1993 P Cr (PLP)

"The accused pleaded guilty voluntarily. Her plea of guilt is not because of any inducement, threat or promise from any quarter. On the contrary, it is for the reason, that, now, she has realised that she had committed the said offence. Today in Court also she expressed remorse for having committed the said offence. She also submitted an application wherein she pleaded guilty and prayed for mercy and deciding her matter today. From her plea of guilt the case of prosecution stands proved beyond any shadow of doubt. Accordingly, I convict the lady accused under section 156(1)(8) of the Customs Act, 1969 and sentence her to suffer R.I. for three years and also to pay fine of Rs.50,000 (Rupees fifty thousand) or. in default thereof to suffer R.I. for six months. She is entitled to the benefit of section 382-B, Cr.P.C. The punishment awarded would meet the ends of justice:"

4. It is in these circumstances that both these appeals have been filed.

5. I have heard Mrs. Navin Merchant, learned counsel for the appellants and Mr. Fareeduddin, learned counsel for the State. I have also gone through the record of these cases carefully.

6. Section 412; Cr.P.C. bars an appeal on merits when a conviction is recorded on the plea of guilt of, an accused. The extent or legality of the sentence can, however, be questioned in such an appeal. But, before the bar of this section can apply it must be clear that there was ground for proceeding with the trial of the accused in terms of section 265-D, Cr.P.C. which reads as follows:-- When charge is to be framed

If after perusing the police report or, as the case may be, the complaint, and all other documents and statements filed by the prosecution, the Court is of the opinion that there is ground for proceeding with the trial of the accused it shall frame in writing a charge against the accused." It, therefore, follows that the framing of the charge is not an automatic process and if the material available on record is not sufficient the Court may discharge the accused. The case of Mst. Ashrafunnisa v. The State and 8 others reported in 1983 P Cr. L J 1428, is clear on this point. It was obviously for this reason that I have examined the case of Alhaja Alima Ravier (Special Criminal Appeal No.18 of 1992) in this context, although she has not challenged her conviction, but has simply prayed for lenient view.

7. Admittedly appellant Alhaja Alima Ravier (Special Criminal Appeal No.18 of 1992) was challaned on 24-5-1992 and on the same day she was convicted on her own plea of guilt without making compliance of the provisions of section 265-C, Cr.P.C. which provides as follows:-- "265-C: --(1) In all cases instituted upon police report, copies of the following documents shall be supplied free of cost to the accused not later than seven days before the commencement of the trial namely:-- (a)??????? the first information report; (b)??????? the police report; (c)??????? the statements of all witnesses recorded under sections 161 and 164; and (d)??????? the inspection note recorded by an investigation officer on his first visit to the place of occurrence and the note recorded by him on recoveries made, if any: Provided that, if any part of a statement recorded under section 161 or section 164 is such that its disclosure to the accused would be inexpedient in the public interest, such part of the statement shall be excluded from the copy of the statement furnished to the accused. (2)??????? In all cases instituted upon a complaint in writing; (a)??????? the complainant shall: (i)???????? state in the petition of complaint the substance of the accusation, the names of his witnesses and the gist of the evidence which he is likely to adduce at the trial; and (ii)??????? within three days of the order of the Court under section 204 for issue of process to accused, file in the Court for supply to the accused as many copies of the complaint and any other documents which he has filed with his complaint as the number of the accused; and (b)??????? copies of the complaint and any other documents which the complainant has filed therewith and the statements under section 200 or section 202 shall be supplied free of cost to the accused not later than seven days before the commencement of the trial."

8. As observed in Ajeet Singh v. The State reported in P L D 1982 Lah. 10 and Sarfraz Ahmad v. Pakistan and 2 others reported in P L D 1982 Lah. 120, the provisions of section 265-C, Cr.P.C., being mandatory, its non?-compliance was not curable under section 537, Cr.P.C. At any rate the prejudice is on the face of the record and the conviction recorded on the plea of guilt made by appellant Alhaja Alima Ravier (Special Criminal Appeal No.18 of 1992), who was all along in the custody of Customs Officials is liable to be set aside on this ground alone.

9. Admittedly the reports of the Chemical Examiner about the powder alleged to be the powder of heroin recovered from the possession of the appellants were not before the learned Special Judge (Customs and Taxation) Karachi, on the day when charge was framed against both of them in terms of section 265-D, Cr.P.C. The charge-sheets (challan) submitted against them are clear on this point. Therefore, there was no material on record justifying the framing of charge against the appellants for the offence under section 156(1)(8) of the Customs Act, 1969. In the case of Shahzadb v. The State reported in 1992 P Cr. L J 1985, a learned Judge of this Court observed:-- "Now the articles which were recovered from the accused are `alleged' to be intoxicants. At the time of recovery and also during investigation there is only a `supposition' or a `presumption' that the articles secured from the accused are intoxicants. Again, the Courts of Law will never accept the evidence of an investigating or seizing officer to the effect that the articles recovered from the accused are intoxicants, because their evidence is again based on `supposition' or `presumption' as they are not experts. It is for this reason, that the articles are referred to an expert who scientifically examines and `certifies' the same to be intoxicants. Such a `certificate' issued by an expert becomes admissible in evidence by virtue of section 510, Cr.P.C. During the trial when such a `certificate' is exhibited and placed on record, it becomes legal evidence and proof of the fact, that the articles so recovered from the possession of the accused are intoxicants. From the above reasoning, it will therefore, appear that in the absence of an expert's opinion if the accused is tried in cases involving recovery of intoxicants, there will remain a major lacuna in the prosecution case, as there will be no proof that the article recovered from the accused is intoxicant and not something else. It is to be noted that the police, the prosecutor, the defence counsel and even the Judges are not experts and cannot determine that the articles are `intoxicants'. Therefore, in cases involving intoxicants if there is no expert opinion, then, a lurking doubt is left in the mind of the Court, the benefit of which, will certainly go to the advantage of the accused."

10. If the facts on record do riot constitute an offence the accused cannot be convicted even if they plead guilty. One of the earliest pronouncements on this point is to be found in Subba Rao and others v. The King reported in A I R 1951 Pat. 405, wherein it was made clear that for a conviction it is not sufficient that the accused should admit the facts which the prosecution alleged and unless the facts alleged amount to an offence the accused cannot be convicted.

11. The cases of re. U.R. Ramaswami in re: reported in A I R 1954 Mad. 1020, State of M.P. v. Mushtaq Hussain Azad and others A I R 1965 M.P. 187, Muhammad Shah v. The State P L D 1966 Pesh. 184, Narman Shah v. The State P L D 1967 Pesh. 191 and Bulo Khan and another v. The State P L D 1967 Kar. 608 also support this view.

12. For the aforesaid reasons the convictions recorded against Umubyeyi Christine (Special Criminal Appeal No.17 of 1992) and Alhaja Alima Ravier (Special Criminal Appeal No.18 of 1992) cannot be sustained, and are set aside. The cases shall go back to Special Judge (Customs and Taxation), Karachi, for retrial, who will give priority to these two cases. In case Alhaja Alima Ravier (Special Criminal Appeal No.18 of 1992) is found guilty she deserves leniency for the simple reason that she has given birth to twins on 7-12-1992, while in custody. The appeals are allowed in the above terms. N.H.Q./U-142/K???????????????????????????????????????????????????????????????????????????????? Cases remanded.