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Criminal Petition No. 12‑R of 1984, decided on 26th May, 1984.
(On appeal from the judgment and order, dated 23‑2‑1983 of the High Court of Sind, Bench at Sukkur in Criminal Revision No. 43 of 1983).
‑‑Art. 185(3)‑‑Criminal Procedure Code (V of 1898), Ss.241‑A & 537‑ Criminal trial‑‑Failure to comply with provisions of 5.241‑A, Cr.P.C.‑ Plea that proceedings were vitiated, repelled‑‑Under 5.537, Cr.P.C. no finding, sentence or order is to be reversed c: altered unless an omission or irregularity has occasioned a failure of justice and in determining so, a duty is cast on accused to raise objection in regard to violation of law at an early stage in proceedings‑‑Petitioner not having raised this objection and having, of his own free will, pleaded guilty, no prejudice, held, caused to accused‑‑Petition being devoid of merits, dismissed.
Abdul Rehman and others v. The State P L D 1968 Lah. 541; State v . Faiz Muhammad and another 1971 P Cr. L J 264 and Abdur Rashid v. The State 1984 P Cr. L J 402 ref.
Rafiq Javed Butt, Advocate Supreme Court of Pakistan instructed by Ch. Mehdi Khan Mehtab, Advocate‑on‑Record (absent) for Petitioner.
Nemo for Respondent.
‑‑The petitioner was convicted on the plea of guilt under section 9(a) of the Opium Act read with Articles 3 and 4 of the (Enforcement of Hadd) Order, 1979), and sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.2,000 or in default to undergo R.I. for six months. He was also awarded the sentence of whipping numbering five stripes.
The petitioner was found in possession of a brief‑case containing 10 kilograms of opium in three bags while travelling in a rickshaw No. 6297‑SK between Rohri and Sukkur at 6‑45 a.m. on 8th of November, 1983. A case was registered and on 13‑11‑1983, he was produced before a Sub‑Divisional Magistrate, Sukkur, who charged him of the offence to which he pleaded guilty.
Not being satisfied with his conviction, he filed an appeal before the Sessions Judge, Sukkur, which was dismissed by his order, dated 14‑12‑1983. He next filed a revision in the High Court of Sind, Sukkur Bench, and in the course of hearing of the revision, a ground was taken that there was non‑compliance of section 241‑A Cr.P. Code, in that, neither, the previous statements were made available nor a period of seven days was allowed to elapse before his production before the Magistrate on 13th of November, 1983, on which date he was charge -sheeted and sentenced, and that this violation vitiated the proceedings.
The High Court relying on the case of Abdul Rehman and others v. The State P L. D 1968 Lah. 541, rejected this contention as the petitioner had failed to make out a case of prejudice.
It is urged before us that in two decisions namely, the State v. Faiz Muhammad and another 1971 P Cr. L J 264 and Abdur Rashid v. The State 1984 P Cr. L J 402, retrial was ordered for non‑supply of the copies of 161, Cr.P.C. statements. In the first case, the trial had proceeded and the accused was examined without any opportunity having been afforded to him to cross‑examine the witnesses because of the failure to supply him the copies of 161, Cr.P.C. statements. Here prejudice had, in fact, occasioned. In the second case, not only did seven days not elapse after the supply of statements of the witnesses but also that the charge was defective and the accused being un-represented was unable to know the allegations against him so as to enable him to meet the prosecution case. However, while holding so, there is no reference to section 537, Cr.P.C. which in clear terms lays down that no finding, sentence or order shall be reversed or altered unless an omission or irregularity has occasioned a failure of justice and in determining so a duty is cast on the accused to raise an objection in regard to the violation of law at the earlier stage in the proceedings. If this provision had been in the mind of the learned Judge who had decided this case then he would not have possibly concluded in regard to the prejudice on a bare consideration of the non‑compliance of section 241‑A, Cr.P.C. as no such objection was taken to mitigate the violation. These decisions do not, in any manner. help the learned counsel in his submission for ought it be said that if the petitioner had raised this objection before the learned Sub‑Divisional. b Magistrate, he would have dealt with the objection to avoid any failure or justice. Again the High Court referred to his anxiety in the disposal of the case and his waiver to assert his right under section 241‑A, Cr. P. C . Be that as it may, it was open to the petitioner, if he wanted to contest the prosecution case, to ponder over the matter and to take a decision during the interregnum, i.e. between the day on which the case was registered and the day on which he pleaded guilty to the charge, and in the event of his decision to undergo a trial he could have insisted for the supply of copies and for the stipulated period to elapse before the commencement of the trial. As he had of his own free will pleaded guilty to the charge, the question of prejudice, in our view, does not arise.
Accordingly, there is no merit in this petition, which is dismissed.
M.I. Petition dismissed.
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