RAJA SAEED AKRAM KHAN, J. --- Through this appeal, the appellant calls in question the judgment passed by the Shariat Court on 20.10.2010, whereby the appeal filed by him was dismissed.
2. The facts, necessary for the disposal of the instant appeal, are that Javaid Iqbal Butt, appellant, lodged a report at City Police Station, Mirpur, on 7.12.2000 at 9.00 p.m., alleging that he is running the business of furniture in Sector F/1, Mirpur. Two years ago, Abdul Ula and Rafey Butt, respondents herein, who were known a bit to him, came at his home and asked him to enter into partnership in their business of Chemical industry as a partner. The appellant issued them a cheque of Rs.
5,75,000/-. Besides cheque, they also received a sum of Rs. 4,50,000/- in cash from the appellant in presence of Ch. Mumtaz son of Abdul Majeed and Tariq Mahmood son of Muhammad Ashraf, residents of D/1 and Khambal, Mirpur, respectively. A few .Days later, the respondents told the appellant that as the business is. Registered as private limited, :therefore, they cannot associate' .Him as a partner, however, the respondents promised that they will pay him the profit at the rate of Rs. 42,000/- per month. The respondents paid him profit twice but less than the amount fixed. In the meantime, the appellant came to know that both the brothers are running the business of chemicals fraudulently and they are not manufacturing the genuine chemicals. On this, the appellant demanded from the respondents to return his money but they did not return the same.
Today, 7.12.2000 at 7.00 pm, after got injecting fuel in his car from Petrol Pump situated in Sector F/1, Mirpur, when he turned his vehicle to proceed towards Sector F/1, both the respondents while boarding on another car arrived at spot from Quaid-e-Azam Chowk's side and stopped his vehicle.
Abdul Ula Butt, respondent, alighted him from the vehicle and forcibly got him boarded in the car and threatened him to sit calm otherwise his dead-body will not be traceable. He aimed pistol at his chest and warned him not to demand the money otherwise he will be killed. Respondent, Abdul Ula Butt, tried to kidnap him towards Sector F/1 but he had to stop the vehicle because an unknown vehicle suddenly came from front side. He also tried to make hue and cry.. In the meantime, his brother, Pervaiz Iqbal Butt and Raja Muhammad Asghar came from Butt Furniture's side and rescued him. The respondents also tried to fire a pistol shot upon him but he survived. On the aforesaid report, a case under sections 419, 420, 341, 342, 324 and 34, A.P.C. Read with sections 5 and 9 of the Price Control and Prevention of Profiteering and Hoarding Act, 1986 was registered and after necessary investigation, both the respondents were challaned in the afore-mentioned offences. The respondents filed a writ petition before the High Court for the quashment of the proceedings. The High Court quashed the proceedings under sections 419, 420, A.P.C., 5 and 9 of the Price Control and Prevention of Profiteering and Hoarding Act, 1986 vide its judgment dated 20.3.2001. However, the respondents were tried under sections .324, 341 and 34, A.P.C. After completion of the investigation, a challan was presented before the Additional Tehsil Criminal Court, Mirpur. The Trial Court framed the charge on 12.6.2004 against the respondents and. They pleaded not guilty and claimed the trial. In support of its case, the prosecution produced Javaid Iqbal Butt, P.W.-2, Muhammad Ameen, S.I., PW.-4 and Zaffar Haider Shah, Head Constable, P.W.5, whereas Raja Asghar, P.W.-3 and Rashid Khan, S.I./SHO City Police Station, Mirpur, P.W.-6, were not produced by the, prosecution. After completion of trial and hearing the arguments of the learned counsel for the parties, the Trial Court acquitted the respondents of the charge by extending benefit of doubt vide its judgment dated 29.6.2007. At the same time, the S.H.O. City Police Station, Mirpur, was directed to lodge a case against the appellant, under Section 193, A.P.C. Aggrieved from the order of the Tehsil Criminal Court dated 29.6.2007, the appellant preferred an appeal on 18.8.2007 before the District Criminal Court, Mirpur, challenging the order of Tehsil Criminal Court, Mirpur, with regard to lodging a compliant under Section 193, APC. The appellant did not appear before the District Criminal Court, therefore, the District Criminal Court, after hearing ex parte arguments, dismissed the appeal on 25.2.2008, holding that the appellant had chosen the wrong forum, therefore, it had no jurisdiction to hear the appeal and the right forum was the Shariat Court.
Feeling aggrieved from the order of the District Criminal Court the appellant filed an appeal before the Shariat Court which was dismissed vide impugned order dated 20.10.2010, which is the sue-t- matter of the appeal in hand.
3. Raja Khalid Mehmood Khan, Advocate, the learned counsel for the appellant, argued that the Shariat Court has concurred with the judgment of the Trial Court, which was upheld by the District Criminal Court. The Trial Court has issued a direction 'against the appellant and the Shariat Court without appreciating the material on the record has illegally concurred with the findings recorded by the District Criminal Court and Additional Tehsil Criminal Court. He has argued that the observation of the Trial Court that the appellant is liable to be proceeded against and punished under Section 193, APC for the offence of perjury is not sustainable in the eye of law. He further argued that the District Criminal Court and the learned Shariat Court erred in law while maintaining the observation/direction to file a separate complaint under Section 193, A.P.C., against appellant.
He contended that the Shariat Court has also not. Taken into consideration that the ingredients which are required to be fulfilled to proceed under Section 193, A P.C., are not available in this case.
He further contended that there was no ill-will against the respondents, who were involved in the case. There was a business deal between the parties and when the appellant came to know that the respondents are fraudulent persons, he demanded to return his money, on this they tried to abduct t*e appellant. He stated that the occurrence was stated to be witnessed by his real brother, Pervaiz Iqbal Butt and Raja Muhammad Asghar, who fully supported the prosecution version. He argued that findings of both the Courts below that Raja Muhammad Asghar, who has been cited as witness was not examined has made the whole story doubtful, is not correct as it was the prerogative of the prosecution to examine the 'witness of his own choice. He further argued that the prosecution cannot be compelled to produce to each and every witness cited in the list. He averred that the discrepancies pointed out by both the Courts below are minor in nature, which can be ignored lightly but this aspect of the case has totally been ignored by the Trial Court as well , as.
The Shariat Court, while passing the impugned judgment.
4. On the .Gtthet hand, Mr, Khalid Elasheed Ch. Advocate, the parged counsel for the respondents .Opposed The argument advanced by the 'learned counsel. For the appellant, while sulfroitting that both-the Courts below- have -given the concrete, reasons while delivering the impugned Judgment, therefore,1.-01 interference as called = for by this 'Coin COLO Heirdued that against the judgment Of the'TriOltourt dated. 29:6:2007 to the extent of, filing, of complaint under Section*1-93., ,APC,, the appellant filed an :appeal. Before. The District Crirpinl-Court. The appellant did not appear in the pistrict Criminal Court and the appeal was deCidedsex parte. He further contended that the appellantlurnisOed the, false' -evidende, therefaie, the Trial Court has :rightly issued , directioil to proceed against' him ;Linder. Section 1.9 , FkPC: lie contended that the evidence was scrutinized by both the Courts below in its. True perspective's and nothing is left unattended, He argued that the prosecution witnesses have made the 'contradictory statements, therefore, both the Courts below rightly disbelieved the ocular account as their statements are not confiden6e inspiring.
5. We have heard- the arguments frOm both sides . And also perused the. Record and impugned judgment of the Shariat Cotgt. The appellant is aggrieved by the findings of the Trial Court as well as the first Appellate Court fOr issuing a direction to :'prepare a separate complaint against .Him under Section 193, for proceeding in the offence of perjury. The offence of perjury is involved in this case, which is one of the -moet.Heinoirs, social and moral offence. It ;s not only an offence punishable under the 1.Piry but is also against the injunctions Of_ the Holy Qurary.Lt is an evil whith tends to disrupt the very :basis of the social order and make a moekery of the judicial-system,. Be it Islamic or otherwise. Any person who deliberately tells a lie during thdliktolemn proceedings of a Court of law, knowing fully well that he is thereby likely to ruin the life or reputation of an innocent person or put into jeopardy his liberty-- falsely involving him in a criminal .Case Or cause damage to his propeity, does not deserve any leniency and ought never be left off lightly. Awarding stiffer sentence-would be a positive step in this direction. On the other hand, some paramounts have been determined to proceed under-Section 193, APC. Lt would be. Proper to reproduce' Section 193, -APC, f r Abetter. Understanding of the matter:--- 193: _Punishment for false evidence.However intentionally gives false evidence in any stage of judicial Proceeding, or fabricates false evidence for the purPose of being used in any stage of a judicial proceeding shall be punished with imprisonment of either. Description for a term which may extend to seven years, and Shall also be liable to fine; and' Whoever intentionally gives or fabricates false evidence in any other case, shall be punished with imprisonment of either description for a term which may extend to three years, and shall, also be liable to fine."
A bare reading of the above-said provision, reveals that whoever intentionally gives false evidence in any stage of a judicial proceeding, or fabricates false evidence far the purpose of being used in any stage of a judicial proceeding shall be punished with imprisonment. In the absence of the ingredients mentioned in Section 193, APC, the conviction cannot be sustained. In this regard, reliance can be placed in - a case titled Aqil Hussain Shah v. Pakistan State [PLD 1957 Peshawar 142], wherein it has been observed as under:- .......................... 'Intenti'on 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'."
A person is said to make a false statement intentionally if the person making that statement makes it advisedly knowing it to be false and with the intention of deceiving the Court and of leading it to suppose that which he stats is true. Whether a person can-tie said to have intentionally given false evidence Within the" meaning of Section 193, APC, is a pure question of fact.
'Intention' may be proved either directly from the existence of certain facts and circumstances, or it may be deduced from his contradictory statements. If intention isnot proved then a person who is, stated that he made a falsestatement ,cannot be proceeded under Section, 193, A.P.C. The Court has to see before starting 'the proceeding that what was the purpose in the mind to make the false and fabricated statement. In the present case, it is 'alleged that while appearing before the Court and in cross-examination, the prosecution witness has resiled from his statement while saying that he made the false statement. In such-Jike situation, the requirement is not fulfilled. As we failed to find that where from ,the Trial Court gathered that the statement of a person 'against whom a separate complaint under Section 193, A.P.C. Was ordered, was made intentionally and there was a specific object in his mind. For this purpose, the,facts are required to be proved.
6. The nutshell of the above discussion is that it can safely be held that to prosecute a person under Section 193, A.P.C., it is the duty of the prosecution to show first, that the statement made by the accused was false and secondly, that he knew it or believed it to be false or did not believe it to be true at the time when he made the statement. In this regard, the guidance can be taken from a case titled Taj Mohammad v. Emperor [AIR 1928 Lahore 125], wherein it has been observed as under:--- "........... In order to sustain an indictment for perjury the prosecution must establish inter alia, two things: (1) that the statement was false; (2) that it was known or believed to be false or not believed to be true. In other words, the statement must be intentionally false."
In another case titled Dalip Singh and others v. Emperor [AIR 1927 Lahore 874], it has been observed as under: "It not having been proved that Natha Singh had any personal knowledge of the arrest of his son by Prem Singh in 1924, the mere fact that he probably heard of it between 1924 and 1926, is not, in my opinion, sufficient to warrant his conviction on the charge laid against him. I therefore, accept this petition and setting aside the conviction and sentence direct that the fine, if paid, be refunded."
Similarly, in case titled Emperor v. Amolak Ramvs [AIR 1919 Lahore 158], it has been observed as under:--- "What really happened it is impossible to say, but it seems to us that the following is very possibly the real case. Amolak Ram and Nathan Lal, having plotted to blackmail Gurdit Singh, sent for Sohan Singh. Finding that Gurdit Singh was not likely to be back from Lahore till the afternoon of the 16th, Amolak Ram went on a lazy inspection tour: leaving Nathan Lal to detain Sohan Singh till his return.
Bishen Singh and Baghi Ram saw Sohan Singh in Nathan Lars custody and sent word to Gurdit Singh, who hurried back from Lahore. Meanwhile Amolak Ram had returned from camp, and getting the required bribe from Gurdit Singh let Sohan Singh go. If this be correct, then that part of Amolak Ram's statement before Mr. Parsons which says 'Sohan Singh I never saw at all' is false, but the main portion as to Amloak Ram's wing out to Salowal is true. But on the evidence as it stands, we are unable to say that it is proved beyond all reasonable doubt that any particular portion of the statement is false. There has been a great deal of hard swearing in the case, mainly on the question of Amolak Ram's being at Dipalpur or wary from Dipalpur from the morning of the 15th to noon on the 16th April and the conclusion at which we arrive is that with regard to this question the defence version (viz., that Amolak Ram was not in Dipalpur) is very probably correct.
We accordingly. Uphold the decision of the learned 'Sessions Judge and dismiss this appeal."
Underlining is ours.
7. The case was duly registered on the compliant of Javaid Iqbal Butt, appellant, which was investigated by an Investigating .Officer and during the course of investigation, he came to the conclusion that the respondents are guilty of the offence and a challan was submitted before then Court of competent jurisdiction. During the course of trial the contradiction in the statements of the prosecution witnesses came on the record and mere contradiction cannot be made basis for the proceedings under Section 193, APC. We have observed that the intention which is basic ingredient to proceed under Section 193, APC is missing in this case, therefore,, we are of the. View that the Trial Court as well as the Shariat Court was not Justified to pass the direction to prepare a separate compliant against the appellant under Section 193, APC.
In view of the above discussion, we are inclined to accept this appeal and while setting aside the judgment of both the Courts below, the direction to the extent of separate plaint is hereby recalled.