P L D 1961 (W (PLP)

Fine--‑Sentence of‑Court competent to impose daily fine from date of commission of offence till conviction ‑Offence continuing even after conviction‑Imposition of fine for days after conviction not permissible‑Remedy lies in prosecuting accused a second time Basic Democracies Order (18 of 1959), S 83, Sch. 8 (4). Where the provisions of a section in an enactment provides for the commission of the main offence and also for a. daily fine in case the offence is a continuing one, a Court would be competent to impose the daily fine from the date of the first commission of the offence till the conviction of the accused unless the offence has in the meantime been discontinued. If the offence continues even after the, conviction, it is not permissible to impose a fine for the days after conviction. In such a case the remedy lies in prosecuting the accused a second time. Rao Shamshad Ali Khan petitioner by order dated 23‑8‑60 passed by Mr. C. A. Saeed, Additional District Magistrate, Mianwali has been convicted under section 83 of the Basic Democracies Order, 1959 and has been sentenced to a fine of R.s. 50 and a daily fine of Rs. 5 till the Municipal Committee Kallurkot sanctions and approves the plan for the construction of the shop of the petitioner.

1. The facts of this case are as follows :‑ This revision petition has been filed by Rao Shamshad Ali Khan son of Muhammad Amir, Booking Clerk, Muslim Bus Service, Kallurkot against the judgment dated 23‑8‑60 whereby he' has been convicted by Mr. C. A. Saeed, Additional District Magistrate, Mianwali, in exercise of his summary juris diction, of the offence under section 83, Schedule 8(4) of the Basic Democracies Order, 1959 and has been sentenced to a fine of Rs. 50 with the further fine‑ of Rs. 5 daily till the sanction is granted to him for constructing the shop or in default of pay ment of fine to undergo R. I. for one month for having constructed his shop on a vacant site without obtaining sanction from the Municipal Committee, Kallurkot, in consequence of his con fession that he had constructed the shop without sanction with the further representation that he had constructed his shop with out sanction because other persons had also constructed their shops near his shop without sanction.

2. The proceedings are forwarded for revision on the following grounds :‑ The revisions regarding the petitioner's conviction for the offence: under section 83, Schedule 8(4) of the Basic Democracies Order, 1959 cannot be entertained in view of his confession and similarly the sentence of a fine of Rs. 50 or in default of payment of fine R. I. for one month is not excessive. An illegality, how ever, crept up in connection with the learned Magistrate's order that the petitioner must pay a fine of Rs. 5 daily till the sanction was accorded to him by the Municipal Committee regarding the shop constructed by him. It is true that the offence was a con tinuing offence but the prospective fine could be imposed upon him only with respect' to the period intervening the construction of the shop by him without sanction and the date when the challan was filed against him before the learned Magistrate and not for the period after the latter date. It was so held in Crown v. Gurditta another (13 P R 1903), while disposing of a revision petition against a conviction for an analogous provision contained in section 169 of the then Punjab Municipal Act. In any case the fine for the future period could not be left to the volition of the Municipal Committee and so the learned Magistrate's order that the petitioner should continue to pay a fine of Rs. 5 daily till the requisite sanction was accorded by the Municipal Committee was not at all justified and instead the order, if at all possible, ought to have been that the petitioner would pay a fine of Rs. 5 daily till the application was filed by him before the Municipal Committee for granting sanction for the shop constructed by him.

3. I forward this case to the High Court with the recom mendation that though this revision petition deserves to be dismissed. in so far as the petitioner's conviction for the offence under section 83, Schedule . 8(4) of the Basic Democracies Order; 1959 and a sentence of a fine of Rs. 50 or in default of payment of fine R. I. for one month are concerned but the learned Magistrate's impugned order deserves to be set aside in so far as a fine of Rs. 5 daily till the sanction is accorded by the Municipal Committee regarding the construction of his shop is concerned and for that matter no fine in future could be imposed on the petitioner for the period after 10‑8‑60 when the present challan was filed against him in the Court. Abdus Sami Pal for the State.