This appeal is directed against the order, dated 16-12-1986, by which a learned Additional Sessions Judge, Faisalabad convicting the appellant under section 193, P.P.C.; after his summary trial under section 476, Cr.P.C. Sentenced him to four months' R.I. And a fine of Rs.1,000.
2. The allegations against him were that while making statement before the learned Additional Sessions Judge, Faisalabad on 21-4-1986 as an eye-witness in the murder case of his mother Mst.
Ulfat Bibi, he falsely disowned his earlier statement volunteered by him before the Illaqa Magistrate on 28-8-1981, wherein he had, agreeing with the police report, conceded that Ghulam Mustafa accused and his father, who were also accused in that case, both were innocent.
3. It is argued on behalf of the appellant that in fact the Magistrate had not recorded any statement of the appellant and his counsel Ch. Khurshid Ahmad on oath, rather, it was a sort of interim order, passed by the Magistrate on the application of the police discharging Ghulam Mustafa and his father from the murder case and that interim order was signed by the petitioner and his counsel. In his opinion, it was not a statement stricto senso nor it was on oath and the question of his committing perjury punishable under section 193, P.P.C. Did not arise. It is further contended that the procedure laid down for summary trial in chapter XXII of the Cr.P.C. Was also not followed by the learned trial Judge in trying the appellant and for that reason too his conviction and sentence were not sustainable at law.
3. The learned State counsel is of the view that the appellant had purjured to the extent of not only denying his own statement recorded by the Magistrate but also saying that the Magistrate had obtained his signature on a blank paper and on this point he stood contradicted by his own counsel, Ch. Khurshid Ahmad. In his opinion, the appellant was rightly tried, convicted and sentenced under section 193, P.P.C.
4. There seems to be a good deal of substance in the contention of the appellant's counsel. The learned Magistrate on 28-8-1981, had, on the application of the police, while discharging Ghulam Mustafa and his father from the murder case of appellant's mother, also in the interim order, being written on the order---sheet of the file, mentioned the consent of the appellant and his counsel and obtained their signatures thereunder. It was not a statement of the appellant recorded on solemn affirmation constituting evidence in the case, though it was a sort of estoppel against him.
Therefore, the fact of his disowning that statement before the learned Additional Sessions Judge subsequently during the trial did not constitute the offence of perjury punishable under section 193, P.P.C.
5. But for the sake of argument even if the ingredients of that offence stood satisfied even then the conviction of the appellant is not sustainable, because for his trial the procedure laid down in Chapter XXII of the Code of Criminal Procedure was to be followed by the learned Additional Sessions Judge but it was not followed. No formal charge was framed against him, nor his statement regarding its acceptance or denial was recorded, nor any witness was examined nor the substance of his deposition was prepared or appellant's defence was taken.
6. For various reasons stated above, the appeal is accepted, the conviction and sentence of the appellant are set aside and he is acquitted.