As a result of a summary trial by Mr. G. M. Mansoor, learned Magistrate, Lyallpur, the petitioner has been convicted under section 116 of Municipal Administration Ordinance, 1960 and sentenced to a fine of Rs.
150. His appeal having bee dismissed by the learned Sessions Judge on 2nd October 196: this is a revision petition.
2. Mr. C. R. Aslam, the learned counsel for the petitioner has relied on section l18 of the Ordinance to contend that a offence punishable under section 116 can be taken cognizance by a Magistrate only on a complaint in writing received from the Chairman of, or a person generally or specially authorised, by the Municipal Committee, in this behalf. Section 116 general punishes the offences under the Ordinance while section 115 defines the offences. The detailed definition of offences is in the Second Schedule of the Ordinance, wherein item No. 7, reads as follows:-- "making an encroachment on any public road, public street Committee or public place without the sanction of the Municipal Committee.
The learned counsel has further contended that the learned Magistrate,, in column No. 10 relating to summary of evidence for prosecution, if any, has mentioned only "had a tal of wood in the middle of the road". This, according to the learned counsel, is not sufficient compliance with the procedure for the trial of summary cases. No evidence is mentioned against that column. Only the charge has been mentioned.
3. There is force in both the contentions of the learned counsel. Section 118 of the Municipal Administration Ordinance is in mandatory terms and reads as follows: - "118. Cognizance of offences-No Court shall take cogniz--ance of any offence under this Ordinance except on a complaint in writing received from the Chairman, or a person generally or specially authorized by the Municipal Committee in this behalf."
The learned counsel for the State has very frankly conceded that the trial of the petitioner, in the circumstances, could not take place without a complaint by a competent person mentioned in that section. If that is so, the learned Magistrate had no jurisdiction to try the petitioner. Therefore the petitioner's trial being without jurisdiction was void. That being so, the conviction of the petitioner is illegal and cannot be maintained and has to be set aside.
4. With regard to the second contention also, it must be remarked that the learned Magistrate felt satisfied only with the mentioning of the item of charge where be should have mentioned the evidence, or at least, the name of witness/witnesses. This, IB in my view, was not a proper trial and for that reason also the conviction of the petitioner merits to be set aside.
5. In the light of the above discussion, the conviction of the petitioner is set aside. He is acquitted.
The fine, is realised, shall be refunded to him.