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Criminal Reference No. 42 of 1975, decided on 18th April 1975.

-----S. 263(f)-Summary trial-Record in non-appeal-able cases Magistrate required to give particulars of offence complained of or proved-Mere reference to section of statute covering offence charged-Not enough-Magistrate not giving any indication as to offence committed by accused-Held, disregarded mandatory provi sion of S. 263(f)-Judgment being illegal, set aside, and case remand ed for fresh trial-West Pakistan Motor Vehicles Ordinance (XIX of 1965), S. 112.

---Rr. 154, 156 [as amended by N.-W. F. P. Government Gazette Notification No. 14095-98/TPT/XV/B-3, dated 19-10-73] read with r. 195, proviso-Proviso added to r. 1f6 prohibiting internal fitting of a mirror in front of driver's seat but such course permissible under r. 195, proviso-Addition of proviso to r. 156, held, deemed to have by necessary implication deleted proviso to r. 195 with effect from date of notification of amendment in rules-Copy of judgment, how ever, directed to be sent to Law Secretary for deletion of proviso to r. 195 to avoid apparent inconsistency in law.

Saeed Beg for Petitioner.

Mian Burhan-ud Din, A.-G. for the State.

Date of hearing : 18^th April 1975.

Accused Tajwali, a bus-driver, was challaned for the following two offences under Motor Vehicles Act:

(1) For having fitted in his vehicle a mirror in front of his seat in viola tion of the rules, and

(2) for having fitted a record-changer in that vehicle.

2. On these charges, he was tried by Mr. Sarfaraz Khan, M. I. C., Peshawar, who convicted him on his own plea of guilty and sentenced him to pay a fine of Rs. 200 or in default one month's simple imprisonment.

Being aggrieved, Tajwali went in revision before Sessions Judge, Peshawar, who has, by his order dated 7-12-1975, referred the case to this Court recommending that, in view of the facts and circumstances of the case, conviction of Tajwali should be set aside.

3. Mr. Saeed Beg, the learned counsel for Tajwali has supported the reference of learned Sessions Judge. He conceded, however, that the learned Sessions Judge was in error to hold that there existed no law or rules under which Tajwali could be said to have committed the said two offences. And in making this concession, learned counsel seems to be right, for by Gazette Notification of Government of N: W.F.P. dated October 19, 1973 (appearing at p. 21 of P L D 1974, Statute Part), subsection (5) and a proviso was added to rules 154 and 156 of the Motor Vehicles Rules (hereinafter called Rules) which respectively read as under :-

"154.-(5) No transport vehicle shall be fitted with an instrument for the purpose of playing music to passengers.

156 (Proviso)-Provided that no public service vehicle shall be fitted internally with a mirror in front of the driver's seat:"

The learned counsel, however, argued that under the proviso to rule 195 of the Rules, the fitting of a mirror in front of a driver's seat is not an offence. And thus the conviction of his client would be illegal. In order to appreciate this contention, rule 195 may be reproduced:

"Prohibition on the fitting of mirrors.-No mirror or frame, covered with breakable glass, for displaying advertisements or other writing shall be fitted inside or outside the body of any public service vehicle:

Provided that nothing herein shall prohibit the fitting of any mirror which may be necessary to enable the driver to obtain a view of the road in the rear of the vehicle or a view of the interior of the vehicle."

Now the proviso to this rule would appeal to support the contention o learned counsel. But he agreed that the proviso in question has always been there in the Rules. In other words, when rules 154 and 156 of the Rules were amended by the Gazette Notification (ibid) of Provincial Government the said proviso to rule 195 was there. But unfortunately, it seems to have escaped the notice of draftsmen with the result that it was allowed to remain on statute book, although by the addition of proviso to rule 156 it must be deemed to have by necessary implication been deleted with effect from 19-10-73 when the said Notification was published. In this view of the matter, therefore, contention of learned counsel would evidently be misconceived, although a copy of this judgment would go to the Secretary to Government of N.-W.F.P. Law Department, in order to enable him to delete the proviso appearing under rule 195 of the Rules in view of its inconsistency with the mandatory provisions of the latest proviso to rule 156 added by the above Gazette Notification.

As regards the fitting of a record-changer in his bus, the accused seems to have brought himself within the mischief of sub-rule (5) of rule 154 of the Rules. And in this respect, the learned counsel did not express any grievance.

Having said this, however, the judgment of learned trial Magistrate seems to be open to legal objections.

His summary judgment would show that under the column "Offence complained or proved" section 112 of Motor Vehicles Ordinance has been mentioned by him, which for the sake of facility may be reproduced:---

"112. General provision for punishment of offences not otherwise provided for.-Whoever contravenes any provision of this Ordinance or of any rules made thereunder shall, if no other penalty is provided for the offence under this Ordinance, be punished with fine which may extend to one hundred rupees, and if having been previously convicted of such an offence, shall again be guilty of an offence punishable under this section shall be subject for every such subsequent offence to fine which may extend to five hundred rupees."

A perusal of case-file of learned trial Magistrate would show that he had convicted the accused under this section without inviting his attention to the precise nature of offences committed by him. It is true that in a summary trial, a Magistrate is not burdened with a cumbersome procedure, yet he is required by the mandatory provisions of section 263, Cr.P.C. to enter in such form as the Provincial Government may direct the various particulars mentioned thereunder. Now under clause (f) of that section, the Magistrate is required to give the particulars of offence complained of or proved. But in this case, this provision seems to have been violated by the learned trial Magistrate who, except for referring to section 112 of the Motor Vehicles Ordinance has not given any indication as to the offences committed by the accused. For having disregarded-this mandatory provision, therefore, there is no option but to bold that his judgment is illegal and the same is consequently set aside with direction that the case would go to the District Magistrate, Peshawar, for entrusting it to the same gentleman for fresh trial and disposal or in his absence to any other officer.

S. A. H. Case remanded.

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