Asghar Ali Mallah vs Learned Special Judge Anti-Terrorism Court and 2
This criminal miscellaneous application challenges an order passed by the Special Judge, Anti-Terrorism Court, which initiated proceedings against the applicant, a prosecution witness, for giving false evidence under Section 193 of the Pakistan Penal Code 1860. The applicant had been issued a show-cause notice following the acquittal of the accused in the underlying criminal case, where the trial court extended the benefit of doubt to the accused. The core legal question was whether the applicant could be prosecuted for perjury based on his testimony when the prosecution had not declared him hostile during the trial. The High Court held that the impugned order was unjustified. The Court reasoned that the applicant's statement during the investigation was not on oath, and since the prosecution did not declare him hostile, his testimony was implicitly accepted as true. Furthermore, the acquittal of the accused due to the prosecution's failure to prove its case could not be attributed solely to the applicant. Consequently, the Court set aside the impugned order, establishing that prosecution for perjury is not warranted where a witness was not declared hostile and the acquittal resulted from general evidentiary deficiencies.
- Can a prosecution witness be prosecuted for giving false evidence under Section 193 of the Pakistan Penal Code 1860 if the prosecution did not declare them hostile during the trial?
- Is a witness liable for perjury solely because the accused were acquitted due to the prosecution's failure to prove its case?
- Does a statement recorded by police under Section 161 of the Code of Criminal Procedure 1898 constitute evidence on oath for the purposes of Section 193 of the Pakistan Penal Code 1860?
- Section 386, Pakistan Penal Code 1860
- Section 337-H(2), Pakistan Penal Code 1860
- Section 6, Anti-Terrorism Act 1997
- Section 7, Anti-Terrorism Act 1997
- Section 193, Pakistan Penal Code 1860
- Section 161, Code of Criminal Procedure 1898
ORDER
IRSHAD ALI SHAH, J.---The facts leading to disposal of instant Criminal Miscellaneous Application are that the FIR crime No.35 of 2018, under sections 386, 337-H(2), P.P.C. read with sections 6/7 of A.T.A. of Police Station Doulatpur, District Shaheed Benazirabad was recorded by the police at the instance of Ghulam Sarwar an official of HESCO Doulatpur. On due investigation, the accused involved in the said FIR were challaned by the police to face trial accordingly.
2. On due trial, all the accused involved in the said FIR were acquitted by learned Special Judge, Anti-Terrorism Court, Shaheed Benazirabad and Sanghar at Nawabshah vide his judgment dated 29.03.2019 by extending them benefit of doubt. While, recording such acquittal of the accused, complainant Ghulam Sarwar, PW Abdul Haq and PW Asghar Ali (applicant) were served with the notice by learned trial Court to show-cause as to why the prosecution for giving false evidence should not be initiated against them.
3. Complainant Ghulam Sarwar, PW Abdul Haq and PW Asghar Ali (applicant) furnished their replies to the said show cause notices. Consequently, the notices issued against complainant Ghulam Sarwar and PW Abdul Haq were discharged while PW Ghulam Asghar (applicant) was charged for an offence punishable under section 193, P.P.C. for giving false evidence by learned trial Court vide order dated 10.06.2019, which is impugned by PW Ghulam Asghar (applicant) before this Court by way of instant Criminal Miscellaneous Application.
4. It is contended by learned counsel for the applicant that the statement of the applicant recorded by the police under section 161, Cr.P.C. was not on oath and very true version was narrated by the applicant before learned trial Court during course of his examination as such the applicant is not liable to prosecution under section 193, P.P.C. By contending so, he prayed for setting aside of the impugned order, which is not opposed by learned D.P.G for the State.
5. Admittedly, the applicant is a witness of the incident and his statement during course of investigation was recorded by the police under section 161, Cr.P.C. It was not on oath. The applicant was not declared to be hostile by the prosecution during course of examination before learned trial Court, which goes to suggest that whatever, was stated by the applicant before learned trial Court during course of his examination was accepted by the prosecution to be true impliedly. The accused involved in above said incident have been acquitted by learned trial Court by extending them benefit of doubt by making a conclusion that the prosecution has not been able to prove its case against the accused. The failure of the prosecution to prove its case could hardly be attributed to the applicant alone. In that situation, initiating proceedings against the applicant for his prosecution under section 193, P.P.C. by way of impugned order is not appearing to be justified, it is set-aside.
6. The instant Criminal Miscellaneous Application is disposed of accordingly.