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Special Criminal Revision Application No.3 of 1986 decided on 22^nd May, 1986.

-‑‑‑Ss. 242, 243, 265‑D, 265‑E & 265‑F ‑Customs Act (IV of 1969) Ss. 156(1)(8) & 185‑F‑‑‑Revision‑‑Accused pleaded not guilty to charge framed against him and his case was fixed for evidence‑‑Accuser, subsequently made an application wherein he pleaded guilty and prayer for leniency in sentence held, second plea on same charge could only be recorded when charge was amended otherwise Courts were not empowered to record other plea‑‑Same charge could not be read over again and again at will of accused‑‑Plea at later stage. would sometime be on understanding on point of quantum of sentence‑‑Plea could not be equated with confession which could be recorded by competent Magistrate when case was under investigation and there were other legal formalities to be observed in confession.

Habibur Rehman Sereng and others v. The State P L D 1960 Dacca 213 and A I R 1925 Sind 188 rel.

‑‑‑S. 243‑‑Courts being creation of statute, had to follow law as given by legislature.

Nazir Ahmed v. The State P L D 1975 Lah. 304 distinguished.

G.R. Warsi for Applicant

Abdul Rashid Nizamani for the State.

This Revision Application under section 185‑F of Customs Act, 1969 has been filed against the order dated 20th March, 1986 of Special Judge, Customs & Taxation Karachi.

The facts giving rise to this Revision are that applicant Faiz Muhammad has been challaned in the Court of Special Judge (Customs) for the offences punishable under section 156 (1) (8) of the Customs Act. On 9‑12‑1985 the charge was framed to which he pleaded not guilty and case was fixed for evidence. On 19‑3‑1986, accused made an application which reads as follows:‑--

"It is respectfully submitted on behalf of the above‑named accused that he pleaded guilty in the above case at his own accord without any coercion, pressure or undue influence on the following grounds:‑

(1) That he in the first hearing without any pressure force pleads guilty at his own wish and will and does not desire to contest the above proceedings in order to waste the precious time of this honourable Court.

(2) That he is a young boy and student of Second Year of Jinnah Government College, Karachi in proof of the said his Educational Certificates are being submitted.

(3) That his old mother is residing at Peshawar and often remains sick and there is no other person to look after the ailing mother of the accused.

(4) That he was arrested on 16‑8‑1985 and remained in judicial custody for about 20‑25 days.

(5) That prior to this he was never involved in any criminal or civil case and he is not previous convict.

(6) That he bears good character certificate. A photostat of his character certificate issued by his Principal is annexed herewith and marked as Annexure B.

(7) That he is a poor boy and does not have any source of income to support his mother except he himself.

It is, therefore, prayed that this Honourable Court may be pleased to take lenient view in the above matter in the interest of justice and be further pleased to dispose of the above matter on the grounds mentioned above."

The procedure for the trial of Customs case is to be followed as trial before the Court of Sessions. The procedure for charge, plea and recording of evidence is given in sections 265‑D, 265‑E and 265‑F. In case accused pleads guilty the Court may in its discretion convict the accused on his plea, but Court is not bound to convict. In case he pleads not guilty the Court shall proceed to hear the evidence. The procedure for trial by Magistrate is given in Chapter XX. of Criminal Procedure Code. The relevant sections of Cr.P.C. are 242 and 243. The plea under section 243. Cr.P.C is to be recorded as early as possible in the words used by accused: In number of cases when plea under section 243, Cr.P.C. not recorded in the words of accused the convictions have been set aside. In trial before Sessions Court and High Court it is not necessary to record the plea in own words of accused. The charge as provided under section 265‑E, Cr.P.C. shall be read over and explained to the accused and he shall be asked whether he is guilty or has any defence to make. While dismissing the application the learned Special Judge has referred to a case of Nazir Ahmed v. The State reported in P L D 1975 Lah. 304. In the above case it has beers observed that provision of section 243, Cr.P.C. shall come into operation immediately after the particulars of the offence have been put to an accused person and he made an admission of his A guilt, but this doe3 not mean that the section is operative upto this particular stage and after this it becomes dormant. I most respectfully do not agree with above view on the ground that when any specific provision is made it shall be followed. The question of plea comes when charge as provided under section 265‑D, Cr.P.C. is framed. In case accused does not plead guilty to the charge the Court has no option but has to proceed with the case and record the evidence. The Court after recording evidence as provided under section 265‑F, Cr.P.C. can ask the accused to file written statement as contemplated under subsection (5) of section 265‑F and accused could be acquitted or convicted under section 265‑H. The second plea in my humble view could only be recorded when charge is amended otherwise courts are not empowered to record other plea. The plea is only to be taken when charge is framed. The same charge cannot be read over again and again at the will of accused. In the present case accused has prayed for leniency in sentence. I B have already observed in Sp. Cr.Rev. 5/83 that plea at later stage will some time be on understanding on the point quantum of sentence. In case of Habibur Rehman Sereng and others v. The State reported in PLD 1960 Dacca 213, it has been held that conviction without 'taking any evidence and purporting to be based on a plea, of guilt cannot be sustained when accused denies having pleaded guilty. Para. No.11 of the judgment is as follows:‑

"It seems to be that this contention must prevail in the case of the petitioners in Criminal Revision No.596 of 1958. The provision in section 243 of the Code of Criminal Procedure for the recording of the admission of the accused as nearly as possible in the words of the accused is a salutary provision designed to enable not only the trying Court but also the superior Court to know that the accused understood that he has really pleaded guilty to the offence charged. In the facts of the present case, if it be true that accused‑petitioner No.2 in Criminal Revision N0.596 of 1958 was present in the Mobile Court merely as a person interested in watching the proceedings of the Court having no connection whatsoever with the launch which was alleged to have beer overloaded. It is difficult to appreciate how he could have pleaded guilty to any offence."

This view also gets support from Indian case law as referred in the above case. I also refer to a case reported in AIR 1925 Sind 188‑‑where on plea of guilt normal sentence was passed in a murder case and in Revision though sentence was not enhanced but it has been observed as under:‑--

"Another consideration is necessary and that is that in all these cases the accused have pleaded guilty. We do not for a moment say that there has been improper bargaining, that the accused have been induced to plead guilty by any understanding that if he did so he would be treated with leniency, but certainly knowing what one does of the habits of the Indian criminal, one may have a reasonable scepticism as to whether the plea of guilty by all these was the effect of moral influences brought to bear on tender consciences. We cannot but think that there must have been some hope, reasonable or not that if they pleaded guilty and hereby enabled the Police to record a conviction and enabled the Sessions Court to dispose of its heavy criminal work with greater promptitude than otherwise, it was possible that leniency would be shown. If there is any such apprehension existing in the mind of these accused persons, then it would be clearly impossible for us to enhance the sentence after the accused have pleaded guilty for to do so might attach to the capable judiciary suspicion of a gross act of perfidy every suspicion of which must be scrupulously avoided by all persons connected with the administration of justice.

We observe that in all these cases no evidence has been taken and the record of the speeches of the counsel on each side contains no very detailed account of the crime but in each case the learned Sessions Judge has considered the facts of the case although, as a matter of fact there was no evidence before on which he could judicially decide what the facts were. In our experience we have never recorded plea of guilty in the case of a person who is accused of murder or serious culpable homicid without examining the accused person in order to find out whether he knows what exactly he is pleading to and indeed it after turns out that a man who was beginning by pleading guilty to charge of murder ends up by asserting that he committed mere simple hurt. Further in cases where death has been caused is, even if the accused pleads guilty, extremely desirable that at any rate sufficient evidence should be recorded by the Judge, so that he may have something before him from which he ascertain whether a plea is a genuine and bona fide plea whether any extenuating circumstances exist. In all these case the Sessions Court, as a matter of fact, has come to a finding without any judicial evidence at all before it to justify the finding."

The courts are creature of statute and they have to follow the law a: given by the legislature. The second or third plea on the same charge which has already been framed and read over the accused is not in accordance with law. The plea cannot be equated with confession which is to be recorded by the competent Magistrate when case is under investigation and there are other legal formalities to be observed in confession. The facts of case referred in OLD 1975 Lah: 304 are different. Accused can be acquitted by the Courts, at any stage and such provision have been made in the Code of Criminal Procedure under sections 249‑A and 265‑K, Cr.P.C. but conviction can be recorded any stage as there is no such provision in Cr.P.C. except as provided under sections 243, Cr.P.C. and 265‑E, Cr.P.C.

Upshot‑of the above discussion is that application is without merit and is dismissed.

M.Y.H Petition dismissed.

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