PESHAWAR, July 9: The district and sessions judge set aside here on Wednesday the conviction of a four-year boy by a railways magistrate and ruled that railways special magistrates have no powers to try a person.

The boy, Zarq Khan, was fined Rs3,000 on June 15, 2002, for smashing the window pane of a railway engine.

Judge Hayat Ali Shah accepted the revision petition of Zarq Khan observed that the entire proceedings before the Railways special magistrate were illegal as the magistrate had not been conferred any powers by the government on the recommendation of Peshawar High Court.

The court took suo motu notice of the functioning of Wapda and Railways special magistrates and directed them to show under what authority they had been functioning.

The court observed that after abolishing of the executive magisterial system, no powers had been assigned to the special magistrates under section 14 of the Criminal Procedure Code.

The court directed both the magistrates to produce records of all the cases pending before them.

Advocate Astagfirullah appeared for the boy and argued that the special railways magistrate had no powers to try the boy and fine him. He added that under section 12 and 14 of the CrPC the special magistrate powers could only be conferred on an officer by the provincial government on the recommendation of a high court.

Mr Astagfirullah argued that no such powers were conferred on the Railway magistrate, therefore the entire proceedings before him was illegal. He argued that the boy was too small to throw a stone on the engine and smash its window pane.

The court inquired from the Public Prosecutor, Zubair Khan, about the status of other cases pending before the special magistrate.

The prosecutor stated that as powers were not conferred on him, therefore the magistrate had no authority to conduct trials.

The presiding officer observed that in the same manner Wapda’s special magistrate had also been functioning. The court took notice of the illegality and forthwith issued directives to Wapda and Railways magistrates to explain their positions why they had been conducting trials.

Under the devolution of power plan, the posts of commissioners, deputy commissioners, assistant commissioners and executive magistrates ceased to exist from Aug 21, 2001. Amendments were made in the CrPC in 2001 for abolishing the posts of executive magistrates. Now the government could confer powers of magistrate on an officer with the recommendation of a high court.

According to the FIR of the case registered at police station Railways Police, Peshawar Cantonment, on June 11, 2002, some unidentified children had thrown stones on the engine near Akora Khattak. The police visited the residence of the boy and directed his father to produce him before the court on June 15.

Apart from fining the boy, the magistrate had also directed his father to execute a bond of Rs10,000 for future good behaviour of his son.