GHULAM RASOOL Versus STATE

The facts out of which this revision application filed under section 439, Cr.P.C. has arisen are simple and may be briefly summed up.

2. Applicant Ghulam Rasool is facing trial for the offence under section 302, P.P.C., as amended, in the Court of Sessions Judge (South) Karachi. On 3‑8‑1991 charge under 'section 302, P.P.C. was framed against the applicant and then the case was posted on 25‑8‑1991 for evidence which is clear from the following order‑sheet:‑‑

"3‑8‑1991. Case called. The accused present in custody. The A.P.P. and defence advocate present. Charge framed as Exh3. Plea of the accused as Exh.4.

Put off to 25‑8‑1991 for evidence. Call for case property and P.Ws. The accused is remanded to judicial custody, to be produced on next date:"

3.On 20‑10‑1991‑Mr. MA. Wahab Khan, Advocate filed Vakalatnama on behalf of the applicant and on 7‑1‑1992 he filed an application under section 265‑D, read with section 222(1), Cr.P.C. in the following words:‑‑

"It is respectfully submitted that having obtained certified copies of the charge and plea of the accused, dated 3‑8‑1991, the undersigned was surprised to see that they are neither signed nor thumb‑marked by the accused.. On enquiry; the accused has informed the undersigned that nobody framed any, charge or recorded his plea and that he is prepared to make such statement on oath.

This being the state of affairs, the undersigned feels himself duty bound to bring the said facts to the notice of this Honourable Court."

4.On 9‑2‑1992 Mr. MA. Wahab Khan, Advocate for applicant filed another application under section 265‑E, Cr.P.C. in the following words:‑‑

"With reference to the previous application under section 265‑D read with section 222(1), Cr.P.C. dated 15‑12‑1991, it is respectfully submitted that in spite of best efforts by going through various commentaries, P L D, P Cr. L J, P L J and other periodicals on the issue, brought to the notice of this Honourable Court through the application, dated 15‑12‑1991 mentioned above remains unsolved. In order to find out the effect of the absence of signature of the accused on charge framed under section 265‑D, and plea of the accused which is recorded under section 265‑E, Cr.P.C. the undersigned consulted, almost all the senior and top class learned advocates working on the criminal side, but they showed their inability to express their opinion. However, the undersigned is of the view that the strongly worded section 265‑E, Cr.P.C. speaks for itself that signatures or thumb‑mark of the accused must be obtained thereon in token of the fact that the requirements stated therein have been complied with. As such, the said issue is not curable under section 537, Cr.P.C."

5. Both these applications were heard together and were dismissed by learned Sessions Judge (South), Karachi, vide order, ., dated 9*2‑1992. This order is the subject‑matter of the present revision application.

6. I have heard Mr. MA. Wahab Khan, learned counsel for the applicant and Mr. S.ZA. Qureshi, learned counsel for the State. The latter has supported the impugned order. '

7. A charge in this country corresponds to an indictment in English law and as observed by this Court in the case of Sarwar Shakir v. The State reported in 1992 M L D 1253, the object of framing charge is to afford the defence an opportunity to concentrate its attention on the case that it has to meet. Section 242, Cr.P.C. deals with the framing of charge in the cases tried by Magistrates in the following words:‑‑

"When the accused appears or is brought before the Magistrate a formal charge shall be framed relating to the offence of which he is accused and he shall be asked whether he admits that he has committed the offence with which he is charged."

8. Section 243, CI.P.C, further provides as follows:‑‑

"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 shall not be convicted, the Magistrate may convict him accordingly."

9. Section 244, Cr.P.C. lays down the procedure when no such admission is made and in that exigency the Magistrate shall proceed to hear the complainant and take all such evidence as may be produced in support of the prosecution.

10. Chapter . XXII‑A, which was added in the Code of Criminal Procedure, 1898, by Law Reforms Ordinance, 1972, laid down the procedure for the trial of cases before High Courts and Courts of Session Section 265‑D, Cr.P.C. of this Chapter deals with framing of charge in the following manner:‑‑

"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 opinion that there is ground for proceeding, with the trial of the accused it shall frame in writing a charge against the accused."

11. Section 265‑E, Cr.P.C., provides for recording the plea of the accused in the following words:‑‑

"(1) The charge shall be read and explained to the accused, and he shall be asked whether he is guilty or has any defence to make. .

(2) If the accused pleads guilty, the Court shall record the plea, and may in its direction convict him thereon."

12. Section 265‑F, Cr.P.C., deals with the procedure to be followed where the accused does not plead guilty or the Court in its discretion does not convict him on his plea.

13. With this legal position in view, the question of law which I am called upon to decide presents itself to my mind somewhat as follows:‑‑

(i) Whether obtaining of signature or thumb‑impression on the plea of accused recorded in terms of section 243, Cr.P.C. and section 265‑E, Cr.P.C. is a legal requirement?

(ii) Whether the failure of the Magistrate or the Sessions Judge, as the case may be, to obtain signature or thumb‑impression on the plea of accused vitiates the trial or the omission is an irregularity curable under section 535 or 537, Cr.P.C.?

(iii) Whether in the present case the plea of applicant was not recorded in terms of section 265‑E, Cr.P.C.? If so, to what effect?,

14. From a bare perusal of sections 242, 243, 265‑D and 265‑E, Cr.P.C., I do not find anything to support the view that obtaining of signature or thumb impression on the plea of accused is a legal requirement. Section 364, Cr.P.C., A however, makes it incumbent upon the Magistrate or the Court to obtain signature or thumb‑impression of the accused whenever the accused is examined. It would, therefore, be convenient to read the material provisions o this section, which are in the following terms:‑‑

"(1) Whenever the accused is examined by any Magistrate or by any Court other than a High Court, the whole of such examination, including every question gut to him and every answer given by him; shall be recorded in full, in the language in which he is examined or, if that is not practicable, in the language of the Court or in English; and such record shall be shown or read to him, or, if he does not understand the language in which it is written, shall be interpreted to him in a language which he understands, and he shall be at liberty to explain or add to his answers.

(2) When the whole is made conformable to what he declares is the truth, the record shall be signed by the accused and the Magistrate or Judge of such Court and such Magistrate or Judge shall certify under his own hand that the examination was taken in his presence and hearing and that the record contains a full and true account of the statement made by the accused.

(3) ...........................................................................................................................

(4) ...........................................................................................................................

15. It is thus apparent that signature or thumb‑impression of the accused is required when his statement under section 164, Cr.P.C. is recorded or he is examined under section 342, Cr.P.C.

16. Sections 243 and 265‑E, Cr.P.C. however, provide for conviction on the plea of guilt. A plea of guilty is, an admission of all the facts on which the charge is founded. Therefore, the signature or thumb‑impression of the accused on such a plea becomes necessary in token of having made such a statement. It is obviously for this reason that there has been a consistent practice of obtaining signatures or thumb‑marks on such plea. This practice which is hardened into one of law, is being followed consistently as a matter of prudence only. Therefore, I need not dwell at more length on the first point raised by learned counsel for applicant.

17. In view of the above finding the learned counsel for applicant has very little to say about the second point formulated by me in para. 13 ante. The cases of Dost Muhammad Qutab Din v. Municipal Committee, Haripur Hazara, reported in A I R 1941 Pesh. 9, Nur Hussain v. Allah Wasaya etc. reported in P L D 1951 BJ 9, Iqbal Hussain v. The State reported in P L D 1969 Lah. 217, State v. Khadim Hussain Shah and others reported in 1980 P Cr. L J 988 and State v. Abrar Hussain Shah and 2 others reported in 1986 P Cr. L J 2941, are nearest parallel to this point agitated on behalf of applicant. By parity of reasoning it must be held that in the present case also the omission is curable.

18. With regard to the third point urged by Mr. MA. Wahab Khan, learned counsel for applicant it may be observed that on the foundation of the facts abovestated, he has built a superstructure of inferences. The perusal of the order‑sheet, dated 3‑8‑1991 makes it clear that the charge was framed gainst the applicant in .presence of his Advocate (not Mr. MA. Wahab Khan) and the plea of the applicant was also recorded in presence of his previous advocate in the following words:‑‑

" PLEA OF THE AC SED

The enclosed charge for the offence under section 302 of the Qisas Diyat Ordinance, 1990 has been read over and explained to the accused Ghulam Rasool son of Muhammad Deen in the language he understands viz. Urdu and he has been asked if he pleads guilty or desires to make any defence to which his answer is as follows:‑‑

Answer :‑‑ I am innocent and want to be tried."

19. The presumption of truth is attached to the record of the Court. Nothing is brought on record to show that the charge was not read out to the applicant and his plea was recorded at his back. Even the affidavits of applicant or his previous advocate were not filed to this effect. In his plea reproduced above the applicant has stated as follows:‑‑

"I am innocent and want to be tried."

Though that is not necessarily fatal, ordinarily it will be very difficult to sustain a plea of prejudice unless the Court is told just where the shoe pinches. In the present case the plea of not guilty was recorded and, therefore, the question of prejudice does not arise. Putting the matter tersely I am of the view that there is no force in this revision application, which is accordingly dismissed.

N.H.Q./G‑307/K Petition dismissed.