' Three persons namely Hajimud Din, driver of truck No, M R 3405, Rashid cleaner of the truck and Gul Mula Khan were tried under section 33/ 55 of the Forest Act, 1927 (hereinafter to be called the Act) and the learned Assistant Commissioner (Forest Magistrate) Timar Gara by his order dated 16-2-1976 convicted Hajimud Din and Gul Mula Khan on their plea of guilty and sentenced Hajimud Din to pay a fine of Rs, 400 or in default 2 months simple imprisonment and Gul Mula Khan was sentenced to 3 months R. I. And a fine of Rs, 500 or in default two months simple imprisonment.
However, Rashid cleaner was let off. By the same order the truck belonging to one Gtiulam Rasul of Rabat was confiscated and the logs of wood 111 in number the property of Gul Mula Khan was also confiscated. The order of conviction was questioned in appeal by Hajimud Din which was dismissed by the learned Sessions Judge, Swat. By the same Appellate Court the order of releasing the truck on bail on the application of Ghulam Rasul of village Rabat was recailed, and the order of confiscation regarding the truck was maintained. Hajimud Din has come in revision against the order of conviction and sentence maintained by the lower Appellate Court and Ghulam Rasul has questioned the order of confiscation of his truck upheld by the learned Sessions Judge, Swat.
2. The prosecution version as stated by Hajimud Din petitioner is that on 13-2-1976 at about 'degar' time he was present in Bazar of Rabat when he was contacted by Gul Mula Khan asking the former to transport in his truck 111 logs of wood from village Manjai to Gosam (Munda). The bargain was struck in consideration of Rs, 300 as fare and the petitioner HajimudDin accompanied by his cleaner Mohammad Rashid and Gul Mula Khan started on the journey and after covering some distance Hajimud Din asked Gul Mula Khan whether or not the latter had permit (required) who replied in the affirmative. On reaching a charing cross police station Balambat, Gul Mula Khan disclosed that he forgot the permit in his house therefore on his bidding Hajimud Din driver drove the empty truck back to Gosam where Gul Mula Khan went to his house and on return disclosed that he has brought the permit. On reaching village Manjai at 'khuftan' time 111 logs of wood were taken out from the house of a person whom the driver could recognize ; and loaded in the truck and on reaching near the college at 3-00 a.m. The truck was stopped by the officials of police and Forest Department and Old Mula Khan on being questioned by them disclosed that he had no permit as such they were apprehended and were taken to Police Station, Balambat from where they were taken onwards to Forest Check Post where the logs of wood and the truck were taken into possession and they were lodged in judicial lock-up.
3. In this statement Hajimud Din professed innocence, in that, he had asked the owner Gul Mula Khan about the permit and for the same purpose he was taken back to village Gosam. It is to be noted when praying for mercy that if he knew that Gul Mula Khan was not having the permit he would not have accompanied him. Therefore, he as a driver could do no more than what is revealed in his statement. Normally this should fully establish the absence of mens rea in the conduct of a driver whose vocation can hardly afford inquiry and care more than what he had actually done. Section 41 of the Act is para materia with section 29 of the North-West Frontier Province Hazara Forest Act, 1946 in giving power to the Local Government to make rules to regulate the control of timber and other forest produce in transit.
4. In a case captioned Bashir Ahmad v. The State (1) a person was convicted under section 9 of the Hazara Forest Act, 1937 and in view of Notification No, 13938 T. D., the Magistrate confiscated under rule 11 his wagon also because the offence was committed by him during hours of sunset and sunrise. The sentence imposed by the Magistrate as regards confiscation of wagon was challenged in revision in the High Court.
"Held : by reading the first part of the Notification No, 13938 T. D. It is clear that it was published under section 29(b) of the Act. So far as rule 3 in it is concerned, it appears to be unexceptional as to prohibit the transportation of timber by land within the limits of Hazara District, between the hours of sunset and sunrise, is within the ambit of expression "regulate" used in section 29 of the Act. But this would not mean that the contravention of this rule by an accused could be automatically visited by the confiscation of his conveyance under rule 11 of the Notification. It is clear that rule 11 of the Notification, in so far as it provides that in the event of contravention of rule 3 an accused would automatically forfeit his conveyance, is ultra vices of the power of the Province Government, as by subsection (d) of section 29 of the Act the only power given to it by the Legislature was to frame rules to regulate the import of timber into the Hazara District and to prescribe penalties for the infringement of such rules imprisonment which may extend to six months, or fine which may extend to five hundred rupees, or both. By specifying these limits within which the Provincial Government could impose penalties upon an offender, the intention of the Legislature is clear that whatever rule-making power it wished to confer upon the Provincial Government, was conferred on it under subsection (d) of section 29 of the Act and consequently it had no authority to provide in rule 11 that the offenders would automatically lose their conveyances.
Rule 11 cannot be said to be even remotely within the ambit of section 29 of the Act and consequently to that extent it would be devoid of force, notwithstanding section 54 of the Act that once published in the official Gazette the rule in question shall have effect as if enacted in the Act itself. The offending part of rule 11 was the result of inapt drafting, because otherwise the Legislature has made ample provision for the confiscation of wagons in appropriate cases subject of course to the discretion of the adjudicating Magistrate. Section 10 of the Act, with which subsection (3) of section 39 of the Act is seemingly inconsistent, reveals the unmistakable intention of the Legislature that if an offender is convicted, then in addition to the penalties provided in section 9, the adjudicating Magistrate may in his discretion and in the case of habitual offenders only, order the forfeiture of his conveyance in which the contraband goods were detected. In other words, the Legislature has not only made a {{FOOT NOTE}}
(1) PLD 1971 Pesh. 227 {{FOOT NOTE}} distinction between the case of habitual and other offenders but has also directed that the foreiture of conveyances could only be effected by the order of a Magistrate in the exercise of his proper discretion. Seen in this conext, subsection (3) of section 39 of the Act, the language of which is not as precise as that of section 10, cannot be construed to mean that once an A offender is convicted under the provisions of the Act, he would automatically forfeit his conveyance without the order of a Magistrate.
5. Notification No, S.
0. F T (FAD) V-168/71 was issued on 29-12-1975 under section 41 of the Forest Act, 1927 by the Government of N.-W. F. P. To make the following rules for regulating the transport of timber, firewood and other forest produce by land :
(1) These rules may be called the North-West Frontier Province Forest Produce Transport Rules, 1975.
' Rule 12 provides penalties for infringement. It reads :- "Any person who infringes any of the provisions of these rules shall without prejudice to any liability incurred under the provisions of section 52 of the Forest Act, 1927, relating to seizure and confiscation, be liable to imprisonment of either description for a term which may extend to six months or to a fine which may extend to five hundred rupees of both. The timber, firewood or other forest produce being transported in contravention of these rules and being seized during transportation within the areas to which these rules are applicable shall be presumed to be Government owned and so shall be any conveyance used in the transport of such timber, firewood or other forest produce."
6. The above quoted rule of the Act is the reproduction of rule 11 of Hazara Forest Act which was struck down in the precedent case reproduced above.
7. Another aspect of the case is that the learned trial Magistrate recorded the conviction of Hajimud Din on his plea of guilty which by no legal interpretation would mean pleading guilty to the charge. In this context the statement of Gul Mula Khan co-accused of the petitioner may also be referred in where he has admitted that the petitioner enquired from him about the permit and he was given the impression that Gul Mula Khan had it. All that the petitioner could do was to make sure that he was not engaged for an illegal act. Gul Mula Khan in his statement has corroborated in detail the plea taken by the petitioner Hajimud Din. The plea of guilty to be read in the statement of the accused is to be considered on the basis of the circumstances proved against him. It is not enough for the purposes of conviction of the accused on the strength of his own statement that he should plead guilty to a penal section of the law which under this case cannot be read either in his own statement or of that of his accomplice. In an earlier case Nurman Shah v. The State (1) the accused was convicted on his plea of guilty under Arms Ordinance and Customs Act. The view of matter taken in that case was :- "The plea of guilty to be read in the statement of the accused at the trial, has to be considered on the basis of the circumstances proved against him and not as to what was merely alleged against him. It is not enough for the purposes of conviction of the accused on the strength of his own statement, that he should plead guilty to a penal section of the law which may be considered to cover his alleged offence {{FOOT NOTE}}
(1) PLD 1967 Posh. 191 {{FOOT NOTE}} ' or for that matter to say generally that he is guilty without a conscious realisation of the actual facts of the prosecution case proved against him which must be put to him and his answers solicited. Unless the plea of guilty entered by the accused is in respect of the proved circumstances against him, constituting an offence under the law, it would not amount to an admission of guilt on his part, to preclude him from challenging the conviction and sentence awarded on the basis of that plea."
' There is no denying the fact that section 412, Cr. P. C. Creates complete bar against calling into question in appeal, the conviction based on plea of guilty, but the exception on the point of legality and extent of sentence is always there. This being so, the learned trial Court is judicially called upon to examine the facts brought on the record against the accused as to whether it amounts to an offence having been committed by the accused person and I the proved facts do not constitute an offence then mere petition for mercy by the accused person relates only to the existence of those facts, which by no means converts it into a penal offence. The upshot of the above discussion is the revision petition is allowed. The conviction and sentence of Hajimud Din petitioner is set aside and he is acquitted. The order of confiscation of truck recorded by the learned Magistrate and upheld by the learned Sessions Judge is also set aside. It shall be returned to its owner.