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Criminal S.M. Revision No. 166 of 1982, decided on 20th August, 1984

‑‑‑S. 439‑‑Penal Code (XLV of 1860), Ss. 323 & 325/34‑‑Sentence‑‑Suo motu revision to examine question of sentence‑‑Accused pleading guilty‑‑ Application by accused pleading guilty in order to avoid inconvenience to his two minor sons (co‑accused) and for safeguarding their future‑‑Plea of guilty, held, was not voluntary and accused was forced to plead guilty‑‑Conviction and sentence set aside and retrial ordered in circumstances.

S. Murtaza Hussain for the State.

Usman Ghani Rashid for Respondents.

Date of hearing: 20th. August, 1984.

In a case under sections 325 and 323/34, P.P.C. (F.I.R. No. 44/82) Muhammad Jamil and his two sons, Muhammad Hameed and Muhammad 'Muhammad were convicted by the learned A.C.M., Court No. V, Karachi (West) on all the three accused pleading guilty. The father, Muhammad Jamil, was convicted under section 325, P.P.C. and sentenced to suffer imprisonment till the rising of the Court and also to pay a fine of Rs.800 or in default to undergo R.I. for a period of 4 months. He was also directed to pay a compensation of Rs.500 to the complainant and injured, Syed Abid, or in default to undergo further R.I. for a period of 2 months. The learned A.C.M. convicted the two sons Muhammad Hameed and Muhammad Nadeem under section 323, P.P.C. and each was sentenced to pay a fine of Rs.100 or in default to undergo R.I. for one month. According to the learned A.C.M. lenient view had been taken in awarding the sentences as Muhammad Jamil was aged about 50 years and the other two accused were his sons. The judgment of the learned A.C.M. is dated 18‑8‑1982.

The Member Inspection Team of this Court had forwarded the record of this case for taking it up on the judicial side to examine the question of sentence. This case was registered as Suo Motu Revision Application and notice was issued to the respondents. Respondents were served and Khawaja Naveed Ahmed, Advocate, filed Vakalatnama on behalf of all the three accused. This case was fixed for hearing on 21‑ 6‑ 1983 but no one appeared on behalf of the respondents on that date and after hearing the learned counsel for the State I delivered my judgment. However, Miscellaneous Application No. 1131 of 1983 was moved on behalf of the respondents for recalling my judgment, dated 21‑6‑ 1983 and by order, dated 19‑2‑1984, I recalled my judgment, dated 21‑6‑1983. This suo motu revision is fixed for regular hearing today. I have heard Mr. S. Murtaza Hussain, learned counsel for the State and Mr. Usman Ghani Rashid, learned counsel for the respondents. The three respondents are also present in person.

2. It has been argued by Mr. S. Murtaza Hussain, learned counsel for the State, that a very lenient view had been taken by the learned Magistrate. It was pointed out that under section 325, P.P.C. the maximum punishment is 7 years plus fine and under section 323, P.P.C. maximum punishment is one year or fine which may extend to Rs.1,000 or with both. It was submitted that sentences awarded to the three accused, in the facts and circumstances of the case are inadequate and a case of enhancement of sentences has been made out. On the other hand, Mr. Usman Ghani Rashid, learned counsel for the respondents, raised the following two contentions:‑

(a) The plea of guilt, which appears on the record of the Magistrate as having been made in writing, cannot be considered as a plea of guilt and the learned Magistrate erred in accepting the same and basing his conviction on the so‑called plea of guilt.

(b) Respondents Nos. 2 and 3, who are sons of respondent No.1, were minors at the time the offence is alleged to have been committed by them and as such their joint trial with respondent No. 1 is vitiated in view of the provisions of the Sind Children Act, 1955.

3. Exhibit 2 on the record of the Magistrate is an application made by the respondent No. 1 (the father) before the learned Magistrate and it reads as follows:‑

This application was presented to the learned Magistrate on 18‑8‑1982 and it is signed by the three respondents. On the same day i.e. on 18‑8‑1982, the charge against the three respondents was framed and the three respondents are shown to have pleaded guilty. On this plea of guilt the learned Magistrate convicted the three respondents/accused and sentenced them, as observed earlier by the judgment passed on the same day i.e. on 18‑8‑1982. From Exhibit 2, the application presented by the respondents before the learned Magistrate on 18‑8‑1982, it is apparent that the respondent No. 1 had riot pleaded guilty voluntarily but on account of the inconvenience being caused to his two children, respondents Nos. 2 and 3 herein, and for safeguarding their future, respondent No. 1 was forced to state that he was pleading guilty. In view of the contents of Exh.2, the learned Magistrate ought not have accepted the so‑called plea of guilt made by the three respondents and should have proceeded with the trial, as if the respondents had pleaded not guilty. The conviction and sentence of the three respondents is therefore, liable to be set aside.

4. As regards other plea about the respondents Nos. 2 and 3 being minors and their joint trial with respondent No. 1, being therefore, illegal, it may be observed that there is nothing on record to indicate that respondents Nos. 2 and 3 were minors at the relevant time. However, as the conviction and sentence of the respondents are being set aside, the plea on behalf of the respondents Nos. 2 and 3 that they are minors, can be raised before the learned Magistrate when the trial starts afresh on remand.

5. The conviction and sentence of the three respondents by judgment, dated 18‑8‑1982 of the learned A.C.M. Court No. V, Karachi (West) are set aside and the case is remanded for fresh trial by the learned Magistrate. It is directed that the trial will be concluded within three months of the receipt of R & P by the concerned Magistrate. As observed earlier, the respondents will be free to take up the plea about the respondents Nos. 2 and 3 being minors at the relevant time and such plea will be considered by the Magistrate concerned and a decision will be taken by him thereon before he proceeds with the trial.

Criminal Suo Motu Revision No. 166 of 1982 stands disposed of by this judgment.

S.A./S‑21/K Retrial ordered.

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