FAZAL ABBAS vs THE STATE- Respondent

' MUHAMMAD JEHANGIR ARSHAD, J.---Since both the appellants namely Fazal Abbas (Criminal Appeal No, 1949 of 2004) and Ahmad Ali (Criminal Appeal No, 934 of 2007) have challenged the same order, dated 6-10-2004 passed by learned Special Judge, Control of Narcotic Substances, Lahore (Camp at Faisalabad), whereby, both the appellants on the basis of their alleged confession were convicted under section 9(C)/15 C.N.S.A., 1997 and sentenced to ten years' R.I. Each with fine of Rs,1,00,000 each, in default whereof to further undergo one year S-I. Each, arising out of the same F.I.R. No, 9 of 2004 registered with A.N.F., Faisalabad, therefore, both these appeals are being disposed of through this single order.

2. The facts in brief are that on 26-5-2004 both the above named appellants were arrested in the abovementioned case for keeping in their possession 10-kg of Charras and were thus sent to the Court for facing trial. Per 'record both the appellants were produced before the learned trial Court 4-8-2004 and sought time, for engaging a counsel, therefore, case was adjourned to 8-9-2004 for appointment of counsel as well as distribution of copies of statement/documents under section 265-C Cr.P.C. On 8-9-2004, another request was made on behalf of the appellants for engaging the counsel and the learned trial Court adjourned the case, to- 6-10-2004. However, on 6-10-2004, most probably as both the appellants volunteered to make confession, therefore, the learned trial Court without distributing the copies of statements/documents asmandated by section 265-C, Cr.P.C. And without appointment of-counsel on behalf of the appellants, proceeded to frame the charge and after recording confessional statements of both the appellants, on the same day i,e, 6- 10-2004 convicted both the appellants and sentenced them as A detailed above. Through the instant appeals the appellants have challenged the procedure adopted by the learned trial Court about recording- of their confessional statements as well as the conviction and sentence.

3. Before proceeding further, we would like to point out that as the appeal (Criminal Appeal No, 934 of 2007) filed by Ahmad Ali, was patently barred by time, therefore, on an application moved by him along with the main appeal, the delay in filing the appeal was condoned by this Court on 3-9- 2007.

4. Learned counsel for the appellants when questioned as to how these appeals against the conviction and sentence of the appellants based on their voluntarily confessional - statements/pleading guilty, were maintainable in view of the bar contained in section 412, Cr.P.C., learned counsel has come out with the argument that appeals were not barred if the very recording of confession was either not in a lawful manner or was result of violation of the .Provisions contained in Criminal Procedure Code. To support his contention the learned counsel submits, that unless the procedural requirement of section 265-C, Cr.P.C, is followed, which is not only mandatory but its non-compliance would also lead to cause serious prejudice to the appellants, there is no commencement of trial at all and as such neither the charge could be framed on 6-10- 2004 nor the alleged confessional statements could be recorded on the part of the appellants, in terms of section 265-E, Cr.P.C., therefore, the confessions allegedly made by the appellants, even in the presence of framing of charge on the said date, the same do not carry any binding force on them and the appellants were justified to challenge the same through the instant appeals. Learned counsel has placed reliance, on the case "Ajeet Singh v. The State" (PLD 1982 Lahore 10).

5. On the other hand, learned counsel appearing or A.N.F., has opposed these appeals by arguing that these appeals were not maintainable in view of the bar contained in section 412, Cr.P.C.' and further after making confession/pleading ,guilty, the appellants were estopped from challenging their conviction and sentence on the mere ground of some irregularity, which was otherwise, curable under section 537, Cr.P.C.

6. We have considered the arguments of learned counsel for the parties and have also perused the available record.

7. As mentioned above, both the appellants were summoned by the learned trial Court for 4-8- 2004 after submission of chaIlan, on which date both the appellants were produced in police custody and case was adjourned, to 8-9-2004 for appointment of counsel as well as distribution of copies of documents in terms of section 265, Cr.P.C. On 8-9-2004, the appellants again requested for adjournment so as to engage the counsel and case was thus adjourned to 6-10-2004. On 6-10- 2004, the learned trial Court after framing of charge but without following the requirements of section 265, Cr.P.C. Recorded conviction and sentence against the appellants on the basis of their confessional statements. Prima facie, we feel that the learned trial Court acted in a bit haste in proceeding to frame the charge and recording confessional statements of the appellants without following the requirement of section 265, Cr.P.C. And this omission on the part of the learned trial Court to comply with the provision of section 265, Cr.P.C. Cannot be construed as a mere irregularity but is a serious illegality going against the fundamental principle of safe administration of justice; inasmuch as, the learned trial Court did not ask the appellants whether they required the services of a counsel or not. Although the learned trial Court adopted a safer method of framing the charge before recording confessional statements of the appellants, yet as held by this Court in the cited case, a criminal trial commences with the distribution of copies of F.I.R., police report, statement of witnesses recorded under sections 161 and 164, Cr.P.C, as well as the inspection notes prepared by the Investigating Officer and the copies of these documents have to be delivered to the accused seven days before the commencement of trial, meaning thereby, unless seven days expire from the supply, of the copies, no trial in law commences and it is only after the expiry of seven days, the stage for framing of charge reaches, but in the instant case the learned trial Court without following the procedure provided in section 265, Cr.P.C. Jumped to' frame the charge in terms of section 265-D, Cr.P.0 and recorded confessional statements of the appellants, which is violative of the above provisions of Criminal Procedure Code, therefore, we are satisfied that the omission to comply with the provision of section 265, Cr.P.C. Before framing of the charge and recording confessional statements of the appellants, by the learned trial Court would vitiate the entire proceedings so taken by thelearned trial Court; and there is no force in the contention of learned counsel for A.N.F. That appellants were estopped from challenging theirconviction as the procedure adopted by the learned trial Court by not following the procedural requirement of section 265-C, Cr,P.C. Is mere an irregularity, curable under section 537, Cr.P.C.

8. For what has been discussed above, both these appeals are accepted and by setting aside the conviction and sentence of the appellants, we remand the case to the learned trial Court. The learnedtrial Court after treating the appellants as under trial accused would proceed with the trial from the date of proceedings conducted on 8-9-2004 i,e, distribution of copies. The appellants may, if is so advised, approach the learned trial Court seeking any interim relief, available to them under the law.