2016 P Cr (PLP)

ASLAM JAVED MINHAS, J.

The petitioner was tried by the learned Magistrate Section 30, Burewala in case FIR No.269, dated 07.04.2015, under section 11(2) of the Punjab Information of Temporary Residents Ordinance, 2015 registered at Police Station Model Town Burewala, District Vehari and vide order dated 08.04.2015 he was convicted under section 11 of Punjab Information of Temporary Residents Ordinance of 2015 (hereinafter to be called the Ordinance) and sentenced to imprisonment till rising of court with a fine of Rs.10,000/-. The petitioner assailed the said order before the learned Addl. Sessions Judge, Burewala through an appeal which was dismissed vide judgment dated 26.05.2015. Hence this revision petition.

2. The brief facts of the case are that on 07.04.2015 at about 10.15 a.m. the complainant along with other police officials were present at Ahata Shah Nawaz Burewala where they received a spy information that one Bashir Ahmad (petitioner) rented a house to one Babar Hussain and has not given any information regarding this rented premises to the concerned police station thus he committed the offence under sections 11(2)/15 of the Punjab Information of the Temporary Residents Ordinance, 2015. On which the petitioner was arrested in the case.

3. On 08.04.2015 the petitioner was produced before the Allaqa Magistrate. The Allaqa Magistrate recorded the confessional statement of the petitioner and convicted and sentenced him as mentioned above. Then the petitioner preferred an appeal before the learned Addl. Sessions Judge which was also dismissed.

4. Learned counsel for the petitioner contended that the order dated 08.04.2015 of the learned Allaqa Magistrate is illegal, perverse, capricious, artificial, ridiculous and passed in a hasty manner without adopting the procedure of summary trial; that the petitioner did not make any voluntary confessional statement; that the petitioner is not the owner of the house in question and the police did not produce any documents or material showing the petitioner owner of the said house nor recorded any statement of the tenants/residents of the house or from the people of the locality, therefore, act of the police was not in accordance with law, as such, the petitioner is entitled for acquittal.

5. On the other hand the learned DPG opposed the petition and supported the impugned orders.

6. Arguments heard. Record perused.

7. Section 7 of the Punjab Information of Temporary Residents Ordinance, 2015 reads under:- "

7. Inspection and interviews: (1) A police officer not below the rank of Sub-Inspector may, subject to a reasonable notice and for purposes of this Ordinance: (a) inspect a rented premises, hostel or hotel; and (b) obtain necessary information from the relevant documents and persons including landlord, tenant, manager, guest or property dealer. (2) The police shall ensure compliance of this Ordinance through spot inspections and local verifications. According to the above said provisions firstly the police was required to inspect the area by visiting door to door and to collect information about the residents of the houses as to whether they were the owner or the tenant. Whereafter the proper course was that for the existing temporary residents/tenants on a prescribed proforma data of the inmates was to be collected and then if some one showed his reluctance or ignorance then the action according to the penal clause should have been initiated. All the above ingredients in the case in hand are missing. There should be reasonable evidence that the petitioner was the real owner of the house in question and he rented out the same to some tenant. Contrary to that the record shows that the police did not obtain any information from the relevant documents and persons including landlord, tenant or property dealer to prove that the petitioner was the real owner of the house and he rented out it to some tenant. The police arrested the petitioner and registered case against him without adopting the measures prescribed in the above said provisions of law. The police was required to enforce the above said provisions of law after a reasonable notice but they acted just on the information of a police informer without observing the prerequisite mentioned supra. The finding of the learned appellate court that the appellant had badly failed to bring on record any evidence in support of his plea being not owner of the rented house is misconstrued rather the prosecution has to stand on its own legs. Reliance in this respect may be made to the cases of "Muhammad Yousaf v. The State" (1995 SCMR 351), "Malak Jehangir Khan and others v. Sardar Ali and 2 others" (2007 SCMR 1404) and "Asif Zaheer and another v. The State" (2010 YLR 3191). The relevant portion of case of Muhammad Yousaf (Supra) reads as under:- "For the safe dispensation of criminal justice the superior Courts have generally refrained from basing conviction solely on retracted confession and have always sought for some reliable corroborative evidence regarding material particulars in the confessional statement." It is an axiomatic and universally recognized principle of law that conviction must be based on unimpeachable evidence and certainty of guilt and any doubt arising in the prosecution case must be resolved in favour of the accused. I am fortified by the dictum laid down in the case "Muhammad Akram v. The State" (2009 SCMR 230) and "Muhammad Khan and another v. The State" (1999 SCMR 1220), wherein the Hon'ble Supreme Court of Pakistan, has held as under:- "It is an axiomatic and universally recognized principle of law that conviction must be founded on unimpeachable evidence and certainty of guilt and hence any doubt that arises in the prosecution case must be resolved in favour of the accused. It is, therefore, imperative for the Court to examine and consider all the relevant events preceding and leading to the occurrence so as to arrive at a correct conclusion. Where the evidence examined by the prosecution is found inherently unreliable, improbable and against natural course of human conduct, then the conclusion must be that the prosecution failed to prove guilt beyond reasonable doubt. It would be unsafe to rely on the ocular evidence which has been molded, changed and improved step by step so as to fit in with the other evidence on record. It is obvious that truth and falsity of the prosecution case can only be judged when the entire evidence and circumstances are scrutinized and examined in its correct perspective".

8. There is another aspect of the case that according to section 12(2) of the Ordinance, the Allaqa Magistrate was required to conduct the summary trial when the matter came before him, but he failed to act upon the above said provisions of law. For convenience section 12(2) is reproduced as under:- "

12. Cognizance and summary trial: (1)

(2) A Magistrate of the first class shall conduct the trial of an offence under this Ordinance in accordance with the provisions of Chapter XXII of the Code relating to the summary trials. Though the learned Magistrate was competent, in view of the above stated provisions of law, to initiate criminal proceedings against the petitioner but he could not have done the same by directing police to conduct an inquiry/investigation. The petitioner also told the police that the owner of the house in question was living abroad and she was the aunt of his wife. On query by this Court, the SHO admitted that the house in question was not owned by the petitioner nor he was managing the house. There is nowhere in the record that the learned Magistrate put any question to the petitioner whether the house in question belongs to him or not. In the confessional statement it is only recorded that the accused confessed his guilt and he sought pardoned. There was no mention that what guilt the accused confessed. When the accused/petitioner was in the police custody it cannot be said that he was confessing his guilt or giving statement under coercion or with free will.

9. There is another aspect of the case that a reasonable inquiry was also required whether the tenants were living in the house in question before the promulgation of the Ordinance or after enactment of the same. If the tenants were living before the promulgation of this Ordinance then whether this Ordinance should be given retrospective affect, being penal in routine, but the learned Magistrate failed to resolve this question while exercising jurisdiction convicted and sentenced the petitioner in a slip shod and casual manner.

10. In view of what has been discussed above, this criminal revision is allowed, the impugned order dated 08.04.2015 of the learned Magistrate and that of the learned Addl. Sessions Judge, Burewala dated 26.05.2015 are set aside and the petitioner is acquitted of the charges. The fine of Rs.10,000/- realized from the petitioner be returned to him after observing due formalities.

11. Before parting with the judgment, however, it is directed that the police should summon a person subject to a reasonable notice and after considering the relevant record of the ownership as well as who is possessing the house in question at that time, then proceeding should be initiated against the delinquent. Otherwise, without reasonable notice the police should not arrest a noble person of the locality unless he was found involved for the offence and that every citizen was entitled to a fair trial and due process of law as guaranteed by Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973. HBT/B-25/L Petition allowed.