P L D 1967 Karachi 608 (PLP)

S. 439‑Revision against order of conviction‑Conviction found illegal by High Court‑Such finding given effect even in case of chose accused who had not been party to revision petition. M. H. Junejo for Petitioners. Manzoor Hussain, P. P. for the State. Date of hearing : 10th August 1966. By Notification No. 1969‑64‑II/1199-GS dated the 27th of July 1964, issued by the Board of Revenue, West Pakistan, under section 3 of the West Pakistan (Rice Restrictions on Cultivation) Ordinance, 1959 (hereinafter to be described as the Ordinance), certain survey numbers in Taluka Shikarpur, of which two petitioners Bulo Khan and Juman Khan along with some others are owners, were brought within the `rice restriction belt', i.e. the cultivation of paddy in these survey numbers was forbidden: It appears that the petitioners and the co‑owners had been cultivating paddy crop in these fields since quite some time and had done so for the Kharif harvest of the year 1964‑65. It is admitted at the Bar that sowing of the paddy for Kharif crop for the year 1964‑65, was done as usual in April 1964 and the harvesting took place in September the same year. 2. On the report of P. W. Bahawal Din, a complaint was instituted against the petitioners under section 4 of the Ordinance for having cultivated rice in the survey numbers mentioned above for the Kharif 1964‑65, in the Court of Mr. Muhammad Waris Memon, Mukhtiarkar, Shikarpur. At the trial the charge under section 4 of the Ordinance was explained to the petitioners to the effect that they had cultivated paddy in the survey numbers in spite of the prohibition. It may be stated here that it is not mentioned in the charge as to when this was done, although it is stated therein that the complaint had been trade against the petitioners on the 12th of February 1965. Both the petitioners pleaded guilty to the charge and as a result were convicted under section 4 of the Ordinance and sentenced to simple imprisonment for three months and a fine of Rs. 75.00 each or in default further simple imprisonment for two weeks. The other co‑owners, who were co‑accused with the petitioners, namely, Usman, Muhammad Saleh and Muhammad Khan, were also convicted under the same section of the Ordinance but they were sentenced to a fine of Rs. 250.00 each or in default of payment of fine to suffer simple imprisonment for one and a half months. The two petitioners alone appealed to the Sessions Court, Sukkur, but their appeal was dismissed. The other convicts did not prefer any appeal, nor have they preferred a revision petition. The two petitioners, Bulo Khan and Juman Khan, have challenged their convictions and sentences in a revision petition filed in this Court. 3. A reference to the proceedings taken in the case would show that the learned Magistrate did not proceed to convict the accused petitioners and their cc‑accused merely on their plea of guilty but had also recorded the statement of the two prosecution witnesses namely P. Ws. Bahawal Din and Barkat Ali. The statement of P. W. Bahawal Din would show that what was sought to be proved by the prosecution was that paddy crop had been cultivated in these survey numbers in Kharif 1964‑65. It is further stated by this witness that the accused bad appropriated the produce for that period. 4. The learned counsel appearing for the petitioners has challenged the conviction as illegal on the ground that cultivation of the paddy in the survey numbers belonging to the petitioners and their co‑accused was done by them for Kharif 1964‑65 prior to the issuance of the notification which had brought those survey numbers within the "Rice Restriction Belt". There is a lot of force in this argument, as obviously the sowing of the paddy crop had taken place in April 1964, as already stated above, and the crop had been gathered by the petitioners and their co‑accused in September 1964, almost five months before the complaint was lodged against them. The notification cannot possibly be given a retrospective operation, and the petitioners and their co‑accused could not be convicted for an act which was not an offence at the time when it was committed. It seems that the trial Magistrate has been influenced by the fact that the petitioners had gathered the crop for that period which they should not have done after the issuance of the notification in July 1964. This however is in direct contra vention of the proviso to section 3 of the Ordinance which specifically protects the right of the cultivator to gather the standing crop which had been raised by him before the issuance of the notification. 5. While the petitioners have obviously not committed the offence, to earn an acquittal, they have to surmount a hurdle because they have been convicted on the "plea of guilty" which has been entered by them. Section 412 of the Code of Criminal Procedure constitutes a complete bar to the maintenance of an appeal against a conviction that has proceeded on a plea of guilty except on the point of extent and legality of the sentence. It is to be considered, therefore, in this case whether the plea of guilty made by the petitioners is a plea of the type covered by section 412 to exclude the relief of appeal and consequently of a revision in this Court. I consider that the "plea of guilty" which an accused person enters in a case has to be related to the facts of the prosecution case as stated against him and as establish on the record. If the facts alleged against an accused person do not themselves : constitute an offence, even if they are proved or admitted, the plea of guilty by an accused person in relation to those facts would amount to admission of proved facts against him, without converting those facts into a penal offence, of which each ingredient has to be satisfied according to law. In the present case, what the plea of guilty made by the accused amounts to, is this much, and no more that they had, as alleged by the prosecution, cultivated the survey numbers and sown paddy crop therein, in Kharif 1964‑65; but if their doing so at the time was not an offence, by no stretch of imagination can it be said that they confessed to their guilt in regard to an offence. I would like to emphasise here that Magistrates should not blindly accept the plea of guilty made by accused persons in criminal cases without carefully analysing as to what that plea actually amounts to in relation td the proved facts of the case. The learned counsel for the petitioner has cited before me two authorities, one from Madras and the other from Patna, which are reported respectively as In re: U. R. Ramasawami (A I R 1954 Mad. 1020) and Krishna Chandra Sinha v. Emperor (A I R 1943 Pat. 313). The first one is relevant to the contention raised by the learned counsel that to convict a person on his plea of guilty the accused must be shown to have admitted distinctly each and every fact necessary to constitute an offence. The second case is relevant to the other submission made by the learned counsel for the petitioners that even where a plea of guilty bars the remedy of appeal under section 412 of the Code of Criminal Procedure, it does not bar a revision before a High Court. The head‑note of this second authority reads as follows:‑ "Where in a particular case the powers of an appellate Court are restricted by section 412, the powers of the High Court in revision are not so restricted. The powers of the High Court in dealing with the revision petition are as ample as if an appeal on merits had been entertainable by the Sessions Judge and bad been dismissed." It is true that under subsection (5) of section 439 of the Code of Criminal Procedure no revision shall be entertained at the instance of a party who could have appealed; where an appeal lay under the Code, but this, to my mind, would be an additional reason for entertaining a revision petition where an appeal is barred, such as in cases of conviction on "plea of guilty". In the present case, however, an appeal was filed before the learned Sessions Judge which he dismissed on the short ground that it was not competent on account of "plea of guilty" made by the petitioners which, as already observed above, proceeded on a misapprehension of that plea. In considering the plea of the petitioners in this case as a "plea of guilty", which in reality was not so, the Courts below, in my view, have committed a clear illegality which is open to correction in the revisional jurisdiction of this Court under section 439 of the Code of Criminal Procedure. In the result, I have to quash these convictions and sentences awarded to the petitioners. They are on bail‑and shall not surrender to their bail bonds. 6. As I have held that the entire prosecution case was misconceived, I must give, effect to that finding, in the case of the other accused persons; namely, Usman, Muhammad Saleh and Muhammad Khan, even though they did not appeal and have not moved a revision petition in this Court. Their convictions are set aside and the sentences of fine are remitted. The fine if paid by them shall be refunded. K. B. A. Petition accepted.