Find a Lawyer

Criminal Revision No. 87 of 1952, decided on 14th January, 1953 against the order of Yar Muhammad Khan, Sessions Judge, Mirpur, dated the 12th August, 1952.

(a) Criminal Procedure Code (V of 1898), S. 367‑Judgment ‑ Not written, signed or dated by Magistrate‑Effect.

(b) Identification‑Face muffled‑‑Dark night‑Mistake in identity possible.

Mumtaz Muhammad for Petitioner.

Muhammad Sharif, Government Advocate for Respondent.

The petitioner Dheroo was placed on his trial for an offence under section 457, A. P. C. before Mr. Usman Ali Chishti, Assistant Commissioner, exercising 1st Class Magisterial Powers in Mirpur District. The learned Magistrate convicted and sentenced him to one year's rigorous imprisonment and Rs. 25 fine. He was also ordered to suffer further rigorous imprisonment for one month in default of the payment of fine. Against his conviction and sentence, the petitioner filed an appeal in the Court of Sessions Judge, Mirpur. It was contended in the appeal that the judgment had neither been written nor signed by the learned Magistrate and consequently it was void. It was also contended that the prosecution witnesses had not given any reasons how the accused was identified when he bad muffed his entire face and was not caught while in action. It wag, further, contended that the principal prosecution witness Mst. Ghulam Bibi had admitted that she gave First Informa tion Report of the offence to the police but that report was not produced and the inference was that it went against the prosecution. The discrepancies in the statements of the prose cution witnesses were also stated to point out that the case against the accused was the outcome of enmity between Mst. Ghulam Bibi and the accused on the question of the repayment of debt due from the former to the latter. The learned Sessions Judge ruled out all the contentions of the counsel for the petitioner and dismissed the appeal.

The learned Sessions Judge, so far as the first contention for the learned counsel for the accused was concerned was of opinion that the judgment under appeal was not void though it had not been written and signed by the Magistrate but it was an irregularity covered by section 537, Criminal Procedure Code. As regards the identification of the accused by the prosecution witnesses, the learned Sesssions Judge opined that the accused being known to the witnesses could be identified even if his entire face was covered with a piece of cloth. Mst. Ghnlam Bibi supported the First information Report given by her father‑in‑law to the police of the offence. The learned Sessions Judge, therefore, was of opinion that the statement of Mst. Ghulam Bibi even if accepted could not benefit the accused in any manner. The discrepancies occurring in the statement of the prosecution witnesses were not considered material by the learned Sessions Judge.

In the revision petition filed in this Court against the judgment of the learned Sessions Judge, it has been argued by the learned counsel for the petitioner that the reasons given by the learned Sessions Judge for upholding the order of Magis trate are not sound. I entirely agree with the learned counsel for the petitioner.

Section 367, Criminal Procedure Code requires that the judgment in a criminal case shall be written by the Presiding Officer of the Court or from the dictation of such Presiding Officer and shall be dated and signed by the Presiding Officer in open Court at the time of pronouncing it and where t is not written by the Presiding Officer with his own hand, every page of such judgment shall be signed by him. The omission of date and signature on the judgment by the Presiding Officer can be treated as an irregularity covered by section 537, Criminal Procedure Code, if the judgment is written by the Presiding Officer himself and not otherwise, the reasons being that mere failure of the Presiding Officer in such a case to sign the judgment will amount to an omission on his part through an oversight. Where, however, the judgment is not written by the Presiding Officer himself and is dictated by him to his clerk then the fact that the judgment is not signed by him will not make the judgment valid unless there is evidence that the judgment was in fact dictated by the Presiding Officer himself to the clerk and he fully considered the evidence himself before giving the judgment in the case. It was necessary for the Sessions Judge to examine the Magistrate in order to find out whether the judgment was dictated by him before concluding that his failure to sign the judgment was such an irregularity as was covered by section 537, Criminal Procedure Code. This having been not done, the learned Sessions Judge was wrong in holding that the judgment in the present case was not void.

I do not agree with the learned Sessions Judge, that the prosecution witnesses were in a position to identify the culprit, if his face was muffled especially when the night of occurrence) was a dark one and there was no light in the room into which the burglar entered for committing the offence. It is, therefore, quite possible that the petitioner was a victim of mistaken identity, if not intentionally implicated in a false case. I, therefore, hold that it is not established beyond a shadow of doubt that it was the petitioner and not any one else who committed the offence attributed to the petitioner.

It was the duty of the police to explain the statement made by the principal prosecution witnesses and their failure to do so certainly raises a presumption that in the First Infor mation Report given by Mst. Ghulam Bibi, it was perhaps mentioned that the culprit had not been identified. The other arguments advanced by the learned counsel for the petitioner need not be dealt with.

The result is, that I accept the petition and setting aside the conviction and sentence of the petitioner, acquit him. The petitioner who is on ball is discharged from his bail bond. The fine if any paid by the petitioner shall be refunded to him.

A. H. Petition accepted.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.