1981 P Cr (PLP)

CHAUDHRY RAHIM DAD KHAN, C. J: This appeal, by leave, against the order of the acquittal, recorded by the High Court on 23-12-1976, arises out of a criminal .proceeding in which the I. -Forest Magistrate, Muzaffarabad, by his order dated -15-12-1976 convicted Ali Zaman and Ali-ur-Rahman respondents for offences under section 6 of the Forest Regulation and section 7 of the Shamlat Deh Act of 1966 and sentenced them to imprisonment till the rising of the Court and a fine of Rs. 25 each; in default of :payment of fine they were to undergo 4 days' simple imprisonment. Their ejectment from the disputed land and also demolition of the house built thereon was ordered. The timber used therein was to be auctioned, the sale proceeds so received were ordered to go to the treasury. On revision, filed by the respondents, the learned Single Judge of the High Court was pleased to acquit them vide his order dated 23-12-1976. It was observed that: "The application on behalf of any person cannot be termed to be legal evidence until the application is not duly proved. The judgment in -fact does not tell me that the statement of Mst. Reshman was recorded. The learned Advocate-General also concedes that there is no evidence to prove any case against the petitioners." The Court further remarked that "there is no need for sending for the record of the trial Court". Against this order a petition for leave to appeal was submitted on the grounds: (a) that the High Court did not send for the record of the trial Court and the order of the acquittal passed, by the High Court, without going through the record of the trial Court, is contrary to rule of procedure; and (b) that the case could be remanded for re-trial even if the judgment of the trial Court was found defective. These grounds were supported by an affidavit filed by the Additional Advocate?-General. Consequently, leave was granted to examine whether the impugned order was justified and could be made without sending for the record and examining, the same. Notices were issued to the respondents accused to appear before the Court. The appeal came up before the Court for hearing on 24-4-1979. On that date the Additional Advocate-General, Sardar Rafique Mahmood, was not present in the Court and in his Raja Muhammad Akram Khan, Advocate-General, appeared on behalf of the State. On perusal of tie' record it was found that the grounds taken in the Petition and affirmed by the affidavit, submitted in support thereof, were contrary to the facts on the file. It was found that the requisition of the record was made by the High Court under its letter No. 4722-24 dated 22-12-1976 which is at page 12 Part IB of the trial Court File No. 113 of 76, entitled State v. Ali Zaman and others. The file was sent on 23-12-1976 under No. 818 which is at page 2 of the trial Court file. Consequently, separate proceedings were initiated against Mr. Rafique Mahmood, Additional Advocate-General also in File No. 8 State v. Sardar Rafique Mahmood to show cause why action should not be taken against him for submitting a factually incorrect affidavit.

2. We have perused the files of the trial Court as well as that of the High Court. It was rightly conceded by Mr. B. A. Shaikh, the then Advocate?-General, that "there is no evidence to prove any case against the petitioners." Chaudhry Basbir Ahmed, Forest Magistrate, based the conviction on inadmissible evidence and followed a procedure not warranted by any rule or law.????????

3. The trial, in fact, bad been conducted in a perfunctory manner and bristles with irregularities. Six accused were prosecuted by the Forest Department. One died during the pendency of the trial and two were convicted for an offence under section 6 .of the Forest Regulation as well as under section 7 of the Shamlat Deh Act; though the Forest Department did not prosecute them to stand their trial for the later offence. Accused were prosecuted only for causing damage by felling 4 Chil trees from the disputed area. In fact, neither an offence under section 6, Forest Regulation, nor any violation of provisions of the Shamlat Deh Act was proved against any one of them.

4. The processes were issued against six accused. There is neither letter of authority on behalf of other accused authorising Ali-ur-Rahman for acting on their behalf during the trial nor there is any specific order by the Magistrate permitting him to act on behalf of the accused. In the absence of an authority given by the accused to act on their behalf; a Magistrate is not justified to proceed with the case when accused, who are being prosecuted, are not present before him. Section 353, Cr. P. C. regulates the procedure in this behalf and clearly provides that a Magistrate should take and attest a deposition in the presence of the accused and should also, "by the use of few apt words on the face of the deposition" make it apparent that he has done so. The trial of an accused persons becomes nullity when the evidence is taken in the absence of the accused. A person, against whom a summon has been issued, may be exempt from personal appearance provided he engages a pleader or an attorney to attend and see that the proceedings are properly and legally conducted against him. Section 205, Cr. P. C. confers discretionary powers on the Magistrate to dispense with the personal attendance of the accused cases where summons have been issued in the first instance. Where presence of the accused is dispersed with all the evidence shall have to be taken in the presence of his pleader or attorney. This is a basic principle of administration of criminal justice that the examination of the witnesses must be carried out in the presence of accused or his pleader or attorney but there is nothing on the record to show that Ali-ur-Rahman, one of the accused, was either appointed attorney by the other accused or he was permitted by the Court to act on behalf of other accused as attorney. All evidence in a criminal trial, as a rule, is to be taken in the presence of the accused or where his personal appearance is dispensed with in presence of his pleader or attorney. However, there is an exception to this rule which is contained in section 512, Cr. P. C. which enables the Court to examine the witnesses and record their deposition under certain given conditions. A conviction based on evidence not recorded in the presence of the accused or his authorised attorney, being illegal, cannot be maintained.

5. The case was being tried under procedure prescribed for summary trial. When an officer exercises a power specifically conferred, as, for example, the power to try cases summarily, or the power to pass a sentence of whipping, in the case of a Magistrate II Class, the record and final order in any criminal proceeding or trial must disclose the fact that such officer is specifically empowered in that behalf but the record in the instant case and the copy of the judgment that was placed on record, do not disclose the fact that the Forest Magistrate was specifically empowered to try cases summarily.?????

6. In case of conviction, in a summary trial, it is obligatory, under section 263/264; Cr. P. C., to give summary of evidence and concise statement of reasons to show that there was, in fact, sufficient evidence necessary to prove the ingredients of the offence of which the accused is convicted. There is not a single witness, out of the witnesses mentioned in the calendar, 'who says that the damage by felling 4 chil trees was caused by any one of the accused in their presence. The trees were allegedly felled from a place which is claimed by the accused as their .own property. There is no evidence in support of the claim of the Forest Department that the disputed land belongs to the forest department. Ali-ur-Rahman accused person claims that the disputed land belongs to the accused. The question of the title was involved, that was hotly contested by the accused present in the Court. There is no evidence in support of the claim of the Forest Department that the disputed land, where from the alleged trees were fell down; is the property of the, department. In cases where title is involved and it is contested, it would not be fair to hold summary trial because complicated question of title cannot be properly decided, in a summary trial.

7. The Forest Magistrate examined, under section 242, Cr. P. C., Ali-ur-Rahman alone who made statement on his oven, behalf as well 'as on behalf of other accused as their, so-called, representative. It vas the solitary statement on behalf of all the accused without any explanation regarding any matter as the accused was not asked to make any such explanation. Even Ali-ur-Rahman was not at all examined under section 342, Cr. P. C. Examination of the accused under section 342, Cr. P. C., in a summary trial, is imperative though it may not be taken with all formalities of section 364, Cr. P. C. Section 342,Cr. P. C: contains general provisions which are mandatory and which would equally apply to summons trial as well as summary trial. Since the accused have been acquitted and there is no 0idence; and also because there being no reasonable probability of conviction, it would serve no useful purpose if re-trial is ordered after the acquittal of the accused by the High Court.

8. In the course of local inspection no memorandum was prepared and certain persons, present on spot, were examined by the Magistrate. Section 539-B, Cr. P. C. contains positive safeguards necessary to be observed while making local inspection. According to the said provisions in a case where inspection of the spot is considered material for the ends of justice, the Magistrate or Judge should make local inspection only; (i) after due notice to the parties and (ii) observations must be incorporated in a memorandum to be placed on record. No memorandum in the instant case was made by the Magistrate. Local inspection by a Magistrate obviously is permitted only for a purpose of appreciating the evidence in a case i.e., for understanding and for testing the veracity of the witness and not filling up the gaps left out by the prosecution. We sent for the Summary Trial Register maintained by the Forest Magistrate. It is regrettable that it is not being properly maintained. Memorandum of statement of the witnesses and that of the accused is not recorded in the relevant column. It appears from Order dated 26-8-1976 that the Magistrate made a local inspection on that date and during the course of local inspection he also recorded statements of few persons, present there, who were not cited as prosecution or defence witnesses. The purpose of the visit should be to understand the evidence and not to obtain information that was not manifest from the statement of the prosecution witnesses. Statement of the accused had not, been recorded in the relevant column but in Column Nos. 8, 9 and

10. Column No. 10 is meant for recording memorandum of the evidence of the witnesses while the statement of the witness has been recorded in Column Nos. 6 and 7; meant for other purposes. The Register of Summary Trial is neither bound properly nor the pages are marked serially. Perusal of the Register shows that the Magistrate is not at all conversant with the procedure prescribed for summary trial. Judgment with certain particulars being the only record, it is incumbent on the Magistrate to write a judgment embodying substance of the evidence. Merely saying that the offence is proved against two accused and note proved against three is not sufficient In fact, there is no evidence at all even against the accused who have been convicted. Since the accused have been acquitted by the High Court and there is no probability of conviction on the basis of evidence in the case, it would serve no useful purpose if re-trial is ordered in the instant case. Consequently, in spite of the fact that the trial was conducted in a manner not warranted by law or procedure, we do not approve the procedure, adhered to in the instant case by the trial Magistrate and we would insist upon compliance of the procedure prescribed in Criminal Procedure Code relating to the summary trial (for which the Registrar of the Supreme Court. shall issue a circular to the Registrar High Court) but nevertheless; in view of the insufficiency of evidence and improbability of conviction we do not think it fair to order re-trial. Hence the appeal is dismissed. The respondents are discharged of their bail bonds. Appeal dismissed.