BASHIRUDDIN AHMAD, C. J.---Gul Badshah (27) was tried on a charge under section 193, P. P. C., by Mr. Saeedullah Jan, Magistrate Ist Class. Hangu, who acquitted him vide his order dated June 30, 1970.
2. The State has come up in appeal under section 417, Cr. P. C.
3. The facts of the case are short and simple. On 20-9-1969, Gul Badshah who figured as an eve- witness in the case relating to the murder of Khawaja Muhammad, made a statement before Mr. Sajjad Hussain, M. I. C., Hangu under section 164, Cr. P. C. He said in that statement that Khawaja Muhammad had come to the barber's saloon for a shave. The witness was trimming moustaches after the shave when Sherin Dil entered the saloon and opened fire at the victim and the witness left the place after the assailant had fired three shots at Khawaja Muhammad. He heard two more shots after he had run out. When Gul Badshah was examined by Sardar Bahadur Khan in the subsequent proceedings, he stated that he was sharpening the razor when he heard the report of a fire-shot which hit Khawaja Muhammad deceased. Gul Badshah ran outside the saloon in order to save himself and could not identify the assailant. The witness said further in his statement that he did not know as to how many shots were actually fired by the assailant at the victim because he got frightened.
4. On the request of the prosecution. Mr. Sardar Bahadur Khan, M. I. C. Hangu, permitted the witness, to be cross---examined in the light of his 164 statement. Gul Badshah when confronted with his 161 statement said that it was wrongly recorded in his statement under section 164, Cr. P. C. That after completing the shave of Khawaja Muhammad, he was trimming his moustaches when Shirin Dil came to the saloon. The witness said further that it was also wrongly recorded that Shirin Dil started firing at Khawaja Muhammad with his pistol and that the witness ran out of the saloon after Shirin Dil had fired three shots. He further resiled from his statement under section 164, Cr. P. C. Wherein he said that he heard two more shots or that Khawaja Muhammad was hit with three shots in his presence. Ultimately, the witness said that his statement recorded on 20-9-1969 by the Magistrate under section 164, Cr. P. C. Was wrong and that the statement which he had made in the examination-in-chief before Sardar Bahadur Khan was true.
On the basis of these two divergent statements, a complaint under section 193, P. P. C. Was instituted against Gul Badshah by S. Bahadur Khan, M. I. C. In the Court of the District Magistrate, Kohat, who marked it to the Assistant Commissioner, Hangu, for disposal.
5. The prosecution examined Sajjad Hussain Tehsildar, who had recor,ied the 164 statement of Gul Badshah and also Sardar Bahadur Khan who examined Gul Badshah in subsequent proceedings against Shirin Dil and before whom Gul Badshah completely resiled from his previous statement.
6. Gul Badshah was examined on the close of the prosecution evidence. He took the plea that the statement which he made before Sardar Bahadur Khan on 3-3-1970 was the correct statement. As regards the statement made by him before Sajjad Hussain. Magistrate, under section 164, Cr. P. C.
The respondent said that the same was written by the Magistrate himself on a paper supplied to him by the police and that his thumb-impression was obtained without the statement being read over to him.
7. No evidence was produced in defence.
8. The learned trial Magistrate acquitted the respondent considering that he was not given the opportunity to explain himself as no enquiry was held under section 476, Cr. P. C. Before the complaint was lodged and further that in the absence of enquiry, it could not be postulated that the Magistrate who lodged the complaint had considered whether it was expedient in the interest justice to prosecute the respondent for perjury.
9. After hearing Mr. Inamullah Khan, Advocate, for the State, Mr. Jalaluddin on behalf of the accused-respondent and going through the record, we are of the, opinion that the accused--- respondent be retried, for the offence under section 193, P. P. C. We proceed to give our reasons for the same. The objection that in the absence of preliminary enquiry under section 476, Cr. P. C. The complaint for perjury lodged against the respondent was not proper is untenable. Learned counsel for the accused cited Sajawal v. Emperor (AIR 1932 Lahs. 254(1)), Mooso v. The State (PLD 1963 Kar.
719) and Abdullah v. The State (PLD 1971 Pesh. 147). The counsel for the State referred to Narajappa v. Chikkaramiah (AIR 1959 Mys. 117). We have gone through the reported cases and we are inclined to agree with the view that it is not always necessary for the Court that a preliminary enquiry be made before making an order under section 476 (1), Cr. P. C. It is discretionary with the Court keeping in view the circumstances of each case whether to hold an enquiry or not before filing the complaint. Similarly, the omission to record a finding that it was expedient in the interest of justice to prosecute the offender is not in any way fatal to the case. Sardar Bahadur Khan, who lodged the complaint, against the accused-respondent, had before him two contradictory statements; one made by Gul- Badshah before Mr. Sajjad Hussain and the other before himself. Gul Badshah in his subsequent statement turned a complete volte-face. He was confronted with his statement under section 164, Cr. P. C in which he had fully implicated Shirin Dil claiming to be an eye--witness to the deadly assault on the victim inside his saloon. Sardar Bahadur Khan took into consideration both the statements and decided to file the complaint for perjury against Gul Badshah. We are of the opinion that if a prima facie case has already been made out in the course of the proceedings before a Court or where there is sufficient documentary evidence on the record, as in this case, in the form of two conflicting statements, no preliminary enquiry is necessary. Once the complaint is filed and the trial commences, it is not open to the accused to contend A that the filing of the complaint was not expedient in the interest of justice. The omission to give a finding regarding the expediency of proceedings being in the interest of justice is a mere irregularity which is not fatal to the complaint. That such an opinion was in fact formed is to be presumed under section 114 of the Evidence Act in proper cases.
10. In view of the contradictory statements which Gul Badshah had made in the instant case, the best course would have been to charge him for making a false statement in the alternative.
Unfortunately, the charge as framed by the trial Magistrate was not proper in that it was based solely on the statement of Gul Badshah which he had made on 20-9-1969 to Sajjad Hussain, M. I. C., Hangu, under section 164, Cr. P. C. And in view of the plea of the accused-respondent, it was not possible to have come to the finding that the statement which he bad made earlier was false to his knowledge. Gul Badshah resiled from his statement in which he claimed to be an eye--witness to the murder of Khawaja Mohammad from which he resiled when examined in the enquiry under section 512, Cr. P. C. By Sardar Bahadur Khan Magistrate. We do not agree with the reasons given by the trial Court in acquitting Gul Badshah. We accept the State appeal, set aside the order of acquittal and direct that the respondent be retried for the offence committed. Both the statements, made by Gul Badshah should be put to him, a charge should be framed in the alternative and he may be called upon to plead as to which of the two statements was true.' The trial Court should then consider his plea in light of defence evidence, if any, and proceed to decide the case afresh in accordance with the law.