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ISLAMABAD: The Islamabad High Court (IHC) granted bail to an ice cream vendor who was sentenced to a three-month rigorous jail sentence by the special magistrate of the Capital Development Authority (CDA) for setting up his cart at the premises of Faisal Mosque.

A single bench of Justice Tariq Mehmood Jahangiri, on Wednesday, heard the petition of the ice cream vendor, Farmanullah, who moved the court through Barrister Umer Ijaz Gilani against his sentence.

During the hearing, Gilani contended that his client had not committed any crime by setting up his cart to earn his livelihood on the state land.

The lawyer further said that his client was given a harsh sentence by the special magistrate. He also said that his client has not been convicted yet and only a challan of the case received.

In his petition, he challenged the order dated 19.07.2023, passed by Additional Sessions Judge West-Islamabad, whereby, a petition filed by him under Section 426 CrPC for suspension of the sentence, has been dismissed.

The counsel contended that the petitioner has been convicted vide order dated 11.07.2023, passed by the court of senior special Magistrate, CDA on the ground that the petitioner pleaded guilty and was convicted under MLR 63 and under Section 46-A of Capital Development Authority Ordinance,1960, and sentenced to punishment for the period of three months Rigorous Imprisonment along with a fine of Rs5,00,000, in default of payment of fine, the petitioner/ accused shall further undergo simple imprisonment for one month, so the petitioner was taken into custody and was sent behind the bars.

He added that the petitioner filed an appeal against the impugned order dated 11.07.2023, which is pending before Additional Sessions Judge, West-Islamabad and along with appeal an application under Section 426 CrPC was filed, which has been dismissed.

The counsel further contended that it is a mandatory provision of CrPC, under Section 243 CrPC that during the course of trial, the trial court is bound to frame the charge and in response of the charge when the accused pleads guilty, then a show cause notice was liable to be issued and then court passed an order for the conviction in the circumstances of the case but in the instant case, no charge has been framed, even in the impugned order there is no word regarding the framing of charge and pleading of guilty, in response to the charge has been mentioned, so impugned order is patently illegal and has been passed in violation of the relevant provisions of law, hence on the same ground, a sentence of the petitioner is liable to be suspended.

After hearing the arguments, the IHC bench granted bail to the petitioner and issued notices to the respondents. It said, “Meanwhile, sentence awarded to the petitioner vide order dated 11.07.2023, by the court of Senior Special Magistrate, CDA / MCI, ICT, Islamabad is hereby suspended and he is ordered to be released on bail in present case subject to his furnishing bail bonds in the sum of Rs5,000/- (Rupees Five Thousand Only) with one surety in the like amount to the satisfaction of Deputy Registrar (Judicial) of this Court.”

Copyright Business Recorder, 2023

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