SHEREEN vs THE' STATE

' Shereen, appellant, has been awarded the sentence of one year's. R.I. And payment of fine of Rs,5,000 under section 193, P.P.C. By the learned Additional Sessions Judge/Izafi Zilla Qazi, Matta, District Swat for giving false evidence at the trial of case F.I.R. No,232, dated 1-6-1998, Police Station Matta; under sections 302/109/34, P.P.C. As against his earlier statement recorded under section 164, Cr.P.C. Before a Magistrate (Tehsildar) in which he had claimed himself as a witness to the occurrence, but in his statement at the trial he resiled from the same and was thus declared as hostile.

2. The S.S.P, at the instance of the Public Prosecutor filed a complaint against the appellant for committing an offence punishable under section 193, P.P.C. The learned trial Court on the complaint took cognizance of the matter and convicted the appellant to the sentences mentioned above.

3. I have heard the learned counsel for the parties and also perused the record of the case.

3-A. The appellant did not deny his signature over the statement under section 164, Cr.P.C. But stated that the S.H.O. Concerned had obtained the said signature from him on a blank paper and the alleged contents of the statement have not come out from his mouth. The learned trial Judge without examining the Tehsildar or his clerk in rebuttal to the plea of the appellant found him guilty of the charge and awarded him punishment under section 193, P.P.C. The conviction and sentences of the appellant recorded by the learned trial Court are not sustainable for the reason that under section 195. Cr.P.C., it was the competency of the trial Court to file a complaint and not the S.S.P.

Concerned, thus no cognizance of the offence under section 193, P.P.C. Could have been taken by the learned trial Court, which has obviously committed an illegality/irregularity to try the appellant on the complaint of the S.S.P. By deviating from the relevant provisions of law on the subject. In an authority reported in 1984 PCr.LJ 1722, it has been held that:-- "It is admitted position, that no complaint in writing as provided by section 195(b), Cr.P.C. Was filed by the learned trial Court. It is also an admitted position that Magistrate, who is alleged to have recorded statements of the appellants under, section 164, Cr.P.C. Was not examined nor his clerk, in spite of the stand taken by the appellants in their reply to show-cause notices. In view of this, I find great force in the contentions of the learned Advocate for appellants and State Counsel that on these grounds alone, the convictions of the appellants cannot be sustained."

' In another authority reported in 1984 PCr.LJ 2797, it has been observed that:-- "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."

4. For the aforesaid reasons, this appeal is accepted, the conviction and sentences awarded to the appellant are set aside and he is acquitted of B the charge. The appellant is on bail and allowed to go. He is also discharged from the obligation of his bail bonds.