1968 P Cr (PLP)

Respondent in person. Date of hearing: 1st November 1965. This judgment will dispose of criminal references bearing Nos. 65 to 68 of 1965.

2. These are four references made by the learned District Magistrate, Larkana, who, while going through the monthly returns of the First Class Magistrate in his District came across four cases on the file of the Extra‑Joint Civil Judge and F. C. M., Larkana bearing Nos. 27/64, 32/64, 33/64 and 34/64 all against the present two respondents in respect of offences under sections 379 and 411, P. P. C. The learned D. M. discovered that although these four cases had been disposed of by four separate judgments in the month of August 1964, nevertheless the trial Magistrate had in each case let off the respondent/ accused upon their executing bonds under section 562, Cr. P. C., to be of good behaviour for 12 months despite the fact that this section of the Code of Criminal Procedure had been deleted from that Code by Ordinance XLV of 1960 (Probation of Offenders Ordinance, 1960) published in the Gazette of West Pakistan (Extraordinary) of 1st November 1960. The Central Government by its Notification S. R. O. 608 (K)/61 published in the Gazette of Pakistan (Extraordinary) dated 12‑6‑1961 was pleased in pursuance of subsection (3) of section 1 of Ordinance XLV of 1960 to appoint the First day of July to be the date on which the said Ordinance shall come into force in West Pakistan. In view of this illegality perpetrated by the trial Magistrate the District Magistrate, Larkana, has referred these four cases to this High Court for appropriate orders.

3. I have heard Mr. Sarki on behalf of the State in each of these references. The two opponents Malook and Saifal have duly been served with notices of today's hearing and opponent Saifal is present in person. He stated that his elderly uncle Malook is lying ill at their village and hence was unable to come to Court today.

4. I observed that in three of these references bearing Nos. 65, 67 and 68 of 1965 the opponents Malook and Saifal were convicted under section 411, P.P.C. on 31‑8‑

64. Criminal Reference No. 65/65 relates to Case No. 34/64 of the file of the Extra‑Joint Civil Judge and F. C. M., Larkana, whereas Criminal Reference Nos. 67 and 68 of 1965 relate to Case No. 33 and 27/64 of the file of the Extra‑Joint Civil Judge and F. C. M., Larkana. Criminal Reference No. 66165 relates to Case No. 34/64 of the file of the Extra‑Joint Civil Judge and F. C. M., Larkana and in this case the two opponents were also convicted under section 411, P. P. C. but on 11‑8‑64 that is to say before their conviction in the other three cases. I mention this here because it would appear from these four cases that these two opponents/accused were first convicted in Case No. 34/64 on 11‑8‑64 and, thereafter, in the remaining three cases on 31‑8‑1964.

5. Now, it is clear that by reason of the provisions of Ordinance XLV of 1960 (Probation of Offenders Ordinance, 1960 the order of the trial Magistrate releasing these two opponents/ accused under section 562, Cr. P. C: is an illegal order Section 562, Cr. P. C. has expressly been repealed from the Code by section 16 of this Ordinance. Therefore, the four order of the Extra‑Joint Civil Judge and F. C. M., Larkana, in these four cases must be set aside and these four cases remanded to the said Court for disposal according to law. It is open to the trial Magistrate should he still desire to have recourse to the Probation of Offenders Ordinance, 1960 to do so. but I would draw his attention to clause 4 of this Ordinance which makes it plain that the provisions of this Ordinance can only apply to First Offenders and in respect of an offence punishable with imprisonment for not more than two years.

6. In result, then, these references are accepted, the orders of the Extra‑Joint Civil Judge and F. C. M., Larkana, in each of these four cases set aside and these cases remanded to him for disposal according, to law. Reference Accepted.