MUHAMMAD ISHAQUE Versus State
SHAHID HAMEED DAR, J.--- The appellant, Muhammad Ishaque SI was found to have tendered false evidence as P.W.3 during the trial of Faisal, an accused of case-FIR No.657/2008, dated 1.8.2008, under section 9(c) of the Control of Narcotic Substances Act, 1997, registered at police station Saddar Chiniot, wherefor he was convicted under section 194, P.P.C. and sentenced to simple imprisonment for six months with fine of Rs.10,000/-, vide judgment dated 1.12.2010 passed by the learned Additional Sessions Judge, Chiniot.
2. Brief facts of the case are that Muhammad Ishaque SI (appellant) being flanked by fellow police officials received a spy information as to movement of a doubtful character near Lona Morr, whereon he along with his companions reached there at about 2.05 p.m. on 1.8.2008 and found Faisal son of Ameer standing there, who held a shopping bag in his right hand, which contained contraband charas weighing 1100 grams; he seized the recovered charas through a memo of recovery, caused arrest of the accused there, prepared a complaint and sent it to the police station for registration of FIR, which led to registration of FIR No.657/2008 (supra); the memo. of recovery was attested by Khuda Bakhsh 1625/C and Khan Muhammad 632/C, who (both) appeared as P.W.1 and P.W.2 respectively, during the trial of Faisal and they showed complete obliviousness about the alleged occurrence, wherefor they were cross-examined by the public prosecutor, beside the learned defence counsel; when the appellant appeared as P.W.3 in the trial of Faisal accused, he rendered a couple of controversial depositions, which prompted the learned trial court to issue a notice under section 476, Cr.P.C. to him on 22.9.2010 requiring him to tender his reply thereto on 1.10.2010; he presented a written application before the learned trial court, during the trial of said Faisal on 23.11.2010 seeking for correction of the evidence, that he tendered as P.W.3 on 22.9.2010, which was dismissed, the same day; learned trial court heard partial arguments qua proceedings under section 476, Cr.P.C. against the appellant on 30.11.2010 and completed this process on 1.12.2010 by holding him guilty of the charge, though having not been framed by it, and sentenced him, as above. Hence, the instant appeal.
3. Learned counsel for the appellant has contended that the appellant has been held guilty and sentenced under section 194, P.P.C. without having been indicted thereunder, which may make the impugned judgment a nullity in the eye of law; the proceedings of perjury had been initiated against the appellant on 22.9.2010 by the learned trial court, when trial of Faisal, the acquitted accused of case FIR No.657/2008 (supra), was still in progress and appellant was forced to tender a reply thereto on 19.10.2010, which caused vitiation of entire proceedings of the trial, if any, of the appellant; learned trial court could not take cognizance of the matter without a complaint in writing as provided under section 195 read with section 4(h), Cr.P.C. and in absence thereof, the impugned judgment could not hold its ground; the appellant was not recorded under section 342, Cr.P.C., nor was he afforded any opportunity to raise the defence plea or explain his position, as to the proceedings faced; the impugned judgment is patently illegal, which may he held as such and set aside accordingly.
4. Conversely, learned Deputy District Public Prosecutor has stated that the complaint in writing is not essential when cognizance is taken under section 476, Cr.P.C. On merits, he has submitted that the appellant himself admitted to have told a lie as to preparation of Exh.PA in his testimony, that he tendered as P.W.3 during trial of Faisal, the accused of a narcotics-case (FIR No.657/2008), hence, no charge was needed to be framed, nor any oral evidence was required to be produced by the prosecution against him; the guilt of the appellant had been fully proven, therefore, the impugned judgment may be sustained.
5. So far as the legal objection that a complaint in writing as provided under section 4(h), Cr.P.C. was essential, when the court took cognizance under section 476, Cr.P.C., is concerned, it is not the requirement of the law, as held by the Hon'ble Supreme Court of Pakistan in Irshad Ahmad's case, reported as 1992 SCMR 1229, wherein it has been so observed:-
"The objection of the learned counsel for the appellant that a condition in clause (1)(b) of section 195, is that the trial of the offences mentioned therein cannot take place except as provided therein; namely, on complaint in writing of such Court or of some other Court to which such Court is subordinate. The argument is obviously untenable. This condition cannot be relatable to the cognizance under section 476, Cr.P.C. wherein the reference to section 195, Cr.P.C. is only to the extent of lifting up the specification of the offences therein and does not extend to the conditions laid therein. This view is supported by the fact that the cognizance under section 476, Cr.P.C. is by the same Court or in relation to the proceedings wherein the offence has been committed. The condition relating to submission of a complaint in section 195, Cr.P.C. could not have been visualized in the manner suggested by the learned counsel; namely that the same Court should make a complaint of the offence to itself under section 476, Cr.P.C. read with section 195, Cr.P.C. This was never intended and that is why the reference under section 476 or section 195, Cr.P.C. is in the simple language as follows:-
"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."
The apex court has viewed in clear and unambiguous terms that for taking cognizance under section 476, Cr.P.C., complaint in writing, as envisaged by section 195 read with section 4(h), Cr.P.C. is not the requirement of law, as such, the objection taken by the learned public prosecutor is repelled.
6. Learned trial court initiated proceedings of perjury under section 476, Cr.P.C. against the appellant on 22.9.2010, when conclusion of trial of Faisal (since acquitted) in case-FIR No.657/2008 (supra) was still not in sight and by issuing a notice, called upon him to explain as to why shouldn't he be prosecuted for having deposed falsely in a case entailing capital punishment. This notice was issued on the same day of the appellant's examination as P.W.3 in the abovesaid case. It was an illegal exercise undertaken by the trial court and on realizing the mistake, it issued another show-cause notice of the same kind to the appellant on 1.12.2010, which, incidentally, was the day of conclusion of Faisal's trial, in the narcotics-case. He tendered its reply, the same day with the contention that he had not told a lie in his evidence nor could he ever wilfully think of doing it so. It was at this stage when the learned trial court felt another legal error on its part and posed itself to have charge-sheeted the appellant, though it didn't do so, and mentioned this fact in paragraph 3 of the impugned judgment in following words:-
"Initially show-cause notice was issued to the accused Muhammad Ishaq SI on 22.09.2010 but it was the requirement of law that firstly accused must be charge sheeted and thereafter show cause notice be issued to him. So today charge was framed and show cause notice was again issued to the accused."
The entire record has repeatedly/minutely been gone into, but no charge-sheet figured therein nor any interim order showed as to the appellant having ever been indicted by the learned trial court. The observation of the trial court to the said effect is baseless and gratuitous. No charge against the appellant had ever been framed. No evidence had been produced against him by the prosecution as to the factum of telling a lie as P.W.3 during trial of said Faisal. The testimony of the appellant has gratuitously been reproduced in the impugned judgment, without affording any opportunity to him during his so-called trial, to offer an explanation thereto, which made the whole affair grossly illegal. The appellant has been convicted and sentenced virtually without any trial for the offence of perjury. The show-cause notices dated 22.9.2010 and 1.12.2010 and his replies thereto have not been received/exhibited in evidence. In all, it looks more of a joke than a trial in the real sense.
7. Therefore, this appeal is accepted and the impugned judgment is set aside. The appellant stands acquitted of the offence of perjury. He is present on bail, for his sentence had been suspended by this court on 24.1.2011. His bail bonds are cancelled and surety discharged.
JK/M-172/L Appeal accepted.