P L D 1954 Lahore 457 (PLP)

"That on 13th/14th May 1953, or near that date, at Gujar Khan and Rewat,, were recovered from Iqbal Khan and Ali Shah'32 bags of wheat‑flour which had been loaded on carts for transport to Rawalpindi and from Sabir Hussain, Manzur Hussain, Muhammad Khan and Muhammad Shafi on 14th May 1953 at Rewat 61 bags of wheat-flour loaded on carts for transport to Rawalpindi, that these, bags were loaded by Muhammad Bashir without any f the accused being in possession of a permit and that this act was punishable under section 7 of the Essential Supplies (Temporary Powers) Act, 1946". The charge which presented great difficulty to me to decipher is a hopeless and senseless document in Urdu and the above is merely a forced translation ,of it. After the charge, the accused were again questioned and they all pleaded guilty. The learned Magistrate proceeded to convict them and sen tenced Muhammad Bashir to a fine of R. 200 and the other accused to a fine of Rs. 50 each. With regard to the flour, which had been given on sepurdidari to Muhammad Bashir accused, he ordered that it should be returned to that accused who should sell it to the Assistant Food Controller, Guar Khan. The case came to the notice of the learned District Magistrate who has reported it to this Court with the recom mendation that the sentences be enhanced and that the bags of flour be forfeited to Government, because the learned Magistrate had no jurisdiction to make an order directing the Assistant Food Controller to take over the foodgrains on payment of price. I have heard the learned, Advocate‑General in support of the reference and Mr. Said Akbar, learned counsel for the res pondents, against it. I have also carefully gone through the record. It is possible to conceive of a trial full also many irregu larties as this case discloses, The learned Magistrate did not prepare any memorandum of the evidence as required by section 356 (3) of the Code of Criminal Procedure. It is impossible to make head or tail of the charge and I had to spend a good deal of time to make out its sense. Unless I had read the evidence myself; it would have been almost impossible for me to understand what the charge was intended to convey. The learned Magistrate does not seem to have understood the significance of there being two transactions one on the 13th and the other on the 14th May in which entirely different sets of persons were involved. He did not apply his mind to the question whether these two incidents were connected with each other or separate and whether a joint trial of both was possible in law, the set or accused persons in each incident being different. Neither in the charge; nor in the judgment, does the learned Magistrate specify the. particular provision of the after which had been contravened. All that he says on this point is: "From the above, it is clear that all the seven rd accused have committed an offence under section 7 of Act XXIV of 1946 by contravening the provisions of the Punjab Foodgrains (Licensing Control) Order, 1952, as well as the provisions of the Punjab Wheat (Mandi Control and Procure ment) Order, 1952. He does not seem to have been aware that it was his duty to order forfeiture of the foodgrains, unless there were reasons to the contrary which he was bound to record. He did not realise that he had no jurisdiction to require the Assistant Food Controller to purchase the foodgrains from Muhammad Bashir. The sentence that he was passing was no more than a joke in view of the amount of food stuff involved. The only indication in the evidence of the grounds for the prosecution was in the statement of Raja Sher Zaman, Inspector Foodgrains, Gujar Khan, who was examined as the third witness for the prosecution. He produced a copy of the Punjab Wheat (Mandi Control and. Procurement) Order, 1952, and deposed that according to that Order no person, except a pucca arhti, authorized by Government in this behalf, could purchase or sell wheat in the Mandi, that even a pucca arhti could do so only under the directions of the Foodgrains Supervisor and that there was no pucca arhti in Mandi Gujar Khan. He also produced a copy of the Punjab Foodgrains (Licensing Control) Order, 1952, and specifically referred to clauses (1), (3) and Schedule I. No reference was made to the provisions of these Orders in the charge or in the judgment It is, therefore, obvious that the whole trial in this case has been a farce, neither the officer, who conducted the prosecu tion, if there was any such officer, nor the learned Magistrate making the least effort to understand the facts or the legal position. Before the it has been suggested that the learned Magistrate intended to convict the respondents of the breach of rule 3 of the Punjab Foodgrains (Licensing Control) Order, but what that rule requires is that a person to be found guilty under it must have engaged himself as a commission agent in an undertaking and there is no evidence in the present case that any of the respondents was carrying on the business of a commission agent. Rule 5 of the same Order was suggested by the learned counsel for the respondents, but to ask for a conviction under that rule the prosecution has to prove that the accused was in possession of more than the normal quanti ty of the foodgrains and in this case there was no evidence that the flour recovered was in excess of that quantity in res pect of any of the accused persons. The Punjab Wheat (Mandi Control and Procurement) Order was not mentioned in the charge and it is not stated in the judgment which rule of that Order was contravened and` how. Rule 4 of that Order says that no person other than an authorised pucca arhti, shall purchase wheat at a mandi and that no authorised pucca arhti shall sell or otherwise dispose of wheat, except under the directions of the Foodgrains Supervisor, but in the present case, though the Inspector of Foodgrains stated that there was no authorised pucca arhti in Gujar Khan, there is no evidence that Gujar Khan is a mandi or that any of the per sons purchased or sold the goods in that Mandi. It is suggested by the learned counsel for the Crown that the respondents pleaded guilty and that therefore I should not go into the correctness of the convictions. But the mater has come to me on the revision side and in showing cause against enhancement of the sentence the convict is entitled to show that the conviction itself was incorrect. Further, I am not satisfied that the pleas of guilty were voluntary because I cannot imagine an accused person, in the state of evidence that was on record when the accused are stated to have plead ed guilty would confess when the result of such confession may be not only imprisonment for a substantial term but forfeiture of flour worth nearly two thousand rupees. I set aside the conviction and sentence and order Muhammad Bashir respondent to be retried. The cartman were mere carriers for Muhammad Bashir and they need not be retried. In their case the fine, if paid, shall be refunded. The Registrar will make a note that this case will be men tioned by him whenever any reference for enhanced powers for this learned Magistrate is put up before the Administra tion Judge. A. H. Order accordingly.