2020 P Cr (PLP)

ALI BAIG, J.

Through the instant writ petition filed under Article 86(2) of Gilgit-Baltistan Order 2018 read with section 561-A, Cr.P.C. against the impugned judgment/conviction order dated 30-10-2019, passed by the appellate authority/Secretary Forest and Wildlife Gilgit-Baltistan, whereby, the respondent No.1 has maintained the impugned order passed by the respondent No.2, whereby, the respondent No.2 had convicted the petitioner and sentenced to imprisonment for 6 months and has also imposed a fine of Rs.100,000/- on the petitioner/convict.

2. Succinctly facts giving rise to the filing of the instant writ petition are that the Field Staff of Wildlife Department posted at Bagrote valley reported the matter to DFO Wildlife Department Gilgit that they have recovered one head of Ibex from the cattle shed of the present petitioner/convict. Accordingly, a case under sections 8, 9, 10, 22, 29 and 34 of Northern Areas Wildlife Protection Act, 1975 was registered against the petitioner/convict before the DFO Wildlife/Magistrate 1st Class; who, after conducting trial of the petitioner summarily, has convicted the petitioner under the aforesaid provisions of Northern Areas Wildlife Protection Act, 1975 and sentenced him imprisonment for six months along with fine of Rs.100,000/- vide order dated 28-09-2019.

3. Feeling aggrieved by the aforesaid impugned order of the learned trial Magistrate/DFO Wildlife, the petitioner had filed an appeal before the appellate authority Secretary Forest and Wildlife Gilgit-Baltistan; who, after hearing the parties, has maintained the conviction order passed by the learned trial Magistrate vide the impugned order dated 30-10-2019, hence this writ petition.

4. The learned counsel appearing on behalf of the petitioner/convict have contended that the impugned judgments/orders passed by the trial magistrate as well as appellate authority are contrary to law and facts on the record of the case as such the impugned orders are not maintainable and liable to be set aside. The learned counsel for the petitioners have further argued that the head of Ibex has been recovered from the possession of the petitioner/convict in presence of impartial marginal witnesses; hence, the field staff of Wildlife Department have falsely implicated the petitioner/convict in this case with mala fide intention as there is some personal grudge of the petitioner/convict with the complainants/Wildlife Field Staff. The learned counsel for the petitioner have further argued that the learned trial magistrate/DFO Wildlife has not properly recorded confessional statement of accused under section 164, Cr.P.C. and has also not conducted proper trial of the petitioner in accordance with law, therefore, the impugned judgments/ orders of both the lower forums are not sustainable and liable to be set aside.

5. On the other hand, the learned Assistant Advocate General and the legal advisor Forest Department have opposed this writ petition and supported the impugned judgments/orders passed by the learned trial magistrate and appellate authority by contending that since the head of the Ibex was recovered on the pointation of the petitioner/convict from his cattle shed, therefore, the learned trial magistrate has rightly convicted the petitioner/convict.

6. We have considered the submissions made by the learned counsel for the parties and perused the available record with their able assistance.

7. From perusal of impugned orders, passed by DFO Wildlife/ Magistrate 1st Class and appellate authority/Secretary Forest, it appears that both the lower forums have not passed the impugned judgments/ orders strictly in accordance with law as the learned trial magistrate has neither properly recorded confessional statement of the petitioner/ convict under section 164, Cr.P.C. nor the confessional statement of the petitioner was certified under the mandatory provisions of section 364(2), Cr.P.C.; hence, the confessional statement of the petitioner/ convict is not admissible in evidence.

8. It is alleged that the petitioner/convict had confessed his guilt/pleaded guilty while framing of charge against him by the trial magistrate. Under the provisions of section 243, Cr.P.C., before awarding sentence, the trial magistrate is obliged to ask the petitioner/convict after he had pleaded guilty or had made admission of the charge, to show as to why he should not be convicted and sentenced. The purpose of this provision is to avoid involuntary admission. The accused persons are often induced to make admission of the guilt and plead guilty with the promise or the hope that nominal sentence of fine or imprisonment will be awarded to them. Some of the accused persons do not know the implication of plea of guilty.

9. As, in the instant case, the aforementioned mandatory provisions/requirement of further notice of show cause as to why the accused should not be convicted on the basis of admission was not complied. Thus, both the impugned judgments/orders of the lower forums are not sustainable in the eye of law.

10. Furthermore, no independent marginal witness was present at the time of recovery of head of ibex along with complainants.

11. For what has been discussed above, this writ petition is allowed and the impugned judgment/order dated 28-09-2019 passed by the DFO Wildlife/Magistrate and impugned judgment/order dated 30-10-2019 passed by the appellate authority/Secretary Forest and Wildlife Gilgit-Baltistan are set aside. Vide our following short order, the petitioner/convict was acquitted:- "For the reasons to be recorded later on, on separate papers the instant writ petition is hereby accepted and the Registrar of this Court is directed to issue release order of the petitioner forthwith if he is not required in any other criminal case." These are the detailed reasons of our short order of even date. This writ petition along with Cr. M. No.546/2019 are disposed of accordingly. File. SA/191/GB Petition allowed.