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Criminal Appeal No. 262 of 1976, decided on 10th November, 1982.

----S. 193--Criminal Procedure Code (V of 1898), Ss.164 8 476--False evidence--Alleged statements given by accused under section 164, Criminal Procedure Code, not given by them in course of judicial proceedings- Accused denying to have made such statements and stating in reply to notice under section 476, -Criminal Procedure Code, that their left thumb impressions were taken by Court Clerk on white paper and that they were not at all produced before Magistrate nor their alleged statements were read out t4 them--Non-examination of Magistrate or his clerk, held, fatal to prosecution case--Conviction and sentence set aside.

Azizullah K. Shaikh for Appellants.

Nazir Alam for the State.

Date of hearing: 10th November, 1982.

The appellants abovenamed, being aggrieved by judgment, dated 29-9-1976 passed in Sessions Case No.345/346 of 1976, by learned Ist Additional Sessions Judge, Jacobabad, by which appellants have been convicted under section 193, P.P.C. and sentenced to suffer R.I. for one year and pay fine of Rs.250 each and in default of payment of said fines to suffer further R.I. for three months, have preferred the above appeal on the following facts and grounds:-

2. That the appellants were prosecution witnesses in Sessions Case No.187 of 1975, State v. Nabu under section 302, P.P.C. The said case ended in acquittal of Nabu, however the learned trial Judge ordered for issue of show-cause notice under section 476, Cr.P.C. against the appellants as they resiled from their respective statements under section 164, Cr.P.C., given in the course of investigation of Sessions Case No.187 of 1975.

3. That the appellants replied to the show-cause notices asked; Exhs.13 and 14 in the record. The learned Judge framed charge uncle section 193, P.P.C. and examined P.W. Abdul Rauf, Clerk of the very same Court and then convicted and sentenced the appellants as state, above and consequently appellants have filed the above appeal, on the grounds mentioned in memo of appeal.

4. The learned Advocate for the appellants in support of the above appeal submitted as under:-

(a) That prosecution failed to examine the learned Magistrate, who alleged to have recorded their statements under section 164 Cr.P.C.

(b) That reliance of the learned trial Court on section 80 of t , Evidence Act, for proof of the statements of appellants under section 164, Cr.P.C. was misconceived. In support of this contention the learned Advocate for the appellants relied upon case AIR 197,1 Bom. 3.

5. In view of the above grounds, the learned Advocate for the appellants submitted, that prosecution failed to establish its case under section 193, P.P.C. against the appellants and consequently impugned judgment cannot legally be sustained.

6. The learned Advocate appearing for the State at the outset submitted, that he was not supporting the impugned judgment, as prosecution failed to lead any evidence to prove, that statements under section 164, Cr.P.C. were in fact made by the appellants in judicial proceedings, so as to warrant their conviction under section 193, P.P.C.

7.I have taken into consideration the above submissions made by the learned Advocates before me and have gone through R 8 P of the learned trial Court as well as impugned judgment and case cited by the learned Advocate for appellants.

8. The main question which requires consideration in the above appeal is whether the alleged statements given by appellants under section 164, Cr.P.C. were given by them in course of judicial proceedings or not.

9. It is admitted position, that the alleged statements were obtained by police in course of the investigation of Sessions Case Nos. 345/346 of 1976, before learned Mukhtiarkar and F.C.M. Thul, in the absence of the appellants and as such in my opinion, it cannot be said, that appellants made the said statements in course of judicial proceedings, as contemplated by section 193, P.P.C. and or Explanations 1,2 8 3 to the said section, so as to attract the provisions of section 193, P.P:C.

9. Further it may be noted, that both the appellants in their statements under section 342, Cr.P.C. have denied to have made the said statements. In addition to this both the appellants in their reply to notices under section 476, Cr.P.C. have stated, that their L.T.I. were taken by Court clerk on white paper and they were not at all produced before the learned Magistrate in question nor their alleged statements were read out to them. In the face of these assertions made by both the appellants, non-examination of the learned Mukhtiarkar and F.C.M. Thul and his clerk was fatal to be prosecution case against the appellants, in my opinion.

10. In view of my above conclusions, I am of the opinion, that prosecution failed to establish its case under section 193, P.P.C. against both the appellants, so as to warrant their convictions.

11. Therefore, I allow the above appeal and set aside the convictions and sentences awarded to both the appellants and acquit them and discharge the bail bonds executed by the appellants.

M. Y. H. Appeal allowed.

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