SHARIF KHAN vs THE STATE
The petitioner filed a criminal revision petition against his conviction and sentence under section 23(1)(a) of the West Pakistan Pure Food Ordinance, 1960, after pleading guilty to a charge of selling Maida containing excess moisture. The core legal question was whether the trial court was legally bound to provide an opportunity to the accused to show cause against conviction after recording a plea of guilt under Section 243 of the Code of Criminal Procedure 1898. The Lahore High Court held that the provisions of Section 243, Cr.P.C. are mandatory, requiring the trial court to ask the accused to show cause why he should not be convicted upon his admission. Failure to do so constitutes an incurable illegality vitiating the conviction. The court laid down the principle that recording a plea of guilt without affording a subsequent opportunity to show cause against conviction is a fatal procedural defect, setting aside the conviction and remanding the matter for retrial.
- Is a trial court required to ask an accused to show cause why he should not be convicted after recording his plea of guilt under Section 243 of the Code of Criminal Procedure 1898?
- Does the failure of a trial court to provide an opportunity to show cause upon a plea of guilt amount to a curable irregularity or an incurable illegality under the Code of Criminal Procedure 1898?
- Section 23(1)(a), West Pakistan Pure Food Ordinance 1960
- Section 243, Code of Criminal Procedure 1898
- Section 537, Code of Criminal Procedure 1898
Sharif Khan, petitioner, was tried under section 23(1)(a) of West Pakistan Pure Food Ordinance, 1960, on the charge that the Maida found in the Khalid Flour Mills contained moisture in excess of the prescribed limit of 13.0 per cent. He pleaded guilty to the charge and the trial Court convicted and sentenced him forthwith.
2. The learned counsel for the petitioner submits that after his confession, the trial Court should have asked the petitioner to show cause as to why he should not be convicted on the basis of confession made by him. The learned counsel for the State is not in a position to controvert him.
3. I have considered the matter carefully. I feel persuaded to agree with the learned counsel for the petitioner. The relevant provisions of law may be I reproduced advantageously:-- "Section 243, Cr.P.C.--- 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 The plain reading of this section will show that the trial Court, before convicting the accused, was required to give further notice to the accused asking him to show cause as to why he should not be convicted on the plea of guilt. Since the requirement of law was/is of mandatory nature, therefore, its violation tantamount to illegality, which is not curable under section 537, Cr.P.C.
4. Pursuant to the above discussion, the revision is accepted. The conviction and sentence of the petitioner is set aside and the case is sent back to the trial I Court for retrial in accordance with law.
The petitioner was on bail at the time of hearing the appeal. On the rejection of his appeal, he was taken into custody and sent to jail. Since the order of his conviction is set aside, therefore, he shall be released forthwith if not required in any other case. He will appear before the trial Court on 28- 5-1991.
Cited by 4 cases
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- GHULAM MUSTAFA Versus THE STATE 2004 MLD 1468
- SHAKIRULLAH vs THE STATE 1997 PLD Peshawar 161
- DADAN alias Dadoo vs THE STATE 1996 PLD Karachi 391