P L D 1961 (W (PLP)

Mushtaq Hussain Khan and A. H. Minto for Appellants. Asghar Ali and A. H. Sabswari for Complainant. Dates of hearing : 25th and 27th September 1961. Abdur Rashid alias Sheeda, Hafiz and Muhammad Bashir Pardesi have been convicted under section 326/34, P. P. C., and sentenced to seven years' rigorous imprisonment, by Mr. Ehsan‑ul‑Haq Minhas, Magistrate 1st Class with section 30 powers, Gujranwala, by his judgment dated the 18th of May 1961. Abdur Rashid and Hafiz have filed a joint appeal (Cr. A. No. 386 of 1961), while Muhammad Bashir Pardesi has filed Criminal Appeal No. 428 of 1961. This judgment will dispose of both the appeals.

2. On the 16th of August 1960, Allah Ditta (P. W. 1) was sitting on a charpoy under a pipal tree near his milk and curd shop. Feroze Din (P. W. 4), Muhammad Shafi (P .W. 9) and some others were also present near‑about. Abdur Rashid appellant came near the shop of Allah Ditta P. W. and went back. Some time later, he again came to the shop of Allah Ditta and again went back. He came for the third time to the shop of Allah Ditta and upon his asking informed him that he was looking for somebody. After a little while, the three appellants came to the shop of Mehraj Din nanbai situated close to the shop of Allah Ditta P. W. Bashir appellant bad a bottle in his hand, while Hafiz had a cup in his hand. Allah Ditta enquired if they were going to take wine. Bashir appellant denied and they entered the shop of Mehraj Din. Hafiz then came to the shop of Allah Ditta and enquired from him if he had milk with him. Allah Ditta P. W. replied that he had no milk but he could offer cream. Hafiz shouted for the other two appellants that they should bring a cup and take the cream. There upon the other two appellants came. Bashir was holding a cup in his hands. They came close to the shop of Allah Ditta and reaching near him Bashir appellant threw some liquid from the cup on the face of Allah Ditta P. W. After that the appellants ran away. Allah Ditta P. W. cried with pain, saying that he had been burnt. Muhammad Shafi and Feroze Din P. Ws. raised a hue and cry. Some people collected at the spot and they took him to Civil Hospital, Gujranwala. Doctor Hasnain Yar Khan (P. W. 2) examined the injured person and informed the Station House Officer, Sadar. Assistant Sub‑Inspector' Shaukat Hussain came to the hospital and as Allah Ditta was not in a fit condition to make a statement, .he recorded the statement of Muhammad Shafi P. W. who was present in the hospital. The first informa tion report Exh. P. C/1 is based on this statement Exh. P. C.

3. About fifteen or twenty days before the occurrence. Allah Ditta had accused Bashir appellant of having committed theft of yarn from a cloth mill near the Hafizabad Octroi Post. Allah Ditta P. W. along with others was tried about twenty years before this occurrence for having caused the death of Muhammad Ramzan, the father of the other two appellants. It is because of these grievances that all the three appellants joined together to throw acid on Allah Ditta causing him grievous injuries.

4. This appeal will have to be disposed on a legal ground. The evidence of the first witness Allah Ditta was recorded on the 21st October 1960 by Mr. C. M. Hanif, Magistrate Ist Class. On the same day, a charge under section 326/34, P. P. C. was framed against the appellant. The Magistrate described himself as a Magistrate 1st Class in the charge. This fact is admitted that he was not invested with section 30 powers at that time. On the 29th of October 1960, the case was taken up by Mr. Yusuf, Magistrate 1st Class, who was also not invested with section 30 powers. He recorded the rest of the prosecution evidence. The statements of the accused were also recorded by him on the 3rd of March 1961. After that, the case came up before Mr. Ehsan ul‑Haq Minhas on the 27th of March 196 1, on which date he recorded the statements of the accused whether they would like to have a de novo trial, but they did not claim a de novo trial. Consequently, he summoned the defence evidence of the appellants which he recorded on the 6th of April 1961 and 8th of April 1961. On the 8th of April 1961, the statements of all the three appellants were recorded closing their defence evidence. Up till this stage, Mr. Minhas also described himself in the proceedings as a Magis trate 1st Class. The case was put up for arguments on the 15th of April 1961, and adjourned to the 24th of April 1961 for orders. This case was further adjourned to the 29th of April 1961, 9th of May 1961, 17th of May 1961 and ultimately to the 18th of May 1961, when all the three appellants were convicted and sentenced to seven years' rigorous imprisonment under section 326/34, P. P. C. Mr. Minhas also described himself as a Magistrate 1st Class in the proceedings till the 17th of May 1961, but in the routine order of 18th May 1961, and the judgment he has signed as Magistrate 1st Class with section 30 powers.

5. It has been urged by the learned counsel for the appellants that at no stage of the proceedings the accused were informed that they were being tried by a Magistrate exercising enhanced powers under section

30. The circumstances of this case are rather peculiar. The trial was initially started in the Court of a Magistrate 1st Class. It continued as such till the statements of the accused were recorded under section 342, Criminal Procedure Code, but when the case reached the stage of the defence, the trial Magistrate was succeeded by a Magistrate who was invested with section 30 powers. There is no doubt that the appellants did not claim a de novo trial and, therefore, the trial by Mr. Minhas was conducted properly. When he recorded the defence evidence he did not sign either under the statements or under the routine orders that he was trying the case as a section 30 Magistrate. If he had informed the accused that he was holding the trial as a section 30 Magistrate, there would have been no Abjection as to the validity of the sentence passed against the appellants. The fact that Mr. Minhas described himself in the heading of his judgment as invested with section 30 powers is immaterial. Mahi v. Emperor (17 Cr.LJ 461) is a clear authority on this point. He did not act under those powers and a sentence of rigorous imprisonment for more than two years is, therefore, illegal I would refrain from expressing any opinion on merits in this case, but I consider that in case of conviction a sentence of two years' rigorous imprisonment would be inadequate. Allah Ditta has lost one of his eyes and the whole of his face has been disfigured. I would, therefore, set aside the conviction of the appellants and order a retrial in this case. The case will be sent to the District Magistrate, Gujranwala, who will either try it himself or entrust it for trial to a section 30 Magistrate other than Mr. Ehsan‑ul Haq Minhas. The appellants are allowed bail in the amount of Rs. 2,000 to the satisfaction of A. D. M., Gujranwala. K M. A. Retrial ordered.