1986 P Cr (PLP)

Karachi, dated 3‑8‑1983. (Sd.) Advocate. Order.‑‑Heard the D/C. The application for ante‑dating this case was made on 30‑7‑1983. Mr. Marwat Advocate is appearing in the case on behalf of the State. His back arrival from Islamabad where he is attending the Assembly Sessions was being associated. It is not known as to when he shall be back. Under such circumstances this second application is made. The accused has filed a medical certificate which shows that he requires immediate treatment abroad. It is also contended that his condition is worsening. Be that as it may the accused wants to plead guilty and prays for decision of the case. The hearing is ante‑dating and the charge be again read over to the accused and his plea be recorded." He recorded second plea of respondent Muhammad Iqbal and on plea of guilt he was sentenced till rising of Court and pay fine of Rs.3,00,000 (three lacs). The state counsel was not present on that date nor co‑accused Ch. Muhammad Aslam was given any notice. The case was originally fixed for 20‑8‑1983 but respondent appeared and case was ante‑dated and decided.

8. Now, I proceed to discuss legal implications. Section 185‑C of the Act provides the procedure for trial of Customs cases. The relevant subsection is as under:‑ "185‑C. Provisions of Code of Criminal Procedure, 1898 to apply.‑ (1) The provisions of the Code of Criminal Procedure 1898 (Act V of 1898) so far as they are not inconsistent with the provisions of this Act, shall apply to the proceedings of the Court of a Special Judge and such Court shall be deemed to be a Court of Sessions for the purpose of, the said Code and the provisions of Chapter XXIII A of the Code, solar as applicable and with the necessary modifications, shall apply to the trial of cases by the Special Judge under this Act. (2) For the purpose of subsection (1), the Code of Criminal Procedure, 1898(Act V of 1898), shall have effect as if an offence punishable under this Act were one of the offences referred to in subsection (1) of section 337 of the Code.

9. The procedure for trial of sessions cases is given in section 265‑A of the Criminal Procedure Code. The relevant sections 265‑E, 265‑F and 265‑G read as under:‑ 265‑E. Plea.‑‑(1) The charge shall be read and explained to the accused, and he shall be asked whether he is guilty or has any defence to make. (2) If the accused pleads guilty, the Court shall record the plea, and may in its discretion convict him thereon. 265‑F. Evidence for prosecution.‑‑(1) If the accused does not plead guilty or the Court in its discretion does not convict him on his plea, the Court shall proceed to hear complainant (if any) and take all such evidence as may be produced in support of the prosecution: Provided that, the Court shall not be bound to hear any person as complainant in any case in which the complaint has been made by a Court. (2) The Court shall ascertain from the Public Prosecutor or, as the case may be, from the complainant, the names of any persons likely to be acquainted with the facts of the case and to be able to give evidence for the prosecution, and shall summon such persons to give evidence before it, (3) The Court may refuse to summon any such witness, if it is of opinion that such witness is being called for the purpose of vexation or delay or defeating the ends of justice. Such ground shall be recorded by the Court in writing. (4) When the examination of the witnesses for the prosecution and the examination (if any) of the accused are concluded, the accused shall be asked whether he means to adduce evidence. (5) If the accused, puts any written statement, the Court shall file it with the record. (6) If the accused, or any one of several accused, says that he means to adduce evidence, the Court shall call on the accused to enter on his defence and produce his evidence. (7) If the accused or any one of several accused, after entering on his defence, applies to the Court to issue any process for compelling the attendance of any witness for examination or the production of any document or other thing, the Court shall issue such process unless it considers that the application is made for the purpose of vexation or delay or defeating the ends of justice. Such ground shall be recorded by the Court in writing. 265‑G. Summing up by prosecution and defence.‑‑(1) In cases where the accused, or any one of several accused, does not adduce evidence in his defence, the Court shall, on the close of the prosecution case and examination (if any) of the accused, call upon the prosecutor to sum up his case whereafter the accused shall make a reply. (2) In case where the accused, or any of the several accused examines evidence in his defence, the Court shall on the close of the defence case, call upon the accused to sum up the case where after the prosecutor shall make a reply. In view of the above legal position if accused does not pleaded guilty the Court shall proceed to hear the complainant, and take all such evidence as may be provided by prosecution. There is no provision which empowers the Judge to record plea of guilt at any subsequent A stage. He can record the statement of accused under section 265‑G, Cr.P.C. which could only be done at the close of prosecution case. The recording of another plea is in contravaction of mandatory provision of law. The Courts are authorised to amend the charge but cannot frame charge twice.

10. Reverting to procedural error which has been committed while deciding the case of Muhammad Iqbal independently when allegations against respondent Muhammad Iqbal and co‑accused are identical. In my view the case of Muhammad Iqbal could not have been decided separately. There is no order by which his case was biefurcated which could even not be done in the circumstances of this case. Even otherwise both accused according to section 239 of Cr.P.C. are to be tried jointly. Section 239, Cr.P.C. is reproduced. "

239. What persons may he charged jointly.‑‑The following persons may be charged and tried together, namely:‑ (a) persons accused of the same offence committed in the course of the same transaction; (b) persons accused of an offence and persons accused of abetment, or of an attempt to commit such offence; (c) persons accused of more than one offence of the same kind, within the meaning of section 234 committed by them jointly within the period of 12 months; (d) persons accused of different offences committed in the course of the same transaction; (e) persons accused of an offence which includes theft, extortion, or criminal misappropriation, and person accused of receiving or retaining, or assisting in the disposal of or concealment of property, possession of which is alleged to have been transferred by any such offence committed by the first‑named person or of abetment of or attempting to commit any such last‑named offence; (f) persons accused of offences under sections 411 and 414 of the Pakistan Penal Code or either or those sections in respect of stolen property the possession of which has been transferred by one offence; and (g) persons accused of any, offence under Chapter XII of the Pakistan Penal Code relating to the counterfeit coin, and persons accused of any other offence under the said Chapter relating to the same coin, or of abetment of or attempting to commit any such offence and the provisions contained in the former part of this Chapter shall, so far as may be, apply to all such charges. By deciding the case of respondent Muhammad lqbal definitely the case of co‑accused Muhammad Aslam is prejudiced. From papers it appears that he has moved an application under section 265‑K, Cr.P.C. after the decision of the case of Muhammad lqbal.

11. I have perused the case diaries which shows that mostly case was adjourned from 1981 to 1983 due to absence of respondent or his counsel and due to his delaying tactics the case could not proceed and finally his case was decided ignoring all legal requirements. I reluctantly observe that second plea after two years was taken on some understanding on the point of sentence which is unfair in the cases where charge is of serious nature of smuggling and huge amount involved or even otherwise in all cases. If learned Judge had any consideration for respondent on health grounds he should have granted him exemption from appearance in Court. Mr. Sohail Muzaffar; on enquiry, informed B that respondent Muhammad Iqbal is now hale and hearty and keeping good health. The learned Judge even did not refer accused to Medical Board but relied on the certificates produced by accused. Law does not permit to decide the case on these considerations. Moreover deciding the case without affording opportunity to State, ante‑dating the case and not giving notice to co‑accused is a matter of serious consideration. This gives a bad taste. During the course of argument Mr. Sohail Muzaffar submitted the recording of second plea at subsequent stages is common in that Court. His argument has force. I have also observed so while dealing a Sp. Appeal No. 17 of 1983 Aftab Ali v. State and Abdul Mateen v. State and same is position in Cr. Rev. No. 5 of 1984 State V, Sheikh Salahuddin. Had the respondent known that minimum sentence of five years be awarded he would have never pleaded guilty. The sentence awarded in this case is not adequate, I could have easily considered enhancement but in the interest of justice, to give chance of fair trial of co‑accused and violation of provisions of law have persuaded me to remand this case. The learned Special Judge (Custom Taxation) is directed to proceed with the case immediately according to law as it is old case of 1981 and he should decide the case as early as possible, and in future he should decide‑ and consider the cases from legal point of view. With these observations I accept the revision and set aside the conviction.

12. A copy of this order to be sent to Secretary, Ministry of Law Government of Pakistan. S. A. Order accordingly.