1. This is an application under section 476, Cr. P. C. In which it is prayed that the respondent may be proceeded against under section' 193, P. P. C. For having filed a false affidavit dated 2-9-1970 in this Court in proceedings (Cr. M. No. 6242 of 1970).
2. The proceedings covered by Cr. M. No. 6242 of 1970 were instituted by the respondent for the transfer of a case under section 145, Cr. P. C. From the Court of Sh. Abdul Jabbar, A. .C., Sialkot to the High Court or any other Court for disposal. A number of allegations were made in this application' which were supported by the respondent by his impugned affidavit. The learned counsel says that the present petitioner was not made a party to-that application but he appeared in Court on his own and filed an application to be impleaded as party. The respondent's application was, however, granted and the proceedings from the trial Court were transferred to the District Magistrate, Gujranwala with directions that he may dispose of the proceedings himself or entrust them to some other Magistrate of competent jurisdiction in his District for disposal.
2. After the termination of the above proceedings the respondent in that case filed the present petition contending that the allegations made in the transfer application were supported by a false affidavit and, therefore, the respondent is liable to be proceeded against under section 193, P. P. C.
3. When this application came 'up for consideration on 11-3-1971 I pointed out to the learned counsel that the verification clause of the affidavit was not in conformity with the requirements of Order XIX, rule 3, C. P. C. And consequently- it was doubtful whether the respondent could be proceeded against under section 193, P. P. C. The case was, therefore, adjourned to enable the learned counsel to prepare himself on this point.
4. I have heard the learned counsel. Without reproducing the contents of the affidavit, as this petition can be disposed of on a short ground, it would suffice to refer to the verification part of the impugned affidavit of the respondent which is to the following effect:- "Verified at Lahore this second day of September 1970, that. The contents of the above affidavit are correct and true to the best of my knowledge and belief."
5. The law in regard to affidavits is contained' in rule 3(1) of Order XIX, C. P. C. And rules 9 and 10 of the Lahore High Court's Rules (See Chapter 12-B, Volume IV) which respectively read:- "3(l). Affidavits shall be confined to such facts as the deponent is able of his own knowledge to prove, except on interlocutory applications, on which statements of his belief may be admitted, provided that the grounds thereof are stated.
(i) Every affidavit containing any statement of facts shall be divided into paragraphs, and every paragraph shall be numbered consecutively, and, as nearly as may be, shall be confined to a distinct portion of the subject: (ii)
6. (i.e) When the declarant in any affidavit speaks to any facts within his own knowledge, he must do so directly and positively, using the words `I affirm' or `I make oath and say'.
(iv) When the particular fact is not within the declarant's own knowledge, but is stated from information obtained from others, the declarant must use the expression `I am informed and, if such be the case, should add `and verily believe it to be true or he may state the source from which he received such information. When the statement rests on facts disclosed in documents, or copies of documents procured from any Court of Justice or other source, the declarant shall specify the source from which they were procured and state his information or belief as to the truth of the facts disclosed in such documents.
10. Attention is drawn to Order XIX, rule 3, which lays down that affidavits shall be confined to such facts, as the deponent is able of his own knowledge to prove, except interlocutory applications (See Order XXXIX, rules 6 to 10), on which statements of his belief may, be admitted, provided that the grounds thereof are stated.''
7. It would be seen that affidavits are to be confined to such facts as the deponent is able of his own knowledge to prove except `in the case of interlocutory applications in which, the statements of his belief may also be mentioned provided that the grounds thereof are stated in other words an affidavit, in order to be legal, must conform to these requirements failing which it would not be an affidavit within the meaning of the above provisions.
8. As has been noted the contents of the impugned affidavit) were based on the knowledge and belief of the respondent but it nowhere mentions as to which part was based on his belief and which part on his knowledge. In this view the requirement of rule 3(1) of Order XIX, C. P. C. And the above High Court rule 3 was violated and consequently the said affidavit cannot be said to be a legal affidavit. In these circumstances the respondent cannot be proceeded against for an offence under section 193, P. P. C. As it would be sheer waste of the. In support of this conclusion I would refer to the following passage from page 2220 of Volume III, Criminal Procedure Code by Sh, Shaukat Mahmood which is directly relevant :- "Where an affidavit states that the information deposed to is true to the best of the deponent's knowledge, information and belief the deponent must state how much of the affidavit is sworn to from his own knowledge, and how much is merely sworn to from information which he believes to be true, and in the latter case the deponent should state clearly the grounds of such belief, An affidavit sworn as true to the best of knowledge and belief and informa--tion without specifying the exact portions which are true to the best of knowledge and those true to the best of the deponent's belief is not an affidavit in accordance with law and cannot be accepted. If the affidavit swears to certain facts as true and does not state that the facts deposed to are merely within the belief of the deponent, then it can be taken shat the statements of facts are matters within his own knowledge and not matters of belief only."
9. In. This context reference tray also be made to a Division Bench judgment of the Calcutta High Court in the case of Padmabati Dasi v. Basik Lal Dhar ((1910) 37 Cal. 259) in which the legal effect of an affidavit had come up for consideration. In that case also the verification clause of the affidavit was worded as follows.-- "I the defendant-respondent above-named solemnly affirm and my that what is stated in the foregoing petition is true to best of my knowledge information .And belief."
10. After considering- the effect of this verification clause, their Lordships of the Division Bench consisting of Sir Lawrence H. Jonkins and Woodroffe, JJ, rejected the affidavit with these observations: "We desire to impress upon those who propose to rely on affidavits that in future the provisions of Order XIX, rule 3 must be strictly observed and every affidavit should clearly express how much is a statement of the deponent's knowledge and how much is a statement of his belief, and the grounds of belief must be stated with sufficient particularity to enable the Court to judge whether it would be safe to at on the deponent's belief."
11. The learned counsel, however, relied on 'a judgment of the Patna High Court in: the case of Chandrika Prashad Singh and others v. Hira Lal and others. (AIR 1924 Pat. 312) but the facts in that case were distinguishable. In that case the verification clause of the affidavit did not state in terms whether the facts deposed to therein were statement of facts within the knowledge of the deponent or whether they were statements made from information and belief. It was to this background that their Lordships disting--uished the above Calcutta case and held that the - affidavit before them had substantially confirmed to the requirements of Order XIX, rule 3, C. P. C.
12. Their Lordships, however, added the same warning to the litigants in regard to the drafting of affidavits which was given in the Calcutta judgment.
13. The learned counsel brought to my notice a judgment of the Dacca High Court in the case of Alhaj Aley Mohammad Akanda v. The State (PLD 1963 Dacca 166) in which upon identical facts an application for the prosecution of the deponent for an offence under section 193, P. P. C: was dismissed with these observations:--- Affidavit-Deponent to state clearly facts which can be proved from own knowledge and facts believed to be true on reasonable grounds separately-Affidavit as `true to the best of knowledge and belief and information' without specifying exact portions, held, to be not in accordance with law and not acceptable Charge of perjury on such vague contents, held, misconceived."
14. In view of this discussion I find no force in this application which is summarily dismissed.
15. Before parting with this case I would like to observe that most of the affidavits filed in this Court are not in conformity with the above provisions of law and consequently no action can be taken against the deponents under section 193, P. P. C., even if it is later discovered that they had resorted to falsehood and lies. By their very nature the drafting of affidavits is a serious matter, and, therefore, it would be proper to impress upon the litigant public, who propose to rely on affidavits' in judicial proceedings, to strictly observe the requirements of the above provisions and clearly, state as to how much of their state statement in the affidavit, is based on personal knowledge and how much on the information received or believed to be true including the source of information and belief, which must be mentioned with sufficient particularity: If this salutary principle is kept in mind only then a recalcitrant deponent would be discouraged from filing false affidavits. In judicial proceedings as he would then be under the constant fear of being proceeded against under section 193, P. P, C.