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Petitioner: SAIFULLAH VS Respondent: THE STATEHonorable Justice BASHIR A. MUIAHIDSaiful Malook,S.D. Qureshi
2004 P Cr
2004 P Cr. L J 1682
[Lahore]
Before Bashir A. Mujahid and Abdul Shakoor Paracha, JJ
SAIFULLAH---Appellant
Versus
THE STATE---Respondent
Crl. Appeal No. 1092 of 2003, decided on 17th February, 2004.
Penal Code (XLV of 1860)---
----S. 193---Appreciation of evidence---Accused was declared hostile at very initial stage when he had not even completed his examination-in chief---Accused, in reply to show-cause notice had clarified that it was the first time that he had appeared as witness before any Court of law and he was confused and could not reply the question correctly and he had not committed any perjury intentionally---Accused, in circumstances had not intentionally made any concession in favour of accused or given false evidence ---Mens rea which was an essential ingredient of every criminal offence, was lacking in the case---Case against accused having not been proved beyond any shadow of doubt, he was acquitted of, the charge against him giving him benefit of doubt.
1993 PCr.LJ 547 ref.
Saiful Malook for Appellant.
S.D. Qureshi for the State.
Date of hearing: 17th February, 2004.
JUDGMENT
BASHIR A. MUIAHID, J.---------Saifullah, appellant was convicted under section 193, P.P.C. during the trial of case F.I.R. No.429/2002, dated 31-10-2002 registered at P.S. Model Town, Gujranwala under section 9(b) C.N.S.A., 1997 by the learned Special Judge, Control of Narcotic Substances, Gujranwala and vide judgment, dated 2-5-2003 was sentenced to undergo S. I. for one month with a fine of Rs.1,000 in default of payment of fine to undergo 10 days' S.I. Through the instant appeal he has assailed the said judgment.
The brief facts of the case are that the appellant appeared as P.W.3 during the trial of case F.I.R. No.429/2002, dated 31-10-2002 registered at P.S. Model Town, Gujranwala under section 9(b) of Control of Narcotic Substances Act, 1997, and was declared hostile during the recording of his examination-in-chief and was cross-examined by the Special public Prosecutor and the learned trial Court issued show-cause notice to the appellant as to why he be not punished under section 193, P.P.C. for making false evidence. The reply to show-cause notice was sought within two hours and on written reply finding the same as confession learned trial Court proceeded to pass the impugned judgment. Hence this appeal.
Learned counsel for the appellant has argued that the examination-in-chief was yet not completed when he was declared hostile by the trial Court and he was not provided opportunity to defend himself or to seek the assistance of legal advisor, therefore, he has been condemned unheard while passing the impugned judgment, that no charge was framed against him, therefore, the impugned judgment is illegal.
Learned counsel for the State has opposed the appeal and supported the impugned judgment.
We have heard the learned counsel for the parties and perused the record.
The appellant was declared hostile at very initial stage. He had not even completed his examination-in-chief. In reply to show-cause notice he has clarified that it was the first time to appear as witness before any Court of law and he was confused, therefore, he could not reply the question correctly and he has not committed any perjury intentionally and in section 193, P.P.C. it is provided that whoever intentionally gives false evidence at any stage of judicial proceedings, or fabricates false evidence for the purpose of being used in any stage of a judicial proceedings, shall be punished with imprisonment of either description for a term which may extend to seven years and shall also be liable to fine. The circumstances of the case we find that the appellant did not intentionally make any concession in favour of the accused or given false evidence so mens rea is an essential ingredient of every criminal offence which is lacking in the instant case and as per case-law 1993 PCr.LJ 547 if the witness honestly confess that inadvertence slip is to be ignored. In view of the above we find that the case against the appellant was not proved beyond any shadow of doubt, therefore, by giving benefit of doubt we allow this appeal he is acquitted of the charge. He is already on bail, his sureties are discharged.
H.B.T./S-155/L Appeal allowed.