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Criminal Reference No, 11 of 1955, decided on 2nd May, 1955.

, Ss. 435 and 438 Normally District Magistrate should not intervene suo Moto if accused could appeal Accused's plea of guilty‑District Magis trate's intervention suo Moto, held, proper.

Normally a District Magistrate should not suo moto intervene in revision in a case where the person affected could appeal. In this case, however, an appeal against convic tion was impossible, as the accused had pleaded guilty.

Held the discretion in intervening on behalf of the accus ed, (who was a truck‑driver) on the question of lack of inten tion or knowledge in a case of mischief was rightly exercised, H. T. Raymond, Public Prosecutor for the Crown.

---‑The learned District Magistrate of Tatta, Mr Musa, has referred this case to us on examining the record and proceedings before the Magistrate.

We agree with his opinion that the offence of mischief of which the Magistrate has convicted the accused, sentencing him to six months rigorous imprisonment, has not been com mitted by the accused.

The case, as appears from the Magistrate's judgment, is that the accused was a truck‑driver who was going along the road and struck a buffalo causing its death. We agree with the learned District Magistrate that one cannot ascribe either intention or knowledge to the truck‑driver, and the learned Resident Magistrate has not considered this point at all.

Our learned brother Muhammad Bux, J. in admitting this reference states that he would like to hear the Advocate General on the point whether the District Magistrate's refer ence was proper and whether he had the jurisdiction to release the man on bail.

Power to release the man on bail, is conferred by both sections 435 and 438 Criminal P. C., and power to make the reference is given by section 438 Criminal P. C. The only ques tion is whether the learned District Magistrate's discretion has been exercised properly.

If the accused could have appealed against his conviction to the Sessions judge, the matter could not have come up to this Court at his instance, and normally a District Magis trate would not suo motu intervene in revision in a case where the person affected could appeal. In this case, however, an appeal against conviction was impossible, as the accused had pleaded guilty (section 412 Criminal P. C.). Hence we think the discretion was rightly exercised.

We therefore set aside the conviction of the accused Rahim Bux under section 429 P. P. C. and direct that his bail bonds be cancelled.

A. H. Conviction set aside.

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