P L D 1997 Peshawar 161 (PLP)

"Both the accused on bail with counsel and P.I. for State present. P.Ws. have not been properly served. To be resummoned positively for 3‑3‑1996. " From this order‑sheet it appears that the date next was fixed for recording of evidence but as reflected in the order‑sheet No. 15 dated 3‑3‑1996 the accused appellant and his co‑accused stating to have volunteered to have admitted their guilt. The factual position whether the statement of the appellant and for that matter of his co‑accused is an admission or not, a reading of the said statement is necessary which is as under:‑‑ "Stated that while framing of charge I did not plead guilty and claimed trial. Today I admit my guilt to the extent that the Account No.KD‑2 in the name of Dr.Sajjad was not closed but it was running. In fact the total amount was not drawn by the account holder and a sum of Rs.100 was still lying in the said account, which enhanced to the tune of Rs.1,061 from time to time by way of profit. This amount of Rs.1,061 was later on drawn by the account holder. However, I throw myself at the mercy of the Court and request for taking lenient view in the matter I am father of three sons and five daughters and am the only member to look after my family. It is, therefore, requested that my case may be disposed of on the basis of pleading guilty coupled with the explanation mentioned above." As the statement of the co‑accused who is not appellant is also verbatim copy the same is not reproduced.

9. In these statements the accused had nowhere admitted their guilt. They had stated that, the account in the name of Dr. Sajjad was still operative and the profit from time to time used to be added to the actual amount and the same has been withdrawn by the account holder. Nowhere the appellant has even impliedly accepted that they had misappropriated the amount or has fraudulently withdrawn the same. I have failed to understand that how the learned trial Court considered this statement to be a "clean breast admission".

10. The legality of the statement which has been vehemently challenged and rightly so is to be seen in the light of the law. Section 243, Cr.P.C. is reproduced below: "

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."

11. The statement of the appellant which appears to be recorded under section 364, Cr.P.C. does not fulfill the requirement of this section. In a case titled Sharif Khan v. The State 1991 PCr.LJ 1761 it was held as under: "Plea of guilty‑‑Conviction, legality of.‑‑Accused pleaded guilty to charge and was convicted forthwith without giving him notice to show cause as to why he should not be convicted on plea of guilt‑‑Provisions of section 243, Cr.P.C. were mandatory in nature hence its violation was tentamount to illegality not curable under S.537, Cr.P.C.‑ Conviction and sentence was set aside and case was sent back for retrial in accordance with law." In another case Dadan alias Dadoo v. The State PLD. 1996 Karachi 391 the principle as laid down in the earlier judgment cited above was also followed wherein it was observed: "S.379‑‑Criminal Procedure Code (V of 1898), Ss.243 & 561 Accused having been vexed by the protracted trial due to non‑appearance of prosecution appellant was constrained to admit the charge and prayed for mercy, on which he was convicted and sentenced by trial Court‑‑No show‑cause notice having been given to accused as to why he should not be convicted, the mandatory requirement of S.243, Cr.P.C. was not complied with‑‑Conviction and sentence of accused were consequently set aside and the case was sent back to Trial Court for fresh trial in accordance with law. "

12. The provisions of section 243 are salutary in nature and as such are to be strictly followed. This section appears under Chapter XX of the Criminal Procedure Code relating to trial of cases by Magistrate. After the charge is framed against an accused person he is asked if he admits the commission of the offence and on refusal the prosecution is called upon to adduce its evidence. If, in mid way of the trial an accused wants to. admit the guilt section 243 of the Code empowers the Magistrate trying, to convict the accused accordingly. A show‑cause notice in the shape of warning is condition precedent for such conviction. 12‑A. In this case as observed above, the statement of the accused which has been termed as admission of the guilt is not so. Where an accused admits his involvement in the crime he must accept the accusation against hire in totality. It is an acceptance of all facts alleged against him in the commission of the crime. Even, where an accused person puts himself on the mercy of the Court that will not exonerate the Court of the duty to see the facts and circumstances of the case as alleged by the prosecution and after comparison of such facts with the admission made by the accused, should come to final conclusion about the guilt of the accused failing which no conviction can be recorded.

13. The order dated 3‑3‑1996, impugned before this Court cannot be termed as a judgment. It does not give the facts and the gist of evidence appearing on record. It also does not reflect about the application of mind by the learned trial Judge viz. statement of accused recorded under section 364, Cr.P.C.

14. As the order is suffering from illegality as such the same is not sustainable in law. Consequently I while accepting this appeal set aside the conviction and sentence of the appellant and also order of his being placed under, probation before the Probation Officer, Peshawar. The case is remanded back to the learned trial Judge who shall proceed with the case in accordance with law. As the accused appellant was on bail at the time of his conviction he should continue as such

15. Saadullah Khan co‑accused who is equally treated in the impugned order has though not filed an appeal, my this order shall also apply to his case.

16. The case file is sent back to the learned trial Court who shall dispose of the same within shortest possible time as already sufficient time has been consumed in the conclusion of the trial. H.B.T./2164/P Appeal accepted