IN THE HIGH COURT OF SINDH, KARACHI
Cr. Misc. Application No.234 of 2009. _____________________________________________________
For hearing of M.A.No.4037/2009
Mr. Wazir Hussain Khoso, Advocate for the Applicant
Mr.Ch. Abdul Rasheed, Advocate for Respondent No.2
Mr. Abdullah Rajput, APG
S.I.P Javed Akhtar, P.S. Saudabad is present in person.
This application has been filed by the respondent No.2 in the above mentioned criminal miscellaneous application, which was disposed of on 28.09.2009 by the order of this Court, whereby request for seeking cancellation of bail of the respondent No.2 was declined and the matter was disposed of at Katcha Peshi stage with the direction to the applicant to approach the District Judge (South) Karachi for taking legal action against the respondent in the case if there is any violation of the orders of the learned District Judge (South) Karachi.
Learned counsel for the respondent No.2 has submitted that the order of this Court dated 28.09.2009 was passed without notice to the respondent and has been obtained by the applicant on misrepresentation of facts. Learned counsel for the respondent No.2 vehemently argued that after grant of pre-arrest bail by the learned District Judge to the respondent No.2, the respondent has remained associated with the prosecution and has not violated the orders of the learned District Judge (South) Karachi. In support of his arguments, learned counsel has referred to para 4,9 and 10 of the affidavit of respondent Jehanzeb Sikandar in support of the listed application to show that on various dates including 23.7.2009, 25.09.2009 and 28.09.2009, the respondent remained associated with concerned I.O. for investigation. Learned counsel also referred to para 6,11 and 12 of the counter affidavit filed by the I.O in response to the listed application to show that such assertion has been duly admitted by the concerned I.O. Per learned counsel, in view of hereinabove facts, the contention of the learned counsel for the applicant is completely false, hence the order obtained from this Court on the basis of such false assertion attracts the provisions of Section 193 PPC and an action under Section 195 Cr.P.C read with Section 476 Cr.P.C is required to be taken against the applicant/proposed accused herein. Learned counsel has also read out the provisions of Section 193 PPC, which provides for punishment for giving false evidence in any judicial proceedings. Learned counsel has also readout the provision of Section 195 and Section 476 Cr.P.C which prescribe the procedure to be adopted by the same Court, where such false evidence was led. In support of his arguments, learned counsel has also placed reliance in the case of Abdul Hakeem v. The State 1994 SCMR 1103 in which Hon’ble Supreme Court has approved the proposed action by same Court in terms of Section 195 and Section 476 Cr.P.C read with Section 193 PPC. Learned counsel for the respondent No.2 has finally argued that appropriate punitive action shall be taken against the applicant/proposed accused for false evidence and misrepresentation.
Conversely, the learned counsel for the applicant in the present case and proposed accused in the listed application has vehemently controverted the contention of the learned counsel for the respondent No.2 on the ground that the listed application is misconceived in fact as well as in law. As per learned counsel, there was no evidence whatsoever which has been produced in this matter by the applicant nor the matter could have been reopened by filing the listed application which was finally disposed of on 28.09.2009 by order of this Court. Learned counsel further submitted that no adverse order or directions were passed by this Court on 28.09.2009 against the respondent No.2, and the matter was simply remanded to the concerned Court to proceed in accordance with law after verifying the facts stated therein. Per learned counsel, though it is a fact that the respondent did not comply with the directions of the learned District Judge and left the country somewhere between 19.08.2009, whereby the bail order was being confirmed by the learned District Judge, and 28.09.2009 when this Court finally disposed of the case by remanding the same to the concerned District Judge. In this regard the learned counsel has placed on record certified copy of the diary sheet of the learned Sessions Judge Karachi South in Bail Application No.651 of 2009 starting from 24th July 2009 and ending on 24th October 2009. Perusal of such diary reflects that there is no order of the Court whereby the respondent was granted permission to leave the country. Without prejudice to hereinabove facts, the learned counsel for the applicant argued that the provisions of Section 193 are not attracted at all in this case as there has been no evidence produced or filed before this Court which could be termed as false and frivolous and which could attract the provisions of Section 193 PPC. Per learned counsel, nowhere in the application or in the supporting affidavit filed by the respondent for seeking cancellation of bail of the respondent, any false statement has been made nor any evidence in this regard has been produced which could possibly attract the provisions of Section 193 PPC. Per learned counsel, the listed application is entirely baseless and frivolous which may be dismissed with cost.
I have heard both the learned counsel and perused the record. While examining the facts of the case it appears that the contention of the counsel for the applicant in this regard appears to be correct as neither in the application or supporting affidavit, any allegation of disobedience of the learned District Judge’s direction has been made. It appears that when the criminal miscellaneous application of the applicant was being disposed of, counsel for the applicant, as per information available, pointed out such fact during the course of arguments. It further appears that inspite of such assertion by the counsel this Court did not pass any adverse orders which could possibly effect the respondent No.2 and merely remanded the matter to the concerned Judge to proceed in accordance with law after verification of the contention of the parties. Moreover, the respondent without filing any appeal against the order passed by this Court dated 28.09.2009 or seeking recalling or modification of such order which according to him has caused serious annoyance and injury to the respondent and has filed the instant application after the matter was finally disposed of, which otherwise appears to be misconceived. As regard the case law relied upon by the learned counsel for the respondent, it appears that the facts of the present case are distinguishable, as in the cited case accused produced a forged and fabricated document in the judicial proceedings, whereas in the instant case no such document or evidence appears to have been adduced.
In view hereinabove facts, I do not find any merit in the listed application, which is accordingly dismissed.
Karachi. J U D G E