KHIZAR HAYAT Alias KHIZRU vs THE STATE

Khyzar Hayat alias Khizru has called in question judgment dated 22-6-1999 by Judicial Magistrate Section 30, whereby, the appellant was convicted and sentenced under section 392 read with section 411, P.P.C. Sentence under section 392 was upto seven years R.I. And fine of Rs.5,000 and under section 411, P.P.C. Sentence was to run upto three years R.I. And a fine of Rs.1,000. In default of the payment of fine to undergo S. I. For six months. Sentences were ordered to run concurrently with benefit under section 382(B), Cr.P.C. Extended.

2. Brief facts of the case are that on 27-12-1997 complainant Munawar Hussain got recorded his statement with police that he was running a 'Karyana' shop and was going to Sargodha on Bus No.389/SGA for purchasing articles of his shop. At 5-30 p.m. When the bus reached at Sem Nullah in the area of Chak No.19/SB two unknown persons came on motorcycle who were armed with fire- arm. They stopped the bus and robbed the passengers by snatching cash, wrist wathches etc. The complainant was also robbed of Rs.12,000 alongwith wrist watch. On the statement of the complainant, the subject case was registered. During investigation accused Nasar Ullah, Khizar Hayat, Aslam were found guilty and they were challaned to Court to face trial under sections 392/411, P.P.C.

3. The appellant was charged with the offence on 29-3-1998. He denied the charge, pleaded not guilty and claimed the trial. The prosecution evidence was summoned, but before any witness could enter the witness-box the appellant volunteered on 22-6-1999 that he is prepared to admit his guilt and once again the question was asked by the Court whether he committed the offence, he admitted that on the day of occurrence he committed the offence for which he was charged.

On the basis of his admission, the conviction and sentence was recorded.

4. Learned counsel appearing for the appellant has contended that once the charge was framed, the appellant denied the same, pleaded not guilty and demanded the trial, whereafter the trial Court should have summoned the prosecution evidence and recorded the same. A noval procedure was adopted by the trial Court in once again asking the appellant whether he is prepared to admit his guilt and after his answer in the affirmative, conviction was recorded. He bitterly criticised the procedure adopted by the trial Court and stated that the same -amounts to an illegality not curable by any provision under the Criminal Procedure Code. In support of his arguments learned counsel relied upon Bijan Mubashar v. The State PLD 1986 Kar. 473 and Shera v.

The State 1991 PCr.LJ 365. The consensus of the aforesaid ruling is that once charge framed he accused pleads not guilty, thereafter the trial commenced in its normal manner and admission of guilt recorded subsequent to plea of not guilty at the time of framing of the charge leaves no discretion with the Court but to record evidence.

5. The learned counsel .For the State conceded that the procedure adopted by the trial Court cannot be countenanced in law. He has relied on State v. Jahandad and 3 others 1992 PCr.LJ 592.

6. Conviction being palpably not in accordance with the procedure enjoined by law to be undertaken by Courts, same is bad in the eyes of law aid is set aside. Resultantly, appeal of the appellant is accepted, conviction and sentence recorded by the trial Court vide its judgment dated 22-6-1999 is set aside. If the appellant is not required in any other case shall be set at liberty forthwith.