' This is an application by Mst. Ikhlaq Fatima petitioner for abashment of proceedings against her in a case under section 193, P.P.C. Pending before a learned Civil Judge, Bannu.
2. The charge against the petitioner is that in a suit for recovery of damages filed by Rasta Baz Khan against Mst. Arjumand, the petitioner was summoned by the Court of Civil Judge whereupon she had asserted to have got no knowledge of the facts of the incident forming the basis of the said suit for damages. Nonetheless when resummoned by the Court she appeared in the same case and claimed to have witnessed what had transpired on the day of incident between the parties to the suit.
3. The background of the case is that Rasta Baz Khan filed two suits for damages; one against Lady Doctor G.F. Durrani, Zanana Hospital, Bannu, and another, against Mst. Arjumand serving as a Nurse in the said Zanana Hospital. The suit against the Lady Doctor proceeded on the allegations that due to her ignorance in attending the plaintiff's wife at the time of her delivery and demand of Rs,600 as illegal gratification warranted grant of a decree for Rs,20,000 as damages. The suit against Mst. Arjumand was filed on the averment that she after tearing the prescriptions scribed by Doctor G.F. Durrani in the presence of public-at-large had not only abused him but also used contemptuous language leading to his disgrace and loss of reputation. It appears that Mst. Ikhlaq Fatima petitioner was cited as D.W. By Mst. Arjumand. When she was summoned to attend the Civil Court as a D.W., she returned the summons with the following endorsement thereon:-{{URDU TEXT}} ' She was examined as D.W.2 wherein she claimed to have witnessed the incident culminating in a row between the plaintiff and another Nurse who had torn the prescriptions.
4. Upon this, Rasta Baz Khan moved an application before the learned Civil Judge, Bannu for proceeding against the petitioner under section 193, P.P.C. Read with section 476, Cr.P.C. On the charge of perjuring herself in the Court. The petitioner contested this application wherein she inter alia, maintained that her endorsement on the summons has no legal value for proceeding against her under section 193, P.P.C. And that the petition against her was mala fide.
5. S. Zafar Abbas Zaidi, the learned counsel for the petitioner contended that the petitioner on the back of the summons had only endorsed that she was not aware of the facts of the 'case' and that at that time she was on night duty. Nevertheless on resummoning she did appear and deposed whatever had transpired in her presence in the case of tearing of the prescriptions. The learned counsel for the petitioner submitted that at the time of endorsing her remarks on the summons, the petitioner was under the genuine impression that she was being summoned in the 'case' of damages in connection with the delivery of the wife of the plaintiff therein. He also argued that the endorsement on the back of the summons in the handwriting of the petitioner did not fall within the definition of `evidence' referred to in section 193 of the Pakistan Penal Code, because the aforementioned endorsement was not made on oath before the Court. The learned counsel thus submitted that the endorsement having not been made on oath she could not be charged for the offence of giving false evidence within the contemplation of section 193, P.P.C. In support of this contention, the learned counsel for the petitioner made reference to Nazar Muhammad v. The State PLD 1986 Pesh. 32 wherein even a statement under section 164, Cr.P.C. Having not been recorded on oath was not allowed to be used as a piece of evidence against the appellant to hold that the evidence given by him at the trial was contradictory to his statement recorded under section 164, Cr.P.C.
6. The learned counsel appearing on behalf of the State has supported this application for quashment, because according to him also, the endorsement at the back of the summons even in the handwriting of the witness having not been recorded on oath did not fall within the mischief of section 193, P.P.C.
7. As against this, Mr. Iftikhar Ahmad Durrani, the learned counsel appearing on behalf of Rasta Baz Khan respondent No,2 had opposed this application for quashment and urged that the endorsement by the petitioner at the back of summons falls within the definition of 'evidence' as laid down in Article 2(1)(c) of Qanun-e-Shandat, 1984. Since a reference to the definition of `evidence' has been made by the learned counsel for respondent No,2, it would be worthwhile to reproduce it.
' It reads: 2(1) ..........................................................................
(a) ...........................................................
(b) ...........................................................
(c) 'evidence' includes--
(i) all statements which the Court permits or require to be made before it by witnesses in relation to matters of fact under inquiry; such statements are called oral evidence; and
(ii) all documents produced for the inspection of the Court; such documents are called documentary evidence."
From the bare perusal of the definition of 'evidence' reproduced above would show that only those statements would fall within the purview of 'evidence' which the Court permits or requires to be made before it by witnesses in relation to matters of fact under inquiry. It would thus be seen that the matter of fact under inquiry before the Court of Civil Judge was not lack of knowledge on the part of the petitioner. I have, therefore, no doubt that the endorsement in the handwriting of the petitioner was not a statement falling within the definition of `evidence' under Article 2(1)(c) of the Qanun-e-Shahadat, 1984.
8. The learned counsel for respondent No, 2 then placed reliance on Manzoor Hussain Shah v. The State 1988 SCMR 265 to argue that since no evidence had yet been recorded it would be premature to say if power of attorney in that case was or was not a forged document and it was, therefore, not a fit case where proceedings before a Magistrate should be quashed at that stage.
The facts of the precedent cited at the Bar, in my humble view, are quite distinguishable and have no application to the proposition advanced at the Bar in this case. The point involved in the case of Manzoor Hussain Shah was that no evidence had been recorded by the learned Magistrate in a case of forgery of power of attorney. Forgery of a power of attorney and sale of the land owned by the executant on the foot of the said power of attorney prima facie does fall within the definition of 'evidence' as laid down in Article 2(1)(c) ibid.
9. Section 4 of the Oaths Act lays down the authority to administer oaths and affirmations, and it prescribes the Courts and persons authorised to administer, by themselves or by their officers empowered in that behalf, oaths and affirmations in discharge of the duties or in exercise of the powers imposed upon them and they are all Courts and persons having by law the authority to receive evidence. Section 5 prescribes the persons by whom oaths or affirmations must be made and they include all witnesses, i,e, all persons who may lawfully be required to give evidence by or before any Court. Section 14 provides that 'every person giving evidence on any subject before any Court or person hereby authorised to administer oaths and affirmations, shall be bound to state the truth on such subject'. The opening words of this section 'whoever being legally bound by an oath or by an express provision of law to state the truth--support the submission made on behalf of the petitioner that only a person legally hound by an oath making false statement before the Court would he charged for an offence falling under section 193, P.P.C.
10. Consequently an endorsement in the handwriting of a person on a summons expressing lack of knowledge of the 'case' having not been recorded on oath could not be used as a piece of evidence to hold that the evidence given by her in the Court was contradictory to her endorsement as aforesaid.
11. Taking this view of the matter, I am of the opinion that the petitioner could not be prima facie charged for an offence of giving false 'evidence' within the contemplation of section 193, P.P.C.
12. Therefore, I allow the petition and quash the proceedings pending against the petitioner under section 193, P.P.C. In the Court of learned Civil Judge, Bannu, and discharge the bail bond executed by her.