P (PLP)

R. K. M. SAKER J. C.‑

Before I proceed to deal with the merits of this case, I wish to observe, as I have repeatedly stated before, that while the powers of revision of this Court are virtually unfettered, it is not normally the practice of this Court to interfere particularly in a case where there are two concurrent findings of fact in the Lower Courts, unless it is abundantly clear that the judgment of the. Lower Courts were perverse and have led to clear, miscarriage of justice. In the light of these principles I now proceed to deal with the case before me. I first observe that the convict‑petitioners were convicted in the Court of the E. A. C. and Magistrate First Class, Chaman and, that their appeal was dismissed in the Sessions Court. It follows therefore that in the light of the principle enunciated above, the case for the accused‑petitioners will have to be extremely strong before the revisional powers of this Court are attracted. Before dealing with the facts of the case, it is necessary for me to examine the procedure followed by the Trial Magistrate for the trial of the accused‑petitioners in order to see whether any material irregularity has been committed which would necessitate the setting aside of their trial on these grounds. The learned counsel for the petitioners has first argued that the provisions' of Section 367, Criminal Procedure Code have not been complied with in the Trial‑Court in that the learned Magistrate has not written a judgment confirming to the requirements of this particular section. I first observe that in accordance with the provisions of this section no particular form of judgment has been prescribed as the section in question merely requires that a Presiding Magi strate will set forth the points for determination and will then come to a finding upon them. In the case before me, I do not feel dis posed to think that the order of the Magistrate was written in such a manner as to be contrary to the requirements of section 367, Criminal Procedure Code .for the Magistrate came, whether rightly or wrongly, to the conclusion that since the accused‑petitioners had pleaded guilty they should be convicted: He, therefore, briefly in his judgment, set forth his reasons and proceeded to convict them accordingly. I will later in this order proceed to examine the propriety or otherwise of the Magi strate in accepting the plea of guilt by the accused‑petitioners. Since no particular form has been laid down for the judgment to be written, the main requirements of section 367, Criminal Pro cedure Code are to the effect that the judgment must be reasonably lucid since this assists an Appellate or Revisional Court when reviewing the case at large before it at a later stage. Failure to comply with the provisions of this section would normally vitiate the trial but when there is an element of doubt as in the case before me, I do not think that this irregularity if such an irregula rity has been committed, would be sufficient for me to set aside the proceedings on this ground alone, since the Magistrate having accepted a plea of guilty, was only required to state in brief the reasons why he convicted the accused‑petitioners. The second submission made by learned counsel for the accus ed‑petitioners was that the charge‑sheet was defective and that no time had been given to the accused‑petitioners to think over or to consult a lawyer before they were asked to submit their pleas. In this connection, it is first necessary to examine both the pro visions of sections 255 and 256, Criminal Procedure Code. In the case of section 255, Criminal Procedure Code, it is stated that if an accused pleads guilty after the charge had been read and explained to him the Magistrate shall record the plea and may, in his discretion, convict him thereon. In the case before me, since the Magistrate recorded a plea of guilty, it was therefore within his competence to proceed to convict them. On the other hand section 256, Criminal Procedure Code requires that a time will be given before an accused person is called upon to enter into his defence. The operative portions of this section, however, relate to cases in which an accused person either refuses to plead or does not plead or claims to be tried. If therefore a Magistrate faded to abide by the provisions of this section in permitting an accused person to state whether he wished to cross‑examine any prosecu tion witnesses at the next date of hearing, it would, in all prob ability, vitiate the trial in cases in which accused persons were not legally represented in Court or when the Magistrate failed to record his reasons for questioning the accused the same day. It is a fact in this case that the accused were not represented, but as I have stated, the Magistrate, having recorded a plea of guilty proceeded to comply with the provisions of section 255, Criminal Procedure Code and not section 25,6, Criminal Procedure Code. Learned counsel has, however, argued that since in accordance with the wording on the back of the charge‑sheet where the learned Magistrate has apparently asked the accused whether they wished to cross‑examine any prosecution witnesses and whether they wished to call any witnesses, the presumption must be raised that the Magistrate had accepted a plea of not guilty. I cannot, however, accept this contention, for the Magistrate has completed the printed form up to the stage where the question about the cross examination of prosecution witnesses arrived. In answer to both this question and the question about the calling of defence witnesses he has written the word "nil". From this I can only infer that no such question was put to the accused‑petitioners. It would have been simpler, however, if the Magistrate had left the answers to these questions blank. I now come to the more important question of the plea of guilt made by the accused‑petitioners in the Trial Court as well as the wording of the charges. In the first place, as I have already stated, the accused‑petitioners were not represented in the Trial Court. They were therefore presumably unacquainted with the technicalities of the law or were not given the fullest possible opportunity to realise what their pleas meant. The question therefore for decision is whether the plea of guilt was in fact such a plea or whether, as alleged by learned counsel, it was a mere admission of certain facts. I must first reproduce the wording of the three charges as framed by the trial Magistrate which read as follows :‑ (1) "I‑‑‑hereby charge you‑‑‑as follows :‑ That you, on or about the 27th day of January 1950; unloaded motor truck No. 8398 from a sealed wagon at the Chaman Railway Station and took it to Chaman Bazar without taking delivery and that Muhammad Rahim and Nazar Gul were also with you and thereby committed an offence punishable under section 380, Pakistan Penal Code." (2) That you, on or about the 27th day of January 1950 unloaded two trucks from the railway wagons which were sealed at the Chaman Station and took one truck without taking delivery‑Nazar Gul and La1.Muhammad were also with you; and thereby committed an offence punishable under section 380, Pakistan Penal Code", (3) That you, on or about the 27th day of January 1950 unloaded motor truck No. 8398 from a railway sealed wagon at the Chaman Railway Station and took it to Chaman Bazar without taking delivery from the railway authority and thereby committed an offence punishable under section 380, Pakistan Penal Code". I consider it was unfortunate that in framing the wording of these charges the Magistrate did not comply with the accepted principles governing a charge falling under section 380, Pakistan Penal Code. The proper method of framing a charge under this section should be as follows :‑ "That you, on or about the‑‑‑day of‑‑

at‑‑‑‑,com mitted in a building (or tent, or vessel), used as human dwelling (or for the custody of property), the theft of‑‑‑belonging to AB, and thereby committed an offence punishable under sec tion 380, Pakistan Penal Code". From the wording as actually used it would appear to me that the accused persons were not given the fullest opportunity to under stand the seriousness of the allegations made against them and I cannot but come to the conclusion that in pleading guilty they were admitting only certain facts which throughout the trial they had never denied. They did not, I feel, admit that their actions were such as to fall within the purview of a crime as defined under section 380, Pakistan Penal Code. Such offences are of a serious nature punishable with relatively long terms of imprisonment. A person therefore appearing before a criminal Court and not legally represented, particularly a person who is not a hardened criminal or who is not a previous convict, might well be unaware of the gravity of pleading guilty or of the punishment to which he was likely to be subjected in the event of his pleading guilty. The facts of this case speak for themselves and I reproduce them below very briefly as they are important in coming to a decision on the question of the plea of guilt. The accused petitioners, who are paid drivers of certain persons living at Chaman, removed, from sealed railway wagons, two lorries from the railway premises in Chaman without either paying the railway freight and without permission from the railway authorities. These briefly are the facts of the case and it is to these facts that the accused‑petitioners have made admissions. I am inclined to think that their pleas were simple admissions of facts without being pleas of guilt to an offence which was punishable under section 380, Pakistan Penal Code. I now propose to deal with the argument raised by learned counsel that the alleged removal of the trucks from a railway wagon does not constitute an offence falling under the provisions of section 380 Pakistan Penal Code since it has been held that railway wagon is not a building. With this view I am disposed to agree, for it has been held on frequent occasions that a railway wagon is not a building. If any offence was committed by the accused it would have fallen under the less serious section namely section 379, Pakistan Penal Code. It would therefore appear that the accused‑petitioners have not only wrongly been charged but have been convicted under a wrong section. I now once more return to the facts of the case since the whole case is at large before me both as to the facts‑and law. I would, however, before reviewing the case at large, remark that I consider no serious irregularity in the legal procedure has been committed which would, in my opinion, vitiate the proceedings. I will discuss later whether or not the conviction under section 380, Pakistan Penal Code should be modified to one under section 379, Pakistan Penal Code provided I am satisfied that it would cause no prejudice to the accused. The learned Sessions judge in his judgment has remarked that the case is one of theft since the property, namely the trucks in question, were property belonging to the Railway authorities. The Railway do not, I consider, become the owner of the goods deliver to them for carriage, but under section 72 of the Railway Act it responsibility is that of a bailee. They must take care of goods as an ordinary man would take care of his own goods. Section 55 of the same Act gives the Railway Company a general on the goods which they carry for others until such time as se goods are in their custody. They have a right to retails session of the goods, as a security, until their charges or dues paid. Section 55 of the Railway Act also gives them, under certain circumstances, a right of sale of these goods in the event of their charges not being paid. It is in evidence that although the accused‑petitioners removed the trucks from the possession of the railway on a certain date, the owners of these trucks paid all dues to the railway authorities the very next day. The trucks had been removed without the personal knowledge of the owners by the present accused‑petitioners who were their drivers. I am therefore concerned with the question of whether the accused petitioners acted in a dishonest manner or not, since dishonesty is an essential ingredient of the offence of theft whether that falls finder section 379 or the following sections of the Pakistan Penal Code. No defence has been led to show that the accused‑petitioners were under the impression that railway dues had been paid by the owners; therefore it follows as a matter of course that the accused petitioners did in fact remove these trucks firstly without the permission of the railway authorities and secondly without as certaining themselves whether the railway dues had been paid. It is, however, in the evidence that the removal was by no means clandestine since it took place in broad‑day light and the accused petitioners made no attempt to hide what they had done. All the facts of the case would therefore appear to indicate that while the accused‑petitioners have by no means acted in a proper manner, their actions cannot be construed as of a serious criminal nature. From that they did, it is clear that the required ingredients of section 379, Pakistan Penal Code are complete in this case. The intention of the accused‑petitioners was, to some extent, dishonest. They must have been well aware that it is not permissible to remove goods from the possession of the railway authorities except their permission. To do so without permission, and without pawing dues, is undoubtedly a dishonest act. I therefore propose to modify the judgment from a conviction under section 380, Pakistan Penal Code to a conviction under section 379, Pakistan Penal Code. Since the accused‑petitioners have, in the Trial Court, been sentenced to six months' rigorous imprisonment I am inclined to think that in all circumstances of this sentence is unduly severe. As correctly pointed out by the learned Public Prosecutor, it would be improper for this or any Court to encourage persons to remove even their own goods from the possession of the railway authorities without Their knowledge or without paying the dues upon them and to disregard such illegal acts might encourage others to behave in a like manner. I am therefore not prepared to overlook completely the offence which the accused petitioners have committed. In the circumstances of the case since a more lenient sentence would, in my opinion, be more appropriate, I propose to set aside the sentence of six months'‑rigorous imprisonment and a fine of Rs 100 passed against each of the accused‑petitioners and substitute one of imprisonment already undergone ‑and a fine of Rs. 50 each or in default of payment of fine one month's rigorous imprisonment. To this extent only is the revision petition accepted. A. H. Conviction altered, Sentence reduced.