1971 PLD 734

ORDER

This revision petition is directed against an order passed by the learned trial Magistrate on the 16th of January 1971, refusing a request by the accused person for summoning the record of the Assistant Registrar, Co‑operative Societies. The relevant facts are that the petitioner is being proceeded against under section 10 of the West Pakistan Co‑operative Societies and Co‑operative Banks (Repayment of Loans) Ordinance, 1966, for his failure to secure the loan in the manner directed by the Assistant Registrar, Co‑operative Societies, under the relevant provisions of the Ordinance. During the course of the trial the defence counsel stated that he was not in a position to cross- examine the Assistant Registrar, who had appeared as P. W. 1, in the absence of the relevant departmental record. He, therefore, requested that the record be summoned and made available to him for inspection. This request was opposed on behalf of the prosecution on the ground that under section 13 of the Ordinance no Court or other authority had jurisdiction to question the legality or validity of anything done under the Ordinance. This plea prevailed with the learned Magistrate and he observed that he had no jurisdiction to question the order of the Assistant Registrar, Co‑operative Societies, on the basis of which the petitioner was being prosecuted.

2. It is submitted on behalf of the petitioner that the learned Magistrate has fallen into error in thinking that he has no jurisdiction to allow the inspection of the relevant record as it would amount to questioning the legality or validity of an order passed by the Assistant Registrar, Co‑operative Societies, deter mining the liability of the petitioner. It is argued that the trial before the learned Magistrate being under the Code of Criminal Procedure, and the offence alleged being punishable with imprisonment which may extend to seven years or with fine which shall not be less than one‑fourth of the amount of loan, said to be outstanding against the petitioner, or with both, the petitioner was entitled in law, to contend that in fact nothing was due from him which needed to be secured under the terms of this Ordinance. It is contended that if the view adopted by the learned Magistrate is allowed to prevail, a conviction under section 10 of the Ordinance would follow automatically once the Assistant Registrar, Co‑operative Societies, has passed an order under sections 6 and 7 of the Ordinance, and in such a case the criminal trial would be a mockery.

3. The learned counsel appearing for the State submits that although it is true that under section 13 of the Ordinance there is a bar of jurisdiction in the matter of questioning the legality or validity of anything done under this Ordinance, or the Rules framed there under, by the Registrar or the Assistant Registrar, yet a criminal Court, trying a person in terms of section 10 of the Ordinance, is under a legal duty to come to its own independent finding regarding the guilt or innocence of the accused person, and it cannot automatically convict a person on a finding recorded by the Assistant Registrar or the Registrar of Co‑operative Societies, under section 6 or 7 of the Ordinance. The learned counsel for the State, in other words, concedes that the order made by the trial Court is not tenable in law.

4. After hearing the learned counsel for the parties, I am of the view that this revision petition has to be accepted. It is a fundamental principle that in a criminal trial the Court has to come to its own finding with regard to the guilt or innocence A of the accused person, and the trial would indeed be reduced to a mockery if the Magistrate is called upon to simply endorse a finding recorded by some other authority. The bar of jurisdic tion contained in section 13 of the Ordinance has, therefore, to be interpreted in a manner consistent with the fundamental requirements of a criminal trial envisaged by section 10 of the Ordinance. It seems to me that in examining the departmental record and in allowing cross‑examination of the prosecution witnesses on the basis of that record, the trial Magistrate is not questioning the legality or validity of anything done by the Registrar or the Assistant Registrar under the Ordinance or the Rules framed there under; he is simply sifting the truth for the purpose of deciding whether the accused person is to be convicted or not of the offence described in, and male punishable by section 10 of the Ordinance. As already stated, the punishment prescribed by section 10 is of a serious magnitude, namely, imprisonment amounting to seven years or fine or both. It is clear that it could not have been the intention of the law to burden a person with criminal liability in a criminal trial and yet deny to the trial Magistrate an opportunity of forming his own independent judgment in the matter. The learned Magistrate was, therefore, clearly in error in thinking that the departmental record could not be made available to the defence for the purpose of cross‑examination.

5. For the foregoing reasons, the revision petition is accepted and it is directed that the departmental record should be made available as requested by the defence counsel.

Petition accepted.