in any case tried under subsection (1) the Court finds the offender guilty, it may, notwithstanding anything contained in subsection (2) of section 262: (a) pass any sentence on the offender authorized by law for such offence, except a sentence of death, or, imprisonment for life, or imprisonment exceeding five years, if such Court be a High Court, a Court of Session, a District Court or any Court exercising the power of a Court of Session or a District Court; (b) sentence the offender to simple imprisonment for a term which may extend to three months, or to pay a fine not exceeding one thousand rupees or both, if such Court be a Court of Magistrate of the first class, a Civil Court other than a High Court, a District Court, or a Court exercising the powers of a District Court or Revenue Court not inferior to the Court of Collector ; (c) sentence the offender to simple imprisonment for a term not exceeding one month or to pay a fine not exceeding fifty rupees or both, if such Court be a Criminal Court or Revenue Court other than a Court referred to in clause (a) or clause (b). (3) The powers conferred on Civil, Revenue and Criminal Courts under this section may be exercised in respect of any offence referred to in subsection (1) and alleged to have been committed in relation to any proceeding in such Court by the Court to which such former court is subordinate within the meaning of subsection (3) of section 195. (4) Any person sentenced by any Court, under this section may, notwithstanding anything hereinbefore contained, appeal; (a) in the case of a sentence by the High Court, to the Supreme Court; (b) in case of sentence by a Court of Session or District Court, or a Court exercising the powers of a Court of Session or a District Court, to the High Court, and (c) in any other case, to the Sessions Judge. (5) The provisions of Chapter XXXI shall, so far as they are applicable, apply to appeal under this section and the Appellate Court may alter the finding or reduce or enhance the sentence appealed against.

195. Prosecution for contempt of lawful authority of public servants; Prosecution for certain offences against public justice. Prosecution for certain offences relating to documents given in evidence.

(1) No Court shall take cognizance: (a)

(b) Of any offence punishable under any of the following sections of the same Code namely sections 193, 194, 195, 196, 199, 200, 205, 206, 207, 208, 209, 210, 211 and 228, when such offence is alleged to have been committed in, or in relation to any proceeding in any court, expect on the complaint in writing of such Court or of some other Court to which such Court is subordinate, or (c)

(2)

(3)

(4)

(5)

Section 476 provides that when any offence referred to in section 195(1)(b) and (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 same in accordance with the prescribed procedure for summary trials in Chapter XXII, whereas, Section 195 provides that no Court shall take cognizance (it is only subsection (1)(b) which is relevant here) of any offence punishable under any of the Sections of the same code namely section(s) 193, 194, ....., when such offence is alleged to have been committed in, or in relation to any proceedings in any Court, except on the complaint in writing of such Court or of some other Court to which such Court is subordinate, or.. . Such remedy as could be seen is not a direct remedy available to any party but it empowers only the Court to take cognizance of it insofar as subsection (1)(b) is concerned. It may be appreciated that according to the plaintiffs' own version any one of the two witnesses has allegedly made a false statement, whereas, it is yet to be ascertained that as to which of these witnesses has allegedly given a false statement to the effect that Mr. Khalil-ur-Rehman is in Pakistan or not. Even otherwise, such statement of the witness is only based on personal information and is to be examined in this context as well as the time on which such statement was made. It may also be noted that the evidence being referred to on behalf of plaintiff was recorded in 2010, whereas, the listed applications have been filed in the year 2016. Moreover, the question as to whether any person was available in Pakistan or not is not a question, which could be answered by a third party while being cross-examined without confronting the witness with any material to that effect or otherwise. The answer to such a question is given by the witness according to his information and that may be right or wrong, but in no manner can be termed as a false statement within the contemplation of Section 193 P.P.C. at least at this stage of the proceedings. The Counsel for the plaintiff while arguing the listed applications has vehemently relied upon the cross-examination of these two witnesses and has contended that since Mr. Khalil-ur-Rehman was present, who had signed and prepared the survey report in question, and the conduct of these two witnesses has deprived the plaintiff from putting the said Mr. Khalil-ur-Rehman in the witness box for cross-examining him. In my view such contention of the Counsel for the plaintiff is misconceived inasmuch as the plaintiff had always an opportunity of summoning Mr. Khalil-ur-Rehman as a Court witness, if the plaintiff wanted to do so. Admittedly and as conceded before the Court, no such effort was made on behalf of the plaintiff; therefore, the contention that non-presence of Mr. Khalil-ur-Rehman has prejudiced the plaintiff's case is of no relevance. There is another aspect involved in this matter and that is even if any proceedings are initiated against the said witnesses as prayed on behalf of the plaintiff under section 193, P.P.C., would not that amount to giving mind of this Court as to the authenticity and validity of evidence led on behalf of the defendants, and would not that prejudice their case, whereas, the Court is yet to adjudicate the matter finally and to see as to what evidence is correct or not. The question therefore is that whether any cognizance can be taken by the Court in the given facts, merely on the basis of an application by any party, when the matter is still pending for final decision, whereas, such evidence has to be considered while finally deciding the case. In somewhat similar situation (though in respect of a criminal case, however, the principle is the same in respect of taking cognizance under section 476, Cr.P.C.) the Hon'ble Supreme Court, in the case of Mian Muhammad Rashid v. The State (1970 SCMR 694) had the occasion to examine and scrutinize the effect of taking cognizance by the Court under section 476 Cr.P.C., during pendency of the case. The Hon'ble Supreme Court held as under: We consider that there can be no two opinions on this question in the circumstances of the case. The witness, Ghulam Ahmad, may have prevaricated while giving his statement. He might have made a statement at one stage, favoring the prosecution and at another assisting the defence. He could have dealt with, if so considered expedient, after the case has been disposed of, under section 476 of the Criminal Procedure Code. But to give a positive indication during the pendency of the case that the trial Magistrate considered him to be a liar, as he did, would naturally create feelings of alarm in the mind of the accused and this attitude would, in fact, have the tendency to deter other prosecution witnesses from making any admission in favour of defence. The assessment of the value of witness's statement at that intermediate stage in the case, whereas, the same witness was to be examined for the prosecution in the cases, was highly improper and should have been regarded as a disqualification for the Magistrate to proceed with the case in question. With all respect for the opinion of the learned Judge who dealt with the case in the High Court, we are unable to agree with him that the conduct of the learned Magistrate was not such as to justify a reasonable apprehension in the mind of the appellant that he would not receive a fair trial. This was an eminently fit case in which the High Court should have exercised its undoubted jurisdiction to transfer the case from the learned Magistrate's Court to some other competent Court. Similar view has been reiterated in the case of Manzoor Ali v. The State (1999 PCr.LJ 227) by a learned Single Judge of this Court. It is also of utmost importance in this matter to examine the piece of evidence on the basis of which the listed applications have been preferred on behalf of the plaintiff. It is only to the extent that one witness says that Mr. Khalil was present in Karachi and the other witness says that he was not. It is an admitted position that none of them had made any such statement in their Affidavit in Evidence or in the Examination-in-Chief and it is only during the cross-examination that a suggestion to that effect was made. Neither of them was confronted or suggested as to the period and time on which according to the plaintiff the said Mr. Khalil was present or not in Karachi. It is but natural that in the given situation either the witness was not aware of his whereabouts, or for that matter even confused. It is of pivotal importance to note that both the witnesses are employees of private organizations, whereas, they are not supposed to be having experience of appearing as witnesses before the Court and making depositions and being cross-examined. In the case of Sadiq Masih v. The State (1993 PCr.LJ 547), a learned Single Judge of this Court was pleased to observe that: 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 favorable 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 PLD 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. Similar view was taken by a Division Bench of the Lahore High Court in the case of Saifullah v. The State (2004 PCr.LJ 1682). Notwithstanding, even otherwise such piece of evidence has no direct nexus with plaintiff's case, whereas, as already discussed if the plaintiff wanted to have the said person present before the Court, an application under Order XVI, C.P.C. was the appropriate remedy for the plaintiff, which admittedly and as conceded was not availed. In view of hereinabove facts and circumstances of this case, I am of the view that both these applications are mis-conceived, as the said piece of evidence has not yet been considered by the Court nor any finding has either been given, whereas, it is yet to be appreciated that any such statement of Mr. Khalil-ur-Rehman's presence or otherwise is of any relevance to these proceedings or not. Accordingly, both these applications are dismissed with cost of Rs.5000/- each to be deposited in the fund of Sindh High Court Clinic. SL/T-9/Sindh Applications dismissed.