GHULAM MUSTAFA Versus THE STATE
1. By this common judgment, I propose to dispose of Criminal Appeal No.321 of 1996, filed by appellant Punhoon son of Allah Parto Babar and Criminal ‑ Appeal No. 322 of 1996 filed by the appellant Ghulam Mustafa son of Deeno Babar, as facts of both the appeals are similar and identical.
2. Both the appellants were convicted under section 193, P.P.C. by the learned IInd Additional Sessions Judge. Dadu, (hereinafter referred to as the "trial Court") by separate judgments dated 26‑11‑1996 and each of the appellants was awarded sentence of three years' R.I. and fine of Rs.20,000. In default of payment of fine, each of them was ordered to suffer R.I. for one year more.
3. Briefly the facts of the case are that Muhammad Bakhsh son of Ghulam Muhammad hereinafter called as the accused was convicted under section 302, P.P.C. by the learned Sessions Judge, Dadu on 2‑12‑1991 for having murdered Allah Jurio. The accused preferred appeal in this Court against the said conviction but his appeal was dismissed on 17‑9‑1992. ‑'"
4. After dismissal of appeal an application under section 345, Cr.P.C. was filed on 4‑10‑1992 in the Sessions Court, Dadu, which was dismissed on 6‑3‑1993. The accused then filed petition for leave to appeal in the Hon'ble Supreme Court and an application for compromise was also filed and in that application Punhoon (appellant in Cr. Appeal No.321 of 1996) was the complainant in the murder case of deceased Allah Jurio, shown himself to be the sole legal heir of the deceased.
5. The Hon'ble Supreme Court on 7‑12‑1993 ordered the learned Sessions Judge, Dadu, to hold inquiry as to whether the deceased Allah Jurio had left behind his widow, Mst. Haseena, two sons and one daughter as his legal heirs. Such inquiry was held by the learned Sessions Judge, Dadu, and on 8‑1‑1994 Punhoon had appeared before learned Sessions Judge, Dadu and stated on oath that he was only the surviving legal heir of the deceased. The appellant Ghulam Mustafa (in Criminal Appeal No.322 of 1996) appeared on 31‑1‑1994 before the learned Sessions Judge, Dadu, and stated on oath that Punhoon was only the legal heir of the deceased. The applicant Punhoon in support of his plea also produced two witnesses namely, Dil Murad and Suleman, who also deposed to the same fact.
6. The appellant Punhoon was again examined on 5‑5‑1994 when he stated on oath that the deceased had left behind him, his widow Mst. Haseena, two sons namely, Kouro, aged about 12/13 years, Cibhar aged about 10/11 years and daughter Mst. Kouri, aged about 9 years. Mst. Haseena was also examined by the learned Sessions Judge, Dadu and she also affirmed the same facts. The learned Sessions Judge, Dadti, on 28‑5‑1994 submitted his report before the Hon'ble Supreme Court.
7. The petition for leave to appeal was dismissed by the Hon'ble Supreme Court on 1‑6‑1994 and the Hon'ble Supreme Court directed the learned Sessions Judge to take appropriate action against both the appellants and also against Dil Murad and Suleman for perjury.
8. The show‑cause notice were served on both the appellants and after receipt of their replies the learned Sessions Judge, Dadu, by the order dated 3‑10‑1994 registered the case under section 193, P.P.C. against the appellant Punhoon and on 12‑12‑1994 against the appellant Ghulam Mustafa.
9. Both the cases were then made over to the trial Court. The cases were fixed before the learned trial Court on 26‑11‑1996 and charge was framed against both the appellants separately under section 193, P.P.C. The appellants are said to have pleaded guilty and prayed for mercy.
10. The trial Court has recorded plea in both the cases as under:‑‑
11. "Pleads guilty and pray for mercy"
12. The learned trial Court then on the same day by the impugned judgments convicted both the appellants and sentenced them, as stated above. The appellants have filed separate appeals in the Court against their conviction. Both the appeals were admitted to regular hearing by order dated 23‑1‑1997 and the sentence of the appellants were suspended any they were released on bail.
13. The main contentions of the learned counsel for the appellants are that the learned trial Court, without supplying copies, as required under section 241‑A or 265‑C, Cr.P.C., framed the charge on 26‑11‑1996 and convicted the appellants. The learned Sessions Judge, Dadu who was proceeding with the case under section 193, P.P.C. could not have made over cases to the trial Court, as such, the impugned judgments are illegal and without jurisdiction.
14. The learned counsel further stressed that there is no evidence that the applicants had pleaded guilty of the charge and the alleged plea of guilt is in violation of section 243, Cr.P.C. as actual words of plea of guilt has pot been reproduced by the trial Court. The learned counsel also argued that the relevant documents/statements, relating to the alleged depositions of appellants and witnesses, were not brought on record nor exhibited, as such, entire trial stands vitiated and conviction of both the appellants are illegal and liable to be set aside and case be remanded to the learned Sessions Judge, Dadu for retrial after compliance of section 241‑A or 265‑C, Cr.P.C. Learned counsel has placed reliance on the decisions reported as Tariq alias Baboo v. The State (1992 PCr.LJ 1575), Mubarik Ali v. The State (1990 PCr.LJ 1685, Dadan alias Dadoo v. The State (PLD 1996 Karachi 391), Umubyeyi Christine v. The State (1993 PCr.LJ 1606), Sharif Khan v. The State (1991 PCr. LJ 1761) and Ajeet Singh v. The State (PLD 1982 Lahore 10).
15. I have heard Syed Madad Ali Shah, learned counsel, for the appellants and Mr. Ali Azher Tunio, learned A.A.‑G. for the State.
16. The impugned judgments show that the leave to appeal on the ground of compromise was refused by the Hon'ble Supreme Court on 1‑6‑1994 with the direction to the learned Sessions Judge, Dadu, for taking appropriate action against the appellants and two witnesses by prosecuting them for making false statements on oath and to report the matter to Hon'ble Supreme Court of Pakistan after finalizing the proceedings. The learned Sessions Judge, Dadu, issued show‑cause notices to the appellants and thereafter the cases were .made over to the trial Court.
17. The learned trial Court does not appear to have complied with the mandatory provisions of law before proceeding with the cases. Section 241‑A, Cr.P.C. and section 265‑C, Cr.P.C. lay down that the copies are be supplied to the accused not less than seven days before the commencement of trial. Admittedly, no such copies, as required under section 241‑A or 265‑C, Cr.P.C. were supplied to the appellants before the commencement of trial, as such framing of charge itself was not proper and legal. The appellants in absence of the relevant copies/documents had no knowledge as to what was the case against them. As such, plea of guilt of the appellants was not legal.
18. The plea of guilt of the appellant was against the provisions of section 243, Cr.P.C. which reads as under:‑‑
19. "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."
20. In the present case the learned trial Court has only recorded the words "pleads guilty and pray for mercy", which clearly shows that the learned trial Court has not complied with mandatory provisions of section 243, Cr.P.C. The learned trial Court has also not issued any show‑cause notice to the appellants as to why they should not be convicted on their admission/plea of guilt as such the conviction of both the appellants is in violation of mandatory provisions of law.
21. In the case of Tariq alias Baboo v. The State (1992 PCr.LJ 1575) a Division Bench of this Court held that before relying on plea of guilt for the purpose of awarding conviction the Court should satisfy itself by putting questions to the accused, against him, and that he haft' admitted his guilt voluntarily without any pressure or expectation of lenient sentence.
22. In the case of Mubarik Ali v. The State (1990 PCr.LJ 1685) Hon'ble Federal Shariat Court considering section 243, Cr.P.C. held that the accused had not stated in very clear terms that he admitted commission of the offence of transportation or trafficking in narcotics of ten grams heroin powder but he has only stated to 'pleads guilty'. Accused cannot be convicted on such admission and the case on this score merited to be remanded for retrial according to law.
23. In the case of Dadan alias Dadoo v. The State (PLD 1996 Karachi 391) this Court ordered for fresh trial when no show‑cause notice was given to the accused as to why he should not be convicted, as mandatory provision of section 243, Cr.P.C. was not complied with.
24. In similar and identical case of Lahore High Court in the case of Sharif Khan v. The State (1991 PCr.LJ 1761) it was held that provisions of section 243, Cr.P.C. are mandatory and non compliance tantamounts to illegality which is not curable under section 537, Cr.P.C. The conviction of the accused was set aside in the reported case.
25. In the case of Umubyeyi Christine v. The State (1993 PCr.LJ 1606) the accused were convicted on their own plea of guilt without compliance of mandatory provisions of section 265‑C, Cr.P.C. Therefore, conviction and sentence was set aside and case was remanded to trial Court for fresh trial.
26. Similar view was taken by Lahore High Court in the case of Ajeet Singh v. The State (PLD 1982 Lab. 10).
27. The upshot of the above discussion is that there is clear non compliance of mandatory provisions of sections 241‑A/265‑C and 243 of Cr.P.C. as neither any copies, as required under section 241‑A or 265‑C, CI.P.C, were supplied to the appellants before framing the charge nor the plea of guilt was recorded in actual words of the appellants and that no show‑cause notices, as required under section 243, Cr.P.C. were issued to the appellants as to why they should not be convicted on the plea of guilt. The conviction of the appellants are, therefore, not sustainable in law. Consequently, appeals are allowed. The conviction and sentence awarded to the appellants by the trial Court is set aside. The cases are remanded back to the learned Sessions Judge, Dadu, for retrial, after compliance of the mandatory provisions of section 241‑A or 265‑C, Cr.P.C. The appellants are directed to attend the Sessions Court, Dadu, on 25‑6‑1998, without fail to face the trial under section 193, P.P.C.
28. H.B.T./G‑22/K Case remanded.