2004 PLP 1264 (MLD)

Briefly the facts are that Muhammad Ashfaq petitioner was arrested in case F.I.R. No. 156 dated 5‑9‑2001 registered under section 7 of Surrender of Illicit Arms Act, 1991 at Police Station Budhla Sant, Multan. The allegation against the petitioner is that on 5‑9‑2001, he was found in a suspicious condition by Muhammad Shafi A.S.‑I. and when he was being apprehended he tried to run away but he was apprehended and his name was disclosed as Muhammad Ashfaq. On his personal search loaded pistol .30 bore was recovered which was taken into possession and the petitioner could not produce any valid licence, for keeping the same in his possession.

2. The petitioner was produced in the Court of Mian Ghulam Hussain, Judicial Magistrate Section 30, Multan on 6‑9‑2001 for obtaining.14 days judicial remand. The learned Magistrate on the same day, framed the charge and recorded the confessional statement of the petitioner whereupon he was convicted under section 7 of Surrender of Illicit Arms Act, 1991 and sentenced to R.I. for 3 years. Benefit of section 382‑B, Cr.P.C. was also extended to the petitioner vide judgment dated 6‑9‑2001.

3. Feeling aggrieved by the said judgment, an appeal was filed before the learned Additional Sessions Judge, Multan who converted the conviction under section 7 of Surrender of Illicit Arms Act, 1991 being no more in the statute to section 13 of Arms Ordinance, 1965 and also reduced the sentence to one year R.I. vide judgment dated 4‑9‑2002. Benefit of section 382‑B, Cr.P.C. was also extended to the petitioner.

4. Both these judgments have been assailed through this revision petition.

5. Learned counsel for the petitioner contends that without affording statutory period of seven days after supply of copies under section 241‑A, Cr.P.C. the charge was framed illegally by the learned Magistrate and the petitioner was convicted in a clandestine manner without adopting proper procedure on the very first day when the challan was submitted. It is also contended that the petitioner has been convicted without framing the charge under section 13 of Arms Ordinance, 1965 as the Surrender of Illicit Arms Act, 1991 was not applicable on the said date. It is also contended that it can be easily inferred that confessional statement was not made voluntarily as the petitioner was under duress of police.

6. Learned State Counsel opposes this revision petition on various grounds.

7. I have heard the learned counsel for the parties and also perused the impugned judgments as well as the record. The brief facts of the prosecution case are that the petitioner was arrested on 5‑9‑2001 by Muhammad Shaft A.S.‑I. having been found in possession of loaded .30 bore pistol and on the same day report under section 173, Cr.P.C. was prepared, which was presented before the learned Judicial Magistrate on the neat day i.e. 6‑9‑2001 when copies were supplied, charge framed and confessional statement of the petitioner was recorded, whereupon he found the petitioner guilty under section 7 of Surrender of Illicit Arms Act, 1991 and sentenced him as discussed above. The learned trial Court had not adopted the proper procedure as under section 241‑A, Cr.P.C., after supplying of copies to the accused at least seven days time is to be afforded to the accused before framing of the charge and this mandatory provision has been violated. The contention of the learned counsel for the petitioner seems to be correct that the petitioner was not afforded opportunity of engaging of any counsel of his choice and the confessional statement was made under the duress of the police. I have no doubt in my mind that due to the illegal procedure adopted by the learned trial Magistrate, the case of the petitioner was seriously prejudiced. As such the impugned judgment of conviction and sentence passed by the learned trial Court having not been passed while following the procedure is not sustainable in the eye of law. Therefore, the judgment of the learned Appellate Court also cannot be maintained.

8. For the foregoing reasons, this revision petition is accepted, the impugned judgments of conviction and sentence are set aside and the case is remanded to the learned trial Magistrate for initiating trial against the petitioner in accordance with law, whereafter final decision shall be made. The petitioner shall submit fresh ‑bail bonds before the learned trial Court in the sum of Rs.50,000 with two sureties in the like amount to ensure his appearance. H.B.T./M‑181/L Revision accepted accordingly.