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Criminal Revision No. 874 of 1963, decided opt 28^th November 1968.

S. 537 [before amendment in 1964] read with S. 239‑Joint trial‑Four accused prohibited under S. 144, Cr. P. C. from removing crops from their respective lands without giving batai to their landlords‑Accused jointly tried and convicted for allegedly violating such order‑Each of accused, held, committed distinct offence as they admittedly possessed separate cultivations‑Joint trial held in violation of provisions of S. 239, vitiated.

S. 188 read with Criminal Procedure Code (V of 1898), Ss. 134 & 144‑Order under S. 144, Cr. P. C. not promulgated in manner provided by S. 134, Cr. P. C. Accused not proved to have knowledge of order‑Conviction set aside.

S. 342‑‑Examina tion of accused‑Statement of accused not recorded after conclusion of prosecution evidence‑Accused, held, seriously prejudiced in absence of opportunity to hire to explain prosecution evidence Conviction set aside.

Sh. Aftab Hussain for Petitioners.

Malik Abdus Salam for A.‑G. for the State.

The petitioners were the owners of land in a joint Khata with evacuees. The land belonging to the evacuees was alloted to Muhammad Ahmad and Aziz Ahmad etc. and it is not denied that the petitioners were tenants in some of the land allotted to Muhammad Ahmad etc.

2. The District Magistrate, Rang, promulgated an order under section 144 of the Criminal Procedure Code which was to be effective from 16th of April 1962 to 15th of June 1962. Under this order the tenant were asked not to lift their crops without giving batai to their landlords.

3. On 28th of April 1962, Muhammad Ahmad and others filed an application before the Tehsildar Jhang, that the petitioners lifted the crop without paying batai to them and, therefore, action should be taken against them under section 144 of the Criminal Procedure Code. The contents of this application may indicate that Muhammad Ahmad was not aware whether an order had or had not been promulgated and that he wanted an order to be promulgated under the above law. Be that as it may, a case under section 188 of the Pakistan Penal Code was registered against the petitioners. They were tried by Mr. Abdul Waheed Magistrate Second Class, Jhang, and convicted under section 188 of the P. P. C. for violation of the order promulgated by the District Magistrate under section 144 of the Criminal Procedure Code. They were sentenced to six months rigorous imprisonment each with a fine of Rs. 200 each. In default of payment of fine they were ordered to undergo a further period of rigorous imprisonment for one and a half months. An appeal was taken to the Additional District Magistrate, Jhang, who upheld the conviction but reduced the sentence to three months rigorous imprisonment each and a fine of Rs. 100 each. In default of payment of fine a further period of 15 days rigorous imprisonment was to be undergone by the petitioners.

4. In the present revision petition, Sh. Aftab Hussain, the learned counsel has raised the following points :‑

(i) that according to the evidence of Muhammad Ahmad (P. W. 2), the complainant in this case and Hamid Khan Patwari (D. W. 1), the petitioners have their separate cultivation and they could not, therefore, be tried jointly ;

(ii) that there is no evidence on the record that the order made by the District Magistrate under section 144, Cr. P. C. was promulgated in any way ;

(iii) that no statements of the petitioners were recorded under section 342, Cr. P. C. whereby they were seriously prejudiced in the trial ; and

(iv) that there is no evidence that the petitioners had lifted their crop on or after 16th of April 1968.

5. In my view, all the four contentions must prevail. They petitioners having admittedly separate cultivation, each one of them committed a distinct offence. It is not known on what particular day all of them or any of them lifted the crop. The trial of the petitioners having been held against the mode of" trial prescribed under the law, therefore, entirely illegal, according to the law, as it then existed. I say this because section 537 of the Criminal Procedure Code was amended by Code of Criminal ,Procedure (West Pakistan Amendment) Act, 1964, under which even a violation of a mode of trial will not vitiate the proceedings unless prejudice has been caused, but the law, as it existed when the trial of the petitioners was held, did not permit a joint trial in the manner in which it was held. Therefore, the trial jointly held in violation of the provisions of section 239, Cr. P. C. is vitiated.

6. Saeed Ahmad (P. W. 5) a Clerk of the office of the District Magistrate appeared to prove the order promulgated by B toe District Magistrate. Under subsection (1) of section 144, an order made under this section is to be promulgated in the manner provided by section 134 of the Criminal Procedure Code. There is no evidence that the order was publicised in the manner prescribed by law. It has, therefore, not been proved that the petitioners were in the know of this order.

7. A reference to the record shows that the statements of petitioners were not recorded under section 342 of the Criminal Procedure Code. Of course, a preliminary statement under section 242, Criminal Procedure Code was recorded, but it was imperative upon the learned Magistrate to have C recorded the statements of the petitioners after the conclusion of the prosecution evidence. The petitioners, in my opinion, were seriously prejudiced because of the absence of any opportunity to them to explain the prosecution evidence led against them at the trial.

8. The factual allegation that it has not been proved that the petitioners had lifted the crop after the promulgation of order under section 144, appears to be correct. Neither Muhammad Ahmad nor any other witness mentioned the dates on which the petitioners lifted the crop.

9. The prosecution of the petitioners, in my view, was entirely, unwarranted and was launched without paying due regard to the facts of the case. I, therefore, accept the revision petition and set aside their convictions and sentences. They are on bail. Their bail bonds shall stand discharged.

Petition accepted.

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