1986 PLP 1191 (MLD)

‑‑‑Ss. 38 & 45‑‑Person punished need not be owner or tenant‑‑Concept of owner or tenant, held, was not found in S.38 and any provision to the contrary in any Regulations framed under S.45 of L.D.A, Act would have no significance‑‑Accused being a person found using property against scheme at spot and later making a confession was squarely hit by mischief of S.38. (f) Lahore Development Authority Act (XXX of 1975)‑‑ ‑‑‑S.38‑‑Criminal Procedure Code (V of 1898), Ss. 439 & 412‑‑No reasons shown as to why Trial Court missed to record plea of guilty correctly‑ Such argument was not supported by any material‑‑Order of conviction did mention offence and being based upon accused own confession, held, could not be upset merely because it did not cite date of commission of offence‑‑Plea of guilty, takes away all possible objections excepting sentence which may not be conformable to provisions. Ch. Rashid Ahmad for Petitioner. Rana Abdullah Khalid for the State. Date of hearing: 16th March 1986. This Criminal Revision calls in question an order, dated 24‑7‑1985 of the learned Additional Sessions Judge, Lahore, whereby the petitioner's appeal against conviction under section 38 of the Lahore Development Authority Act, 1975, as recorded by Mian Taj‑ul‑Malook Qureshi, Magistrate, L.D.A. the same day was, dismissed. A sum of Rs.10,000 as fine covering a total period of twenty days at the rate of Rs.500 per day was awarded to him and, of course, in default he was to undergo S.I. for three months. The appeal was dismissed presumably because the petitioner had pleaded guilty.

2. The respondent was called to consider if there could be any sentence of imprisonment in default of payment of fine, as section 38 of the L.D.A. Act did not provide for the same.

3. Ch. Rashid Ahmad for the petitioner raised q number of points to support the Revision. Firstly, he urged that the summary procedure could not have been adopted in this case as no application under section 34(5) of the aforementioned Act had been made by the prosecutor. He maintained that in the absence of any such formal application, it did not lie for the Magistrate to suo motu adopts summary procedure for punishing the offence. Secondly, he submitted that since in this case imprisonment could be for one year, it could not have been possibly tried summarily. According to section 260, Cr.P.C. no offence for which the punishment exceeded six months could be tried in summary way. Thirdly, he contended that under the regulations made under the Act, only the owner or the tenant could be punished for such encroachments and that since the petitioner was not proved to be either the owner or the tenant, punishment inflicted upon him was against. the aforesaid regulations. Fourthly, he urged that the plea of guilty attributed to the petitioner was not recorded in accordance with ‑his statement and that the judgment sheerly lacked in many respects in having failed to give the date of offence, the offence itself and all that. In this behalf he expressed surprise why he was punished for twenty days when the charge itself was not clear. Last but not the least, he claimed, that the whole procedure was unreasonably, sketchy inasmuch as everything happened on the same single day, namely, that the petitioner was arrested on 24‑7‑1985, was tried and punished the same day and that no opportunity was afforded to him to produce his defence.

4. On behalf of the State, Rana Abdullah Khalid tried to support the conviction pointing out that in a way the petitioner had been shown indulgence for having been punished only for twenty days as against his confession of committing this offence continuously for six‑seven months and further that the upper limit of six months imprisonment provided in section 60, Cr.P.C., was in applicable to offences falling under the L.D.A. Act. Section 38 itself, he urged made such offences triable summarily.

5. I do not think there is much in favour of the petitioner except that he could not be punished for any imprisonment in default of fine. This is not countenanced by section 38 which is the penal' provision invoked against him. The sentence could be either fine or imprisonment not exceeding one year but there is no provision to punish an offender there under in default of payment of fine. To this extent the order o. the learned Magistrate seems to be hit by law and cannot be sustained.

6. In regard to the absence of application under section 34(5) o the Act, it could be even oral although the record does not support. But it is a case in which the petitioner should have taken objection at the start. He did not raise it before the trial Magistrate where he quietly conceded the offence telling rather bold that he had been committing it for six‑seven months. He seems to have had made the matter rather graver against himself. It was a procedural defect, if at all, not going to tire root of the trial which primarily rested on hi own confession The contention that his statement had not been scrupulously recorded by the Magistrate cannot be entertained, for, presumption is attached to the record. Quite a number of questions were put to him. and he made categorical replies thereto indicating clearly not only that he was continuing this encroachment for last six‑seven months but also that he was even earlier punished by a fin of Rs.2,

000. Obviously any procedural defect could not be given much weight in face of the recurrence of the commission of the offence. No doubt ordinarily summary trial could not be ordered for an offence entailing punishment exceeding six months but here is a statutory provision which may be read as an addition to the catalogue of cases enumerated in section 260, Cr.P.C. Section 38 ibid provides in a flat rate that all offences under this special law may be tried summarily. Obviously, it is to prevail against the general provisions made in the Cr . P. C . No exception could be taken to the impugned conviction on this score.

7. The argument that only the owner or the tenant could be punished is neither here nor there. It is the "person or agency" using the property for purposes other than the one provided under the scheme, who can be punished. The concept of owner or tenant is not found in section 38 and, therefore, any provision to the contrary in an regulations framed under section 45 will have no significance. The petitioner being a person using the property against the scheme was allegedly found at the spot and later he made a plain confession. H was, therefore, quite squarely hit by the mischief of section 38.

8. As already observed, to contend that the record was not properly maintained is against the presumption normally attaching to the record of the Courts. There was no reasons shown why after all the learned Magistrate should have gone out of steps to miss to record the plea of guilty correctly. The argument was just stereotyped not supported b any material and therefore, does not deserve any consideration. The impugned order does mention 'the offence and being based upon the petitioner's own confession cannot be upset merely because it does not cite the date of the commission of the offence. The plea of guilty take away all possible objections excepting, of course the sentence which may not be conformable to the provisions.

9. Accordingly the Revision is accented only to the extent that the sentence of three months' S.I. awarded to the petitioner in default of fine ig set aside. The rest seems quite O.K., and is maintained. H.A.K. Revision partly accepted.