P L D 1952 Peshawar 53 (PLP)

MUHAMMAD SHAFI, J.‑Altaf Hussain, aged about 20 years, son of Mian Fazal Qadar of Mohallah Mullah Fasih, Peshawar City, was convicted by the learned trial Magistrate under section 170, Pakistan P. C. and sentenced to six months simple imprisonment. There was an appeal against this order to the Sessions Judge Peshawar, who maintained the conviction but reduced the sentence to three months' simple imprisonment. Altaf Hussain has come up on revision to this Court. The charge against the accused‑petitioner was that he on 20th July, 1950, pretended to be an official of the Sales Tax Department, and under colour of that office attempted to check the accounts of Fida Muhammad. It may incidentally be men tioned that although the accused was asked whether he under the same pretence attempted to check the account‑books of Adam Khan and Taj Muhammad shopkeepers, no charge with respect to these two persons was framed against him. In support of the charge the prosecution produced Taj Muhammad, Adam Khan, Agha Muhammad, Fida Muhammad, and Fazal Razik. Taj Muhammad stated that he was sitting at the shop of Adam Khan when the accused came to that shop and demanded accounts from Adam Khan, alleging that he was an Income‑tax Inspector. Adam Khan made a similar statement, but he added that he did not show the account‑books, and told the accused that the real owner was absent. Agha Muhammad and Fida Muhammad, the two brothers, deposed that they had a joint shop, and that on the day of occurrence the accused went to them, and pretended to be an Income‑tax Inspector, and in that capacity demanded their account‑books for check. These two brothers, however, asked him to wait for two days more, which the accused agreed to. Fazal Razik, who is a Sales Tax Inspector, stated that on 20th July, 1950, he was sitting in the shop of Agha Muhammad, when Adam Khan and Taj Muhammad came there, and inquired from him, if there was anybody by the name of Iltaf Hussain an Income- tax Inspector, and he replied in the negative. In the meantime the accused came and he vas summoned to that shop by Taj Muhammad. Fazal Razik asked him in which department he was serving, and the accused replied that he was serving in Taxation Department. Fazal Razik then prepared a complaint (Ex. P. A.), and sent it to the Police, where it was incorporated in the F. I. R. The proceedings of the learned trial Court are open to very serious objection on account of two reasons, firstly, that the evidence of some of the witnesses was recorded by one Magistrate and the rest of the evidence by another, and yet the Magistrate, who succeeded the first Magistrate, did not ask the accused if he wanted a de novo trial. It is true that in law the Magistrate is not bound to put this question to the accused, but in justice and equity, when a Magistrate takes over the charge of a case, he should inquire from the accused whether he wants a de novo trial or not. Secondly, in this case the accused was examined on 3rd March, 1951, and a charge wash framed against him on the same day. One prosecution witness (Fatal Razik) was examined subsequently on 19th June 1951. After examining this witness the Court failed to give an opportunity to the accused to explain that evidence. Section 342, Criminal P. C. makes it obligatory for the Court to question the accused generally on the case after the witnesses for the prosecution have been examined. Failure of the Court to comply with the provisions of section 342 Criminal P. C., in my view, causes prejudice to the accused, which cannot be cured by section 537 Criminal P. C. It may be mentioned here that the charge framed against the accused also appears to be faulty, because in it, it is stated that the accused pretended to be an official of the Sales Tax Depart ment, while in evidence it was alleged that he pretended to be an Income‑tax Inspector. On account of the illegalities committed by the trial Court, I have no other alternative but to quash. the proceedings, set aside the conviction and sentence of the accused, and direct that the case be retried either by the District Magistrate, or by some competent Magistrate, subordinate to him, other than the Magistrate who has tried the accused. I may note further that at the time of the examination of the witnesses, the Magistrate should keep in view their statements recorded by Mr. Noor Illahi Khan, presumably under section 164, Criminal P. C., wherein they had stated that their account‑books had actually been checked by the accused‑petitioner. At the trial, it will be noticed that they said that they had refused to show the account‑books to the accused‑petitioner for some reason or another. This disparity between the two statements must be explained by the witnesses themselves. Order announced. A. H. Retrial ordered.