1984 P Cr (PLP)

Tassaduq Hussain Jilani, Addl. A. G. assisted by Muhammad Akram Sheikh for the State. Noor Ahmad son of Muhammad Bakhsh, Caste Dogar, resident of Chak No. 41/12-L, Tehsil Chichawatni, District Sahiwal was convicted by Mr. Muhammad Javaid Gill, Assistant Commissioner, Chichawatni. with Summary Powers of the offences under rules 82 and 83 of the Punjab Local Councils.(Election) Rules, 1979 on 28th September, 1983. And an his plea of guilty was sentenced to suffer 6 months' S. I. under rule 82 and 6 months' S. I. under rule, 83 and a fine of Rs. 500 or in default to undergo one month's S. I. His appeal was partly accepted by Ch. Muhammad Aslam, Additional Sessions Judge. Sahiwal on 10th November, 1983. The sentence of imprisonment under rule 83 was set aside but the sentence of fine was maintained. However, the conviction and sentence awarded under rule 82 were maintained. He has now challenged his conviction and sentence by filing this revision petition.

2. The prosecution case is that the petitioner was appointed as Presiding Officer for Halqa No. 9 of Municipal Committee, Chichawatni and was entrusted with the duty of conducting the Local Bodies Elections on 28th September, 1983. At the time of counting the ballots, it came to the notice of the Returning Officer (The trial Court) that the petitioner in order to benefit a particular candidate had dishonestly and illegally put 300 ballots in his box. It is further alleged that he dishonestly destroyed the counterfoils of three ballot books.

3. The Returning Officer/Assistant Commissioner aforementioned on the strength of notification, dated 22nd September, 1983 issued by the Home Department, tried the petitioner summarily and on his plea of guilty convicted and sentenced him as mentioned above.

4. Learned counsel for the petitioner has challenged the order of the trial Court on a number of grounds. According to him, since the petitioner was tried summarily, therefore, according to subsection (2) of section 262, Cr. P. C., no sentence of imprisonment for a term exceeding three months could be passed. Further that under rule 87 of the Punjab Local Councils (Election) Rules, 1979, the learned Assistant Commissioner could not take congnizance of the violation of rules 82 and 83 except upon complaint in writing made by order or authority from the Election Authority. And as in the instant case there was no such complaint by the Election Authority, the taking of cognizance by the learned Assistant Commissioner was illegal. It is further stated that the learned A. C. who was acting as Returning Officer could not hold the trial because his position was that of a witness and in holding the trial of the case he became a judge in his own cause and even failed to realize that there was no proper complaint before him, on the basis of which he was taking the cognizance. It is also contended that the illegalities committed by the Assistant Commissioner are apparent on the face of record in that he sentenced the petitioner to imprisonment for 6 months under rule 83 whereas the violation of rule 83 did not provide any sentence of imprison ment but of fine only extending to Rs.

500. It is next argued that proper procedure prescribed for the trial of summary cases has not been followed by the learned Assistant Commissioner.

5. Learned Assistant Advocate-General has not been able to show that any complaint in writing was made by or under authority from the Election Authority to the trial--Magistrate before he took cognizance of the matter. He states that the learned trial Magistrate was invested with the powers to take cognizance of offences summarily without any complaint by virtue of a notification issued under section 37, Cr. P. C. on 22nd September, 1983. He further states that since the petitioner is an educated person, he was fully aware of the nature of allegations against him and mere non-observance of some formalities will not vitiate his trial.

6. Section 262, Cr. P. C. provides that in summary trials, the procedure prescribed in Chapter XX shall be followed. Subsection (2) of this section provides that no sentence of imprisonment for a term exceeding three months shall be passed in the case of any conviction under Chapter XXII pertaining to summary trials. Section 243, Cr. P. C. provides that if an accused admits having committed the offence, of which he is accused, his admission shall be recorded as nearly as possible in the words used by him. In the copy of relevant portion of the Summary Register placed on the file, the confession of the petitioner is recorded as `pleads guilty". This kind of confession is not in conformity with the provisions contained in section 243, Cr. P. C. Apart from the above pointed lacuna in the impugned order, the learned Magistrate has not even recorded the reasons for the petitioner's conviction as provided in section 263(h), Cr. P. C. Similar legal points were raised in Habib Ahmad v. The State (1970 P Cr. L J 98) and The State v. Muhammad Akram (1971 P Cr. L J 1125) and the conviction and sentence were set aside by the High Court on the ground that the alleged admissions were not recorded as nearly as possible in the words of the convict as envisaged by section 243, Cr. P. C. and for the failure to record a brief statement of the reasons for conviction as provided by section 263(h), Cr. P. C.

7. Having considered the position in the light of relevant provision of law, I am of the view that the perfunctory manner in which the learned Assistant Commissioner had acted has occasioned a grave miscarriage of justice. It is regretfully pointed out that the learned Additional Session Judge had also failed to take into account these lacunae, although then were pointed out to him. On the other hand he has tried to justify the procedure adopted by the learned Magistrate for not complying with the mandatory provisions of law and the judicial pronouncements made in this behalf by the superior Courts by saying that since the petitioner was an educated man, there was no need of recording his confession as near as possible in words used by him as provided by section 243, Cr. P. C. This kind of approach to judicial matters cannot be appreciated.

8. For the reasons discussed above, the order assailed in the revision suffering from several illegalities as 6 pointed out in the preceding paragraphs cannot be allowed to stand and in consequence the revision accepted and the conviction and sentence of the petitioner is set aside and his re-trial is ordered. He shall appear before the learned District Magistrate, Sahiwal on 28th April, 1984. The learned District Magistrate, Sahiwal shall entrust the case to a Court of competent jurisdiction, other than Assistant Commissioner, Chichawatni who had earlier disposed of the case. The Court, to whom the case is entrusted, shall proceed strictly in accordance with law. M. Z. M. Revision petition accepted.