2026 P Cr (PLP)

Dr. Khurshid Iqbal, J.

By means of this jail appeal, the appellant Sajid Usman prayed for withdrawal of his plead guilty he made before the Anti-Terrorism Court (ATC) in Bannu that resulted in his conviction to a maximum of 05-years imprisonment. The appellant was convicted on two charges of terrorism: being a member of a proscribed organization, and collecting donations (funds) for that organization (sections 11F(2) and 11N of the Anti-Terrorism Act, 1997 (ATA)). The significance of the case lies in the fact that the charges against the appellant related to terrorism and that it has an impact on the constitutionally guaranteed right to a fair trial (Article 10A). There has been growing concern that states should fulfil their human rights obligations and take regard of the rule of law while adopting counterterrorism measures, notably bringing terrorists to justice.

2. On 26.07.2023, at 1540 hours, the personnel of Counter Terrorism Department (CTD)'s police station received information that the appellant was collecting donations for a proscribed organization in Bannu city. They raided the spot, but the appellant manoeuvred to disappear in the crowd. The police official concerned recorded the event in the shape of a murasila on the basis of which the instant criminal case bearing FIR # 131, dated 26.07.2023, under sections 11F(2) and 11N of the ATA, was registered against him. It was on 04.09.2023, that the CTD officials were able to arrest the appellant. They found in his possession a donation receipt book and an amount of Rs.790/- which they considered as donation money for the purpose of fund collection for the proscribed organization. They obtained his one-day custody for interrogation. When produced before the ATC on 06.09.2023, the appellant submitted an application for pleading guilty. The sole reason he mentioned for pleading guilty was that he is destitute and unable to face the agony of trial. The ATC allowed the application. Its impugned order shows that the appellant waived his right under 265-C of the Criminal Procedure Code, 1898 (Cr.P.C.), to receive copies of the relevant documents ahead of framing of the charge and commencement of the trial. The ATC framed the charge to which the appellant entered a guilty plea.

3. We heard Mr. Noorzada Khan Ahmadzai, learned counsel for the appellant, and Mr. Najibullah, learned A.A.G., for the State and perused the record carefully.

4. To begin with, the case was registered against the appellant on 26.07.2023 when the CTD officials got the first information of the incident, and on which date, in the city centre, he allegedly successfully melted away in the throng. When arrested on 04.09.2023, he was remanded for one day to the police investigator for interrogation. On 06.09.2023, on expiry of police custody, when he was produced before the ATC, he submitted an application for pleading guilty. The ATC served him with a show cause notice under section 243 Cr.P.C. The main text of the show cause notice and the reply of the appellant thereto read as under: [....] SHOW CAUSE NOTICE under section 243 Cr.P.C. Whereas, you accused were formally charged today in case FIR No.131 dated 26.07.2023 under section 11N-F(2) ATA of the PS CTD Bannu Region and you pleaded guilty and did not claim trial, therefore, you are hereby called upon to show cause as to why you should not be convicted today for the said offence? Ans: I am forced by my conscience to plead guilty and leave myself at the mercy of the court. I have also left the said proscribed organization and have not been supporting the same since the registration of the case. I do not want to again join the said organization or participate in any activity of the said organization. [...] RO&AC: 06.09.2023 Sd/- [....] Judge, Anti-Terrorism Court, Bannu Division

5. The charge framed against him is as follows; CHARGE SHEET I, [...], Judge, Anti-Terrorism Court, Bannu Region, do hereby charge you accused as follows: Firstly, That you accused belong to proscribed organization "Jaish-e-Muhammad" and has been supporting the said organization by collecting money for the said organization and thus you committed an offence punishable under section 11F(2) ATA 1997, which comes within the cognizance of this Court. Secondly, that you 04.09.2023 at about 17:30 hours at Mandan Chowk District Bannu in the limits of PS City, Bannu you accused being member of proscribed organization "Jaish-e-Muhammad" were inviting/asking general public to provide donation/chanda for the said organization intending that it should be used for the purpose of terrorism by the said organization and you were arrested by the CTD police on the spot red handed and donation/chanda amount Rs.790/-, with receipts book and ball pen were recovered from your possession and thus you committed an offence punishable under section 11N ATA which comes within the cognizance of this Court. And I hereby direct that you accused be tried by this court on the above mentioned charges. [...]

6. The ATC passed the impugned order in the following terms: ORDER-01 06.09.2023 Mr. Latif Khan, the learned Senior Public Prosecutor for the State present. Salim Rashid the C.O. PS CTD, Bannu Region produced the accused Sajid Usman son of Hazrat Usman resident of Hinjal Sherza Khan, District Bannu in custody in case FIR No.131 dated 26.07.2023 under section 11N/11F(2) ATA 1997 of the PS CTD Bannu Region along with complete record/challan duly forwarded by the learned senior PP for the State. Be entered into the relevant register. At the very outset the accused stated at the bar that he wishes to plead guilty and waves his right under section 265 (C) Cr.P.C and to this effect he also filed an application for waiver of his right under section 265 (C) Cr.P.C and the disposal of his case on the basis of plead guilty. Hazrat Usman the father of the accused also appeared in the court and requested for disposal of the instant case on the basis of plead guilty. The accused was told today that he is not bound to plead guilty and sufficient time was given to him to think over the matter and to consult his other family members if any or any Advocate. He was also told that in case he is financially unable to engage counsel, the court may provide him counsel on State expenses under section 19(8) ATA 1997 but he was insisting upon disposal of the case on the basis of his plead guilty. So in view of his desire he was formally charged today to which he pleaded guilty and did not claim trial. Notice was given to him under section 243 Cr.P.C to show cause as to why in view of his plead guilty he should not be convicted for the offence. But he put forth no plausible explanation and requested for taking lenient view and mercy of the court. The accused Sajid Usman has been charged in case FIR No.131 dated 26.07.2023 under section 11N/11F(2) ATA of the PS CTD Bannu Region. The allegations against the accused are that the accused belongs to proscribed organization "Jaish-e-Muhammad" and has been supporting the said organization by collecting donation/chanda for the said organization and that firstly on 26.07.2023 at about 15:40 hours at Mandan Gate Bazaar District Bannu in the limits of PS City, Bannu, he was collecting donation for the said organization from the shop keepers and general public, however sensing the arrival of CTD police he decamped from the spot and subsequently he was again collecting donation for the said organization on 04.09.2023 at the said place and on the basis of spy information the CTD police raided the said place and arrested him on the spot red handed and chanda/donation amount of Rs.790/-, with receipts book and ball pen were recovered from his possession. Keeping in view the clean breast plead guilty of the accused Sajid Usman son of Hazrat Usman r/o Hinjal Sherza Khan, District Bannu, he is convicted and sentenced under section 11F(2) ATA 1997 to undergo simple imprisonment for six months and to pay fine of Rs.20,000/- (Twenty Thousand) and in default of payment of fine he will have to undergo further simple imprisonment for one month. Similarly under section 11N ATA 1997 he is convicted and sentenced to undergo simple imprisonment for five years and to pay fine of Rs.100,000/- (one lac) and in default of payment of fine he will have to undergo further simple imprisonment of six months. Both the sentences shall run concurrently. Benefits of section 382-B Cr.P.C is also extended to the accused. Case property the chanda/donation amount of Rs.790/- is confiscated to the State which shall be deposited in the relevant head of government account under intimation to the office of senior Public Prosecutor. The receipts book be destroyed, if the same are not required in any other case. Announced 06.09.2023 Sd/- [...] Judge, Anti-Terrorism Court, Bannu Division

7. The law of plead guilty is laid down in the Cr.P.C's sections 242, 243 before a Magistrate, and 265-E before a Court of Session5 or High Court (ordinarily the court of sessions conduct criminal trials). After supply of documents and statements to the accused under section 241-A, Cr.P.C., a Magistrate is required to frame the charge, and ask the accused whether he admits that he has committed the offence with which he is charged. If the accused replies in the affirmative, the Magistrate shall record his admission "as nearly as possible in the words used by him, and if he fails to show cause why he should not be convicted, the Magistrate may convict him accordingly." The accused has a right to admit the charge in the words as he chooses and the Magistrate is bound to record the admission giving emphasis to the words he uses. The purpose is to ensure that the accused had a conscious knowledge and understanding of the charge. This presupposes that the Magistrate shall read and explain the charge to the accused. The sole admission of the accused is not sufficient. The Magistrate, therefore, is obliged to afford him an opportunity to show cause why he should not be convicted. It is in the event of his failure to show cause, that the Magistrate may convict him.1 As the word "may" indicate, the Magistrate still has discretion not to convict him.

8. Section 265-E, Cr.P.C. makes it mandatory for a Court of Sessions to read and explain the charge to the accused and ask him whether he is guilty. Next, the Court of Sessions shall record the guilty plea and may in its discretion convict him on that plea. In this provision, the discretion of the Court of Sessions has been specifically stated. The reason simply is that in appropriate cases, such as, those involving murder or other heinous offences, like terrorism, a point in the case in hand, the Court should normally proceed with the trial despite the guilty plea. In short, the Court can still summon prosecution evidence.2 The discretion, needless to say, has to be exercised judicially.

9. Sections 242, 243 and 265-E, Cr.P.C. lay down no formalities a trial court should observe while entering a guilty plea in a charge. Arguably, this gap has been plugged by case law that has developed a robust jurisprudence in our jurisdiction. Appreciably, our higher courts have been mindful of the subject in the perspective of fair trial since long. For instance, as early as the 1960's, our courts clearly recognized and held that an accused has to be apprised of the accusations against him as an elementary and essential principle of fairness, so that he may have a fair opportunity to rebut and refute any statement against him and to defend his own case.3 After the constitutional recognition of fair trial in the year 2010 (Article 10A), the fair trial generally and the guilty plea particularly has assumed greater importance. For instance, the Supreme Court recently ruled that the courts from top to bottom must always remember that while dealing with matters of life, liberty, body, reputation or property of all persons must be dealt with in accordance with law, and that every person appearing before them is entitled to a fair trial and due process for the determination of his civil rights and obligations or in any criminal charge against him.4 It is partly for this reason that we venture to dilate upon the issue of guilty plea in greater details in this opinion.

10. In the context we set for us, it may be helpful to study the plead guilty law in other jurisdictions. The Canadian Criminal Code, in its section 606.1 provides that while accepting a guilty plea, a court should be satisfied that:5 (a) the accused is making the plea voluntarily; (b) the accused understands; (i) that the plea is an admission of the essential elements of the offence; (ii) the nature and consequences of the plea; and (iii) that the court is not bound by any agreement made between the accused and the prosecutor; and (c) the facts support the charge.

11. More or less similar conditions are provided by the US Federal Rule of Criminal Procedure6: Federal Rule of Criminal Procedure 11(c) requires that, before accepting a plea of guilty or nolo contendere [it means no contest, referring to a plea where a person charged with a crime does not admit guilt, but also does not contest the charges. By pleading nolo contendere, the person accepts the punishment without formally admitting guilt.], the court must address the defendant personally in open court and inform him/her of, and determine that he/she understands, the following: (1) the nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law, including the effect of any special parole or supervised release term, the fact that the court is required to consider any applicable sentencing guidelines, and that the court may also order restitution to any victim of the offense; (2) if the defendant is not represented by an attorney, that he/she has the right to be represented by an attorney at every stage of the proceeding against him/her and, if necessary, one will be appointed to represent him/her; (3) that he/she has the right to plead not guilty or to persist in that plea if it has already been made, and that he/she has the right to be tried by a jury and at that trial has the right to the assistance of counsel, the right to confront and cross-examine witnesses against him/her, and the right not to be compelled to incriminate himself/herself; (4) that if his/her plea of guilty or nolo contendere is accepted by the court there will not be a further trial of any kind, so that by pleading guilty or nolo contendere he/she waives the right to a trial; and (5) that if the court intends to question the defendant under oath, on the record, and in the presence of counsel about the offense to which he/she has pleaded, that his/her answers may later be used against him/her in a prosecution for perjury or false statement.

12. The above provisions are self-explanatory. While the statutory law laid down in our Cr.P.C. is deficient in such clear formalities with respect to plead guilty, it does contain a host of preconditions for recording of confession (sections 164, 364, Cr.P.C.). Whether those conditions could be applied while recording a guilty plea? Guidance may be sought from case law. In Younas Khan (2003)7, for example, in which an accused opted to plead guilty at a later stage, after having pleaded not guilty to the charge initially, the Court emphasized two points: firstly, it is the personal choice of an accused alone to forfeit or surrender his right to a fair trial later at the trial. Secondly, the guilty plea should be recorded "as nearly as possible" by observing the formalities provided in sections 164 and 364, Cr.P.C. (judicial confession), which would help the trial Court to inquire the reason(s) which prompted the accused to change his mind. We do not see any reason why such an approach may not be followed while entering a guilty plea at the commencement of the trial. Rather, we are of the view that such an approach would be more appropriate at the early stage, as the circumstances of the present case reflect. The reason is that there is more likelihood of compromising voluntariness of an accused during the early stages of criminal proceedings, such as, arrest and detention by the police. After completion of investigation, an accused is either released on bail or sent to judicial lock up. In any of such situations, he gets sufficient time to independently form his choice of pleading guilty. A guilty plea is entered at the start (and even at later stage) of the trial. It is for this reason that the word "admission" has been used in section 243, Cr.P.C. that requires the issuance of show cause notice to an accused. In other words, the word "admission" has been used for plead guilty. The purpose of issuance of notice to the accused to show cause why he should not be convicted, is to ensure that his choice is voluntary and that he knows the consequences, including collateral ones, while admitting his guilt. In this process, the court in fact informs him about the nature of the offence and its consequences he has to face on its admission. It follows that all confessions are admissions, but all admissions are not confessions. Confession ordinarily occur during investigation or inquiry. It is for this reason that confessions are recorded by a competent Magistrate. Courts have explained the differences between confession and admission long ago. In the 1939 Pakala Narayana Swami8, the Privy Council has observed: Some confusion appears to have been caused by the definition of confession in Article 22 of Stephen's "Digest of the Law of Evidence" which defines a confession as an admission made at any time by a person charged with a crime stating or suggesting the inference that he committed that crime. If the surrounding articles are examined, it will be apparent that the learned author after dealing with admissions generally is applying himself to admissions in criminal cases, and for this purpose defines confessions so as to cover all such admissions in order to have a general term for use in the three following articles, confession secured by inducement, made upon oath, made under a promise of secrecy. The definition is not contained in the Indian Evidence Act, 1872: and in that Act it would not be consistent with the natural use of language to construe confession as a statement by an accused "suggesting the inference that he committed" the crime. In Raza (2020)9, a relatively recent case, our Supreme Court has explained the difference between admissions and confession as under: There is a distinction between admissions and confessions. It would appear that confessions are a species of which admission is the genus. All admissions are not confessions, but all confessions are admissions. If the statement by itself is sufficient to prove the guilt of the maker, it is a confession. If, on the other hand, the statement falls short of it, it amounts to an admission. No statement, which contains self-exculpatory matter, can amount to a confession, if the exculpatory statement is of some fact which, if true, would negate the guilt. A confession is thus an admission by an accused in a criminal case and if he does not incriminate himself, the statement cannot be said to be a confession. The Qanun-e-Shahadat Order (QSO) 1984's Article 37 provides that a confession is irrelevant in a criminal proceeding if it appears to the Court to have been caused by inducement, threat or promise. Article 38 states that no confession to a police officer is to be proved against an accused person. Article 30 provides that confession by an accused while in custody of police is not to be proved against him.

13. A close reading of the impugned order would reflect: firstly, the charge was not framed with reference to the date of registration of the case, i.e. 27.07.2023, when he was first apprehended on information of the informer that he was collecting donation for a proscribed organization. The charge, on this score alone, is inherently defective. Secondly, the appellant remained in custody of the police soon after his arrest and for one-day authorized by the ATC. On 06.09.2023, he was produced before the ATC by the CTD officials, not from a judicial lock up. It follows that he remained in police custody irrespective of the fact that challan was submitted against him on the very third day of his arrest. Thirdly, the appellant was not provided the mandatory period of seven days before the commencement of the trial.10 Section 265-C is candid and clear as a mandatory provision (the word "shall" having been used), the non-compliance of which vitiates the trial

11. While one may say that an accused person may waive his right of receiving copies of the statements and documents, one cannot simply brush aside the fact that the court has the duty to satisfy its judicial conscience that mere such a waiver would not prejudice the accused. For example, there must be patent evidence that the appellant belonged to a proscribed organization as far as the charge in the instant case is concerned. Fourthly, the charge-sheet doesn't show that the nature of the offences relating to terrorism was meaningfully explained to the appellant. As noted by the Privy Council in its 1939 Judgment referred to above, "an admission of a gravely incriminating fact, even a conclusively incriminating fact is not of itself a confession..." Fifthly, the reply of the appellant to the notice to show cause appears to be generic, not the best in the circumstances of the case and even not true. The reason he showed was that he was "forced by his conscience"; that he has left the proscribed organization; that he has not been supporting it "since the registration" of the case; and that he doesn't want to join it again or participate in its activities. The circumstances of the case speak to the contrary. The case was registered against him on 26.07.2023 when he was alleged to have disappeared in the city centre, while the CTD officials were chasing him. It was on 04.09.2023 that he was arrested. Indeed, since his apprehension on 04.09.2023, he was on the run from the lawful authorities. Had he been what he said "forced by his conscience", he would have surrendered to the lawful authorities himself. The CTD arresting official didn't mention this fact in his card of arrest that he appeared before him voluntarily. Sixthly, in his application for plead guilty, the appellant stated that he is a poor man and cannot face litigation. He did not state that he was forced by his conscience. Interestingly, the impugned order contains a reference to the appellants' poverty. The ATC, however, didn't go for appointing a defence counsel for him. Seventhly, while the charge was certified under section 364, Cr.P.C., it doesn't contain an observation to the effect that the charge was explained to him in his native (Pashto) language, so that it should have been established that he was enabled to have understood the nature of the charge without any communication barrier. Eighthly, the impugned order notes that the appellant was informed that he is not bound to plead guilty and that he was given sufficient time to think over his decision. Indeed, these should have been mentioned in the charge to establish in black and white that he was cautioned and that he was given a specific period of time to think over his request for guilty plea. Then, it should have been made clear that the CTD officials and the Naib Court were not in the courtroom at that time. Ninthly, the ATC should have explained to the appellant that if he pleaded guilty, he will be convicted of the charges which are punishable under the law.

14. The impugned order is silent on whether the ATC perused the record. Needless to emphasize, a court is bound to consult the whole record to satisfy itself that the guilty plea or confession, for that matter, is not in conflict with the evidence. For example, if it is proved from the record that an accused was not, in any probability, present on the scene of an occurrence, how his confession to have committed murder, would be admissible. Here voluntariness is linked with proved facts or strong evidence which speaks otherwise. This characterizes the basic principle that admission against fact is not relevant and admissible. In other words, an admission or confession must be true in the attending facts and circumstances of a case.

15. The prosecution though submitted final report, but didn't complete investigation to unearth the true facts of the case. Indeed, there was no confession of the appellant prior to submission of the final report. A begging question is that can the prosecution stop investigation by saying that the accused, while in police custody, expressed his willingness to confess the guilt before the ATC the very day when the final report was submitted.

16. When a court sees that waiver of the right to a fair trial will result in abuse of the whole process of law, leading to failure in reaching to a just and fair conclusion, then, waiver could be refused. The 07-day time after supply of the copies and before framing of the charge, doesn't merely aim at giving the accused sufficient time to think over the next step he may take, to plead guilty or claim trial, but also to help the court to have more time to reach a just and right conclusion. It is the bounden duty of a court to ensure with a demonstrable alacrity of judicial mind that the prosecution doesn't mislead an accused by hurriedly pleading guilty to a serious crime like terrorism. Protection of judicial integrity vis- -vis protection of basic rights of an individual are to help protect public interest. Where an individual is charged of such serious offence, as terrorism, the entire gamut of the criminal justice system is under a heavy duty, in the larger public interest, to ensure fair trial, notably in the event of a purported self-incrimination by him.

17. We are of the view that a range of relevant questions could have been asked to ensure that the appellant pleaded guilty voluntarily; that he was made to understand the essential elements of the offences at hand and the nature and consequences of the plea; that he was not bound to make a guilty plea; that if he made such a plea, he would be convicted and sentenced to the imprisonment and fine as provided under the relevant provisions of the law and that his plea was supported by the attending circumstances of the case. Those questions, for example, include but not limited to the following: Q.

1. On 26.07.2023, when raided by the CTD officials after getting information that you were collecting donations for a proscribed organization, you willfully and with criminal intention disappeared in Bannu bazaar. What do you say about it? Q.

2. The CTD officials had credible information that you belong to "Jaish-e-Muhammad," which is a proscribed organization under the ATA. What do you say about it? Q.

3. You are not bound to make a guilty plea. Do you know this? Q.

4. It is to inform you and to make you understand that you are recording this statement voluntarily, with your free will and consent and that you are not compelled, induced, coerced and under no duress by anyone to plead guilty to your crimes? Q.

5. Do you want to consult an advocate? Q.

6. As per your application, you want to plead guilty because you consider yourself a poor man, unable to face trial. This Court may provide you a counsel at the State's expenses to provide you legal assistance. What do you say? Q.

7. Please be informed that your conviction upon your plea of guilty will render you liable to be a convict on a terrorism charge that may have serious implications on your future, your family status, and on a range of your basic rights. Q.

8. If you plead guilty, you will be convicted according to law. The punishment provided for the offence you are charged with is as under: 11F. Membership, support and meetings relating to a proscribed organization.

(1) [...] (2) A person guilty of an offence under subsection (1) shall be liable on conviction to a term not exceeding six months imprisonment and a fine. 11N. Punishment under sections 111H to 11K.

(1) Any person who commits an offence under sections 11H to 11K, shall be punishable on conviction with imprisonment for a term not less than five years and not exceeding ten years and with fine not exceeding twenty-five million rupees. Q.

9. This Court explained to you the nature and consequences of your plea of guilty in your mother language, Pashto. Are you satisfied with the explanations made by this Court? If no, do you need more help? Q.

10. Do you want to say something more?

18. In light of the above facts and circumstances of the case and the legal principles discussed above, we have reached to an irresistible conclusion that neither the ATC satisfied its judicial mind as to the voluntariness of the appellant in recording his guilty plea, nor did it follow in stricto sensu the requirements of the law as aforesaid. The appellant was, thus, prejudiced in his defence. He was not treated in accordance with law. He was provided with no opportunity of a fair trial within the contours of Article 10A of the Constitution. Consequently, the impugned conviction order, dated 06.09.2023, is found unsustainable and is accordingly set aside. The case is remanded to the ATC with a direction to proceed with it according to law.

19. This appeal succeeds and is allowed in the above terms. As the appellant was in custody, therefore, he shall be deemed an under trial prisoner. However, this shall not in any way prejudice the appellant's right to seek bail in accordance with law. MH/128/P Appeal allowed. 1 Shera v. The State (1991 PCr.LJ 365); Iftikhar Ahmad v. The State (PLD 1991 Pesh. 18); Sohrab Khan v. The State (1997 PCr.LJ 1308); Liaqat Ali v. The State (1994 PCr.LJ 2434). 2 Allah Ditta v. State, (2011 PCr.LJ 167 Lahore); Habibur Rehman v. The State, (1997 PCr.LJ 1930). 3 University of Dacca v. Zakir Ahmad, (1965 PLD 90 SC). 4 Bashir Ahmad v. Additional District Judge, Hafizabad, (PLD 2024 SC 67). 5 Criminal Code of Canada Section 606(1.1), at https://www.criminal-code.ca/criminal-code-of-canada-section-606-1-1-conditions-for-accepting-guilty-plea/index.html accessed 09.10.2024 6

623. Pleas-Federal Rule of Criminal Procedure 11, available at https ://www.justice.gov/archives/jm/criminal-resource-manual-623-pleas-federalrule-criminal-procedure-11 accessed 6.10.24. 7 Younas Khan v. The State and another, (2003 PCr.LJ 1684). 8 Pakala Narayana Swami v. Emperor, (AIR 1939 PC 47). 9 Raza and another v. The State and 02 others, (PLD 2020 SC 523). 10 Saifullah v. Bilawar Khan, Crl. Appeal No. 865-P/2010, decided on 20.11.2014 (Peshawar High Court). See also Mst. Nusrat Mai (Tahira Sultana) and others v. State (1997 MLD 2869). 11 Mst. Nusrat Mai (Tahira Sultana) and others v. State (1997 MLD 2869).