2012 P Cr (PLP)

SAYYED MAZAHAR ALI AKBAR NAQVI, J.

Farrukh Shehzad son of Mushtaq Ahmed, caste Awan, resident of Mohalla Masjid Bibi Anaran, Tehsil Fateh Jung, District Attock, appellant was involved in case F.I.R. No.335, dated 29-8-2010, offence under 9(b) of the Control of Narcotic Substances Act, 1997, registered at Police Station Fateh Jung and was tried by learned Additional Sessions Judge, Fateh Jung, who in terms of order dated 27-10-2010, convicted the appellant under section 9(b) of the Act and sentenced him to one year's S.I. with fine of Rs.3,

000. However, keeping in view the young age of the appellant, instead of lodging him to judicial lock-up, the learned trial Court sent him on probation for a period of one year under the Probation of Offenders Ordinance, 1960 for his better future subject to furnishing surety bond in the sum of Rs.50,000 with one surety in the like amount to the satisfaction of Probation Officer, Attock.

2. The prosecution story as disclosed in the F.I.R. is that on 29-8-2010, Rashid Iqbal, S.I. (complainant) along with Zameer-ul-Hassan 1413/C, Muhammad Irfan 1922/C, was on patrol duty at Football Ground near Masjid Bilal, Fateh Jang. At about 10-05 p.m. a person who later on disclosed his name as Farrukh Shehzad son of Mushtaq Ahmed, caste Awan, resident of Mahalla Masjid Bibi Anaran, Tehsil Fateh Jang, District Attock, was coming down from the stairs of stadium, and on having suspicion, he was stopped by the police personnel. The complainant conducted his formal search on which from the side pocket charas wrapped in a polythene shopper was recovered, which was weighed and found to be 245-grams out of which 5-grams charas was separated for chemical analysis. Case property and sample for chemical analysis were made into separate sealed parcels. Thereafter, Rashid Iqbal, S.I. drafted the complaint and sent it to Police Station for registration of formal F.I.R.

3. Rashid Iqbal, SI conducted the investigation, recorded statements of the prosecution witnesses under section 161, Cr.P.C, inspected the spot and prepared rough site plan. The Investigating Officer thereafter got the accused/appellant lodged in judicial custody. He also handed over the case property to Moharrar for its safe custody and onward transmission to the quarter concerned. Having found the appellant guilty, the Investigating Officer after placing his name in Column No.3 of the report prepared under section 173, Cr.P.C, sent the same to the court of competent jurisdiction.

4. On submission of challan, the appellant was charge-sheeted by the learned trial Court on 21-9-2010 under section 9(b) of the Control of Narcotic Substances Act, 1997 to which he pleaded not guilty and claimed trial. Thereafter, the case was fixed for prosecution evidence on 1-10-2010, on which date due to non-appearance of the prosecution witnesses, the case was adjourned to 13-10-2010. On 13-10-2010 again due to non-attendance of the prosecution witnesses and transfer of the Presiding Officer the case was adjourned to 27-10-2010 and on that date the appellant volunteered to record his confessional statement, which offer was accepted by the learned trial court. After recording the confessional statement, the learned trial Court in terms of order dated 27-10-2010 convicted and sentenced the appellant in the above terms. Hence, this appeal

5. Learned counsel for the appellant at the very outset submitted that admittedly when the charge was framed against the appellant by the learned trial court on 21-9-2010; he had pleaded not guilty and claimed trial. Learned counsel next submitted that thereafter on two consecutive dates of hearing due to non-appearance/non-attendance of the prosecution witnesses, the case was adjourned and thereafter on appellant's volunteer confessional statement of the appellant he was convicted and sentenced. It was argued by learned counsel for the appellant with vehemence that once charge was denied and the accused claimed for trial, there was no occasion for the learned trial court to accept the offer made by the appellant for recording his confessional statement. Learned counsel for the appellant in support of his contentions has placed reliance on the dictum of law in the cases of Faiz Muhammad v. The State (1986 PCr.LJ 2250), Muhammad Sadiq v The State (1998 MLD 243) and The State v. Jehandad Khan and 3 others (1998 PCr.LJ 592)

6. The learned Law Officer frankly conceded that the procedure adopted by the learned trial court is not warranted by law and the sentence inflicted by it, in the peculiar circumstances of the case, is illegal and further agreed with the submission made by learned counsel for the appellant that the conviction recorded by the learned trial Court in the manner is not sustainable under the law. Learned Law Officer, in the circumstances, prayed that the case may be remanded back to the learned trial court for decision afresh.

7. We have heard the arguments advanced by learned counsel for both sides and perused the record available on file on the touchstone of case-law referred by learned counsel for the appellant.

8. There is no cavil to this proposition that at the time of framing of charge on 21-9-2010, the appellant, while replying to specific questions "(2) Do you plead guilty to the charge? (3) Will you claim trial?" in categorical terms, pleaded not guilty and claimed trial. Record available on file further reveals that after denial of the appellant qua verity/veracity of the prosecution version the case was fixed for prosecution evidence on 1-10-2011 and thereafter for 13-10-2010 and on both these dates it was adjourned only on account of non- appearance of the prosecution witnesses and it was on 27-10-2010 when the appellant voluntarily made offer to make confessional statement. Now the issue to be determined by this Court is whether the learned trial court (learned Additional Sessions Judge) was justified in accepting the offer of the appellant to record his confessional statement at a belated stage when admittedly at the time of framing of charge the appellant had pleaded not guilty and claimed trial in explicit terms. To determine this question it would be advantageous to go through the provisions of sections 242, 243 and 244, Cr.P.C. dealing with the question, which are reproduced herein below for ready reference:-- "

242. Charge to be framed. When the accused appears or is brought before the Magistrate, a formal charge shall be framed relating to the offence of which he is accused and he shall be asked whether he admits that he has committed the offence with which he is charged.

243. Conviction on admission of truth of accusation. If the accused admits that he has committed the offence [with which he is charged] his admission shall be recorded as nearly as possible in the words used by him; and, if he shows no sufficient cause why he should not be convicted, the Magistrate may convict him accordingly.

244. Procedure when no such admission is made. (1) If the Magistrate does not convict the accused under the preceding section or if the accused does not make such admission, the Magistrate shall proceed to hear the complainant (if any), and take all such evidence as may be produced in support of the prosecution, and also to hear the accused and take all such evidence as he produces in his defence. (2) ..................................................... (3) ....................................................." Bare perusal of above provisions of sections 242, 243 and 244, Cr.P.C. clearly depicts that once a formal charge is framed and put to accused, which is denied by him under section 242, Cr.P.C. provisions of section 243, Cr.P.C. shall ipso facto become inonerative and court has to proceed under section 244, Cr.P.C. by recording the prosecution evidence as well as that of the accused, if lead in defence. Therefore, confessional statement made after 2/3 dates of hearing when at the time of framing of charge the appellant in explicit terms had denied the same, is of no legal effect in presence of sections 244, 265-D, 265-E and 265-F of the Criminal Procedure Code, 1898.

9. Moreover, the superior courts always support that even if the accused pleads guilty during the course of trial, in addition to his plea, independent evidence should be gathered by the court. Reliance is placed on the dictum of law in the case of King Emperor v. Kasim Waled Mohamed Saffer (AIR 1925 Sindh 188), wherein it was held as under:-- "Independent evidence should be taken by Court notwithstanding accused's plea of guilty." Hence, in the foregoing circumstances we have been persuaded to hold that the conviction and sentence inflicted by the learned trial court in terms of order dated 27-10-2010 is not sustainable in the eyes of law.

10. Now the question arises that what next modus operandi should be adopted. When the case in hand is tested on the touchstone of case law cited by learned counsel for the appellant it leads to only one conclusion that the same be remanded back to the learned trial Court for retrial but at the same time certain other aspects are also of pivotal importance, which cannot be lost sight of while rendering any opinion. There is no denial to the fact that in the instant case only a meagre quantity of charas was recovered from the appellant, who is presently student of engineering. Needless to mention that he has already undergone the agony before the police during the course of investigation and subsequent proceedings before the learned trial court Moreover, during the period of probation, his conduct has been upto the mark. Therefore, in the interest of justice, for safe administration of criminal justice, while keeping in view the peculiar circumstances of the case, we have been persuaded to set aside the conviction and sentence passed by the learned trial Court in terms of order dated 27-10-2010. Resultantly, Farrukh Shehzad appellant is acquitted of the charge. He is already on bail as the learned trial Court while recording his conviction had sent him on probation for a period of one year under the Probation of Offenders Ordinance, 1960, which is going to expire on 26th October, 2011. Jahangir Khan son of Qamar Zaman, who stood surety of the appellant for the probation period is discharged from his obligation. N.H.Q./F-33/L Appeal accepted.