ORDER OF REFERENCE BY SESSIONS JUDGE The facts of this case are as follows: -
1. This order will dispose of a revision petition moved under section 435, Cr. P. C. For making recommendation to the High Court for the quashment of the sentence of fine of Rs. 20 imposed on the petitioner by Mr. Abdur Rahim Khan, Additional District Magistrate, Sialkot. The learned Magistrate held the petitioner to be guilty under section 82 of the Basic Democracy's Order, 1959 and convicted him on the evidence of M. Azam Chairman of the Union Council No. 96 Baghiari, Tehsil Pasrur who stated that the petitioner had stored dung-hill. In columns Nos. 9 and 10 of the summary register the learned Magistrate recorded below the writing in Urdu which when translated in English means "Accused was served with a notice that he should remove the dung- hill from the village Abadi. He has been guilty of contravention. He has not removed the dung-hill.
82 Basic Democracies Order, 1959.
No evidence.
1-11-1962. (Sd.) A. R. Rahim.
2. Sentenced on the statement of the Chairman not guilty and was sentenced on the statement of the Chairman who stated that the accused had stored dung-hill as already mentioned above.
The Proceedings are forwarded for revision on the following grounds.
1. Section 82 of the Basic Democracies Order, 1959 says that every act or omission specified in the 8th Schedule shall be offence under this order. Item No. 15 of the 8th Schedule which appears to be relevant is in the following terms: - "Failure to remove any dirt, dung, night-soil, manure, or any obnoxious or offensive matter from any land or building when so required under this order."
2. The learned counsel for the petitioner argues that there is nothing on the file to show that the petitioner was required to remove the dung under this order i.e. Basic Demo--cracies Order, 1959, either by any rules and regulations framed by the Union Council or by the Government. In the absence of any proof that the petitioner failed to remove the dung in spite of being required to do so under the Basic Democracies Order, 1959, and the entries in columns Nos. 9 and 10 of the summary register prove to the contrary, the offence under section 82 of the Basic Democracies Order, 1959 was not brought home to the petitioner. The order by the learned Magistrate was, therefore, passed on misconception of law and as such it was illegal and improper.
3. I, therefore, submit the records of this case to the High Court under section 438, Cr. P. C. With the recom--mendation that the sentence passed by the learned Magistrate on the petitioner be quashed.
Announced. ;/13-7-63(Sd.) Muhammad Hamayun Khan, Additional Sessions Judge, Sialkot.
Certified that both the pages of this order have been signed by me.
13-7-63 (Sd.) Muhammad Hamayun Khan, Additional Sessions Judge, Sialkot.
Nemo for Petitioner.
Sh. Zia-ud-Din Ahmad for A.G. For the State Date of hearing: 6th May 1969.
This Judgment will dispose of Criminal Revisions Nos. 750, 751 and 752 of 1963. They arise out of similar circumstances and same question of law is involved. The revisions arise out of reference, dated 13th July 1963, made by the learned Additional Sessions Judge, Sialkot, arising out of the following circumstances reported by him.
2. The petitioner in each case was convicted by a learned Magistrate under Article 82 of the Basic Democracies Order 1959, to a fine of Rs. 20 each. The allegation was that Item No. 15 to Eighth Schedule (Offences under the Order) was con--travened. Item No. 15 reads as follows: - "Failure to remove any dirt, dung, night soil, manure or any obnoxious or offensive matter from any land or building when so required under this order."
(underlining is mine).
The petitioners in all the three cases belong to Union Council No. 96 Baghiari, Tehsil Pasrur. The allegation was that they failed to remove the dung-hill from the village abadi, and, therefore, committed an offence under Article 82 read with item No. 15 of Eighth Schedule. The trials were summary and were contested. The learned Additional Sessions Judge has reported that there was no material or evidence on the file to show that the petitioner in each case was required to remove the dung, either by Rules, Regulations of the Union Council or by the Government.
3. The learned counsel appearing for the State frankly conceded that no material was placed on the file to show that the petitioner in each case was required by any Rule, Regulation or Resolution of the Union Council or by any general or special order by any higher Council or the Government.
4. The learned counsel for the State has however brought to my notice Article 27 of the Basic Democracies Order which reads as follows: - "27 Civil functions of Union Councils---Subject to rules, and such directions as the Government may from time to time give, and within the limits of the funds at its disposal a Union Council may undertake all or any of the functions enumerated in Part I of the Third Schedule, and such other; or,
(a) as are declared by the Government to be appropriate matters for administration by Union Councils generally or by any particular Union Council ; or
(b) as are delegated by the District Council, with the previous approval in writing of the Commissioner, to Union Councils, generally or to any particular Union Council in the District ; or
(c) as are entrusted to Union Councils under any other law for the time being in force." *[Here in italics)
Items Nos. 9 and 10 in Part I of Third Schedule read as follows: "9. Sanitation, conservancy, and the adoption of other measures for the cleanliness of the Union.
10. Regulation of the collection, removal and disposal of manure and street sweepings."
The combined reading of Article 27 and Items Nos. 9 and 10 in Part I of Third Schedule shows that the Union Council can undertake all or any of the specified functions. But that is subject to the rules and such directions as the Government may from time to time give and within the limits of the funds at its disposal. The other functions in sub-clauses (a), (b) and (c) of Article 27 can also be undertaken by the Union Council, but under the limitations and conditions con--tained in those sub-clauses. Union Councils (conduct o meetings) Model Regulations, 1963, were promulgated on 9th July 1960. Rule 33 thereof provides that the committees and sub-committees may advise the Union Council on all or any of the matters relating to conservancy, sanitation, lighting, control of epidemic diseases, prevention and abatement of nuisances in public ways, public streets and public places, and various other similar matters. Obviously after such an advice by a committee, Union Council may or may not accept the advice and may pass a resolution thereon. But it remains clear that the decision must be taken by the Union Council. In this case, there is no evidence to show that any sub--committee was constituted in respect of the matter in dispute, or that any advice was tendered by any such sub-committee, or that any resolution or order was passed by the Union Council, undertaking the functions mentioned in Items Nos. 9 and 10 in Part I of Third Schedule. Therefore, Article 27 of the Basic Democracies Order is, by itself, of no help to the prose--cution. Thus it is clear that in law it has not been proved that the Union Council had undertaken the functions in respect of the matter in dispute. If that is so, it cannot be held that the Union Council had, by an order or resolution, required the inhabitants of the Union Council generally or the petitioner in each case particularly, to perform the acts mentioned in item No. 15 of Eighth Schedule. And if that is l so, no contravention of that item has taken place, with the result that no offence has been committed under Article 82 of the Basic Democracies Order.
In the light of the above discussion, I accept these revisions and set aside the convictions. If the fine has been paid, it shall be refunded.