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Criminal Revision No. 1200 of 1964, decided on 24th July 1970.

S. 251‑A read with S. 161‑Provisions of S. 251‑A‑Mandatory‑Trial Court straightaway proceeding to record statements of accused without supplying copies of statements of prosecution witnesses and inspection note of Investigating Officer‑Court, held, violated mandatory provisions of S. 251‑A, Criminal Procedure Code, 1898.

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--‑Defence‑Trial Court straightaway pro ceeding to record evidence of accused on very first day of trial and affording no opportunity to accused to consult a counsel to defend them at trial‑Accused, held, refused their statutory right of being defended by a counsel.

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----‑Prejudice‑Trial Court not only recording evidence of prosecution witnesses on very first day of ‑trial but also examining accused under S. 342, Cr. P. C. and after recording their plea of guilty convicting them in unusual haste and in complete disregard of directory and statutory provisions of law‑Trial, held, vitiated in circumstances.

Abdur Rehman and others v. The State P L D 1968 Lah. 514 rel.

(d) Criminal Procedure Code (V of 1898)-------

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S. 162‑No report ever lodged about theft of alleged stolen property‑Accused challaned under S. 411, Penal Code on basis of disclosure made by accused themselves before Police Officer‑Police Officer's report forming part of record as F. I. R. recorded on 'such disclosure‑Not admissible in evidence against accused‑Penal Code (XLV of 1860), S. 411.

(e) Criminal Procedure Code (V of 1898)-------

----S. 439 read with S. 423(b)‑Fresh trial‑Delay‑Accused in suspense with fear of conviction hanging over their heads for 6 years‑Chances of accused to defend themselves successfully adversely affected due to lapse of such long years‑Putting accused to jeopardy and peril of second trial. in circumstances, held, not justified.

Ashiq Hussain and Faiz Muhammad petitioners were convicted under section 411, P. P. C. on the 3rd of August 1964, by Mr. Ziaul Hasan Qureshi, then Magistrate 1st Class, Bahawalpur, who sentenced Ashiq to R. I. for one year and Faiz Muhammad to R. I. for six months. Aggrieved by this order they filed a petition under section 435, Cr. P. C. in the Court of Session Judge, Bahawalpur, questioning the correctness of this order who called for the record and examining the same found that the provisions of section 251‑A of the Code of Criminal Procedure had not been complied with in disposing of this case. He, therefore, forwarded the case to this Court with the recommendations that the proceedings taken by the trial Court may be quashed and the case remanded ‑for fresh trial and disposal in‑accordance with law.

2. The reference was admitted on the 7th of January, 1965, with notice to the petitioners as also to the State.

3. I have heard the counsel for the parties 1O0 have taken me through the record of the case and find that the petitioners were arrested on the 31st of July 1964, and the investigation was completed within three days as the challan was put in, Court on the 3rd of August 1964. They were produced along with the prosecution witnesses on the same day and the learned Magistrate straightaway proceeded to record their evidence without supplying them the copies of the state ments of the prosecution witnesses recorded under section 161,9 Cr. P. C., and the inspection note of the investigating officer He had thereby violated that provisions of section. 251‑A, Cr. P. C. which required the supply of these documents to them seven days before the commencement of their trial. He, could not have proceeded with their trial without letting the petitioners know the nature of the allegations made against them which they could come to know only from the above documents. Even if the requisite copies had been supplied to them on the 3rd of August, 1964, the first date of their appearance in Court; the trial had to be adjourned for seven days to give them an opportunity to consul a counsel but they were provided no facility even to contact their relatives to arrange for their defence at the trial. They had thus been refused the statutory right of being defended by a counsel as held in Faruq Bidar etc. v. The Inspector‑General of Police (P L D 1969 Lah. 1020).

The learned Magistrate not only recorded the evidence of the prosecution witnesses on, the first day without complying with the above imperative provisions of the Code but had also examined the petitioners under section 342 (I), Cr. P. C. and after recording their plea of guilty pronounced the impugned judgment on the same day. This unusual haste in the disposal of the case in complete disregard of the directory and statutory provisions had certainly prejudiced the case of the petitioners and vitiated their trial as held in. Abdur Rehman and others v. The State (P L D 1968 Lah. 514). I, therefore, quash all the proceedings taken against them in this case but I am not inclined to order a fresh trial as recommended by the learned Sessions Judge, Bahawalpur, in the present reference.

4. The petitioners are alleged to have dishonestly retained in their possession, some (common pattern) articles P. 1 to P. 15 on the 31st of July 1964, knowing or having reason to believe the same to be stolen property but their owner Mistri Fazal Din P. W. 3 had lodged no report at all about their theft I at any police station. They were in fact challaned under section 411, P. P. C. on the basis of the disclosures made by themselves before A. S. I. at the time he intercepted them, and incorporated n in his report Exh. P. A. forming a part of this record as an F.I. R. in the case which would not be admissible in evidence against them. In the absence of any report about the alleged theft it would not be possible to determine as to when in fact this theft had' taken place and if ‑the possession of the petitioners was recent enough to bring home to them the guilty knowledge about their origin as required under section 411, P. P. C. so it would serve no useful purpose if the case is remanded for retrial.

5. There is another aspect of this case which requires consideration. The petitioners were bailed out on the 15th of August 1964, by the learned Sessions Judge, Bahawalpur on admission of their petitions under section 435, Cr. P. C. leading to the present reference dating back to October, 1964 which is being disposed of in June 1970. They were thus kept in suspense with the fear of this conviction hanging over their heads for almost six years. In the meanwhile, and for no fault of theirs, the chances of the petitioners to defend themselves E successfully must have been adversely affected due to the lapse of so many years after the alleged occurrence. It would, therefore, be against all cannons of justice that they should be put to the jeopardy and the peril of a second trial after such a long time, Sabir Mulla v. Didar Mulla (P L D 1964 Dacca 170).

6. As a result of this discussion' I partly accept the reference made by the Sessions Judge, Bahawalpur and set aside the conviction and sentence of the petitioners. They are on bail, so their bonds shall stand discharged.

Reference partly accepted.

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