1983 P Cr (PLP)

Date of hearing : 25th October, 1982. The appellant above‑named has filed the above appal in respect of judgment dated 13‑12‑1976 of the learned Ist Additional Sessions Judge, Karachi, on the facts and grounds mentioned in the memo. of above petition.

2. The main contentions urged by the learned Advocate for the appellant before me are as follows :‑‑ (a) That provisions of section 265 (c), Cr. P. C. were not complied with and as such the commencement of the trial by the learned trial Court against the present appellant was illegal and consequently the alleged plea of guilt made by the appellant could not have been acted upon by the learned trial Court, as the same could not have been recorded on the said date, on account of non‑compliance of the provisions of section 265 (c), Cr. P. C. (b) That there is nothing on the record of the learned trial Court to show, that the provisions of section 265 (c), Cr. P. C. were com plied with. (c) That the plea of guilt alleged to have been made by the appellant was not recorded in accordance with the provisions of section 243, Cr. P. C. and as such on this ground alone the conviction of the appellant is liable to be set aside. In support of this contention the learned Advocate for the appellant relied upon case reported in 1969 P Cr. L J 373.

3. The learned Advocate appearing for the State on the other hand submitted that there is a receipt for compliance of the provisions of section 265 (c), Cr. P. C. available on the record and proceedings of the learned trial Court, which is supported by entry in the diary sheet made by the learned trial Court. As far as non‑recording of the plea of appellant in accordance with the provisions of section 243, Cr. P. C. are concerned, the learned Advocate for the State submitted that the said plea has been recorded in accordance with the said provisions and 'consequently the case cited by the learned Advocate for the appellant is not applicable to the present case.

4. I have carefully considered the above submissions made by the learned Advocates before me and have gone through the record and pro ceedings of the learned trial Court which are available. I find that the thumb‑impression of the appellant was taken on the charge framed by the learned trial Court, but there is nothing mentioned on the top of the said thumb impression regarding the actual wording used by the appellant in admitting his alleged guilt. In view of this it is very clear from this document which is available, that the learned trial Court has not recorded A the plea of guilt of the appellant in accordance with provisions of section 243, Cr. P. C., in his own words as nearly as possible, as required by law. In view of this conclusion of mine, the case cited by the learned Advocate for the appellant is fully applicable to the present case and on this ground the conviction of the appellant cannot be sustained.

5. Therefore, I allow the above appeal and set aside conviction and sentences awarded to the appellant, on ground of non‑compliance of the provisions of section 443, Gr. P. C. only. The prosecution will be at liberty to proceed afresh against the appellant, if they are so advised in accordance with the law, if in spite of expiry of over 7 years, it is considered just and reasonable. Appeal allowed