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Criminal Revision No. 110 of 1967, decided on 30th September, 1980.

-- Ss. 435 & 439 read with S. 243- Revision (criminal)-Summary proceedings --- Magistrate trying a case summarily--Obliged to record admission of accused as nearly as possible in words used by him-Magistrate instead of recording admission of accused as nearly as may be in his own words merely recording his own conclusion from that statement in words "pleads guilty"-Petitioner, however, denying to have pleaded guilty of charge-Convictions recorded against petitioner set aside, in circumstances.

Nemo for Petitioner.

Muhammad Hussain Naqshbandi for the State.

Date of hearing: 30th September, 1980.

Petitioner was apprehended by the Forest Guard un-authorisedly cut ting wood from the forest and pasturing cattle. He was summarily tried by a Magistrate, Ist Class, Rawalpindi, with enhanced powers under sec tion 30 of the Code of Criminal Procedure, separately to 38 cases and was convicted under section 26, of the Forest Act and sentenced to a fine, ranging from Rs. 5 to Rs. 100, or in default to suffer S. I. for a period of two days to one month. Petitioner filed 38 revision petitions against his conviction which were disposed of by the learned Sessions Judge by a single judgment dated 5th September, 1966. Case was recommended to this Court for setting aside the conviction and remanding the cases back to some other competent Magistrate for proceeding according to law. I propose to dispose of all the revisions (Criminal Revision No. 110/67, 111/67, 112/67, 113/67, 114/67, 115/67, 116/67, 117/67, 118/67, 119/67, 120/67, 121/67, 122/67, 123/67, 124167, 125/67, 126/67, 127/67, 128/67, 129/67, 130/67, 131/67, 132/67, 133/67, 134/67, 135/67, 136/67, 137/67, 138/67, 139/67, 140/67, 141/67, 142/67, 143/67, 144/67, 145/67, 146/67, and 147/67) by this judgment. Learned Sessions Judge while recommend ing the case to this Court proceeded to observe:-

"The petitioner was tried summarily. His conviction is based on his own plea and not upon any evidence produced in the case. There is no note on the record of the case about what was stated by the appellant beyond plead guilty'. The petitioner has also alleged that he had never pleaded guilty and that the plea of guilty was never made by him but was fictitiously entered in the register under the column headed 'guilty'."

It was held in P L D 1960 Dacca 213 that "the provision in section 243, Cr. P. C., for the recording of the admission of the accused as nearly as possible in the words of the accused is a salutary provision designed to enable not only the trying Court but also the superior Courts to know that the accused understood that he was really pleading guilty to the offence charged. A conviction without taking of any evidence and purporting to be based on a plea of guilty cannot be sustained when the accused denies having pleaded guilty and the said plea is not found recorded in accordance with the provisions of section 243, Cr. P. C." According to section 242, Cr. P. C. "When the accused appears or is brought before the Magistrate the particulars of the offence of which he is accused shall be stated to him and he shall be asked if he has any cause to show why he should not be convicted, but it shall not be necessary to frame a formal charge" and according to section 243, Cr. P. C. "If the accused admits that he has committed the offence of which he is accused, his admission shall be recorded as nearly as possible in the words used by him, and if he shows no sufficient cause why he should not be convicted, the Magistrate may convict him accordingly."

On going through the record of this case I find that by not recording the admission of the accused as nearly as may be in his own words but by merely recording his own conclusion from the statement in the words "pleads guilty" the learned Magistrate has deprived the superior Court from examining the validity of his conclusion. The interests of justice require that the Magistrate should not be permitted to do so."

2. None on behalf of the petitioner has appeared. As these are very old cases, I, therefore, proceed to dispose of these revisions on merits with the help of learned counsel for the State whom I have beard at length.

3. Under section 26 of the Forest Act, any person guilty of the acts enumerated in the section can be punished with imprisonment for a term which may extend to six months, or with 'fine which may extend to five hundred rupees, or with both under clauses (v) and (w) of section 4 of the Code of Criminal Procedure, as it stood before the enforcement of Law Reforms Ordinance, 1972, "summons case" means a case relating to an offence and not being a "warrant case", and warrant case means a case relating to an offence punishable with death, transportation or imprison ment for a term exceeding six months. Offence under section 26 of the Forest Act, therefore, is a "summons case". Under Chapter XXII (as it stood before amendment by Law Reforms Ordinance, 1972), offences, inter alia, not punishable with death, transportation or imprisonment for a term exceeding six months can be tried summarily. Under section 262, the trials under this procedure, the procedure prescribed in "summons cases" was to be followed in summons cases and the procedure prescribed for warrant cases was to be followed in warrant cases. Under section 242, in Chapter 20 (since repealed), dealing with the trials of summons cases by a Magistrate, it was embodied "when the accused appears or is brought before the Magistrate, the particulars of the offence of which he is accused shall be stated to him, and he shall be asked if he has any cause to show why be should not be convicted ; but it shall not be necessary to frame a formal charge." Under section 243 of the same Chapter "If the accused admits that he has committed the offence of which he is accused, his admission shall be recorded as nearly as possible in the words used by him ; and, if he shows no sufficient cause why he should not be convicted, the Magistrate may convict him accordingly." Therefore, a Magistrate while trying a case summarily was obliged to record the admissions of the accused as nearly as possible in the words used by him.

As observed by the learned Sessions Judge, this has not been done in these cases. I am, therefore, obliged to accept the recommendations. Convictions recorded against the petitioner ate set aside and the cases remanded to a competent Magistrate for proceeding against the petitioner in accordance with law.

Revision allowed.

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