NAZAR MUHAMMADAccused vs THE STATE

1. ' Nazar Muhammad (appellant) was tried by the learned Additional Sessions Judge-II, Peshawar, and convicted under section 193, P. P. C. And sentenced to two years' R. I. And a fine of Rs, 1,000 or in default thereof to further 6 months' R. I.

2. The allegations against him are that in Sessions Case No, 55 of 1984 (State v. Muhammad Iqbal) the appellant when examined on 30-7-1984 as an eye-witness to the occurrence, resiled from his statement previously recorded under section 164, Cr. P. C. Thus, he was declared as an hostile witness and it was concluded that the appellant had given false evidence at the trial with a view to show favour to the accused in the murder case. Consequently the learned Additional Sessions Judge in accordance with section 476 (1), Cr. P. C. Took cognizance of the offence and proceeded against hire under section 193, P. P. C. Syed Musharraf Shah. M. I. C., Peshawar and Roohul Amin, Stenographer to the learned Additional Sessions Judge, were examined as witnesses in the case.

2. The appellant when examined under section 342 Cr. P. C. Stated that his statement under section 164, Cr.P. C. Was recorded under duress exerted by the complainant-party and that actually he narrated the truth at the trial before the learned Additional Sessions Judge. He further stated that his statement under section 164, Cr. P. C. Was dictated by the P. S. I. To the Stenographer of the Magistrate when the Magistrate was not present in Court. Syed Musharraf Shah, M. I. C. (P. W. 1).

3. However, stated that the statement of the appellant under section 164, Cr. P. C. Was correctly recorded by him and it also correctly bore his signature and also the thumb-impression of the appellant. In view of the evidence the learned trial Court came to the conclusion that the statement of the appellant under section 164, Cr. P. C. Was a true statement whereas he has given false evidence at the trial and, therefore, he was liable for perjury under section 193, P. P. C. With the result that the appellant was convicted and sentenced as stated above.

3. In support of the appeal it is contended that it was not correct to say that the statement of the appellant at the trial was false and the statement recorded under section 164, Cr. P. C. Was true.

4. Particularly, when the appellant stated that the statement under section 164, Cr. P. C. Was given by him under duress exerted by the complainant side and that he has spoken the truth before the trial Court. It is next contended that the appellant should not have been tried for perjury till the conclusion of the trial in the murder case to enable the Court to properly weigh the evidence of the appellant in juxtaposition to other evidence produced in the case. It is also contended that the statement under section 164, Cr.P.C. Was not recorded in a judicial proceeding as envisaged by section 193, P. P. C. Nor was it recorded on oath. Reference is made to section 4(m) of the Criminal Procedure Code wherein it is mentioned that "judicial proceeding" includes any proceeding in the course of which evidence is or may be legally taken on oath. The contention is that the statement of the appellant under section 164, Cr. P. C. Was recorded on solemn affirmation and not on oath and, therefore, it was no statement in the eye of law.

5. ' Reliance is placed on Muhammad Tahir v. State (1) wherein by reference to section 6 of the Oaths Act (X of .1873) it was observed that under section 6 as amended by Federal Laws (Revi.Ion and Declaration) Ordinance XXVII of 1981, solemn affirmation being administered by Courts was not an oath as envisaged by the section because after the amendment the statement on solemn affirmation and not on oath was in dear violation of the express provisions of law. The learned counsel. Therefore, contends that the amendment in section 6 having been brought about on 8-7- 1981 it was mandatory that the statement under section 164, Cr. P. C. Should have been recorded on oath and not on solemn affirmation and the statement thus recorded being in violation of the legal provisions could not be considered as a piece of evidence against the appellant in proceedings under section 193, P. P. C. In reply the learned Additional Advocate-General contended that it was not essential for the trial Court to determine as to which of the two statements was false because if two contradictory statements are made by a witness in judicial proceedings the Court could proceed against him for perjury under section 193. P. P. C. It is also contended that under section 7 of the Oaths Act all oaths and affirmations made under section 5 could be administered according to the forms now in use until some forms are prescribed by the High Court. The argument looses sight of the amendment brought about in section 6 of the Oaths Act whereunder the statement is to be made on oath and not on solemn affirmation. Even otherwise the record does not show that there was an positive evidence to hold that the appellant had given false evidence at the trial and his statement under section 164. Cr. P. C. Was true. Particularly, when the trial Court had proceeded with the case under section 193, P. P.C. Before concluding the trial in the murder case. The decision in the murder case would have enabled it to come to a definite finding as to whether the appellant has spoken the truth or given false evidence at the trial. In AIR 1941 Bom. 408 it was held that :- "where, therefore, a person has resiled in the sessions trial from his statement under section 164, Cr.

6. P. C. It is absolutely essential that the Court. Should make up its mind whether it was the statement before the Magistrate under section 164, Cr. P. C. Or the statement subsequently made in Court which was false."

7. ' Furthermore, the statement under section 164, Cr. P. C. Having not been recorded on oath could not be used as a piece of evidence against the appellant to hold that the evidence given by him at the trial was contradictory to his statement recorded under section 164, Cr. P. C.

8. " . Taking this view of the matter it cannot be said that the appella4nt bad given false evidence at the trial in the murder case and there being no positive finding in this regard, his conviction cannot be maintained. Therefore, by accepting the appeal the conviction and sentence of the appellant under section 193, P. P. C. Are set aside and he is acquitted of the charge. The bail bond submitted by him in this Court stands, discharged.

9. (11 PLD 1984 Pesh. 56