JUDGMENT

Mir Ahmad, J C - Inspector Akbar Hussain Shah of the Enforcement Staff made a written report at the City Police Station, D.I. Khan, on 22nd April 1944. He said that Jiwan Dass and Adam Khan were taking a bundle of cloth loaded on a cart and that the bundle did not tally with the permits shown by Jiwan Dass and the invoices on which they were based. He also alleged that the names mentioned in the permits were not those of the Powindas who were the owners of the goods. On this, a case was registered and Jiwan Dass, Adam Khan Powinda and Fazal Powinda were tried under Rule 81(4), Defence of India Rules, because exporting of cotton goods without a permit was an offence against the order promulgated by the District Magistrate, D.I. Khan. After taking the evidence of the police witnesses, a charge was framed against the accused as under: "That you contravened the District Magistrate's order by exporting piece goods from D. I. Khan without a valid permit." Eventually the Magistrate convicted the accused and in the last paragraph of his judgment he stated:

The condition in the permit as mentioned above was not fulfilled by Jiwan Dass, accused, from whom the cloth was purchased. It appears that Jiwan Dass had deliberately omitted to enter the details of the cloth on the backs of the permits, Exs. P.C. and P.C., so that it may be used again and again. The offence committed by three accused falls under Sub-Rule of Rule 81, Defence of India Rules. I convict the accused and sentence each of them to six months' rigorous imprisonment.

2. Jiwan Dass appealed to the Sessions Court at D. I. Khan. The learned Sessions Judge summed up the case against him as under:

The only fault that lies with Jiwan Dass apparently is that he did not give the details of the kind of cotton piece goods sold to Sultan Mohd. and Nek Mohd. The Public Prosecutor argues that these two permits could be used again. Although Jiwan Dass has signed on both the permits and has given in dim writing the number of yards sold by him to Sultan Mohd. and Net Mohd., I think, Jiwan Dass ought to have written the kind of cloth sold which he failed to do. He has given the length of the cloth sold, and I think this is only a technical offence for which a nominal sentence of imprisonment with that of fine would meet the ends of justice. I maintain the conviction of Jiwan Dass, but alter the sentence of imprisonment to one already undergone and a fine of Rs. 500 or in default five months' further rigorous imprisonment.

3. Jiwan Dass has come up on revision to this Court. His counsel has urged that Jiwan Dass has not been convicted for exporting cloth without a permit; that he has been impliedly acquitted of that charge and that he has been convicted for failing to give detailed information on the backs of the permits regarding the cloth in the bundles, which he, as the seller of goods, was also required to do according to District Magistrate's order. Counsel has argued that this not being the subject-matter of the charge, the conviction and sentence of his client could not stand. Counsel for the Crown admits that the permits were valid and correct and has not denied that the only offence committed by Jiwan Dass is that he did not endorse the permits as required by the rules. He could not, therefore, successfully meet the objection that Jiwan Dass was convicted for an offence which was not the subject-matter of the charge against him. Rule 81, Defence of India Rules, deals with a large number of topics and the orders made by the authorities under that rule, may be numerous and of diverse nature. It is highly essential therefore that the prosecution should definitely charge the accused with the specific act which they consider the accused has done and falls within the purview of a prohibition made under the Defence of India Rules. Rule 130, Clause (1), Defence of India Rules, fortifies me in this opinion. It is as under:

No Court or Tribunal shall take cognizanoe of any alleged cont