2014 PLP 964 (YLR)

SHAH JEHAN KHAN AKHUND-ZADA, J.

The appellant Muhammad Abdullah has called in question the judgment/order dated 17-5-2012 passed by the learned Additional Sessions Judge-II, Mardan whereby he was convicted under section 193 P.P.C. and sentenced him to six months rigorous imprisonment with a fine of Rs.500 or in default to undergo further one month simple imprisonment.

2. Short and essential facts relevant for the disposal of the instant criminal appear are that F.I.R. No.309 dated 29-5-2010 was lodged by the appellant as complainant under section 302, P.P.C. against his own son Atta Ullah for the murder of his two wives Mst. Abida and Mst. Robi by making fire upon them. Later on during the trial of the said case, the appellant appeared before the trial Court as P.W.2 for recording his statement as complainant on 19-1-2011 and while recording his statement in the trial Court he has stated in the examination-in-chief in the following manner:-- "On the day of occurrence accused facing trial Ata Ullah armed with firearm entered the house and started firing at Mst. Abida and Mst. Robi who were quarrelling with each other at that time and who both are the wives of the accused facing trial. Due to his firing they were injured. Mst. Abida died at the spot while Mst. Robi became injured and was shifted to hospital where the report was lodged by me to the police, the same is Exh.PA/1 and correctly bears my signature. One Asad Ali had also endorsed the report. The site plan was also prepared at my instance" In the cross-examination he stated as under:-- "It is correct that on the day of occurrence I was near to my house when I saw some persons running out of my house in a very hurry. They were wearing Chadar and were running away from the house. When I went inside the house the deceased were lying in the courtyard. There I suspect that the deceased were put to death by Atta Ullah. The people of the locality attracted to the spot and took the deceased and injured to the hospital. After 15/20 minutes I went to the hospital. There I made a report to the police. Later on I learnt that both the deceased were put to death by Saadat Ali and in this respect had also wrote an application and went to the police but my second plea was not accepted. I later on also told the police that the accused facing trial has been charged by us on mere suspicion but this plea of mine was turned down. No other statement of mine was recorded by the police".

3. After recording the above statement of the appellant, the learned trial Judge put certain questions to him and there after show-cause notice was issued to him with the direction to submit his reply within seven days. Thereafter on finding the explanation given by the appellant unsatisfactory, the trial Court initiated proceedings against the appellant under section 193, Cr.P.C. for intentionally giving false and self contradictory statement on oath before the court with the intention to save the accused who is his son from the consequences of his criminal act.

4. The appellant was formally charged under section 193 Cr.P.C. on 19-2-2011 to which he pleaded not guilty and claimed trial. In order to prove the allegation against the appellant the prosecution examined only one witness namely Inam-ur-Rehan Reader of the trial Court as, P.W.1. Appellant was examined under section 342, Cr.P.C. in which he refuted the allegations of the prosecution against him and produced one Mukhtiar as D.W.1 in his defence. After hearing the learned counsel for the parties, the learned trial Judge vide his judgment/order dated 17-5-2012 convicted and sentenced the appellant as mentioned above.

5. I have heard the learned counsel for the appellant as well as for the State counsel and have perused the record.

6. Without dilating upon the merits of the case which may not prejudice the case of the prosecution or the plea of defence, suffice it to say that the impugned judgment of the trial Court is not sustainable in the eye of law as no complaint as required under section 195(b), Cr.P.C. in writing was filed by the learned trial Court and as such the conviction of the appellant cannot be maintained on this ground alone. I do not find any complaint in writing as provided by section 195(b), Cr.P.C. of the learned trial Court on record. It was the competency of the learned trial Court to file a complaint and by not doing so, no cognizance of the offence under section 193, Cr.P.C. could have been taken by the learned trial Court. Thus the trial Court obviously committed an illegality/ irregularity to try the appellant by deviating from the relevant provisions of law on the subject. In a case "Amanullah and 4 others v. The State" reported as (1984 PCr.LJ 2798) it has been observed as under:-- "I do not find complaint in writing as provided by section 195(b), Cr.P.C. of the learned trial Court on record. In the absence of such complaint, no cognizance of the offence could have been taken by the learned trial Court, as submitted by the learned Advocate for the State." Reliance in this regard is also placed on an other case "Shereen v. The State" (2002 PCr.LJ 1427 Peshawar).

7. Thus in view of the above legal proposition, the conviction of the appellant cannot be sustained. Therefore, I allow this appeal, set aside the conviction and sentence of the appellant awarded to him through judgment dated 17-5-2012 by the learned Additional Sessions Judge-II, Mardan and the case is remanded back to the trial Court with the direction to proceed with the matter strictly in accordance with the relevant provisions of Criminal Procedure Code. AG/447/P Case remanded.