' Instant appeal is directed against the order, dated 17-2-1994 passed by Mr. Muhammad Latif Qureshi, Additional Sessions Judge, Lahore whereby he acquitted the accused/respondent.
2. Along with this appeal Criminal Miscellaneous No,154/Q of 1994 has also been filed for setting aside orders, dated 7-1-1993 and 19-10-1993 passed by Civil Judge, Lahore and Additional Sessions Judge, Lahore. As both the Criminal Appeal and Criminal Miscellaneous pertain to the same subject-matter so these are being disposed of by this single order.
3. Briefly stated the facts are that Mehboob Ali Khan Sherwani respondent filed a revision petition in the Court of Additional District Judge, Lahore against the order, dated 28-4-1992 passed by Mehr Tahir Nawaz, Civil Judge, Lahore by which he dismissed application of Mehboob Ali Khan Sherwani under Order VII, Rule 11, C.P.C. In a civil suit instituted by Muhammad Asif/appellant against respondent. It was alleged in the suit that Mehboob Ali Khan Sherwani was in illegal possession of House No,46, Muslim Road Samanabad, Lahore owned by Muhammad Asif/appellant. Along with this revision petition, Mehboob Ali Khan Sherwani also annexed an affidavit showing therein as resident of House No,46, Muslim Road Samanabad, Lahore Muhammad Asif/appellant had claimed compensation from Mehboob Ali Khan Sherwani for illegal use and occupation of the house mentioned above. In revision petition Mehboob Ali Khan Sherwani asserted that the house in question was in possession of his brother as a tenant and he himself had no connection with the said house. However, in an affidavit annexed with the said revision petition he disclosed himself as resident of the said house. Muhammad Asif/appellant moved an application for an inquiry into an offence under section 193/109, P.P.C. Against Mehboob Ali Khan Sherwani and his counsel under section 476, Cr.P.C.
4. It was alleged by Muhammad Asif appellant that Mehboob Ali Khan Sherwani had made a statement in para. No,2 of the civil revision that he was not in possession of house in dispute but had shown himself as a resident of the same in an affidavit annexed with his revision petition. And in this way had fabricated a false evidence under section 193, P.P.C. On the basis of complaint/ application Mehboob Ali Khan Sherwani was charge-sheeted on 3-8-1993 with the offence punishable under section 193, P.P.C. He pleaded not guilty, hence prosecution evidence was summoned. However, on 8-1-1994 Mehboob Ali Khan Sherwani moved an application under section 265-K, Cr.P.C. It was heard and accepted vide order, dated 17-2-1994. Hence this appeal
5. Arguments have been heard and record perused.
6. The main contention of the learned counsel for the petitioner is that as Mehboob Ali Khan Sherwani claimed himself to be in possession of House No,46, Muslim Road Samanabad, Lahore in an affidavit annexed with his revision petition but denied this fact in the written statement filed for the recovery of use and occupation of the said house, so he has committed an offence under section 193, P.P.C. And be proceeded under section 476, Cr.P.C. In support of his contention he has relied upon Abdul Hakeem v. The State 1994 SCMR 1103 and Dwarka Nath Rai Chowdhry v. Emperor 31 Cal.
858.
7. On the other hand, contention of the learned counsel for the respondent is that any assertion made in the affidavit does not constitute a false evidence and as such does not fall within the purview of section 193, P.P.C. In support of his contention he has relied upon Zafar Mirza v. Mst.
Naushina Amir Ali PLD 1993 Kar. 775, Ataullah Khan v. The Custodian, Evacuee Property (West)
Pakistan and 5 others PLD 1964 SC 236, The President v. Mr. Justice Shaukat Ali PLD 1971 SC 585, Rehmatullah v. Tufail Hussain and others 1987 CLC 792. He further stated that written statement is not an evidence as defined in law and in this respect relied upon Mst. Samina Begum v.
Muhammad Ali 1991 MLD 1084 (Karachi) and Jai Ram v. Emperor AIR 1940 Lah.
203. He further submitted that if it is assumed that any offence had been committed, the complaint could only be filed lodged by the Court and relied upon Rahim Bakhsh and another v. The State PLD 1983 Lah. 397, Abdul Aziz v. The State 1986 PCr.LJ 2615. He thus, submitted that as respondent did not commit any offence under section 193, P.P.C. So the impugned order has been passed in accordance with law.
8. The only point which has been agitated by the learned counsel for the appellant is that as respondent had made two contradictory statements in the revision petition as well as in the affidavit attached therewith so he had committed an offence under section 193, P.P.C. A written statement by a defendant discloses his defense and contains proposition on the point of law and fact. It is settled law that a fact is to be proved by the party which pleads its existence. Simply because a factual proposition is affirmed or denied in a written statement or affidavit-in-evidence does not, necessarily, mean that it has been A legally proved. Like written statement affidavit-in- evidence, is of no legal value, if its deponent does not make himself available for cross- examination. On this point the reference can be made to the cases Ataullah Khan Malik v. The Custodian, Evacuee Property (West) Pakistan and 5 others PLD 1964 SC 236, The President v. Mr. Justice Shaukat Ali PLD 1971 SC 585 and Rehmatullah v. Tufail Hussain and others 1987 CLC 792. The ratio of these cases is that against whom affidavit is produced, is entitled to have deponent put in witness-box and to cross-examine him. If a deponent is not produced for cross-examination, the affidavit, in such circumstances, would lose all its force as a probative piece of evidence and could not be relied upon.
8. In the light of facts stated above, it is clear that mere filing of affidavit on the part of Mehboob Ali Khan Sherwani does not constitute any offence. The r trial Court, as such, was justified in acquitting him vide judgment under appeal. There is no force in this appeal and the same is hereby dismissed.
9. For reasons recorded above Criminal Miscellaneous No,154/Q of 1994 also fails and is hereby dismissed.