2003 P Cr (PLP)

Jermy Frankel, General Manager, Avari Hotel, Shahrah-e-Quaid e-Azam, Lahore. (1) Under sections 23(1) 11 of Pure Food Ordinance, 1960, convicted and sentenced the petitioner to undergo till the rising of the Court with fine of Rs.10,000 or in default of payment of fine two months' R.I. The amount of fine if recovered be given to the M.C.L. as compensation. (2) Under section 8(23) of Pure Food Ordinance, 1960, convicted and sentenced to undergo till the rising of the Court with fine of Rs.10,000 or in default of payment of fine 2 months' R.I. The amount of fine if recovered be given to M.C.L. as compensation. The petitioner has filed the aforesaid criminal revisions against the judgment of the Special Magistrate.

3. The learned counsel of the petitioner submits that the Special Magistrate was vested no jurisdiction to hold a Court in compound of petitioner's hotel in the night hours. He further submits that trial Magistrate is a Magistrate for Zone No.4, Badami Bagh, therefore, respondent No.4 has no jurisdiction to take the cognizanee of the matter. He further submits that Special Magistrate is duty bound to act in accordance with law as is envisaged by Article 4 of the Constitution read with the mandatory provisions of Cr.P.C., 1898 but the learned Special Magistrate convicted the petitioner in violation of the mandatory provisions of the law and without summoning the petitioner, he took the cognizance of the matter and did not allow the petitioner to engage a counsel of his own choice. He further submits that learned Magistrate has convicted the petitioner on the confession of the petitioner which is not in accordance with law. The learned Special Magistrate has to record the evidence and then proceed in the matter. The learned Magistrate passed the impugned judgments against the petitioner in violation of the procedure prescribed in Chapter 22, Chapter

20. Chapter 24 and Chapter 6 of the Cr.P.C. He further urges that the impugned judgments are not sustainable in the eyes of law. The learned counsel of the respondents submits that petitioner was convicted after adopting proper procedure prescribed under the law. The petitioner himself admitted his guilt therefore, trial Court has no option except to award sentence to the petitioner. He further submits that petitioner has alternative remedy to file appeal before the Sessions Judge, therefore, revision petitions filed by the petitioner directly in the High Court are not maintainable. He further submits that learned Magistrate was justified to hold the trial at the spot in view of the High Court Rules and Orders Volume 3, Chapter 1, Rule 1 as the offence committed by the petitioner falls under the minor act. He further submits that Traffic Magistrate and Railway Magistrate are competent to hear the case at the spot and announce the judgment at the spot.

4. The learned counsel of the petitioner in rebuttal. submits that offence under the Pure Food Ordinance, 1960 does not fall under the minor acts as the punishment is prescribed under the aforesaid Ordinance is seven years. He further submits that petitioner admitted the guilt before the trial Court, therefore, petitioner has no other alternative remedy except to prefer the revision petitions before this Court.

5. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record myself.

6. I would like to decide the preliminary objection raised by the learned counsel of the respondents qua the maintainability of the revision petitions directly filed by the petitioner without exhausting the remedy of appeal before the Sessions Judge. The question of law has been settled by the Karachi High Court in Bulo Khan and another v. The State PLD 1967 Kar. 608 and the relevant observation is as follows:-- "It is true that under subsection (5) of section 439 of the Code of Criminal Procedure no revision shall be entertained at the instance of a party who could have appealed, where an appeal lay under the Code, but this, to my mind, would be an additional reason for entertaining a revision petition where an appeal is barred, such as in cases of conviction on 'plea of guilty. It is also admitted fact that revision petitions are pending adjudication before this Court since 1998, therefore, it is not proper to dismiss the revision petitions on technical grounds and direction is issued to the petitioner to file appeal or revision before the Sessions Judge. In arriving to this conclusion, I am fortified by the following judgments:-- (1) Jamal Din and another v. The State 1975 PCr.LJ 650. (2) Karam Iiahi v. The State 1975 PCr. LJ

902. In view of the aforesaid circumstances, I intend to decide the revision petitions on merits. It is better and appropriate to reproduce the statement of the petitioner under sections 242 and 243, Cr.P.C. before the learned Special Magistrate in both the cases. On the basis of the. aforesaid statements of the petitioners the learned Magistrate after considering the aforesaid statements of the petitioner convicted and sentenced the petitioner vide impugned judgments dated 23-5-1998. The scheme of law, (sections 242 and 243, Cr.P.C.) suggests co take necessary precautions while recording confession of an accused. this is so, as such confession was likely to result in his conviction. The confession by' itself not having been deemed sufficient, the Legislature further ensured that the words uttered by the accused should be reduced into writing to assess whether such words or language was compatible with the alleged charge so as to constitute the confession. It is pertinent to mention here the Legislature further conferred discretion on the Court to convict the accused on such confession or to proceed to record the evidence. These precautions were enforced as, occasionally the confession was made under pressure, coercion, temptations and influences of external forces, therefore, the Court has to be alert and be careful while recording the conviction of an accused on the basis of his confession. It is pertinent to mention her that the learned Magistrate was very cautious about his power and recorded the statement of the petitioner also under section 243, Cr.P.C. All the aforesaid questions asked by the learned Magistrate from the petitioner at the time of recording statement of the petitioner under sections 242 and 243, Cr.P.C. Clearly reveals that the petitioner was intimated about the charge and consequences. The question was also repeated to the petitioner in the English language also to avoid any confusion. The petitioner had accepted the guilt in English language and petitioner is highly educated person, therefore, there is no iota of doubt that the statement was got recorded of the petitioner by the learned Magistrate under the influence under pressure. In arriving to this conclusion I am fortified by the following judgments:-- (1) Abdul Rashid v: The State 1989 PCr.LJ 2203, (2) Muhammad Latif v. The State 1989 PCr.LJ 1252, (3) Tariq alias Babu v. The State 1992 PCr.LJ 1575, (4) Nazar Ahmad v. The State PLD 1975 Lah.

304. The contentions of the learned counsel of the petitioner that the trial Court was not legally justified to base the conviction of the petitioner solely on his plea of guilty and that it was the duty of the prosecution to prove the guilt of the petitioner by producing some positive evidence. I find no substance in this argument. It seems that the learned counsel of the petitioner is not aware of the amendment of section 242, Cr.P.C. Under the Law Reforms Ordinance, 1972 old section 242 was substituted by the following:-- "When the accused appears or is brought before the Magistrate a formal charge shall be framed relating to the offence of which he is accused and he shall be asked whether he admits that he has committed the offence with which he is charged." In the instant case the petitioner appeared before the trial Court on 1-6-1998 when charge was framed against him under section 8(23), P. F. O. , 1960 and under sections 23(1), 11, P. F. O. In both the cases and the same were read out and explained to him when asked whether he committed the offence charged with, the petitioner pleaded guilty to the charge on the same day, his statement was also recorded. In his statement, the aforesaid questions were put to him whether he had heard and understood the substance of charge framed against him and his reply was in the positive: The next question put to him was whether he was pleading guilty to the charge or denying the same. Again he pleaded guilty to the charge and stated that he should be forgiven. He clearly understood the nature of the allegations and resultantly consequences of his admission of guilt. The petitioner at no stage of the case raised any objection or otherwise indicated that he pleaded guilty to the charge under any pressure, inducement threat or pressure or misunderstanding regarding any question of fact. It is after the conviction that his counsel raised the technical objection in the revision petitions for the first time After taking into the consideration, the relevant material available on the record coupled with the conduct of the petitioner. I am convinced that he voluntarily and of his own free-will pleaded guilty to the charge Accordingly, he is bound by his own plea of guilt and its consequences It is well-settled now that if an accused person voluntarily pleads guilty to a charge, the trial Court can accept and act upon the same and convict him without recording the prosecution evidence. According to the petitioner the incident/raid was conducted and the trial was concluded at the spot on 23-5-1998, has no force in view of the circumstances as mentioned above, the charge was framed, statement of the petitioner under sections 242 and 243, Cr.P.C. was recorded by the trial Court on 1-6-1998.

7. So far as the other contention of the learned counsel of the petitioner that provisions of Criminal Procedure Cone had not been complied with, is concerned, is also without force in view of the confessional statement of the petitioner under section 242, Cr.P.C. and thereafter admitted the guilt in his statement under section 243, Cr.P.C There could have been some force in the contentions of the learned counsel of the petitioner if the petitioner had not admitted his guilt. When the petitioner admitted his guilt, there could not be any question of possible prejudice, which might have been caused to him in the non compliance of the provisions of Criminal Procedure Code.

8. In view of what has been discussed above, these revision petitions have no force and the same are dismissed. H.B.T./J-59/L Revision dismissed