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Criminal Revision No. 256 of 1960, decided on 9th February 1962.
S. 476-Complaint for prosecution of witness for perjury-Court preferring complaint to give a finding that such prosecution is expedient in interests of justice.
Bal Govind v. Jamnabai A I R 935 Nag. 199 and Ibrahim Bhak v. The Crown P L D 1955 F C 113 ref.
S. 476---False state ment by witness in Court---Such statement not material to decision of case-Complaint for prosecution of witness for perjury---Not necessary.
Batakrushna Pal v. Emperor A I R 1945 Pat. 295 ; Sitaram v. Briji Behrai A I R 1941 Pat. 591 ; Monohar Ali v. Emperor A I R 1927 Cal. 515 ; Nand Lal v. Emperor A I R 1937 Lah. 867 and Brahmdeo Singh v. Emperor A I R 1921 Pat. 149 rel.
Yunus Shah for Petitioner.
Ghazanfar Ali Shah Addl. A.-G. for the State.
Date of hearing : 9th February 1962.
The facts leading up to this revision petition briefly are that on the 14th of September 1959 Muhammad Jan Shah, the present petitioner, appeared as a witness for the plaintiff in Suit No. 917/1 in the Court of Mr. Muhammad Akhtar Khan, Sub-Judge Second Class, Peshawar. In cross-examination he was asked whether the police, in company with officials of the Electricity Department, had conducted a raid on his house, finding the electricity meter shut-off, although a radio was working and his tea being heated (apparently on some electrical appliance) and that he was conse quently challaned and confined in the lock-up, but eventually acquitted. He denied the allegation.
2. The suit was decided on the 11th of December 1959, and on the 15th of January 1960 Khawaja Muhammad Khan, Advocate for the plaintiff, made an application under section 195/476, Cr. P. C. for the prosecution of the petitioner under section 193, P. P. C., on the ground that his denial of the allegation preferred to above was false. By his order dated the 12th of July 1960 the learned Subordinate Judge granted the application, the relevant portion of this order running-
" Prima facie, in view of the aforementioned observations, I am of the opinion that the respondent has perjured himself by denying all the afore-mentioned facts and therefore I deem it proper that a complaint under section 193, P. P. C. should be instituted against him for necessary trial by a competent Court. The petition is hereby accepted and a complaint is being lodged against the respondent separately."
3. Against the above order the petitioner filed an appeal which was heard by the learned Additional District Judge, Peshawar. By order dated the 30th of September 1960 it was dismissed. In the course of his judgment the appellate Court remarked
" It was conceded that it was a fact that he (the present petitioner) was challaned, had remained in hawalat ' and was acquitted by the Court, but in defence it was stated that the appellant being ignorant of legal phraseology could not have understood the implication of his statement. This is no reason in law to absolve the appellant of the consequences of his having made a false statement. The appellant decided beyond doubt had made a statement which was false within the meaning of section 191, P. P. C. and was, therefore, rightly complained (sic) by the learned Sub-Judge before whom in judicial proceedings the statement was made. The appeal having no force is dismissed with costs."
Against the above order of the learned Additional District Judge Muhammad Jan Shah has filed the present petition.
4. The learned Additional District Judge has failed to consider several points having an important bearing on the case. In the first place, as pointed out by Mr. Yunus Shah for the petitioner, it has been held in a number of authorities that a finding must be given by the Court instituting a complaint of this nature that the prosecution is expedient in the interest of justice. There has no doubt been a conflict of decisions on the question of the effect of the omission, but even those High Courts which have taken the view that the absence of such a finding is not in itself fatal to the proceedings appear to be agreed that v here there is no finding, or a finding not in the exact words of section 476, Cr. P. C. there must be material on the record to show that the Court has applied its mind to the question of expediency and come to a proper conclusion. In the present case, although the learned Subordinate Judge no doubt stated that he " deemed it proper " to order the prosecution of the petitioner, there is no material whatever to show that either b he (or, indeed, the learned Additional District Judge in appeal applied his mind to this aspect of the question. It is obvious that his reason or reasons for deeming it proper to order the prosecution may have been entirely unconnected with expediency in the interest of justice, and it was held in Bal Govind v. Jamnabai (A I R 1935 Nag. 199) that where, on an application for the prosecution of a person for offences under sections 193 and 213, Penal Code, the Magistrate passes an order for prosecution but neglects to state therein whether he is of opinion that it is expedient in the interests of justice that an inquiry should be made in a Magistrate's Court, it is not incumbent on the Sessions Judge nor on the Court of Judicial Commissioner to whom a revision application has been made to assume that he properly considered the matter and came to a correct conclusion. Moreover, the Federal Courtly of Pakistan was of the view that the omission to record a finding that the prosecution is expedient in the interest of justice is an illegality, as is clear from the following observation in Ibrahim Bhak v. The Crown (P L D 1955 F C 113) :-
" Neither the learned Public Prosecutor nor the learned Magistrate made a reference to the provision of law under which this action was taken, but before us section 476 of the Cr. P. C. is relied on as an authority for it. A perusal of that section would at once show that the course adopted by the learned Magistrate was wholly illegal, because it is only after a finding that it is expedient in the interest of justice that an enquiry should be made into an offence referred to in section 195, subsection (1), clause (b) or (c), has been recorded and a complaint made by the presiding officer of the Court and forwarded to a Magistrate, that security for the appearance of tile accused before that Magistrate can be ordered or the person accused taken in custody."
No doubt the point at issue in the above case was whether security could be taken for the appearance of the accused before a Magistrate, but it is obvious that in the opinion of the learned Judges a Finding that the prosecution is expedient in the interest of justice is one of the necessary preliminaries to a valid prosecution.
5. On the above ground alone this petition must be accepted; but even if a finding that the prosecution was expedient in the interest of justice had been given, it would remain to be seen whether such a finding v: as justified.
6. In the present case the complaint was filed by counsel for one of the parties, and in Lala Nand Lal v. Emperor (A I R 1937 Lah. 867) it was laid down that, as appears from the amendment of the relevant sections of the criminal Procedure Code, whereby such prose cutions have not now been left to private prosecutors but their conduct has been entrusted to the Courts, it is the policy of the law that in dealing with such matters the Courts should see that the prosecution is undertaken in the interests of justice and not to satisfy the private grudge of a litigant.
7. Another point on which there has been a divergence of judicial opinion is that of whether a complaint for the prosecu tion of a witness for perjury can be laid when the false statement p is not material to the decision of the case before the Court in which the evidence was given, This question has been answered in the negative in the following cases :-
(1) Batakrushna Pal v. Emperor A I R 1945 Pat. 295 ;
(2) Sitaram v. Briji Behrai A I R 1941 Pat. 591.
(3) Monohar Ali v. Emperor A I R 1927 Cal. 515 ;
(4) Nand Lai v. Emperor A I R 1937 Lah. 867 (already referred to) and
(5) Brahmdeo Singh v. Emperor A I R 1921 Pat. 149, and I respectfully agree with this view.
8. The point dealt with in the previous paragraph is, so far as the present case is concerned, closely connected with the provi sions of section 148 of the Evidence Act. The question put to the petitioner, the answer to which formed the basis of his prose cution, was clearly not relevant to the proceeding except in so far as it affected the credit of the petitioner as a witness by injuring his character, and section 148 casts upon the Court the duty of deciding whether or not the question is proper. It is laid down:
" In exercising its discretion, the Court shall have regard to the following considerations:-
(1)
(2) Such questions are improper if the imputation which they convey relates to matters so remote in time, or of such a character, that the truth of the imputation would not affect, or would affect in a slight degree, the opinion of the Court as to the credibility of the witness on the matter to which he testifies ;
(3) such questions are improper if there is a great dispropor tion between the importance of the imputation made against the witness's character and the importance of his evidence;
(4) . ..
Applying the above principles to the present case, it is open to doubt whether, even if the witness had admitted the allegation made, his credibility would have been in any way shaken. Had he been convicted of the offence for which he was challaned, the position might possibly, though by no means certainly, have been different, but he was admittedly acquitted, and it is difficult to see how the petitioner's acquittal on a previous charge could have In the slightest degree shaken his credibility as a witness. The question was clearly improper, and it is impossible to argue that it is expedient in the interests of justice to prosecute a witness for a false answer to an improper question.
9. For the above reasons I hold that the prosecution of the petitioner is not expedient in the interest of justice. The petition is accordingly accepted and the complaint should be withdrawn.
K. M. A. Petition accepted.
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