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Petitioner: MUHAMMAD RIAZ VS Respondent: THE STATEHonorable Justice Khawaja Muhammad SharifRana Muhammad Asif,Qazi Zafar Iqbal
2002 Y L R 1724
2002 Y L R 1724
[Lahore]
Before Khawaja Muhammad Sharif, J
MUHAMMAD RIAZ‑‑‑Appellant
Versus
THE STATE‑‑‑Respondent
Criminal Appeal No.319 of 2002, heard on 7th May, 2002.
Penal Code (XLV of 1860)‑‑‑
‑‑‑‑S. 320‑‑‑Criminal Procedure Code (V of 1898), S.243‑‑‑Appreciation of evidence‑‑ Trial Court had purportedly passed the order of conviction on an application under S. 249‑A, Cr.P.C. which was not even available on record‑‑‑Accused had pleaded guilty to the charge on the basis of which he was convicted and sentenced under S.320, P. P. C. ‑‑‑Accused, on the date of making confession was without any counsel and the Trial Court did not grant him an opportunity to engage a counsel‑‑‑Trial Court had wrongly framed the charge showing a wrong date of occurrence and it did not comply with the .provisions of S.243, Cr.P.C.‑‑‑State Counsel could not defend the impugned judgment‑‑‑Conviction and sentence of accused were set aside in circumstances and the case was remanded to Trial Court for decision afresh in accordance with law.
1991 PCr.LJ 395; 1991 PCr.LJ 1709; 1991 PCr.LJ 2158; 1994 PCr.LJ 2434 and 1998 PCr.LJ 449 ref.
Rana Muhammad Asif for Appellant.
Qazi Zafar Iqbal for the State.
Date of hearing: 7th May, 2002.
JUDGMENT
Today application for the suspension of sentence of the convict‑appellant was fixed. The short point involved in this case is whether the charge having been framed on the same day, the accused can be convicted on the basis of confession. This being the sole question, learned counsel for both the sides have agreed that the main appeal may be heard and disposed of today.
2. Briefly stated the facts of the case are that the appellant was reported against for having killed Muhammad Hussain, brother of the complainant Rehmat Ali, who was riding a bicycle while driving Bus No.LHO/7533 negligently. After completion of the investigation, the accused was challaned to face the trial. The learned trial Magistrate framed the charge on 21‑2‑2002 to which the accused‑appellant pleaded guilty and on the basis of said confession the accused was convicted under section 320, P.P.C. and sentenced to seven years' R.I. with the further direction to pay Rs.1,70,000 as compensation to the legal heirs of the deceased.
3. In support of this appeal, learned counsel for the appellant submits that learned trial Magistrate did not adopt the provision of section 243, Cr.P.C. because the admission of the convict was not recorded as nearly as possible in the words used by the accused. Further submits that the learned trial Court has passed the order on an application under section 249‑A, Cr.P.C. when in fact there was none. Adds, that charge was wrongly framed because the occurrence had taken place on 26‑1‑2002 while in the charge the date of occurrence has been given as 11‑1‑2002. Further adds, that the appellant was not named in the F.I.R. so the identification parade was necessary but the same was not held in this case. He has relied upon 1991 PCr.LJ 365, 1991 PCr.LJ 1709, 1991 PCr.LJ 2158, 1994 PCr.LJ 2434 and 1998 PCr.LJ 449.
4. On the other hand, learned counsel for the State after having heard the submissions made by learned counsel for the appellant frankly concedes that he is not in a position to support the impugned judgment.
5. I have heard learned counsel for the parties and have minutely gone through the record of the case. I am surprised to note here that the learned trial Magistrate has purportedly passed the order of conviction on an application under section 249‑A, Cr.P.C. I have myself gone through the entire judicial file. There is no such application on record having been tiled by the convict. The trial Magistrate did not grant opportunity to the convict even to engage a counsel. On the date of making confession the appellant was without any counsel. Furthermore, the trial Court wrongly framed the charge because the occurrence had taken place on 26‑1‑2002 while in the charge, the occurrence had been shown to have taken place on 11‑1‑2002. The learned trial Court too did not comply with the provision of section 243, Cr.P.C. To my mind, the learned trial Court in order to complete his units hurriedly and in a slip shot manner proceeded with the case. He did not bother even to read and check the charge with regard to the date of occurrence. The precedents cited by learned counsel for the appellant are fully applicable to the facts and circumstances of this case. Moreso, learned counsel for the State has very candidly. conceded that he is not in a position to defend the impugned judgment. In these circumstances, the appeal filed by the convict appellant is accepted. Conviction and sentence recorded against him by the learned trial Court is set aside and case is remanded back to the learned trial Court for decision afresh in accordance with law. The appellant shall be released forthwith; if not required to be detained in any other case. He will appear and face the trial before the learned Magistrate to whom this case will be entrusted by the learned Sessions Judge, Kasur except the Magistrate who had, earlier dealt with the matter. Since the offence with which the appellant stand charged is bailable, formal application in this behalf shall be made by the accused.
Before parting with this judgment, it may be noted that learned trial Court while convicting the appellant has stated that he is convicting the accused under section 320, P.P.C. to imprisonment for 7 years, but in fact he should have recorded that he is convicting the accused under section 320, P.P.C. and awarding him sentence of 7 years R.I.
Office is directed to send a copy of this judgment to the said Magistrate for his future guidance.
N.H.Q./M‑1254/L Case remanded.