P L D 1986 Karachi 473 (PLP)

Briefly the facts of the prosecution case are that on the night between 29/30th July, 1985, the appellant was intercepted at International Depar ture Hall of Karachi Airport. He was to leave for Conpenhagen by SAS Flight No. SK‑

976. The Customs Officer in presence of two Mashirs searched his suitcase and recovered 4 1/2 Kgs. of felts soaked in Hashish Oil concealed in false top, bottom and sides of the suitcase. The case was registered under section 156(1) of the Customs Act. Appellant has been convicted as he pleaded guilty for the charge. I have heard Mr. Rustom Kaikabad for the appellant. It is contended by the learned counsel that on 22‑9‑1985 app. 4000/‑ N.S. produced before the learned Special Judge (Customs & Taxation) Karachi and his plea was recorded without framing charge, and again on 23‑9‑1985 charge was framed and appellant pleaded not guilty. He argued that once again on third time i.e. 31st October, 1985 appellant was convicted on his plea of guilt without recording evidence. The contention of Mr. Kaikabad is that the plea of guilt in these circumstances is not in accordance with the law therefore, conviction is liable to be set aside. He has also argued that provisions of section 543, Cr. P. C. and section 5 of Oath Act have not been complied with. He has referred to the cases reported in P L D 1963 Lah. 323 and 1 76 P Cr. L J

204. Mr. Iqbal Raad, appearing for the State has frankly submitted that case be remanded back to tile trial Judge. I have gone through the record of the case. Appellant filed statement on 22‑9‑1985 Exh. 1 in which he stated as under :‑ "I pleaded guilty and waive the right of appeal in any Court of law after 7 days time." On this statement no order was passed. On 24‑8‑1985 the copies of the 161, Cr. P. C. statement were supplied to the appellant. The learned Special Judge on 23rd September, 1985 framed the charge against the appellant to which accused pleaded not guilty. The evidence was not recorded and once again on 18‑10‑1985 an application was moved in which it was stated that this Court be pleased to allow the accused to plead guilty. The second plea reads as under :‑ "The above charge has been read over and explained to the accused in Persian through his Advocate and interpreter Mr. M. R. Zia Rana, Advocate the language he understands fully and he is asked if he wants to plead guilty to the charge or claims to be tried. I, accused Bijan Mubasher son of Ali alias Thomas Peter Blum plead guilty to the charge." The charge was read over to which he pleaded guilty and appellant has been convicted as stated above. Now the question arises whether the trial Court in these circumstances can accept the plea of guilt without recording any evidence. The procedure for the trial of the Sessions cases enumerated in section 265‑A, Cr.P.C. The relevant section for the purpose of disposal of this appeal is section 265(d) by which the Court after perusing the police report, and statements frames the charge in writing which shall be read over and explained to the accused and shall be asked whether he is guilty or has any defence to make. In case he pleads guilty the Court shall record the plea and may in its discretion convict him under section 265‑E on his plea, if he does not plead guilty and Court does not convict him Then the Court shall proceed to bear complainant and take all such evidence as may be produced in support of the prosecution. In the present case on 23rd September, 1985 appellant pleaded not guilty and no further evidence was recorded and case was adjourned to 6‑10‑1985. On that date appellant was produced and cast was again adjourned to 9‑10‑1985 and thin to 19‑10‑1985. The case came up before the learned Special Judge on 30‑10‑1985 when same charge was again read over to the accused and it is stated that he pleaded guilty. There is no provision in the entire Cr. P. C. that the charge is to be read over to the appellant more than once at the discretion of the trial Court. Once the charge is framed and accused pleaded not guilty the only discretion left to the trial Court under section 265‑E is not to convict him on his plea but shall proceed to take the evidence. This statute have given safeguard to accused and it is discretion of the trial Court not to convict on the plea but Court not been given any discretion to record his plea from time to time though he not pleaded guilty. The plea of later stage creates confusion and at some time the second plea of guilt in so many cases as I observed is made on some understanding about the quantum of the sentence. Therefore. it has beets held that once accused pleaded not guilty the trial Court has no option to record the evidence. The trial Court can record the statement of accuse as provided under section 342 or 265‑A(5), Cr. P. C. For the reasons stated above, I set aside the conviction of the appellant and remand the case back to the learned Special Judge (Customs and Taxation) for re‑trial in accordance with law. I M. Y. H. Case remanded.