1984 P Cr (PLP)

Appellant abovenamed, being aggrieved by judgment dated 31st January, 1977 of the learned Ist Additional Sessions Judge, Jacobabad, in Sessions Case No. 31 of 1977, by which appellant has been convicted under section 193, P.P.C. and sentenced to suffer R.I. for 2 years and to pay fine of Rs. 500 or in default to suffer further R.I. for six months, has filed the above appeal, on the following facts and grounds. That the appellant Bachomal was the P.W. in Sessions Case No. 165/1976 (Shrimati Ishwari Bai versus Ram Rakhio under section 302/448, P.P.C.). Complainant Ishwari Bai filed a direct complaint in the Court of Sessions Judge Jacobabad which was referred to the Civil Judge and F.C.M., Jacobabad for enquiry and that during the preliminary Enquiry proceedings the appellant in his statement had supported the complainant and when the learned Sessions Judge, Jacobabad received the inquiry report and the statements of P.Ws. in preliminary enquiry he came to the conclusion that there was prima facie case and as such the case was registered and then referred to the Ist Additional Sessions Judge, Jacobabad for disposal according to law.

3. That during the trial of the said complaint case when the appellant Bachomal was examined as P.W.2 he resiled from his previous statement recorded in preliminary inquiry with the result that he was declared hostile and then cross-examined by the complainant's Advocate.

4. That ultimately the Sessions Case No. 65/76, Shrimati Ishwari Bai versus Ram Rakhio concluded in acquittal of the accused Ram Rakhio, on 9th December, 1976 and consequently a show-cause notice under section 193, P.P.C. was issued to the appellant, who submitted his reply stating therein that he had not given false evidence at the trial in the murder case and that the complainant and her Advocate had dictated the said statement which was written by the reader and that the appellant had only put his signature on it in good faith, without actually knowing the contents of the same.

5. That thereafter on finding the explanation given by the appellant unsatisfactory, the learned Additional Sessions Judge, was pleased to order un 25th January, 1977 that the charge under section 193, P.P.C. be framed against the appellant.

6. That according the charge was framed against the appellant to which he pleaded not guilty and professed his innocence and after recording the evidence of P.W. Abdur Rauf a clerk of the trial Court the learned Ist Additional Sessions Judge was pleased to find the appellant guilty under section 193, P.P.C. and convicted and sentenced him as stated above.

7. The appellant being aggrieved by impugned judgment dated 31st January, 1977 of the learned trial Court has preferred the above appeal, an the grounds mentioned in memo. of appeal.

8. The learned Advocate for the appellant was called absent and since above appeal is pending from 1977, I decided to dispose of the same, with the assistance of the learned Advocate for the State.

9. The learned Advocate for the State Mr. Rashid Qureshi, took me through the R.6.P of the learned trial Court and impugned judgment and at the outset submitted, that he was not supporting the impugned judgment, 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.

10. I have carefully considered the above submissions made by the learned Advocate for the State and have carefully gone through the R.R.P. of the learned trial Court.

11. 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.? I am???????? in full agreement with this contention of the learned Advocate for the State. In view of this conviction of the appellant cannot be sustained.

12. Therefore I allow the above appeal and set aside the conviction of the appellant and sentences awarded to him and acquit him and discharge the bail bonds executed by the appellant. S. G. D.?????????????????????????????????????????????????????????????????????????????????????????????? Appeal allowed.