P L D 1956 Sind 9 (PLP)

MUNSHI, J.

‑This is an appeal from the judgment of the 1st A. C. M. Karachi, convicting the appellant of the offence punishable under section 3 of the Act XXIX of 1948, for selling sugar at a price above the controlled rate and sentencing him to suffer R. I. for 6 months. A. S. I. Zafarabbas of the Enforcement Police acting on the information that the appellant was selling sugar at a price higher than that fixed by the Government arranged a trap in which Ismail Ali acted as a bogus purchaser. The latter was given a currency note of Rs. 10, the number of which was noted in the mashirnama prepared in the presence of two mashirs, one of whom was Abdul Razzak. Ismail Ali went to the shop of the appellant who on enquiry quoted Rs. 1‑8‑0 per seer as price of sugar. He then asked for six seers of sugar which was weighed by Sattar Khan, a servant of the appellant at the latter's instance and given to Ismail All who gave ten‑rupee note to the appellant who paid him back rupee one only. This transaction was witnessed by Abdul Razzak who was deputed for the purpose. After the sale was completed the police party was given a pre‑arranged signal, on which the A. S. I. along with others rushed to the shop and recovered six seers of sugar arid one rupee from the possession of Ismail Ali and a ten‑rupee note from the possession of the appellant. The number of this note tallied with the one already noted in the mashirnama. The search of the stock of sugar also revealed a shortage of 6 seers. The Police, after completing the investigation submitted the papers to an officer who is designated as Secretary to the Hon'ble Chief Com missioner, Karachi. . The latter, in that capacity lodged a complaint in the above Court against the appellant and his, servant Sattar. The Court, which tried the case in summary way, convicted both and sentenced the appellant as indicated above. Sattar, who was sentenced to imprisonment till rising of the Court has not appealed. This judgment will therefore be confined to the case of the appellant. Several objections have been taken to the trial of the case, some of which, according to me, are substantial necessitating the reversal of the judgment. The main objections urged before me are (1) That the complaint was lodged by an officer who was not competent to lodge complaints under the Act (2) That having regard to the terms of section 13 of the Act, the Court could not try the case summarily in the absence of any request by the prosecution in this behalf and without hearing the appellant. (3) That the provisions of section 263 Criminal P. C. were not complied with. (4) That the lower Court has not followed the procedure prescribed for the trial of warrant cases in that no examination of the appellant was taken under section 342 Criminal P. C. nor a charge was framed against him. It was also contended that the provisions of section 256 Criminal P: C. were not complied with. Objection No. 1.‑Section 12 of the Act under which the complaint has been lodged enacts as under :‑ " (1) No Court shall take cognizance of any offence of hoarding or dealing in the black‑market except upon a complaint in writing ' by or under the written authority of the Government. (2) The Government may by order direct that in case of trials other than trials before a Special judge the powers conferred upon it by subsection (1) shall, in such circum stances and under such conditions, if any, as may be specified in the order, be exercised by District Magistrates". It is clear from the terms of subsection (1) of section 12 of the Act that complaints can only be lodged by the Govern ment of under the written authority or the Government. Under subsection 2 of this section the Government can in certain circumstances, by order, direct the powers exercisable by it under subsection (1) to be exercised by District Magistrate. The term "Government" is defined in subsection (1) of section 2 of the Act. It enacts as under: Government" means in reference to offences under this Act committed in (Baluchistan or the Capital of the Federation, the Central Government, and in reference to such offences committed in a Governor's Province, the Provincial Government . Thus for the purpose of this case the term "Government" means the Central Government, the offence having occurred in the Capital of the Federation, and hence the complaint could only be filed by the Central Government or, :I by the District Magistrate if by order so directed by the Central Government. In this case the complaint is lodged neither by the Central Government nor by the District Magistrate, assuming that there is an order of the Central Government directing the complaints to be laid by the District Magistrate. The com plaint in this case has been lodged by an officer describing himself as Secretary to the Hon'ble the Chief Commissioner, Karachi. Obviously the Secretary of the Chief Commis sioner, Karachi is neither the Central Government nor a District Magistrate. Indeed, it is doubtful if the Chief F Commissioner himself would be competent to lay a complaint under this Act as he is neither Central Government nor District Magistrate, empowered by the Central Government to exercise powers mentioned in sub-section (2) of section 12 of the .Act. The objection of the learned counsel for the appellant that the complaint on which the prosecution is based is not valid, must therefore prevail anal consequently it must be held that the trial of the case in the lower Court which could acquire jurisdiction to try the cases only after a valid complaint was laid before it, was without jurisdiction and hence a nullity. Objection No. 2.‑

that the trial was held in summary way when there was no request by the prosecution and when the accused were not heard in respect of that request. I find there is considerable force in this objection also. It is of course not correct to say that there was no request by the prosecution. In fact there is an application on record con taining a request of the prosecution to try the case summarily but there is nothing on record to show that the appellant was heard on this application. The order of the Court on the application reads as under :‑ " Seen K. O. F., the case will proceed summarily ". Thus, the order itself makes no mention that the appellant was heard or was given opportunity to be heard before this order was passed. And although there is a mention of this application in the diary of 7th January 1954 there is no mention therein that the appellant was heard or was given opportunity to be heard. The entire record is silent on the point. Even the judgment makes no reference to it. The learned Magistrate of the lower Court appears to be under the impression that for trying the case summarily it was enough that there was a request by the prosecution in that behalf. But the terms of section 13 make it quite clear that it is incumbent on the Courts to hear the accused on the point before deciding an application by the prosecution. This is what the section says "Any Magistrate for the time being empowered to try in a summary way the offences specified in subsection (1) of section 260 of the Code of Criminal Procedure, 1898, may. if he thinks fit, on application in this behalf by the prosecution and after hearing the defence, try an offence of hoarding or dealing in the black‑market in accordance with the provisions of subsection (1) of section 262 and sections 263, 264 and 265 of that Code ". The section thus requires (1) that there should be an appli cation by the prosecution that the case be tried summarily and (2) that before the decision is given the accused should be heard. In this case as said above there is nothing on record to show that the accused was heard before the learned Magistrate ordered the case to be tried in summary way. The action of the tower Court therefore in trying the case summarily with out having heard the accused was obviously in contravention of the provisions of section 13 of the Act which has been enacted for the benefit of the accused persons conferring upon them a valuable right which in this case has been denied to the appellant. The reason for this provision is not far to seek Normally under the Criminal Procedure Code as provided in subsection 2 of section 262, no Court trying a case summarily can award a sentence exceeding 3 months, while under section 3 of the Act a sentence of 12 months can be awarded. The legislators therefore have obviously considered it fit and proper that there should be a provision in the Act enjoining upon the Courts which are approached to try the case summarily to hear the accused before passing orders. It is significant that while under the Criminal P.C., Magistrates can suo motu try a case summarily, they cannot do so under this Act. They acquire jurisdiction to try the case summarily) under this Act only when they are approached by the prosecution in this behalf and after the accused are heard. Thus the appellant in this case has been denied the valuable right of being heard before he was tried summarily. The objection must therefore prevail. Objection No. 3.‑It was contended by the learned counsel for the appellant that provisions of section 263 Criminal P. C. have not been complied with in that the particulars mentioned in that section have either not been recorded in the form prescribed for summary trials or have been recorded in an improper manner. The form prescribed by the Government for recording the particulars mentioned in section 263 Criminal P.C. contains 10 columns marked A to J ; each column has to be filled as provided by this section. The columns are as under (a) the serial number ; (b) the date of the commission of the offence ; (c) the date of the report or complaint ; (d) the name of the complainant (if any) ; (e) the name parentage and residence of the accused ; (f) the offence complained of and the offence (if any) proved; and in cases coming under clause (d), clause (e), clause (f) or clause (g) of subsection (1) of section 260, the value of the property in respect of which the offence has been committed. (g) the plea of the accused and his examination (if any) ; (h) the finding, and, in the case of a conviction, a brief statement of the reasons therefor ; (i) the sentence or other final order ; and (j) the date on which the proceedings terminated. In this case in column No. l which is meant for serial No. of the case, is recorded the name of the parties. In column No. 2 which is meant for the date of commission of the offence, is recorded the section under which the complaint is filed. In column No. 3 which is meant for the date of the report of complaint, is recorded the date of the offence. In column No. 4 which is meant for the name of the complainant (if any), is recorded the time of the offence. In column No. 5, which is meant for the name, parentage and residence of the accused, is recorded the place of offence. In column 6, which is meant for the offence complained of and the offence (if any) proved and the value of the property involved in cases coming under clauses (d), (c), (f) and (j) of subsection (1) of section 260 Criminal P. C., is merely recorded the description of the property, there being no mention of the offence complained of and the offence (if any) proved. In column No. 7 which is meant for the plea of the accused and his statement (if any) is recorded the date of the hearing of the case. In column No. 8 which is meant for the finding of the Court, and in case of conviction a brief state ment of the reasons therefore; is recorded the pleas of the accused. In column No. 9 which is meant for the sentence or other final order, is recorded the offence with which the accused are charged. And finally in column No. 10 which is meant for the date on which the proceeding is terminated, is recorded the finding of the Court. It will thus be seen that the particulars required to be recorded under section 263 Criminal P. C. are either not recorded or are recorded in an improper manner and at places not meant for them. The form in which these particulars are recorded is itself not in accordance with the provisions of section 263 Criminal P. C. It is not an extract from the summary register but appears to be the learned Magistrate's own invention, But, with all that the question still remains whether the failure on the part of the lower Court to comply with the provisions of section 263 Criminal P1 C. would in itself vitiate the trial in this case. The answer to this question will depend on answer to another question namely whether the failure has caused prejudice to the ease of the accused and has occasioned a failure of justice. The answer to that question, according to me, would be in the negative. The learned counsel for the appellant has not attempted to show that any prejudice has been caused to the case of his client and I myself find none. The particulars required to be recorded are more or less formal except those meant for columns (g) and (h) (in this case columns 8 and 10). Column (g) as said above is meant for recording plea of the accused and. his examination (if any). This the learned Magistrate has done though at a wrong place. As for column (h) the learned Magistrate has recorded his finding and as the case was covered by section 264 Criminal P. C., the sentence being appealable, the learned Magistrate, instead of giving a brief statement of the reasons in respect of the finding in this column as required by section 263 Criminal P. C., has recorded a separate judgment as required by section 264 Criminal P. C. Thus these important particulars having been recorded and the others which have not been recorded or have been improperly recorded, being formal, no prejudice could possibly have been caused to the appellant and hence no failure of justice has occurred in this case. The fourth and the last objection taken is that the case being a warrant case the procedure prescribed for a warrant case should have been followed, which according to the learn ed counsel for the appellant has not been done. This objec tion is also not without foundation. Subsection (1) of section 262 Criminal P. C. clearly lays down that except in certain cases the procedure pres cribed for warrant cases should be followed in warrant cases and that prescribed for summons cases should be followed in summons cases This case was a warrant case and yet I find that the learned Magistrate has neither examined the accused under section 342 Criminal P. C. nor has he framed a charge against him. The learned Magistrate has also not followed the procedure provided in section 256 Criminal P. C. The form. used by the lower Court for recording the particulars as provided in section 263 Criminal P. C. does not contain the examination of the appellant, although it does contain the examination of the other accused. The lower Court has merely recorder the plea of the appellant. The judgment itself does not show that the statement of the appellant was recorded, and although a reference has been made to the statement of the other accused in the judgment there is no reference whatsoever to the statement of the appellant therein. Hence the diary of 10th March 1954 showing that the state ments of both the accused were recorded does not represent true facts. To say that by recording the plea of the accused in column (g) the Court has complied with the provisions of section 342 Criminal P. C. is not correct. The statement of the accused under section 342 Criminal P. C. has to be recorded in addition to the plea and this has to be done after the close of the prosecution case and before the accused is called to enter upon his defence: There is a decision of a Division Bench of this Court in the case of Emperor v. Muhammad Hussain and another (A I R 1998 Sind 22) in which it was held that the provisions of section 342 Criminal P. C. apply to summary trials. In that case the judgment of the trial Court was reversed by their Lordships on that ground. Similar view has been taken by the. High Court of Calcutta. In the case of Amarsh Chandra Sinha v. Emperor (A I R‑1948 Cal. 110). The words ` if any ' in column (g) do not make it optional with the Court to apply the provision of section 342 to summary trials. They make it optional for instance in cases where either the accused has pleaded guilty or where the prosecution case is too weak to necessitate the examination of the accused. The learned Magistrate of the lower Court has therefore acted in contravention of the mandatory pro visions of section 342 Criminal P. C. Similarly, beyond the statement in the diary of 10th March 1954 there is nothing on record to show that a charge was framed against the accused. Although section 263 Criminal P. C. dispenses with the framing of a formal charge, section 264 Criminal P. C. which applies in this case, does not do so. As for the failure of the lower Court to observe the provisions of section 256 Criminal P. C. the diary of 10th March 1954 itself supplies the proof of it. Section 256 reads as under:‑ " (1) If the accused refuses to plead, or does not plead, or claims to be tried, he shall be required to state (at the commencement of the next hearing of the case or, if the Magistrate for reasons to be recorded in writing so thinks fit, forthwith), whether he wishes to cross‑examine any, and, if so, which, of the witnesses for prosecution whose evidence has been taken. If he does so wish, the witnesses named by him shall be re‑called and, after cross‑examina tion and re‑examination if any, they shall be discharged. The evidence of any remaining witnesses for the prosecution shall next be taken, and, after cross‑examination and re examination (if any), they also shall be discharged. The accused shall then be called to enter upon his defence and produce his evidence. (2) If the accused puts in any written statement, the Magistrate shall file it with the record". It will thus be seen that after the plea of the accused is recorded, the Court, at the commencement of the next hearing of the case, should require the accused to state whether he wishes to cross‑examine any of the witnesses examined before the charge. The section no doubt empowers Magistrates to record the statement forthwith if they think fit, but in that case they have to record their reasons. In this case the diary of 10th March 1954 shows that the accused was questioned on the day his plea was recorded, but the reasons for requiring the accused to state forthwith are not mentioned. This is therefore in violation of the provisions of section 256 Criminal P. C. But, again the question arises whether non‑compliance with the provisions of sections 342 and 256 Cr. P. C. and the failure to frame a formal charge will in themselves vitiate the trial. According to me they will if prejudice is caused ; otherwise the defects are curable under the provisions of section 537 Criminal P. C. In all such cases prejudice. Is the test. In this particular case no prejudice is shown to have been caused by the failure of the lower Court to frame formal charge or to record reasons for recording the statement of the accused forthwith as required by section 256 Criminal P. C. But the same cannot be said with regard. to the failure to examine the appellant under section 342 Criminal P. C. The entire record is silent as to the version of the appellant. The judgment itself makes no reference to it. We are therefore not in a position to know what the case of the appellant was in the lower Court. The learned Magistrate must know that it is a fundamental principle of law that no one should be condemned un‑heard. The law provides that before a man is convicted he should be, given an oppor tunity to explain the facts and circumstances brought on record against him. It is for that purpose that section 342 Criminal P. C. has been enacted. This Court, sitting in appeal, will find it difficult to decide in the absence of the examination of the accused, whether the material before .the lower Court justified the conclusion reached by it. For aught we know the appellant might have a plausible and convincing theory to put forth and it is not unlikely that the lower Court itself would have come to a different conclusion had the statement been recorded and considered. It is therefore obvious that by this non‑compliance the appellant has been prejudiced. I therefore hold that the objection that the appellant has not been examined under section 342 Criminal P. C. must prevail. In the result I set aside the judgment. The question of re‑trial does not arise as there is no valid complaint on record to give jurisdiction to a Court to try the case. The appellant is on bail, his bail bonds stand discharged. A. H. Judgment set aside.