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The facts of this case are as follows:

1. This is a revision petition under sections 435 and 520, Cr. P. C. against the order dated 17-2-1973 passed by Secretary, R. T. A., Lahore with powers of Magistrate under section 260, Cr. P. C. by which the appellant was convicted under section 226-A/112 of Motor Vehicles Ordinance and sen tenced to a fine of Rs. 100 or in default to undergo two months' S. I. and also the Transister-Radio of Bus No. 3762 LRA was ordered to be confis cated in favour of the State. Before I discuss the revision petition on merits, I would like to say that the appeal against this order was not competent in view of section 414 as the sentence was less than Rs. 200. I, therefore, feel that the revision is competent in these circumstances.

2. It is contended in this revision petition that the petitioner was allegedly found playing Transister-Radio in Bus No. 3762 LRA and was caught red-handed. He made the confession before the learned Magistrate that he was playing Transister-Radio in the vehicle and the learned Magistrate found him guilty under a recently added section 226-A of the Motor Vehicles Ordinance. The learned Magistrate sentenced him to Rs. 100 under the above-mentioned section read with section 112 of the same Ordinance.

3. The petitioner has raised the following two points in the revision

Firstly that according to section 226-A playing music in the public vehicle is only an offence when the passengers are seated in it. It is, there fore, alleged that since there is nothing on the record to show that the music was being played when the passengers were seated in the bus, therefore, the conviction under section 226-A/112 of Motor Vehicles Ordinance is illegal, and

Secondly, there is no provision either in section 226-A or in section 112 Of Motor Vehicles Ordinance to confiscate the transister-radio. It is, there fore, urged that the revision should be accepted on the above-noted points because the provisions of the above-mentioned sections as well as section 243, Cr. P. C. are not applicable to the present case.

After going through the relevant sections and the record of the learned Magistrate, I feel that the impugned order is stereotype and lacunic in nature. I, therefore, recommend this revision to the Hon ble Court on the following points

(a) That the impugned order has only been passed on the confession of the petitioner that the radio was being played in the bus. It has nowhere been stated either in the statement of the petitioner or in the order of the learned Magistrate that the radio was being played when the passengers were seated in the bus. The provisions of section 226-A, Motor Vehicles Ordinance are only attracted in the case when the passengers are seated in the public conveyance. Since it has not been made clear from the statement of the accused or from the order of the Magistrate that the passengers were also seated in the bus, therefore, the conviction on the statement of the accused that the radio was being played in the bus cannot be sustained in the eye of law.

(b) There is no provision either under section 226-A or 112, Motor Vehicles Ordinance to confiscate the Transister-Radio or instrument of music for which the violation of section 226-A is alleged. Under these circumstances, the order of the learned lower Court was defective regarding the confiscation of the Transister-Radio installed in Bus No. 3762 LRA and as such it is liable to be restored to the petitioner.

5. The record of the case is, therefore, submitted to the Hon'ble Lahore High Court, Lahore for proper orders in the matter. The petition is disposed of accordingly.

Nemo for Petitioner.

Abdul Qayyum Bhatti for A: G. (Pb.) for the State.

Date of hearing : 21st January 1976.

Learned Additional Sessions Judge, Lahore. has made a recommendation for setting aside the conviction of Muhammad Boota petitioner for an offence under section 226-A/112 of the Motor Vehicles Ordinance, 1965 on two grounds firstly that unless it is proved that Transister-Radio was being played when the passengers were seated in the bus, the petitioner could not be con victed for the said offence and secondly that in any case the transister-Radio could not be confiscated.

In the grounds of revision submitted before the learned Addl. Sessions Judge the plea taken by the petitioner was not that there was no passenger seated in the bus. On the other hand, his assertion was that the Transistor was out of order and that in the alternative playing of 'transistor-Radio in a bus by itself is not an offence. No plea was taken that at the time of raid the passengers were not seated in the bus. The facts and circumstances noted in the challan report as also the copy of the order passed by the learned Magistrate and disclose during the hearing of the arguments in this petition by Allah Ditta who claims to be partner/owner of the bus show that the petitioner was caught red-handed at the spot. The transister was handed over by the A. S. I. to the Traffic Magistrate there and then. In an applica tion submitted by the Manager of the owner subsequent to the conviction, it is mentioned that the Transister-Radio was on. It is also mentioned therein that in the bus itself the Transister-Radio was on when it was taken into possession. An undertaking was given that in future such a mistake would not be committed. "(AYANDA AISE GHALTI NAHEEN KARAIN GAYY)" The learned Magistrate kept only a summary of the record of the proceedings. The petitioner confessed his guilt. Obviously no proceedings would have been taken against him if, as now stated by the owner, the bus would have been parked in General Bus Stand or that the Transister-Radio would have been out of order or that it was not being played when there were passengers in the bus. The assertions made in the grounds of revision are in conflict with what was urged during the arguments before the learned Additional Sessions Judge. I, therefore, hold that there is no factual basis to support the first point of the reference made by the learned Additional Sessions Judge that there was no passenger in the bus when the petitioner had put on the Transister -Radio.

2. With regard to the second point of the reference, learned counsel for the State has argued that section 517 of Cr. P. C. is a general provision. In absence of any such law in this behalf contained in the Motor Vehicle Ordinance the general provisions would apply to the trial of the petitioner. The position taken by the learned counsel for the State has not been controverted from the other side. Prima facie the contention of the learned counsel is plausible. The confiscation of the Transister-Radio is not illegal.

3. There is no force in the second point either this reference is therefore, rejected.

Reference rejected.