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Criminal Petition for Special Leave to Appeal No. 45‑R of 1978, decided on 27th July 1978

(On appeal from the judgment and order of the Lahore High Court, dated 1st July 1978 in Criminal Miscellaneous No. I of 1978)

Criminal Procedure Code (V of 1898)‑--

----S. 497/498 and Penal Code (XLV of 1860), S. 307 read with S. 148/ 149‑Accused petitioner B sentenced to 4 years' R. I. and one year's R. I. under Ss. 307 & 148, 149 respectively while accused petitioner P sentenced to 2 years and one year's R. I. respec tively and accused petitioner L convicted only under S. 148 and sentenced to one year'. R. I.‑Sessions Court on appeal rejecting all contentions of appellant, holding Magistrate having not followed proper procedure, nor applied his mind to facts before him, holding judgment to be defective, and remanding case to lower Court to cure defect and re‑write judgment‑Magistrate on receipt of file passing fresh order sentencing all accused to 5 years' R. I. and fine Contention that Sessions Court could not remand case merely for reason of judgment requiring to be re‑written‑Counsel for State very properly conceding order of Sessions Judge as well as second judgment of Magistrate to be indefensible‑Petitioners P and L, held,' entitled to bail on short ground of original sentences being for 2 years' R. I. and .one years' R. I. respectively and as regards petitioner B, although originally sentenced to 4 years R. I. yet a case for bail pending appeal also made out against him‑Petition converted into appeal and all petitioners bailed out.‑[Appeal (criminal)].

Malik Muhammad Jaffar, Advocate and Ch. Akhtar Ali, Advocate‑on‑Record for Petitioners

Riaz Ahmad, Assistant Advocate‑General (Punjab) far the State.

Date of hearing: 27th July 1968.

, J.‑The petitioners were tried with three other accused under sections 307 and 148/149, P. P. C. by the Section 30, Magistrate, Pindigheb and by his order dated 31‑12‑1977, the learned Magistrate convicted all the accused, but for the purpose of this petition, it is sufficient to state here that the petitioner Budha Khan was convicted under sections 307 and 148/149, P. P. C. and sentenced to four years R. I. and one year R. I. respectively. The second petitioner Phul Pir Shah was convicted under section 307 and section 148(149, P. P. C. and sentenced to two years R. I. and one year R. I., whilst the third petitioner Lai Shah was convicted only under section 148, P. P. C. and sentenced to one year R. I. The petitioners and the other accused challenged their conviction in the Sessions Court, Campbellpur, and the appeal cam;, up for hearing before a learned Additional Sessions Judge, Campbellpur, who passed a most extraordinary order on 15‑3‑1978. The learned Additional Sessions Judge rejected all the contentions of the appellants and held that the learned Section 30 Magistrate had not followed the proper procedure. He then wrote‑

"Since the learned Magistrate has not applied his mind to the facts before him and the judgment is defective, I feel it will be appropriate to remand this case to the lower Court with the directions that he should rewrite the judgment taking care that the defects already borne in the judgment are not repeated and are cured. The judgment should be delivered within 15 days of the receipt of the record. Fresh arguments may, however, be heard. The missing record be also placed on file. The conviction and sentences of the appellants are set aside. They are on bail, even after the announcement of the judgment in case of conviction."

In pursuance of this order, the case was reheard by the learned Section 30 Magistrate, who no doubt found it difficult as we have found it difficult to understand the order of the learned Additional Sessions Judge. Be this as‑ it may, after bearing arguments, the learned Section 30 Magistrate passed a fresh judgment on 27‑5‑1978 and by this judgment he upheld the convictions passed against the first two petitioners, Budha Khan and Phul Pir Shah and convicted the third petitioner also under section 3071 149, P. P. C. Further, he sentenced all the three petitioners to five years' .R.,I. and fines.

The petitioners challenged this second conviction in the Lahore High Court as the sentence passed against them exceeded the jurisdiction of the Sessions Court, Campbellpur and together with the appeal, they sought bail. Bail was sought, inter alia, on the very obvious ground that the second conviction of the petitioners by the learned Section 30 Magistrate was illegal. However, a learned Judge of the High Court dismissed their bail application. Hence, this petition for leave. "

Mr. Jaffar, learned counsel for the petitioners, submitted that the Sessions Court had no power to remand the case to the trial Court merely on the ground that the trial Court's judgment required to be re‑written. As we were disturbed by this argument, we ordered notice to the State and the learned Assistant Advocate‑General very properly conceded that the order of the Sessions Judge was indefensible and that he could not, therefore, defend the second judgment of the learned Section 30 Magistrate. In these circumstances, the petitioners Phul Pir Shah and Lal Shah would be entitled to bail on the short ground that the sentences originally passed against them were for two years' R. I. and one year R..I. respectively. It is true that the sentences originally passed against the petitioner Budha Khan was four years' R. I. But having heard the learned counsel, we would only observe that a case for bail pending the appeal has been made out. Accordingly we have converted the petition into an appeal and allowed it. The petitioners shall be released on bail. Bail in the sum of Rs. 10,000 with one surety of the like amount by each of the petitioners to the satisfaction of the Assistant Commissioner, Attock.

Bail allowed.

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