P L D 1952 Baluchistan 59 (PLP)

R. K. M. SAKER, J. C.‑This is a revision petition under the provisions of sections 435/439, Criminal P. C. in which the petitioner was convicted in the Court of the Magistrate 1st Class and E. A. C. Chaman, of the offence of theft under the provisions of section 379, Pakistan P. C. He appealed against this conviction but the Appellate Court dismissed the appeal. The petitioner has therefore, come to this Court in revision on certain grounds which will be stated later. The brief facts of this case are that on the night of 26th February 1951, three Chaukidars belonging to the M. E. S., concealed themselves with the object of catching certain thieves owing to the fact that certain angle from pickets had been stolen on a previous occasion. It is alleged that at half‑past eight in the night on the above date two persons came and started to remove the angle from pickets. Then petitioner now before me was accordingly caught with seven of these pickets, while the second person managed to escape. The judgment of the lower Court has been assailed on various grounds which relate to the manner in which the trial in the Court of the Magistrate was conducted. It has been alleged before that the provisions of several sections of the Criminal P. C. have not been followed and that the result of the manner in which trial was conducted is such that the entire proceedings are vitiated and should be set aside. In the first place, it is contended that the provisions of section 255, Criminal P. C. have not been complied with to the extent that the charge as framed did not clearly indicate he place at which the alleged theft took place and that the petitioner was not given the opportunity, after the charge had been read over to him, to explain the circumstances, parti cularly as to his plea of guilty. The translation of the charge, which has been framed in Urdu, is reproduced below :‑ " I, Nasibullah, Magistrate hereby charge you Said Nur s/o Haji Mir Qalam accused as follows:‑ That you, on or about 26th February 1951, were caught by Said Muhammad, Jahangir and Saadat, Chaukidars with seven angleiron (pieces) while stealing the same and thereby com mitted an offence punishable under section 379, Pakistan P. C. and within my cognizance. And I hereby direct that you be tried by the said Court (or me) on the said charge." In the first instance, I am constrained to observe that the manner in which the charge is framed is somewhat unfor tunate; for the accepted principles governing the framing of a charge under section 379, Pakistan P. C. are that the charge must specify that in committing the theft the articles in question were removed from the possession of the' legitimate owner. It would also have assisted the Court as well as the petitioner if the charge had stated the place from which the pickets were removed. I do not, however, consider that the manner in which the charge had been framed is such that the petitioner was unable to understand the charge against him, and I am not disposed to think that anything other than an irregularity has been committed. I would, however, draw attention to the need for care in framing of the charge. It is an essential principle of justice that whenever a person appears before a Criminal Court and is charged with some offence, the details of the offence must be so specified in the charge sheet that they will leave no doubt in the mind of the person accused as to the offence he is alleged to have committed. It has been further argued by learned counsel for the petitioner that the provisions, of section 364, Criminal P. C. have also not been complied with in that the examination of the accused (petitioner) has been cursory in the extreme. Again, it is necessary to reproduce the questions and answers which were put to the accused in this connection when he was examined by the Court Question.‑Is it correct that on 26th February 1951, in the evening said Muhammad, Jahangir and Saadat, M. E. S. Chaukidars caught you with seven pieces of angle iron Ex. P when you were taking away the same after removing them ? Answer.‑Yes, No doubt they caught me with 7 angle iron pieces but I am not a thief. On the other hand all the three Chaukidars are my enemies and they caught me at a place whence I was passing. This answer must also be read in conjunction with the answer given when the charge‑sheet was explained. This is reproduced below :‑ Question.‑Do you plead guilty or do you wish to produce defence ? Answer.‑No doubt the M. E. S. Chaukidars Said Muhammad, Jahangir and Saadat caught me with seven angle iron pieces but this is a bogus affair. The Chaukidars are my enemies and antagonists. When I was passing by, 'they bolstered up this case and I was not stealing the seven angle iron pieces. The requirements of this section of the Criminal Procedure Code are of extreme importance since not only do they assist the Court to come to a correct conclusion on the case before him but also they are intended to ensure that a person accused of any criminal offence will be given the opportunity to explain the evidence led against him. The provisions of this section do not of course allow of the cross‑examination of an accused but the questions so put to him should be framed in such a manner that the accused will be given reasonable opportunity to offer his explanation, if he has one, before the Magistrate proceeds with the trial: The petitioner alleged that certain prosecution witnesses were his enemies. This statement may, or may not, be a correct one, but the petitioner should at least have been given opportunity to substantiate this allegation. Subsection (1) of section 364, Criminal P. C. lays down that the whole of the examination shall be recorded in full in the language in which the accused is examined, or if not practical, in the language of the Court or in English. In this case the language in which the statement of the accused is recorded is "Urdu ;, but it has been brought to my notice that the mother' tongue of the petitioner is Pushto. It is also known to me that the mother tongue of the Magistrate was also Pushto. It will therefore be clear that if a person of the status of the petitioner, who is an illiterate tribesman, is accused of any offence, he should, in the normal course of events, where that is practicable, be given the opportunity to explain, or to make a statement in his mother tongue, particularly when that is also the mother tongue of the Magistrate who is trying the accused. It cannot be considered as satisfactory that a statement of such vital importance should be recorded in another language when, in all probability, the statement in which it was made was not in Urdu but in Pushto. Again I do not consider that this is a matter which would vitiate the proceedings but I would once more observe the extreme desirability of recording where possible, statements under the provisions of section 364, Criminal P. C. in the language in which they are made. Accused person must be given every opportunity to explain their case in whatever language they find most easy to use and not necessarily in the language of the Court. A more important question concerning section 364 of the Criminal P. C. is the fact, that the petitioner has not signed the statement which he is alleged to have made to the Court. This is a mandatory provision of section 364, Criminal P. C. and it is necessary to see whether failure to sign the statement can in certain circumstances, be cured by section 533, Criminal P. C. The learned Sessions Judge, when hearing the appeal made reference to the provisions of section 533, Criminal P. C. and held that since no injustice has been done to the accused (petitioner), the failure of the Magistrate to record the signature of the accused was cured by virtue of section 533, Criminal P. C. I would, however, invite particular attention to the provisions of this important section. It will be clear that section 533, Criminal P. C. contains a mandatory provision that in the event of any Magistrate contravening the provisions of section 364 of the Criminal P. C. the Court shall take evidence that such a person duly made the statement recorded. In this case, when the petitioner appeared as an appellant before the learned Sessions judge it was, in my view, incumbent upon the Sessions judge to call' upon the Magistrate and record his evidence that the statement so recorded was made by the accused. The statement, I observe, bears the usual endorsement by the Magistrate but this by no means proves that the statement as such is either a correct or a proper recording of what the petitioner said, particularly when it has been recorded in a language in which I assume it was not made. In this particular case the matter is even more important because the statement, as it stands, purports to be an admission or confession of guilt. In justice to the petitioner I am therefore of the view that since this statement was unsigned, and since the Sessions judge did not comply with the strict provisions of section 533 of the Criminal P. C., this statement should not have been taken into consideration when the appeal was considered. The case should have beep dealt with on its merits solely on the evidence for the prosecution and defence which had been, recorded again, I am of the view that while a serious irregularity has been committed I must, however, take into consideration the prosecution evidence against the petitioner, as it stands, to see whether any grave injustice has been occasioned. The evidence for the prosecution is, in my view, unassailable and there can be no doubt in my mind that the petitioner was guilty of the offence of which he has been charged, since the prosecution evidence stands unrebutted and there is no defence evidence of value in this case. In all the circumstances I do not consider that this is a fit case in which my powers of revision should be exercised by quashing the proceedings. It has invariably been my firm opinion that the revisional powers of this Court, particularly when the findings of fact of two lower Courts are concurrent, are very rarely exercised ; nor is it my intention to substitute an interpretation of the evidence of my own for that of the lower Court. I am, how ever, constrained to note that serious irregularities have been committed in this trial and that the petitioner has been sentenced to a term of one year's rigorous imprisonment for the theft of articles of relatively insignificant value. He is also not a previous convict. I am, therefore, inclined to consider that since the accused has been in jail for a period of over four months the ends of justice will be met if the sentence passed upon him is reduced to the extent of imprisonment already undergone. In accordance with this discretion I order that he shall be released from jail im mediately. A. H. Sentence reduced.