SALAHUDDIN PANHWAR, J.---Learned counsel for applicant seeks criminal prosecution against accused Pir Muhammad in Sessions Case No.819/2015, wherein statement on oath and statement under Section 342 was recorded. Accused Pir Muhammad replied question No.1 that he has been impleaded due to civil litigation and case is pending before the High Court. Complainant's counsel contends that statement was false and accused is seeking acquittal on that plea, though that matter is pending adjudication and has no nexus with the parties in present criminal case. Further, he contends that accused shall be tried under Section 193, P.P.C. At this juncture, learned counsel for applicant has referred page 63 which is evidence of Pir Muhammad. Same is - reproduced as under: "It is correct to suggest that I have not produced before the court any relevant document in connection of civil suit pending Hon'ble High Court. It is fact that Police recorded my statement and I put my signature on it. It is incorrect to suggest that I admitted my guilt in my statement recorded by police. It is correct to suggest that I have no disclosed suit number before the court. It is incorrect to suggest that I committed dacoity. Vol says that False FIR lodged by the complainant against me. It is incorrect to suggest that I am deposing falsely."
He has also referred to page 77, according to him, there is no nexus of that civil litigation.
2. I have heard the applicant and have also examined the available record carefully.
3. Before attending the merits of the instant case, it would be appropriate to first, say that there is marked difference between objective(s) of sections 193 and 195 of the Code (P.P.C.). The earlier speaks of all those who give false evidence for purpose of being used thereof at 'any stage of a judicial proceeding' while the later speaks about those who give false evidence with an intention to get any person 'convicted' for an offence which, per law, is not 'capital'. I find myself safe in saying that later provision is not applicable for the 'accused' because an 'accused' never acts as a 'witness' for prosecution unless wears the status of 'approver'. The provision of Section 340, Cr.P.C. does recognize the competency of accused to be a 'witness' for purpose thereof was/is confined to give evidence on oath in 'disproof of the charges or allegations', hence can't be given the status of a witness in support of allegations (prosecution witness). This however, alone is not sufficient to allow an 'accused' from causing prejudice to 'administration of justice' which, never, appreciates false-witnesses or false-evidences, therefore, he (accused), if makes a false statement, will be liable to be prosecuted under section 193, P.P.C. only.
4. Having said so, I would, now examine the instant case with referral to section 193, P.P.C. only, because the charged person is not a 'witness' but an 'accused. At this juncture, it would be appropriate to refer section 191, P.P.C., being relating to 'giving false evidence' which reads as:- "Whoever being legally bound by an oath or by an express provision of law to state truth, or being bound by law to make a declaration upon any subject makes any statement which is false, and which he either knows or believes to be false or does not believe to be true is said to give false evidence."
Perusal of the above makes it quite clear that a false statement, if is result of some bona fide belief or bona fide mistake, would always be sufficient for causing a cut at root of such charge, as is evident from illustration (c), provided below the Section 191, P.P.C., which reads as:- "A, knowing the general character of Z's handwriting, states that he believes a certain signature to the handwriting of Z A in good faith believing it to be so. Here A's statement is merely as to his belief and is true as to his belief and therefore, although the signature may not be the handwriting of Z A has not given false evidence."
5. Now, it is the time to refer the impugned order so as to examine whether an offence of perjury is prima fade, made out or not The same reads as:- "12.12.2020: By this order I intend to dispose of an application under section 476 read with sections 193, 195, Cr.P.C., 179 and 189, P.P.C., filed by the learned counsel for complainant against the accused persons. Notice extended to accused.
Heard learned counsel for the complainant, learned DDPP for the state and learned counsel for the accused and perused the record, which shows that the complainant moved an application for initiating proceeding under section 476 read with 195, Cr.P.C. 181/191 P.P.C. against the accused persons on the ground that they have given false evidence before the court on oath under section 340(2), Cr.P.C. as they have stated that there is a civil suit pending between them and complainant before the Hon'ble High Court. In fact there is no civil litigation between them before any court of law. Record shows that FIR was lodged by the complainant under Section 395/342, P.P.C. against the accused persons. After investigation charge sheet was submitted by the Investigating Officer before the competent court of law. During the course of trial, after framing of charge, prosecution examined five witnesses including complainant and then closed prosecution side for further evidence, statement of accused persons recorded under section 342 Cr.P.C. wherein accused persons opted to examine themselves on oath in order to disprove charge.
Therefore, their statements recorded by the court under section 340(2), Cr.P.C. wherein they have stated that there is a civil litigation pending between them. It is the contention of the counsel for the complainant that the accused persons have given false evidence before Court, but it is a matter of record that accused persons have claimed that being partner of each other they are running business at Shop No.40, situated at Sabzi Mandl; as such plea is mentioned in the application moved by their counsels under section 265-K, Cr. P. C. during pendency of the case.
Further the copy of Civil Suit 1110/2003 produced by the counsel for accused along with objections which shows that the accused No.2 namely Muhammad Ramzan son of Muhammad Moosa is plaintiff No.3 in the said suit filed in the years 2003 further in the above said suit an application for contempt proceedings also filed by the plaintiffs against the complainant of this FIR, who admitted in his cross-examination that, "it is correct to suggest that accused Ramzan filed contempt application against me before the Hon'ble High Court of Sindh in which I had moved reply/ objection. "So far as statement on oath given by the accused Peer Muhammad is concerned, he is aged about 65 years and illiterate person. Admittedly, he is not directly party in that suit, but being business partner of co-accused Muhammad Ramzan, he presumed himself that he is also a party in that suit. Further such statement of accused is Immaterial to the decision of the case before the court. In this regard I benefited with the case of (Mian Muhammad Jan Shah v. The State) reported in PLD 1962 Peshawar 48, wherein it has been observed by the Honourable court as under: -
(b) Criminal Procedure Code (V of 1898), S. 476---False statement by witness in Court---Such statement not material to decision of case- Complaint for prosecution of witness for perjury--- Not necessary.
From the bare reading of S. 476, Cr. P. C. it also reveals that word may has been used by the legislature which indicates that it is discretion of the court to proceed against a person, who the court believes to have committed offence under this section. Reliance is placed 2005 MLD 834.
The allegations levelled by the complainant in this case have to be proved by him at his own and he cannot be allowed to be used such provision as a tool to satisfy his grudge against the other party, reliance is placed 1970 SCMR 10.
In view of the above, the application in hand is hereby dismissed. Order accordingly."
6. The perusal of the above order shows that the statement (alleged as false), per trial court itself, was result of wrong presumption of his status as partner of other accused who, undeniably, is party in civil suit, therefore, learned trial court was quite justified in finding no, prima fade, commission of offence of perjury. I would also add that since the procedure for trial of such 'offences' mandatorily requires the. Court itself to become 'complainant' therefore, it should always be the judicial conscious of the Court concerned alone that whether such offence is committed or not. In short, the parties to judicial proceedings, at the most, can point-out happening of the offence only but this would not allow such party to challenge the order of the Court concerned if it (concerned court) itself does not find the offence to have been committed. I am guided in such view with the case of Shahid Orakzai v. Pakistan Muslim League (2000 SCMR 1969 (Rel. P-2010) wherein the role of an 'informer' in 'contempt matters' (similar to offences in question i.e. 'judicial administration), was declared as:- "26. Shahid Orakzai, appellant, who appeared in person, was heard for some time and allowed ten minutes to conclude his submissions keeping in view the fact that a contempt matter is between the Court and the contemnor alone and a stranger has nothing to do with such proceedings as the role of an informer ends once the Court takes the cognizance of the matter at his instance....
7. In view of above, suffice to say that order of the learned trial court is in accordance with law hence the Criminal Revision petition merits no consideration; same is accordingly dismissed in limine. The trial court, however, while forming any opinion (judgment) shall examine the record carefully, as is required by law always.