P L D 1957 (W (PLP)

Malik Shaukat Ali for the State. Date of hearing : 23rd May 1957. REFERENCE ORDER ORTCHESUN, J.‑

(6th August 1956).‑Muhammad Ashraf and Khair Din respondents were challaned by the Ichhra Police under sections ''63 and 368, P. P. C., respectively. The case was assigned to Begum Surrya Irshad Muhammad Khan, Magistrate 1st Class, Lahore, who tried the respondents and passed an order convicting them without specifying the sections of the Penal Code under which she was convicting them. As regards punishment the Magistrate sentenced Muhammad Ashraf to imprisonment till the rising of the Court and Khair Din to one year's rigorous imprisonment. Muhammad Ashraf has not appealed from this order, while Khair Din has come up in appeal to this Court against his conviction and sentence. The proceedings are forwarded for revision on the following grounds :‑ Obviously the omission to specify the section under which the Magistrate is convicting the accused amounts to an illegality in the circumstances of the case, as the judgment, does not comply with the provision of section 367 (2), Criminal P. C which lays down that the judgment shall specify the offence of which and the section of the Pena: Code or other law under which the accused is convicted Moreover, the description of the offence given by the Magistrate with respect to the conviction of accused No. 1 Muhammad Ashraf is confusing and does not appear to fall within the scope of any section of the Penal Code. I, therefore, refer this case to the High Court with the recommendation that the order of convictions and sentences passed by the Magistrate upon the two respondents be set aside and a retrial ordered. The appeal by Khair Din respondent shall remain pending in this Court till the decision of this reference. The facts of this case are given in the reference order of the learned Additional Sessions judge, and the question for decision is the brief one of whether, in the circumstances of this case, the learned Magistrate's omission to specify in the concluding portion of her judgment the sections of the Penal Code under which the petitioners are being convicted amounts to a mere irregularity curable under section 537, Criminal P. C., or an illegality which vitiates the proceedings. The opening sentence of the judgment makes it clear that: Muhammad Ashraf petitioner is being charged under section 363 and Khair Din under section 368 of the Penal Code, while in the second last paragraph the learned Magistrate remarks: "From the prosecution evidence I find P. W. 1 was forcibly abducted by accused No. 1 from his law ful guardian and after abduction accused No. 2 knowing that accused No. 1 has abducted P. W. 1 confined, concealed and forced him to his profession (begging) against the will of P. W. 1., i.e., ingredient of concealment after abduction is sufficiently proved against the accused." The above descrip tion of the acts committed by the petitioners corresponds to offences under sections 363 and 368 respectively, and reading the judgment as a whole, there is no doubt of the provision of law under which each has been convicted. The facts of this case are thus not on all fours with those on which are based those decisions which lay down that the failure to specify the provision of law under which all accused is convicted constitutes an illegality. For example, in Munshi Lal v. Emperor (23 Cr, L J 248) the accused was convicted under section 60 of. the .U. P. Excise Act (IV of 1910). and it was held that "as a general rule a conviction under a section which provide a penalty for a variety of acts done in contravention of the Statute is bad for duplicity where the section contains, a variety of inconsistent alternatives." In the present case, on the other hand, the sections under which the accused have been convicted do not contain such inconsistent alternatives. Again, in Brij Nandan v. Emperor (A I R 1948 All. 136) a number of accused were tried under various sections of the Penal Code and a combined sentence was passed, and the argument was advanced on behalf of ‑the petitioners that the error on the part of the trial Court in not specifying the sections under which the applicants had been convicted and in not passing separate sentences upon them for each offence had occasioned a failure of justice. In the case dealt with in the above ruling the most serious irregularity, clearly amounting to an illegality, was the failure to pass a separate sentence for each offence, the result of such an omission being that if the conviction for one or more (but not all) of the offences was quashed, the appellate Court would not be in a position to state what portion of the combined sentence was to be set aside. In my view, therefore, the error committed by the learned Magistrate amounts to a mere irregularity and not to an illegality. I am also unable to agree with the learned Additional Sessions Judge that the description given by the learned Magistrate of the offence committed by Muhammad Ashraf accused is confused and "does not appear to .fall within the scope of any, section of the Penal Code" I must accordingly decline to accept the recommendation of the learned Additional Sessions Judge. A.H. Recommendation not accepted,