SHAFI MUHAMMAD MAGSI vs THE STATE

ORDER

' Applicant Shaft Muhammad was booked for an offence punishable under section 13(d) of Arms Ordinance on the ground that on 7-4-1994 he was found in possession of an unlicensed Pistol of 30 bore and 6 live cartridges. He was tried inside jail and on his plea of guilty he was convicted by AC and FCM, Karachi East on 4-10-1994. And sentenced to rigorous imprisonment for 6 months w,e,f, 20-4-1994 in view of the provisions of section 382-B, Cr.P.0 and fine of Rs,500 or in default to suffer simple imprisonment for 14 days more. The applicant challenged the aforesaid order by way of a criminal appeal which was allowed by Additional Sessions Judge, Malir on 15-6-1995 and the conviction was set aside and the matter was remanded back to the Court for trial. The instant application has been made under section 561-A, Cr.P.C. To quash the proceedings against the applicant pending in the Court of Judicial Magistrate-V. Malir pertaining to aforementioned F.I.R viz. Crime No, 76 of 1994 of Police Station Gulzar-e-Hijri for offence under section 13(d) of Arms Ordinance.

2. Mr. Abdul Waheed Katpar, learned counsel for applicant submitted that after the appellate order, for the first time, it was stated in the diary dated 28-8-1995 of the learned Judicial Magistrate that the accused was' not produced from jail and no progress was made in the trial and as such, there is no fresh conviction order. Mr. Katpar was apprehensive about the fate of the case that the applicant would again be sentenced to imprisonment if the Court of Judicial Magistrate convicts him for the offence

3. It was pointed out to learned counsel for applicant that within the meaning of section 412, Cr.P.C.

When the accused was convicted on his plea of guilty by the Magistrate of First Class there could be no appeal except as to the extent or legality of the sentence. No authority could be cited at the bar to indicate that even conviction could be set aside by way of an appeal under section 412, Cr.P.C. Indeed the law is well-settled that when a conviction is recorded on plea of guilty and sentence is awarded the appeal under section 412, Cr.P.0 will be maintainable only to the extent of questioning the legality or extent of sentence. Therefore, an appeal against conviction in such circumstances is not competent. The decisions it Mark Mitsud v. State (1999 M LD 1327), Peter Erastors v. State (1992 M LD 193) and Muhammad Arif v. The State (1992 PCr.LJ 39) can be cited with advantage on this legal point.

4. In the circumstances there could be no other opinion that the learned Additional Sessions Judge passed order of setting aside the conviction for which he was not empowered by law and as such his order is void being illegal and without jurisdiction. By consent of learned counsel for applicant and learned State counsel suo motu revision proceedings are initiated and in exercise of the powers under sections 435 and 439, Cr.P.0 the order of learned Additional Sessions Judge, dated 15-6-1995 is set aside. In consequence of this order the conviction order passed by the learned Magistrate stands revived. Learned counsel for applicant could justifiably submit that this sentence he reduced but incidentally the applicant has remained in jail for a period of about 3 years. At least it is confirmed from the diary dated 28-8-1995 that in the instant case he was to be produced as an under trial prisoner which goes to establish that till then his period of detention was more than 16 months. Benefit of section 382-B, Cr.P.0 has already been extended to him by the trial Court, therefore, in the circumstances, the applicant has undergone an imprisonment for a period more than what was awarded to him by the trial Court under the order dated 4-10-1995.

5. In consequence of the conclusion drawn as above the learned Judicial Magistrate cannot try the accused for an offence for which he has already been tried, convicted and awarded a sentence.

Since the sentence has also been served out, further proceedings in the case would certainly amount to abuse of process of Court and the proceedings before the learned Magistrate are, therefore, quashed. It is stated that the accused has been released on bail, the bail bonds of the accused stand discharged.