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Criminal Revisions Nos. 775 to 792 of 1963, decided on 21st November 1968.

Arts. 82 & 85 Complaint under Art. 82 lodged by Town Committee not signed by Chairman or any other authorised agent of Committee‑Such complaint incompetent‑Cognizance and resulting conviction by Court, held, without jurisdiction and bad in law.

Muhammad Hussain v. The State P L D 1967 Pesh. 307 ref.

Malik Amjad Hussain for Appellant.

Tajammal Hussain for the State.

This order will dispose of Criminal Revisions Nos. 775 to 792, all of 1963, as the questions of law and facts involved in each case are the same.

2. The petitioner in each case was tried by the Resident Magistrate, Bhalwal (exercising the powers of a Magistrate Ist Class, with Summary Powers), on the allegation that he was using certain area in excess of the area allowed to him by the Phullarwan Town Committee. He pleaded guilty. By order dated 29‑1‑1962, each petitioner was convicted under Art. 82 of the Basic Democracies Order, 1959, and sentenced to pay a fine of Rs. 100. The petitioner in each case preferred a revision to the District Magistrate, Sargodha. The learned Magistrate found that the original complaint lodged by the Committee in the Court of the Resident Magistrate, Bhalwal, was not signed by the Chairman or any other authorised agent of the Committee and, therefore, in view of Article 85 of the same Order, 1959, the Court was not competent to take cognizance of such an unauthorised complaint. Accordingly, the District Magistrate, recommended that the conviction, in each case, being illegal, be set aside.

3. Mr. Tajammal Hussain, Advocate, appearing for the State conceded that the conviction, in each case, as it stands, was unsustainable. He, however, urged that the State should be permitted to adduce evidence to show that the complaint in each case, had been signed by a person duly authorised by the Town Committee, Phullarwan.

4. The Municipal Committee, Phullarwan, was initially under an obligation to show that the complaint made on its behalf was signed by the Chairman, or any person authorized by the Committee to sign the complaints in that behalf. This was not done. The convict in each case assailed the conviction on the aforesaid ground. The Committee had ample opportunity to request the District Magistrate, Sargodha, for permission to adduce evidence in support of the assertion that the person who signed the complaint in each case was, in fact, a person authorised by the Committee to do so. No such action was taken until 11‑12‑1962, when the District Magistrate submitted the case to this Court. The revision petitions were admitted by order dated 22‑10‑1968 and a notice was issued to the Committee. Since 22‑10‑1963, no such request was made. Even to day learned counsel for the State wants time to "verify if there did exist any such authorization". On the other hand, learned counsel appearing in the revision petitions, referred to the case reported as Muhammad Hussain v. The State (P L D 1967 Pesh. 307) and urged that the complaint in each case, initially, was incompetent and the learned Magistrate was not competent to take cogni zance thereof, consequently, the petitioner in each was entitled to "acquittal". The additional evidence cannot be permitted to A be adduced to fill in the lacuna. Each complaint, when presented to the Court, ex facie, was incompetent. The cognizance and resulting conviction by the Court was without jurisdiction and, therefore, bad in law.

Accordingly I hereby accept the recommendation and set aside the conviction and sentence in each case and acquit the accused. The fine, if realised, be refunded to the petitioner in each case.

Reference accepted.

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