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Criminal Appeal No. 142 of 1986, decided on 26th January, 1987.

‑‑‑S. 326‑‑Accused through his second plea admitting his guilt on a date prior to date fixed for recording evidence of prosecution and Magistrate accepting his plea of guilt as made voluntarily and convicting accused‑ No satisfactory explanation available on record why accused was produced on a day earlier than date fixed by Court‑‑Some inducement appearing to have been extended to accused that if he were to plead guilty he would be given a very lenient sentence‑‑Accused, a few days earlier had pleaded not guilty and wanted to be tried for charge framed against him‑‑Held, second plea of guilt made by accused was not a plea of guilt that had been made voluntarily and it should not have been accepted by Trial Court‑ Order of Trial Court convicting accused set aside and case remanded for retrial.

Faiz Mohammad v. State 1986 P Cr. L J 225 rel.

G.S. Chohan for Appellant.

A.I. Qarni for the State.

Date of hearing: 26th January, 1987.

This appeal has been filed by the convict Mohammed Rafiq son of Mian Mohammed Shafi against his conviction and sentence by judgment, dated 9‑7‑1986 of the learned A.C.M. Court No. XX, Karachi (South) in Criminal Case No. 183 of 1985. The F.I.R. had been lodged against the appellant at Police Station Eid Gah, Karachi, under section 326, P.P.C. The appellant was arrested on 2‑12‑1985 and since then he has been in custody. The charge was framed by the trial Magistrate on 18‑6‑1986 and the appellant pleaded not guilty and wanted that he should be tried for the offence. It appears that 10‑7‑1986 was given as the date for recording evidence of the prosecution by the learned Magistrate but the record shows that on 9‑7‑1986, the appellant was produced before the trial Magistrate, where he moved an application, which reads as follows:

On this application, the formal charge was read over again to the appellant, to which he pleaded guilty and by judgment announced on the same day i.e. 9‑7‑1986, the learned Magistrate observing that his plea of guilt appeared to have been voluntarily made, convicted and sentenced him R.I. for six years and to pay an amount of Rs.5,000 as compensation to the aggrieved person or in default to undergo R.I. for a further period of one year. Being aggrieved the present, appeal has been filed by the appellant. I have heard Mr. G.S. Chohan, learned counsel for the appellant and Mr. A.I. Qarni, learned counsel for the State.

2. The main contention of Mr. G.S. Chohan, learned counsel for the appellant, is that the second plea of guilt made by the appellant should not have been accepted by the Magistrate in the circumstances of the case. According to the learned counsel, a few days earlier, the appellant had pleaded not guilty and wanted that he should be tried for the offence and from his application 2 dated 9‑7‑1986, it is apparent that the appellant had not made plea of guilt voluntarily but it was made on account of the fact that he was rotting in jail for a considerable period of time and perhaps an impression was given to him that a very lenient sentence will be awarded to him, if he were to plead guilty. Learned counsel has also relied upon a recent judgment of a learned Single Judge of this Court in the case of Faiz Mohammed v. State 1986 P Cr. L J 2250, which judgment apparently supports the contention of the learned counsel that in the instant case the second plea of guilt should not have been accepted by the learned trial Court and the appellant convicted on such plea of guilt. Mr. A.I. Qarni, learned counsel appearing for the State, also submits that this is a case for setting aside the conviction and sentence and remanding the case for trial on merits by the learned Magistrate.

3. From a perusal of the record, it is apparent that the second plea made on 9‑7‑1986 by the appellant, in which he stated that he had been confined to the jail for a long period and he had nobody in this world to support him and that he was admitting his guilt, was a plea, which should not have been accepted as a plea of guilt made voluntarily. In addition, there is no satisfactory explanation on the record why the appellant was produced in Court on 9‑7‑1986, when the case was fixed on 10‑7‑1986. Apparently, there was some inducement extended to the appellant that if he were to plead guilty he would be given a very lenient sentence. Then, as pointed out by the learned counsel, a few days earlier, he had pleaded not guilty and wanted that he should be tried for the charge framed against him. In these circumstances, there could have been no other conclusion except that the second plea made on 9‑7‑1986 was not a plea of guilt that had been made voluntarily. It should not have been accepted by the learned Magistrate.

4. Criminal Appeal No. 142 of 1986 is allowed and the judgment, dated 9‑7‑1986 of the learned Magistrate, Court No. XX, Karachi, District South, is set aside and the case is remanded to the learned Magistrate for trial. The appellant has been in custody since 2‑12‑1985 i.e. for a period of nearly 14 months. If a bail application is moved before the learned trial Court, it will be disposed of expeditiously. Mr. G.S. Chohan, learned counsel for the appellant, states that even if the bail is granted by the trial Court, the appellant may not be able to furnish the requisite surety. In the circumstances, he requests that a direction may be given for a very early disposal of the case. The request of the learned counsel is reasonable and I have also taken into consideration the fact that the appellant has remained in custody for nearly 14 months now. The learned trial Court is directed to dispose of this case as soon as possible and immediately the case is disposed of, an intimation to that effect will be sent by the learned trial Court to Registrar of this Court.

M.Y.H./M‑144/K Case remanded.

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