ORDER of REFERENCE The facts of this case are as follows :- Muhammad Sadiq petitioner, who is a driver, was challaned for viola--petition of the provisions of section 35 of the West Pakistan Motor Vehicles Ordinance, 1965 and Mr. Akhtar Joseph the then learned City Magistrate, Lyallpur, in a summary trial, allegedly on the basis of petitioner's confession, held the petitioner guilty under section 112 of the said Ordinance and sentenced him to pay a fine of Rs.
100. The petitioner, feeling aggrieved by his conviction and sentence, has brought the instant revision assailing the correctness, legality and propriety of his conviction and sentence.
The petitioner had alleged that he did not plead guilty and the learned trial Magistrate incorrectly recorded his confession which even has not been recorded as nearly as possible in his words as envisaged by section 243, Cr. P. C. And not only this, even no reason of conviction had been recorded as provided in section 263(h), Cr. P. C.
The proceedings are forwarded for revision on the following grounds:---
1. The ground to the effect the learned trial Magistrate recorded confession in spite of the fact that the petitioner did not plead guilty, has not been substantiated by any reliable material. The copy of the relevant portion of summary register placed on the file, shows that the petitioner's conviction was based on his confession. The judicial record enjoys the presumption of truth, though rebuttable, but as mentioned above, the petitioner has not been able to rebut the above- mentioned legal presumption, therefore, I see no-force in the above-mentioned ground.
2. However, the other two grounds have sufficient force. Section 243, Cr. P. C. Provides that if the accused admits that he has committed the offence of which he is accused; his admission shall be recorded as nearly al possible in the words used by him. In the copy of the relevant portion of the summary register placed on the file, the confession of the petitioner recorded as such, "pleads guilty". The above kind of confession is not in conformity with the salutary provision contained in section 243, Cr. P.C. Apart from the above pointed lacuna in the impugned order even the learned Magistrate did not record reasons of petitioner's conviction as provided in section 263 (h), Cr. P. C.
Similar legal points were raised in two cases reported as 1971 P Cr. L J 658 and 1971 P Cr. L J 1125 and their Lordships, the Judges of the High Court act wide the conviction and sentence on the ground that the alleged admissions were not recorded as nearly as possible in the cords of the convict as envisaged by section 243, Cr. P. C. And the failure to record reasons of conviction as provided in section 263(h), Cr. P. C.
3. Apart from the above ground, I also feel that the case was disposed of by the learned Magistrate in perfunctory manner. Perusal of the copy of the relevant portion of the summary register shows that the learned Magistrate did not award any sentences in default of the payment of fine Though offence under section 112 of the West Pakistan Motor Vehicles Ordinance, 1965, is punishable only with fine but as provided under section 67 of the Pakistan Penal Code, the learned trial Magistrate was required to impose imprisonment in default of the payment of fine, keeping in view the scales given in the above section of the Pakistan Penal Code.
4. In the light of above discussion, I accept the revision and recom--mend to the Hon'ble Lahore High Court, Lahore, for setting aside the conviction and sentence of the petitioner.
This is a reference under section 438, Cr. P. C. By the learned Sessions Judge, Lyallpur, whereby he has recommended the acceptance of the petitioner's revision petition against his conviction and sentence under section 112 of the West Pakistan Motor Vehicles Ordinance, 1965.
2. Having heard the learned counsel and on going through the order of the learned Sessions Judge, I find myself in agreement with the views expressed in paragraph Nos. 2, 3 and 4 and also agree with the reasons given by him for the same. I, therefore, accept the petitioner's revision without giving separate reasons for it.