MUHAMMAD AKRAM Versus THE STATE

ORDER

1. By this Criminal Miscellaneous Application, the applicant Muhammad Akram has sought the following relief:--

2. "It is therefore respectfully prayed that this Honourable Court may be pleased to call for the record of learned S.D.M., Sukkur in case State v. Muhammad Akram, under sections 29(1), 30, 31, 20 of Pakistan Telecommunication (Re-organization) Act (XVII of 1996), set aside and quash the impugned orders dated 10-12-1999 and dated 18-4-2000, passed by the learned S.D.M., Sukkur, and Additional Sessions Judge, Sukkur by allowing this application in exercise of inherent jurisdiction and to secure the ends of justice."

3. The brief facts of the case as disclosed in the F.I.R. lodged by complainant Sahib Khan Lund, Assistant Mukhtiarkar and Second Class Magistrate, Sukkur on 5-10-1999 are reproduced hereinbelow:--

4. "Complaint is that-1 am Assistant Mukhtiarkar and S.C.M., Sukkur. The S.D.M., Sukkur has directed us under the orders of superiors that illegal business of cable system is being run in Sukkur. On such directions, we came at Police Station "A" Section, Sukkur, from where Police staff namely A.S.-I. Sikandar Ali Bullo, P.C. Mouzal Shah, P.C. Allah rWasayo, P.C. Rehmatullah accompanied, duly armed, after making Roznamcha Entry No.2230 proceeded at about 23-00 hours to the house of accused Muhammad Akram son of Muhammad Aslam Kamboh resident of Bagh-e-Hayat Ali Shah, Sukkur, who opened the door on knocking and disclosed about unlicensed Cable System and with his free will disclosed that such equipments are lying in his room and produced such material and admitted that he is providing lead on payment of charges thereof. The said Muhammad Akram led the police towards the room where receivers of Dish Antenna were lying and recovered, who disclosed that on this he connects the system and provides connection on payment of charges. He further disclosed that all this business was unlicensed and there was no legal permission, therefore, a Mashirmama was prepared in the light of bulb by appointing A.S.-I. Sikandar Ali Bullo and P.C. Mouzal Shah as Mashirs, and arrested the accused Muhammad Akram son of Muhammad Aslam Kamboh,, under sections 29, 29-A, 3/1, 20, Telegraph Act, 1933. From his personal search, nothing was secured and the equipment, material was secured from his possession, from where we have come at Police Station and lodged the F.I.R. on behalf of the State."

5. After usual investigation, the applicant/accused was sent up to stand trial and learned S.D.M., Sukkur by order dated 10-12-1999 convicted and sentenced the applicant till rising of Court and to pay fine of Rs.15,000. In default to payment of fine, he was ordered to suffer simple imprisonment for three months. The order was challenged in revision but the same was dismissed by the learned 1st Additional Sessions Judge, Sukkur by order

6. I have heard Mr.Bhajandas Tejwani, learned counsel on behalf of the applicant/accused. He has placed reliance on the case of Haji Tooti Bashar v. The State 1993 PCr.LJ 1448 and Ghulamullah v. The State 1993 PCr.LJ 1307.

7. I have heard Mr. Sher Muhammad Shar, learned Assistant behalf of the State. The latter concedes to the prayer of the applicant/accised.

8. The perusal of the record shows that the applicant/accused was convicted and sentenced under sections 29(1), 30, 31, 20 of the Telegraph Act, 1996. The offences alleged are non-cognizable as envisaged under section 31(5) of Pakistan Telecommunication (Re-organization) Act XVII of 1996. -The contents of the same are reproduced hereinbelow for the sake of convenience:--

9. "31(5). No Court shall take cognizance of any offence punishable under this Act except on a complaint in writing by an officer authorised by the Authority or the Board."

10. The perusal of the above provision of law shows that the proceedings could only be initiated on the complaint by an officer authorised by the Authority or Board. The complaint is defined under section 4(h) of the Code of Criminal Procedure, 1898.

11. The perusal of the record and proceedings of the case show that no complaint was filed by an officer authorised by the Authority or Board who is defined under section 2(a) and (c) of the Pakistan Telecommunication (Re-organisation) Act, 1996.

12. The F.I.R. under section 154, Cr.P.C. and report under section 173, Cr.P.C. cannot be equated with the "complaint" as defined under section 4(h), Cr.P.C. Thus the cognizance taken by the trial Court on the police report and trial of the accused was not in consonance with the mandatory provisions of law.

13. The further perusal of R&P shows that the form of plea is a non legible photo-copy. In vernacular part of plea of applicant/accused his reply is not written. In English part of the plea, the name, parentage and caste of the applicant are written with pen in blue ink and so also the date whereas the reply is typed one. The plea is reproduced hereinbelow in extenso:--

14. "I plead guilty and pray for mercy."

15. The plain reading of reply reproduced hereinabove shows that it was not recorded in the actual words of the applicant/accused, which is a mandatory requirement of law. Thus the conviction and sentence recorded was in flagrant disregard of the provisions of law and was abuse of the process of the Court.

16. Consequently, the application is allowed and conviction and sentence recorded by the trial Court are hereby set aside. Fine, if any, paid by the applicant/accused be remitted to him and the property confiscated by the trial Court be restored to the applicant/accused.

17. The Criminal Miscellaneous Application No.99 of 2000 stands allowed.

18. N.H.Q./M-121/K Petition accepted.