Mst. Jamila, aged 22 years, was prosecuted for perjury as a result of a complaint lodged against her by Mr. Zahur Ahmad Khan, Magistrate 1st Class, Haripur at the instance of one Abdullah. The prosecution ended in an order of discharge passed by Mr. Abdur Rauf Khan, Magistrate, 1st Class, Haripur, on 27-12-1969. The order of discharge proceeded mainly on the ground that whereas the statement of Mst. Jamila in the case against Nazir Ahmad and others was taken down as a defence witness by Mr. Muhammad Din Khan, but the complaint was lodged for perjury by Mr. Zahur Ahmad Khan when the case was not pending before the latter. The learned Magistrate considered Mr. Zahur Ahmad Khan not to be the successor of Mr. Muhamm id Din Khan who recorded the statement of Mst. Jamila as a defence witness in the case against Nazir Ahmad and others.
2. Abdullah filed a revision petition against the order of discharge and the same was disposed of by Mr. Agha Khan Baba Khan, Sessions Judge, Hazara at Abbottabad, who found that Mst. Jamila was not confronted with her previous statement as required under section 145 of the Evidence Act and was not provided with the opportunity to explain the contradictions in the two statements. The revision petition was, accordingly, dismissed by the learned Sessions Judge on 13-2-1970.
3. Abdullah moved this Court on the revisional side to set aside the order of discharge.
4. After hearing counsel for the parties and on perusing the record, I think the revision petition must fail. I proceed to give my reasons for the same. The statement of Mst. Jamila was recorded under section 164, Cr. P. Code by Sardar Bahadur Khan Magistrate, 1st Class on 7.11-1967 in which she had implicated Abdul Aziz, Hamidullah Khan and Nazir Ahmad for offences under sections 363, 366, 368 and 376/109, P. P. C. Later on she appeared as a defence witness in the Court of Mr. Muhammad Din Khan, Magistrate 1st Class, Haripur, who tried Nazir Ahmad and others in the main case. In that statement she simply named Nazir Ahmad accused and said that while she alongwith Mst. Faridun Nisa and Mst. Mahmuda Jan was bringing water from the spring, she saw Nazir Ahmad standing by the side of the path. Mst. Faridun Nisa on seeing him threw down the pitcher and went towards him.
The witness continued that Nazir Ahmad accused was alone at that time and no one else was with him. The accused in that case were convicted by the Court of first instance, but were acquitted in appeal by the Sessions Judge. Abdullah moved an application under section 476, Cr. P. Code for prosecution of Mst. Jamila for perjury and Mr. Zahur Ahmad Khan who had in the meantime succeeded Mr. Muhammad Din Khan as a Magistrate dispensed with the holding of the enquiry as contemplated under section 476, Cr. P. Code and made the complaint under section 193, P. P. C. against Mst. Jamila on 9-8-1969. In fact, the Magistrate passed an order for prosecution and no formal complaint under section 193, P. P. C. was instituted at the instance of the learned Magistrate who even failed to bring to bear his mind on the question whether it was expedient in the interest of justice to order the prosecution of Mst. Jamila. In the second para. of the order, he observed :- "From the perusal of both the above-mentioned statements which are attached with the complaint, it is clear that Mst. Jamila intentionally offered false evidence, while contradicting his
(sic) previous statement during the judicial proceedings. Hence the complaint is submitted against her for necessary action under section 193, Cr. P. C."
Apart from the objection that no preliminary enquiry, as contemplated by section 476, Cr. P. C. was held in this case, I find that Mst. Jamila was not properly confronted with her earlier statement recorded under section 164, Cr. P. C. when she was examined as a defence witness in the Court of Mr. Muhammad Din Khan, Magistrate 1st Class, Haripur on 24-10-1968. What happened exactly in that Court was that after the examination-inchief of the witness was over and she was offered for cross-examination, Mst. Jamila stated that her statement was never recorded by a Magistrate. The statement recorded under section 164, Cr. P. C. of this witness was not traceable. Even tually, it was located and placed on the file with which she was not properly confronted in accordance with the provisions of section 145 of the Evidence Act. The learned Magistrate observed thus:-- "I have shown the statement Exh. P. X. to the witness who has denied to have thumb impressed the same or to have offered such a statement before any Magistrate."
After this, the witness was not confronted with her statement recorded under section 164, Cr. P.
Code, nor the contradictions in the two statement were properly brought out on the record. The lady was not given the opportunity to explain the apparent contradictions in the two statements made by her as provided by section 145 of the Evidence Act, which runs "Cross-examination as to previous statements in writing.-- A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved, but, if it is intended to contradict him by the writing his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him."
I think the learned Sessions Judge very properly decided in this case not to interfere with the order of discharge as the witness was not properly confronted with her previous statement and the contradictions in the two statement were not properly brought on record and Mst. Jamila was also not given the opportunity to explain it. Witnesses are not to be prosecuted because they give evidence which is contradicted at two different stages of a case. It is only where a Court is expressly of the opinion that it is in the interest of justice that the witness should be prose-cuted. A complaint has ordinarily not to be made and muchless at the instance of a private party. Mooso v.
State , it was observed at page 722: "The Court before whom such as offence appears to have been committed has to address itself to the question whether such an action having regard to all the circumstances of the case is1 expedient in the interest of justice."
On carefully considering the facts and the circumstances of the case with which I am dealing, I am of the view that there is no good ground to interfere and muchless to set aside the order of discharge and direct a further enquiry into the case. Accordingly, the revision petition is dismissed. PLD 1963 Kar. 719