IMAM ALI G.KAZ1, J- Appellant Muhammad Rafiq has been convicted under Section 13-D Arms Ordinance and sentenced to suffer R.I. For five years and to pay a fine of Rs.1,000/- and default in payment thereof to suffer R.I. For three months more by the judgment passed on 10-7-1990 by Magistrate First Class and empowered under Section 30 Criminal Procedure, Code, Court No.7, Karachi (East).
2. The facts giving rise to the present appeal are briefly stated as follows: The appellant in this case was arrested on 9-1-1990 by the Brigade Police. He was found to be in possession of an unlicenced pistol of, 25 bore and two live bullets. Alter usual investigation challan was presented on 23-1-1990 in the Court of FCM-7, Karachi (East). The appellant was not produced at the time of presentation of challan and the case was being adjourned from time to time atleasl for 12 hearings when too he was not produced by the Jail Authorities. The accused was produced for the first time before the trial Magistrate on 10-7-1990 when documents required to be given to under trial prisoners under section 241-A Criminal Procedure Code were supplied to him. The Magistrate proceeded to frame the charge on that date and the appellant pleaded guilty. The trial Magistrate passed the judgment on that very day convicting and sentencing him as stated above on the basis of plea of guilty.
3. Mr.S.M.Af/.Al Advocate appearing for the appellant has contended that the appellant was supplied statement of witnesses recorded under Section 161 Cr.P.C, and other documents only on 10-7-1990 when charge was framed and the plea of the appellant was recorded and judgment passed. According to him, this could not have been done bv the trial Magistrate as he had to wait for one week. Alternatively as the appellant at very early stage before commencing the trial voluntarily pleaded guilty, deserves to be dealt with liniently and imprisonment for five years and fine of Rs.1,000/- is excessive under the circumstances of the present case. Besides an ordinary pistol of 25 bore of a small calibre with two live bullets are said to have been secured from him. In support of his such contention he referred to case reported in PLD 1961 AJ&K 14.
4. Mr.A/i/-ur-Rahman Advocate appearing for the State states that nonsupply of statements and mashirnamas have violated the provision of section 241- A Cr.P.C, anc he may be acquitted.
It is true that Section 241-A was added to the Criminal Procedure Code by the Law Reforms Ordinance, and it required that statements of witnesses recorded under section 161 and 164 Cr.P.C, together with copies of inspectionnote prepared on the first visit, by the Investigating Officer shall be supplied to an accused at least seven days before the commencement of the trial of offences other than offences triable in a summary manner or punishable with fine or imprisonment not exceeding six months. The requirement laid down in Section 241-A Criminal Procedure Code is to be met with before a trial of an accused person commences before a Magistrate. Such a trial can only commence after a charge has been framed by a Magistrate under Section 242 Cr.P.C, and his plea recorded. In cases an accused person admits that he has committed the offence he is charged with the Magistrate can record his conviction as is provided by Section 243 Cr.P.C. In case no such admission is made by the accused stage is set for commencing the trial. Trial in a case before a magistrate starts after the charge is framed and plea recorded. Compliance of the provision contained in Section 241- A Cr.P.C, is required to be made only when an accused person does not plead guilty and claims to be tried under Chapter XX of the Criminal Procedure Code that he is provided copies of material evidence that may be led by the prosecution. Failure of the Magistrate to give a gap of seven days to proceed further in the case is of no consequence in the circumstances of the present case. Where appellant pleaded guilty in a framing of the cherge.
Even otherwise provision contained in Section 241-A Cr.P.C, is not of a mandatory nature and its non-compliance will be of no consequence unless it is shown that its breach has caused sufficient prejudice to an accused person in his trial. Such a view as I have taken is supported by the decision in the case reported in 1981 P.Cr.L.J. 176.
5. The arguments advanced by both counsel in view of above have no merit.
The appellant remained in custody for atleast 12 hearings and the case could not be proceeded with for no fault of his and due to failure of the Jail Authorities to produce him for trial for so many hearings. He was for the first time produced on 10-7-1990 when he voluntarily and promptly pleaded guilty to the charge framed on that very dale. The appellant also appears to be a first offender and 21 years of age. A fire arm of a small calibre with two bullets have been secured from his possession. For the reasons mentioned hereinabove he deserves to be dealt with linienlly. This appeal is, therefore, allowed and the sentence of five years and payment of fine of Rs.1,000/- in default thereof suffer further R.I. For tree months is reduced to a sentence of two years and fine of Rs.1,000)--/ (Rupees one thousand only) and in default of payment of fine he is to undergo R.I. For three months more. He shall be given benefit of section 382-B Criminal Procedure Code. Appeal is therefore, allowed partly as slated above.