' The petitioner was convicted under section 6 read with section 3 of the Food Stuffs (Control) Act, 1958 by Ch. Muhammad Ashraf Magistrate First Class, Lahore acting as one-man Tribunal constituted under section 9-A of the aforementioned Act and was sentenced to undergo R.I. For one month vide order dated 29-9-1979. His appeal against the order of conviction was dismissed by the Additional Sessions Judge, Lahore vide his order, dated 7-10-1979. The petitioner filed the present revision petition in this Court which was admitted to hearing on 10-10-1979 to consider a legal question as to whether his confessional statement, on which his conviction was based, was recorded under section 342, Cr.P.C. And whether such statement could be recorded before the conclusion of the prosecution evidence. The order of sentence of imprisonment passed against the petitioner was suspended at the time of admission of his revision petition.
2. The petitioner was apprehended on 7-11-1977 when he was found selling mutton at the rate of Rs,14 per seer as against the fixed price of Rs,12 per seer. He was prosecuted under section 6 read with section 3 of the Food Stuffs (Control) Act, 1959 on a complaint made by Ch. Abdul Majeed Magistrate, First Class, Lahore who had conducted a raid on his shop when he had charged Rs,14 per seer as the price of mutton from a customer. The petitioner did not admit the charge at the trial and the prosecution was called upon to lead evidence in support of its case. Five witnesses had been cited in the calendar of witnesses, out of whom only one witness, namely, Ch. Abdul Majeed Magistrate First Class, Lahore was examined on 8-2-1978. Several adjournments were allowed to the prosecution to produce the remaining witnesses. On 29-9-1979 the petitioner volunteered to make a confessional statement which was recorded by the learned trial Magistrate and on the basis of the said statement he was convicted and sentenced as noticed earlier.
3. I have heard the learned counsel for the State and have also perused the record of the case on 18-1-1978. Formal charge under section 6 read with section 3 of the Food Stuffs (Control) Act, 1958 was framed against the petitioner by the learned trial Magistrate who as noticed earlier was acting as One-Man Tribunal constituted under the Act. The petitioner did not admit the charge whereupon the prosecution was ordered to produce its evidence but before the prosecution could conclude its evidence the petitioner volunteered to make a confessional statement which was recorded on 29- 9-1979. There is no dispute that the procedure prescribed in Chapter XX of the Code of Criminal Procedure, 1898 was applicable to the petitioner's trial. According to this procedure an order of acquittal or of conviction can be recorded (under section 245) after the evidence of the prosecution and the accused has been recorded (under section 244). As noticed above the prosecution had not concluded its evidence when on 29-9-1979 the learned trial Magistrate proceeded to record the statement of the petitioner. It is difficult to appreciate under what provision of law the aforementioned statement was recorded after framing the charge against him as his statement had already been recorded under section 242. Learned counsel for the State has frankly conceded that section 342, Cr.P.C. Could not he pressed into service for recording the petitioner's confessional statement because the power to examine the accused under section 342, Cr.P.C. Can be exercised by the Court for the purpose of enabling the accused to explain any circumstance which has appeared in evidence against him. In the case under consideration the prosecution had not concluded its evidence and as such it could not be said that the petitioner was required by the Court to explain any circumstance which had appeared in the evidence against him. Moreover, the statement of the petitioner was not recorded by the Court as contemplated by section 342, Cr.P.C. But it was only at the instance of the petitioner That his statement was recorded. Section 342, Cr.P.C.! Certainly does not visualize recording of statement at the instance or request of the accused. The provisions of section 342, Cr.P.C. Would have been applicable in the present case only after the prosecution had closed its case or the Court had refused to allow any further opportunity to the prosecution to produce its evidence. The statement of the petitioner on which his conviction is based was, therefore, not recorded in accordance with law. The revision petition filed by the petitioner is accordingly allowed and the order of conviction and sentence passed against him is set aside. He is relieved of the bail bond executed by him.
Revision .