MUHAMMAD KHIYAR, J.--This appeal u/s 410 Cr.P.C, is directed against the order of the learned Sessions Judge Bannu dated 12.1.1991 vide which the appellants were convicted u/s 193 PPC and sentenced to three years R.I. And a fine of Rs.3000/-each or in default of payment of fine to further undergo S.I. For one year each.
2. The facts in brief are that Ghiasuddin appellant made a report on 6.9.1989 at police station Saddar Bannu wherein he charged Akhtar Zaman for having committed the murder of his own wife Mst. Sahra Bibi. Usmanuddin appellant was mentioned as an eye witness to the occurrence. The police registered the case against Akhtar Zaman and after investigation he was challaned to Court to face trial u/s. 302 PPC for the murder of Mst. Sahra Bibi deceased. During the trial, Ghiasuddin made some concessions in favour of the accused and deposed that accused was charged after consultation and deliberation. Similarly, Usmanuddin in his statement before the trial court in reply to a Court question said that he did not charge the accused and in the cross examination said that he had not seen the accused firing at the deceased. The learned Sessions Judge despite the concessions made by the aforesaid two PWs convicted the accused u/s 302 PPC for the murder of Mst. Schra Bibi and awarded death sentence vide judgment dated 12.1.1991 and referred the case to this Court for confirmation of the death sentence u/s 374, Cr.P.C. The learned Sessions Judge on 3.9.1990 when the statements of the appellants were recorded took notice of their giving false evidence and issued notices to them u/s 476 Cr.P.C, as to why they should not be prosecuted u/s !93 PPC. They were taken into custody and were asked to submit written replies on i9.9.1990. They submitted their replies which were found unsatisfactory and were consequently convicted u/s 193 PPC for having committed perjury and sentenced to three years R.I. With a fine of Rs.3000/-each in default whereof the further undergo S.I. For one year each vide order dated 12.1.1991. The convicts have come in appeal to this Court.
3. Since the matter was connected with the murder reference and also with the appeal filed by Akhtar Zaman convict, we heard all these together on 15.1.1992. Since the heirs of the deceased effected a genuine compromise with the accused and received diyat money in the Court, therefore, death sentence was not confirmed and no acceptance of appeal accused was acquitted vide our judgment dated 15.1.1992 in Cr.A.No.4 of 1991.
4. S. Zafar Abbas Zaidi, Advocate for the accused appellants while assailing the impugned order contended that no charge u/s 193 PPC was proved against the accused appellants and since they appeared as witnesses for the first time before the trial Court on 3.9.1990, therefore, there was no question of their making any contradictory statements and that the comparison of Court statement with the police statement u/s 161 Cr.P.C, was absolutely unwarranted to permit conviction u/s 193 PPC.
5. Mr. Abdul Latif Advocate, the learned State counsel could hot rebut the arguments advanced by the learned counsel for the accused appellants and frankly conceded that the order passed is not sustainable in law.
6. We have heard the learned counsel for the parties and have perused the record as well as the relevant provision of law applicable to the proceedings of the nature we are dealing with. We are of the view that conviction and sentence awarded to the appellants is not sustainable in law, inasmuch the learned Sessions Judge proceeded in the matter in violation of the procedure laid down in section 476 Cr.P.C. Section 476 of the Criminal Procedure Code reads as under:-
(1) When any offence referred to in section 195, subsection (1), clause(b) or clause(c), has been committed in or in relation to, a proceeding in any Civil, Revenue or Criminal Court, the Court may take cognizance of the offence and try the same in accordance with the procedure prescribed for summary trials in Chapter XXII;
(2) When in any case tried under subsection(l) the Court finds the offender guilty,. It may, notwithstanding anything contained in subsection(2) of section 262.
(a) pass any sentence on the offender authorised by law for such offence, except a sentence of death or imprisonment for life, or imprisonment according five years, if such Court be a High Court, a Court of Session, a District Court or any Court exercising the power of a Court of Session or a District Court;
(b) Sentence the offender to simple imprisonment for a term which may extend to three months, or to pay a fine not exceeding one thousand rupees, or both, if such Court be a Court of Magistrate of the first class, a Civil Court other than a High Court a District Court or a Court exercising the powers of a District Court or a Revenue Court not interior to Court of Collector;
(c) sentence the offender to simple imprisonment not exceeding one month, or to pay a fine not exceeding fifty rupees, or both, if such Court be a Criminal Court or a Revenue Court other than a Court referred to in clause (a) or clause(b).
(3) The powers conferred on Civil, Revenue and Criminal Courts under this section may be exercised in respect of any offence referred to in subsection(l) and alleged to have been committed in relation to any proceeding in such Court by the Court to which such former Court is subordinate within the meaning of subsection(3) of section 119.
(4) Any person sentenced by any Court under this section may, notwithstanding anything hereinbefore contained, appeal---
(a) in the case of a sentence by the High Court, to the Supreme Court;
(b) In the case of a sentence by a Court of Session, or District Court, or a Court exercising the powers of a Court of Session or a District Court, to the High Court; and
(c) in any other case, to the Sessions Judge.
(5) The provision of Chapter XXXI shall, so far as they are applicable, apply to appeals under this section and the Appellate Court may alter the finding or reduce or enhance the sentence appealed against.
7. A careful reading of the above section of the Criminal Procedure Code would show that the Court may take cognizance of the offence referred to in section 195, subsection(l), clause(b) or clause(c) if the offence has been committed in or in relation to a proceeding in any Civil, Revenue or Criminal Court and try the same in accordance with the procedure prescribed for summary trial in Chapter XXII. Section 262 Cr.PC. Provides that in trial under chapter XXII the procedure prescribed in Chapter XX shall be followed except that no sentence of imprisonment for a term exceeding three months shall be passed in the case of any conviction under Chapter XXII. But no such restrictions are placed on the Court taking cognizance of the offence u/s 476 Cr.P.C. as the court may notwithstanding anything contained in subsection(2) of section 262 pass any sentence on the offender authorised by law for such offence except the sentence of death or imprisonment for life or imprisonment exceeding five years, if such Court be a High Court, a Court of a session, a District Court or any Court exercising the powers of a Court of Sessions or District Court. Under section 193 PPC punishment for false evidence is imprisonment of either description for a term which may extend to seven years and fine when false evidence is proved to have been given intentionally in any stage of judicial proceedings, but when false evidence is given in any other case, the imprisonment shall be of other description for a term which may extend to three years and fine. In the instant case, the learned Sessions Judge has awarded punishment of three years rigorous imprisonment and fine to the accused appellants for giving false evidence in the judicial proceedings which he could award provided the offence was proved and procedure laid down for summary trial in Chapter XX was adopted. On the contrary we find that neither the offence was proved nor the procedure for summary trial was adopted.
8. Ghiasuddin who reported the occurrence to the police has been awarded punishment for false evidence as in view of the learned Sessions Judge he changed his version of the F.I.R, by saying in the cross examination that accused was charged after due consultation and deliberation.
Usmanuddin was punished because he changed his earlier version given in his statement recorded u/s 161 PPC. Section 191 PPC describes as to how giving false evidence .Constitutes an offence punishable u/s 193 PPC. It reads as under:- Whoever, being legally bound by an oath or by an express provision of law to state the 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.
Explanation 1,-A statement is within the meaning of the section, whether it is made variably or otherwise.
Explanation 2,-A false statement as to the belief of the person attesting is within the meaning of this section, and a person may be guilty of giving false evidence by stating that he believes a thing which he does not believe, as well as by stating that he knows a thing which he does not know.
9. In the light of aforesaid definition we find that statement of Ghiasuddin before the Court was not proved to be false. Who knows that he stated in the FIR was wholly true. The first information report has never been taken as a substantive piece of evidence. The information is given to set the investigating agency of the police in motion to find out the truth. If the FIR is taken as gospel truth then every one giving different version at the trial before the Court may be punished for giving false evidence. This in our view is not the intention of law. Similarly Usmanuddin's statement in Court was not proved to be false. His having resiled from the statement u/s 161 Cr.P.C, did not mean that what he was deposing in Court ws false or what he stated in his statement recorded u/s 161 Cr.P.C, was true. The case of Mst. Karim Khatoon.. Vs... State (PLD 1984 SC 44) made basis for the conviction of the accused appellant has not been correctly understood by the learned Sessions Judge. We with respect agree with the observation of His Lordship that perjury being a social evil its tendency must be arrested with firm hand but nowhere it has been observed in the aforesaid case that conviction be made without the offence having been proved. Then in the said case the witness was confronted with his statement recorded u/s 164 Cr.P.C, whereas in the instant case no such statements of the witnesses were recorded nor they were confronted with their earlier version.
10. The violation of procedure as contemplated in section 476 Cr.P.C, has resulted in miscarriage of justice. We have earlier referred to the provisions of section 476 Cr.P.C, and have noticed that the Court may take cognizance of the offence but they shall be held in accordance with the procedure prescribed for summary trial in Chapter XXII. Here we must refer to section 262 Cr.P.C, in Chapter XXII and reproduce it in extenso as under:-
(1) In trials under this Chapter, the procedure prescribed in Chapter XX shall be followed except as hereinafter mentioned.
(2) No sentence of imprisonment for a term exceeding three months shall be passed in the case of any conviction under this Chapter.
11. Sub-section(l) above provides that for trial of the offences mentioned in Chapter XXII, the procedure prescribed in Chapter XX shall be followed except as mentioned thereafter. The words as "hereinafter 'mentioned" in subsection(l) refer to subsection(2) of section 262, section 263, 264,
265. Under section 263 the Magistrate need not record the evidence in case where no appeal lies.
He has to enter the particulars mentioned therein in such form as the Provincial Government may direct. But in every case tried summarily in which appeal lies the Magistrate u/s 264 shall record the substance of evidence and also the particulars mentioned in section 263 and shall record the judgment in the case. Section 262 subsection(l) clearly lays down that except what is provided thereafter, the procedure prescribed in Chapter XX shall be followed in the trial of offence mentioned in Chapter XXII. Therefore u/s 476 Cr.P.C, when it is provided that Court taking cognizance of the offence would try the same in accordance with the procedure prescribed for summary trial in Chapter XXII that means that trial shall be held in accordance with the procedure laid down in Chapter XX i.e. Framing of formal charge, recording of evidence, hearing the accused and recording such evidence as he produces in his defence, with no embargo on its power as placed on the Magistrate under sub section(2) of Section 262 Cr.P.C. The conviction on the basis of only show cause notice in our opinion, is not permissible under the law. We have referred to the case of Mst. Karim Khatoon Ws. The State (PLD 1984 SC 44) and have found that the case was not contested on merits and conviction was made because the earlier version under section 164 Cr.P.C, was changed during the trial. There is still another case (Muhammad Aslam. Ws. The State, reported in PLD 1985 SC 251) wherein his lordship took serious view of the tendency of making false statements in Courts which has resulted in undermining public faith in the existing judicial system and while issuing notices to the witnesses did not punish them and instead directed the trial Court to proceed against false witnesses under section 476 Cr.P.C, and consider prosecuting them for offence u/s 195 Cr.P.C. No where in the aforesaid precedents, the question of procedural matter was either raised or has been decided. In the earlier reported cases, we find that the witnesses charged for giving false evidence were held entitled to fair trial. In re: Abdullah. Vs State (PLD 1971 Peshawar 147), the order of discharge of a witness prosecuted under section 193 PPC upheld by the Sessions Judge was challenged in revision on the ground that accused was not confronted with the previous statement as required under section 145 of the Evidence Act and was not provided with the opportunity to explain the contradiction in the two statements. Declining to interfere in the discharge order, the Honourable Chief Justice Bashir Ahmad (as he then was) observed as under:- "I think the learned Sessions Judge very properly decided in this case not to interfere with the order of discharge as the witness was not properly confronted with her previous statement and the contradictions in the two statements were not properly brought on record and Mst. Jamila who also not given the opportunity to explain it. Witnesses are not to be prosecuted because they give evidence which is contradicted at two different stages of a case. It is only where a Court is expressly of the opinion that it is in the interest of justice that the witness should be prosecuted. A complaint has ordinarily not to be made and muchless at the instance of a private parly.
The court before whom such as offence appears to have been committed has to address itself to the question whether such an action having regard to all the circumstances of the case is expedient in the interest of justice. On carefully considering the facts and the circumstances of the case with which I am dealing, I am of the view that there is no good ground to interfere and muchless to set aside the order of discharge and direct a further enquiry into the case.
Accordingly, the revision petition is dismissed.
In another case State Vs .Gul Badshah (PLD 1972 Peshawar 105(D.B), the Magistrate acquitted the accused considering that he was not given opportunity to explain as also that no enquiry was held under section 476 Cr.P.C.(now amended) 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 of justice to prosecute the respondent for perjury. The State filed an appeal before this Court which was accepted, the order was set aside and direction was made that the accused be tried for the offence committed and the statement made by Gul Badshah be put to him and he may be called upon to plead as to which of the two statements was true and the trial Court should then consider his plea in the light of defence versions if any in accordance with law. It will, therefore, be seen that he importance of fair trial have always been stressed. The witnesses who given false evidence in the Courts deserve the leniency but that only when offence is proved against them and like all other accused they get fair trial. The matter cannot be left to the whims of Presiding Officers of the Courts.
12. In the instant case, learned Sessions Judge has awarded punishment to the accused/appellants for giving false evidence only on the basis of show-cause notice in violation of the procedure given in section 476 Cr.P.C, resulting in miscarriage of justice. The offence punishable under section 193 PPC was also not proved as required by law. We, therefore, accepted the appeal of the accused/appellants, had set aside their conviction and sentences vide our short order dated 15/1/1992. The above are the reasons in support of that order.