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Criminal Revision No.37 of 1981 , decided on 29th March, 1983.

---Ss. 233, 243, 435, 439 & 561-A--West Pakistan Motor Vehicles Ordinance (XIX of 1965)--Defect in framing charge--Accused charged with ten distinct offences under West Pakistan Motor Vehicles Ordinance, 1965 and his conviction based on his alleged plea of guilt but said plea not recorded by trial Magistrate in accordance with provisions of section 243, Cr.P.C.- Charge framed by trial Court contrary to provisions of section 233, Cr.P.C.--Order of conviction and sentence set aside.

1969 P Cr. L J 373 and 1975 P Cr. L J 240 ref.

A. Aziz Khan for Applicant.

Warse for the State.

The applicant has filed the above revision under section 439, Cr.P.C. r/w section 561-A, Cr.P.C. against the judgment, dated 30-3-1981 of the IIIrd Additional Sessions Judge, Hyderabad, in Criminal Appeal No.3/81 by which applicant's said appeal was dismissed and order, dated 8-1-1981 of the Magistrate Mobile Court Highways, Hyderababd, Sind was upheld on the facts and grounds mentioned in the above petition.

The learned Advocate for the applicant in support of the above application submitted, that no doubt the conviction of the applicant on 10 counts is based on his alleged plea of guilt, but the said plea was not recorded by the learned trial Court in accordance with the provisions of section 243, Cr.P.C. and on this ground alone, the applicant's conviction cannot be maintained. In addition to this the learned Advocate for the applicant submitted, that the applicant was charged with 10 distinct offences, under the Motor Vehicles Ordinance, 1965, but the learned trial Court framed one charge in respect of all these offences and by one judgment disposed of all these charges and as such the learned trial Court violated the provisions of section 243, Cr.P.C. and consequently R the conviction of the applicant cannot legally be sustained. The learned Advocate for the applicant further submitted that in spite of the alleged plea of guilt, This Hon'ble Court can go into the legality of the trial and if it is found, that the trial of the applicant was contrary to the provision of the law, the conviction of the applicant could be set aside. In support of this the learned Advocate for the applicant relied upon case reported in 1969 P Cr. L J 373. As far as the other contentions raised by the learned Advocate for the applicant he relied upon case reported in 1975 P Cr.L J 246 and submitted that both the impugned judgments cannot legally be maintained.

The learned Advocate for the State at the outset submitted that there is defect in framing of charge against the applicant and further more the plea of guilt of the applicant has not been recorded in accordance 8 with the provisions of section 243, Cr.P.C. In this connection the case reported in 1970 P Cr. L J 246, cited by the learned Advocate for the applicant is fully applicable to the present case, with which 1 am in full agreement, for the reasons given in the said judgment and consequently the conviction of the applicant and sentences awarded to him by both the learned lower Courts cannot legally be maintained.

In view of my above conclusion the impugned order, dated 8-1-1981 as well as the impugned judgment, dated 30-3-1981 suffer from patent illegality and material irregularities and as such cannot be sustained. Therefore, I allow the above petition and set aside the conviction of the applicant and sentences awarded to him under order, dated 8-1-1981 and impugned Judgment, dated 30-3-1981 and acquit the applicant. I further direct, that fine if any paid by the applicant be refunded to him forthwith. The above petition stands allowed in the terms of the above Order.

M. Y. H. Revision accepted.

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