' Appellants in the above two appeals being aggrieved by common judgment dated 30th August, 1976 of First Additional Sessions Judge, Jacobabad, passed in Sessions Cases Nos. 334 and 335 of 1976, whereby both the appellants have been convicted under section 193, P. P. C. And sentenced to suffer R. I. For one year have preferred the above two appeals, on the following facts and grounds.
2. According to prosecution, both the appellants had given statements under section 164, Cr. P. C. In the course of investigation of Sessions Case No, 265 of 1974, State v. Manu under section 302, P. P. C.
But in a course of trial, before the learned trial Court, in the said Sessions Case No, 265 of 1974, both the appellants resiled from their 164, Cr. P. C. Statement and consequently notices under section 193, P. P. C. Were issued to both the appellants by the learned trial Court and on the basis of the evidence of P. W. Mr. Abdul Rauoof, before learned trial Court, who produced depositions of the said appellants recorded in Sessions Case No, 265 of 1974 and 164, Cr. P. C. Statements of the said appellants, the learned trial Court convicted and sentenced the appellants as hereinbefore mentioned.
3. The appellants abovenamed being aggrieved by the impugned common judgment, have preferred the above two appeals, on the grounds mentioned in their respective memo. Of the appeals.
4. Since both the above appeals arise out of common judgment and since common facts and law points are involved in both these appeals, I propose to dispose of both these appeals by this common judgment.
5. The learned Advocate for the appellants in support of the above appeal submitted as under :-
(a) That the statements of the appellants under section 164, Cr. P. C. In the course of the investigation of the Sessions case was recorded prior to 25th December, 1975, before amendment of the said section and consequently the said statements of the appellants were not given in the course of judicial proceeding, as contemplated by section 193, P. P. C. And as such the appellants have committed no offence under section 193, P. P. C. And consequently their conviction cannot be sustained. In support of this contention the learned Advocate for the appellants relied upon cases reported in 1932-33 Cr. L J. 413 and 1 L R 45 Born.
834.
(b) That no complaint as envisaged by provisions of section 1950), Cr. P. C. In writing was filed by the learned trial Court and on this ground alone the conviction of the appellants cannot be sustained.
(c) That the Magistrate, who is alleged to have recorded 164, Cr. P. C. Statements of the appellants was not examined, in spite of appellants assertions, that their said statements were not recorded by any Magistrate, but they were dictated to the Clerk of the Court by police and they were made to sign the same. In view of this prosecution has failed to establish the case against both the appellants beyond reasonable doubt.
6. The learned Advocate appearing for the state at the outset submitted, that he was not supporting the impugned judgment, as no corn-'plaint as envisaged under section 195 (b), Cr. P. C.
In writing was filed by the learned trial Court.
7. I have carefully considered the above submissions made by the learned Advocate for the appellants before me as well as the submissions made by the State counsel. I have gone through the R & P of the learned trial Court as well as through the cases cited by the learned Advocate for the appellants.
8. 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 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.
9. In addition to above, question whether statements of appellants alleged to have been recorded under section 164, Cr. P. C. Prior to 25th December, 1975, could be considered as statements given in course of judicial proceedings, so as to attract the provisions of section 193, P. P. C. Is also not free from doubt and as such requires consideration. However in view of my conclusions mentioned in earlier para, it is not necessary to decide this important legal question in the present appeal.
10. Therefore, I allow both the above appeals and set aside conviction of the appellants and sentences awarded to them and acquit both the B appellants, by giving them benefit of doubt and discharge the bail bond executed by the appellants.