ORDER SHEET
IN THE HIGH COURT OF SINDH, CIRCUIT COURT, HYDERABAD
Criminal Revision Application No.S-24 of 2013
(Ghulam Shabbir v. The State)
Date of hearing: 19.11.2018
Date of Decision: 19.11.2018
Applicant: Ghulam Shabir through Mr. Ghulam Sarwar Chandio, Advocate.
Respondent: The State through Mr. Shahid Ahmed Shaikh, Deputy Prosecutor General Sindh.
O R D E R
Fahim Ahmed Siddiqui,J-. The applicant has challenged the Judgment dated 10.01.2013 passed by learned Additional Sessions Judge-II, Dadu, passed in Criminal Appeal No. 17/2012, whereby the conviction and sentence awarded to the applicant by the trial Court i.e. the learned Judicial Magistrate–II, Dadu. The learned Judicial Magistrate has awarded sentence of rigorous imprisonment for 3 years and fine of Rs. 20,000/- for an offence under Section 193 PPC with benefit of Section 382-B, Cr.P.C. It was also directed by the learned trial Court that in default of payment of fine, the applicant has to undergo six months’ simple imprisonment more.
2. It is the prosecution case that learned Additional Sessions Judge-I, Dadu filed a Direct Complaint against the applicant stating therein that on 09.05.2011, accused SIP Muhammad Jumman Meno had already arrested one Nazeer @ Nazroo Mashori wanted in Crime No. 07/2010, 08/2010, 09/2010 of PS Fareed Dero, Crime No. 21/2006 and 110/2010 of PS Tharo Shah, District Naushero Feroz but thereafter he released the said accused by misusing his authority under the garb of escape from police lock-up by accepting bribe from him. Hence, inspector Akber Ali Channa, Incharge SHO of PS Mounder registered F.I.R. No. 05/2011 at the said PS. During investigation, the Investigation Officer recorded the statement of applicant Ghulam Shabbir in which he stated that accused Nazeer @ Nazroo Mashori was arrested by SHO Muhammad Jumman Meno and on the night of 12.05.2011, the said SHO managed his escape from custody after accepting bribe. The said case was tried by Additional Sessions Judge-I, Dadu where the applicant recorded his deposition in which he has changed his version and has allegedly given false evidence, as such, the learned Presiding Officer of the trial Court preferred a Direct Complaint indicting the applicant of an offence under Section 193 PPC. The said direct complaint was tried by the learned Judicial Magistrate-II, Dadu, who after trial convicted the applicant and sentenced him as mentioned above. Against the said conviction and sentence, an appeal was filed but the same was dismissed through the impugned judgment, hence, the instant criminal revision application, challenging the impugned judgement of Appellate Court as well as trial Court.
3. In support of the instant criminal revision application, the learned counsel for the applicant has argued at length. Briefly his arguments are that the trial court has erred in deciding the direct complaint, as it is not established that the applicant has given false evidence before the Additional Sessions Judge-I, Dadu. According to him, the statement during investigation was recorded under Section 161 Cr.P.C and not under Section 164 Cr.P.C. In support of the prosecution case, it is necessary to examine the duty officer of PS Mounder as well as wireless operator of the said PS to verify the factum of alleged escape; as they are material witnesses but they were not examined.
4. The learned DPG supports the impugned judgment by submitting that there is no illegality or irregularity in the impugned judgment as well as the judgment of the trial Court.
5. I have heard the arguments advanced and have gone through the relevant record. It is the case of the prosecution that the applicant during investigation has given a statement to the Investigation Officer which is quite contrary to his deposition recorded before the trial Court; where the case initiated on F.I.R. No. 05/2011 of PS Mounder regarding the alleged escape of wanted accused Nazeer @ Nazroo Mashori was tried. It is worth noting that the statement of the applicant was recorded under Section 161 Cr.P.C. A statement under section 161 Cr.P.C is recorded by the Investigation Officer, which does not bear the signature of the maker of the statement. Such a statement does not enjoy the sanctity of a statement recorded under Section 164 Cr.P.C, which is recorded before a Judicial Officer. During recording of deposition of the applicant, the prosecution did not declare the applicant as hostile witness and no cross was conducted by the prosecution. I am of the view that a witness cannot be charged for giving false evidence, if he gives a contradictory evidence to his statement recorded under Section 161 Cr.P.C, even the said evidence appears to be obliging in nature. A witness can only be charged for giving false evidence before a court, if such evidence is contradictory to establish fact or contrary to his earlier statement recorded before the same court or any other court of law. In the present case, no such thing is available on the record; therefore, it cannot be said that the applicant is responsible for giving false evidence only because his deposition is contrary to his statement recorded by the Investigation Officer. Resultantly, the impugned judgment passed by the lower appellate court as well as the judgment of the trial court are set aside and the applicant is acquitted from the charge through my short order dated 19.11.2018 and these are the reasons for the same.
JUDGE
*Abdullah Channa/PS*
Hyderabad.
Dated 06.12.2018