1. ' MRS. QAISER IQBAL, J.--- By this common judgment, I propose to dispose of Criminal Appeals Nos.S-133 of 2002, 134 of 2002 and 136 of 2006. Being aggrieved and dissatisfied from the judgment passed by learned IInd Additional Sessions Judge, Dadu, in Sessions Case No,448 of 1994, whereby the appellants were convicted under section 193, P.P.C. To undergo R.I. For three years each and to pay fine of Rs,20,000, in case of default of payment of fine, to undergo R.I. For one year more, they have resorted to file the appeals.
2. ' The appellants were booked in the commission of the crime, that one Muhammad Bux son of Ghulam Muhammad was convicted under section 302, P.P.C. By Sessions Judge, Dadu, vide judgment dated 2-12-1991 for committing murder of Allah Julio. He preferred appeal in the High Court of Sindh, which was dismissed on 17-9-1992. An application under section 345, Cr.P.C. Was filed in the Court of Sessions Judge, Dadu, which was dismissed on 6-3-1993 the petition for leave to appeal was filed before the Honourable Supreme Court of Pakistan and application of compromise filed by one Punhoon complainant in the case claiming to be the legal heir of deceased Allah Julio. The apex Court, ordered the Sessions Judge, Dadu to hold an inquiry, regarding legal heirs of Allah Julio; whether deceased had left behind his widow Mst Haseena, two sons and one daughter. On 8-1-1994, Punhoon appeared before the Sessions Judge, Dadu and stated on oath that he was the only legal heir of the deceased. In support of his contention, the appellants Dilmurad, Ghulam Mustafa and Suleman, also filed affidavits deposed the same facts. It was revealed that deceased was survived one widow, two minor sons and a daughter. Since Mst.
3. Hasina was examined by the Sessions Judge. Petition to leave in the appeal was also dismissed by the apex Court. Sessions Judge, was directed to take appropriate action against Punhoon and the present appellants for purgery. It is revealed from the record that show-case notice was served upon the appellants a case under section 193, P.P.C. Was set on trial against the appellants and others. Main offender Punhoon expired during the pendency of the appeal, appeal filed by him abated.
4. ' Trial Court framed the charge Exh.5, under section 193, P.P.C. Which was denied by the appellants.
5. The prosecution in support of the case examined P.W.1 Mumtaz Ali at Exh.7 and P.W.2 Abdul Jabbar at Exh.8. The side of prosecution was closed vide statement at Exh.9. The statement of the appellant was recorded under section 342, Cr.P.C.
(1) Mr. Madad Ali Shah has contended that impugned judgment is not sustainable in law, as there was no material available before the trial Court to take cognizance in the matter under section 195(i)(b), Cr.P.C. Which is a mandatory provision of law. Section 195(i), (a), (b), Cr.P.C. Is reproduced hereinbelow in extenso:--
(a) of any offence punishable under sections 172 to 188 of the Pakistan Penal Code, except on the complaint in writing of the public servant concerned, or of some other public servant to whom he is subordinate;
(b) of any offence punishable under any of the following sections of the same Code, namely sections 193, 194, 195, 196, 199, 200, 205, 206, 207, 208, 209, 210, 211 and 228, when such offence is alleged to have been committed in, or in relation to any proceeding in any Court, except on the complaint in writing of such Court or of some other Court to which such Court is subordinate.
6. ' In support of the above contention reliance is placed on the following case-law:--
(1) Abdul Nabi and another v. Syedul Mukhtar and another SBLR 2003 Sindh 591 the dictum laid down that is no Court can take cognizance, for an offence under section 199, P.P.C. Except upon a complaint in writing of such Court whether the said offence committed or some other Court to which such Court is subordinate.
(2) Bachomal v. The State 1984 PCr.LJ 2797 (Karachi), it is held that in the matter of inquiry, Complaint as required under section 195(i)(b), Cr.P.C. Could be made basis of taking cognizance in a case.
(3) Shereen v. The State 2002 PCr.LJ 1427 the conviction and sentence recorded by the trial Court were not sustained for reason that under section 195, Cr.P.C. It was the competency of the trial Court to file complaint and not the S.S.P. Concerned, thus, no cognizance of the offence under section 193, P.P.C. Could have been taken.
7. ' It is next urged by the counsel appearing for the appellants that the testimony of the witnesses recorded by the trial Court comprises on one set of witnesses, one is Naib Qasid of the Court and the other is C.O.C., without recording the statement of Mst. Hasina widow of deceased Allah Julio, on the basis of the verbatim statements of the prosecution witnesses, the conviction could not be awarded to the appellants when major offender Punhoon had expired thus gross miscarriage has occurred, culminating in conviction of the appellants.
8. ' Mr. Thari, contended that the diary of the trial Court dated 12-12-1994 suggests that a case was registered under section 193, P.P.C. Against the appellants bearing No,448 of 1994, thereafter the case was fixed for framing of charge. It is next urged that show-cause notice dated 26-9-1996 issued by Serishtadar Sessions Judge, Dadu, itself tantamount to be a complaint to bring the case of the appellants within the ambit of section 195(i)(b) of the Code.
9. ' I have considered the arguments advanced at bar.
10. ' Suffice is to say that Honourable Supreme Court on 7-12-1993 ordered Sessions Judge, Dadu to hold inquiry about legal heirs of deceased Allah Jurio. Punhoon appeared and claimed to be the only surviving legal heir of the deceased. At one stage, Punhoon and Ghulam Mustafa pleaded guilty before the trial Court and were convicted, _ subsequent thereupon, Criminal Appeals Nos.321 of 1996 and 322 of 1996 were filed in High Court, sentence awarded to them was set aside and cases were remanded for re-trial, after compliance of sections 241(a) and 265(c), Cr.P.C.
11. Learned State counsel has conceded that there was no written complaint before the trial Court, in writing to take cognizance in the matter except show-cause notice issued on behalf of the Sessions Judge, which should be treated as complaint in writing. By virtue of the provisions of section 4(h) of Cr.P.C. Complaint means the allegation made orally or in writing from Magistrate; for taking action in the Court that some person whether known or unknown has committed an offence but it does not include the report of Police Officer. In any view of the matter, show-cause notice issued by Sessions Judge, Dadu cannot be presumed to be a complaint in writing by the Inquiry Officer, upon which the cognizance was taken. The case-law cited at bar, explicitly reveals that the complaint in writing was a mandatory requirement under the law to take cognizance which is missing in the present case. On the account of protective trial the master-mind Punhoon had expired. The appellants had allegedly filed their affidavits in support of their case and had faced the trial for about twelve years, on account of delay in conclusion of trial, impugned judgment cannot be sustained under law, same is hereby set aside. Criminal Appeals Nos.133 of 2002, 134 of 2002 and 136 of 2002 are hereby allowed. The appellants are on bail, their bail bonds are cancelled and sureties stands discharged.