THE HIGH COURT OF SINDH AT KARACHI

Criminal Appeal No. 177 of 2018

Present: Mr. Justice Naimatullah Phulpoto

Mr. Justice Zulfiqar Ali Sangi

Appellant : The State/ ANF through Mr. Habib Ahmed Special Prosecutor ANF

Respondents : Mr. Sadat Hassan advocate for respondents No.2&3

Mr. Muhammad Amir Khan advocate for respondent No.4

Date of Hearing : 25.04.2024

Date of announcement : 07.05.2024

JUDGMENT

NAIMATULLAH PHULPOTO, J.- Ziaullah, Khan Dil Khan and Abdul Qayyum respondents/accused were tried by learned Special Judge, CNS-I, Karachi for offence under Section 9(c) of CNS Act, 1997, on the conclusion of trial, respondents/accused submitted an application before trial Court and admitted guilt. Trial Court vide order dated 17.01.2012, on admission of respondents/accused without appreciating evidence, convicted respondents/accused for offence under Section 9(c) of the CNS Act 1997 and sentenced to already undergone. The State/ ANF filed Criminal Revision Application No. 202/2012 on 07.07.2012. This Court vide order dated 14.03.2013 observed that after conclusion of trial even statements of accused/respondents under Section 342 Cr.P.C were recorded wherein they had denied the charge then as to how the order on plea of guilt could be passed and that too without quantifying the sentence, even the order does not specify the narcotics substance recovered, issued bailable warrants against the respondents/accused. During pendency of revision, Special Prosecutor ANF prayed for converting Revision to the appeal in the light of case of Deputy Director, Regional Direcotrate, Anti-Narcotics Force, Lahore vs. Mst. Fazeelat Bibi (PLD 2013 SC 361). Accordingly, Revision application was converted to the appeal.

2. Brief facts of the prosecution case as disclosed in the FIR are that on 10.06.2004, Inspector Jehangir Khan of ANF Gulshan-e-Iqbal left police station along with his subordinate staff for patrolling. During patrolling, he received spy information that Ziaullah and Nisar Ahmed would pass from Hasan Square area in Suzuki No. CA-5115 for delivery of Charas at Chanesar Goth. On receiving such information, ANF officials reached at the pointed place and noticed a Suzuki No.CA-5115 which was intercepted. Driver of vehicle disclosed his name as Ziaullah son of Habibullah. On inquiry, the person sitting on the seat adjacent to driver seat disclosed his name Nisar Ahmed son of Ahmed Khan. ANF officials found a gunny bag lying in front of Nisar Ahmed, it was opened and 17 packets of Charas were found. On inquiry, a person sitting behind driving seat disclosed his name as Abdul Quyyum son of Qazi Abdul Qadir. Another person disclosed his name as Khan Dil Khan son of Mehar Dil Khan. A bag between accused Khan Dil Khan and Abdul Quyyum was lying, it was opened, it contained 16 packets of Charas. All the packets of charas were weighed, total weight was 19 K.G and 440 grams. Mashirnama of arrest and recovery was prepared in presence of mashirs; accused and case property were brought to the ANF police station where FIR bearing Crime No.15/2004 for offence under Section 9(c) of CNS Act, 1997 was lodged on behalf of the State.

3. During investigation, charas was sent to chemical examiner for analysis and positive report was received. On conclusion of usual investigation, final report was submitted against the respondents/accused under the above referred section.

4. Trial court framed charge against the respondents/accused at Ex.3, to which they pleaded not guilty and claimed trial.

5. At trial, prosecution examined P.Ws Sub Inspector Jehangir Khan and ASI Naeem Khan, who produced relevant documents at trial. Thereafter, prosecution side was closed.

6. Trial Court recorded statements of accused under Section 342 Cr.P.C at Ex.15 to 18. Accused claimed their false implication in the present case and denied the prosecution allegations. Accused did not examine themselves on oath under section 340(2) Cr.P.C in disproof of the prosecution allegations. However, accused Nisar Ahmed examined two D.Ws in his defence.

7. After recording statements of accused under Section 342 Cr.P.C, the respondents/accused moved joint application, on conclusion of trial, whereby they admitted guilt. The trial Court vide order dated 17.01.2012, convicted and sentenced the respondents/accused for the period which they already undergone as stated above.

8. Mr. Habib Ahmed Special Prosecutor ANF argued that charas recovered from the respondents/accused exceeded 10 K.G and the punishment of offence provided entails death or imprisonment for life but trial Court after recording statements of accused under Section 342 Cr.P.C, on application of admission of guilt, convicted and sentenced the respondents/accused for a period which they had already undergone; that sentence awarded by the trial Court was quite inappropriate and against the command of law and prayed that case may be remanded to the trial Court for passing the judgment in accordance with law. In support of his contentions, reliance is placed upon the case of State vs. Fakhar Zaman (2019 SCMR 1122).

9. M/s Sadat Hassan and Muhammad Amir Khan advocates for the respondents/accused argued that respondents/accused admitted guilt before trial Court on the conclusion of trial; Special Prosecutor ANF conceded for awarding lesser punishment before trial Court to the respondents/accused; that trial Court has assigned reasons that the respondents/accused were first offenders and only bread earner of their families and took lenient view. Learned advocates for the respondents argued that there is no bar to accept plea of guilt in cases involving capital punishment or life term. Lastly, argued that sentence awarded by the trial Court requires no interference and prayed for dismissal of appeal for enhancement of sentence.

10. We have heard learned counsel for the parties, perused the impugned order and re-examined the entire record.

11. For unknown reasons, respondents moved an application before trial Court after examination of D.Ws that they wanted to admit the guilt at final stage. Trial Court passed order dated 17.01.2012, which is reproduced as under:

“The accused named above pleads guilty voluntarily to the satisfaction of the Court. They are first offenders admittedly. They pray for lenient view in the matter of punishment. They are only bread earner members of their family. The accused persons seem to be under 30/35 years of age. They remained UTP for the years together. The case of the accused falls within the ambit of Section 14/15 r/w Section 6/9(C) of CNS Act 1997. The learned SPP concedes lesser punishment in the circumstances. They accused therefore are hereby convicted on the plea of their guilt which is accepted by this Court being unconditional and unqualified and purposeful in law, under the aforesaid section of law and sentenced there under to suffer the term of Rigorous imprisonment for the period they have already under gone in the interest of justice.”

12. The procedure for trial is provided under Chapter XXII-A, Cr.P.C. Under section 265-E, the Court is required to explain to accused the charge framed under section 265-E and under sub-section (2), it is provided that if the accused pleads guilty, the Court shall record the plea and may in its discretion convict him thereon. However, under the provision of section 265-F(1) if the accused does not plead guilty and claims trial then the Court is bound to conduct the trial in the manner as laid down therein. Thus, plain reading of the aforesaid provisions of law, it is clear that when an accused denies the charge and claims trial then the Court is essentially required to hold the trial and the stage of recording the plea of guilt of an accused comes to an end and is no more available. The right of an accused to claim trial is an inalienable and it is for the accused alone to surrender such right at a later stage of the trial and if he communicates to the Court that he intends to admit his guilt then in that case the proper legal procedure is to record a full statement of the accused in the same manner as laid down in section 364, Cr.P.C. and the Court shall also probe into the mind of the accused as to what were the reasons which prompted or induced him in making admission at a later stage when he has earlier denied the charge against him in order to satisfy itself that the subsequent confession made by the accused at a later stage of the trial is free from any promptness or other inducing cause both from inside and outside and then the Court would be within its jurisdiction and competent to record conviction but the Court is debarred from re-embarking on the premises of section 265-E, Cr.P.C. when the accused admits his guilt at a later stage of the trial because the recording of conviction on a plea of guilt is confined and limited to the stage of framing and explaining the formal charge to an accused. In the present case, the offence with which the accused were charged is entailing death or imprisonment for life and fine. It is a consistent view of the superior Courts that in case/offences, which carry capital punishment, on conclusion of trial, recording of statement of accused and defence evidence if any, the same shall be appreciated according to settled principles of law, but in the present case, learned Judge has utterly failed to comply with mandatory provisions of law and settled principles of justice. The sentence awarded to respondents for the period they had already undergone under Section 9(c) of the CNS Act 1997 is against the command of law. For the sake of convenience Section 9(c) of the CNS Act 1997 is reproduced as under:

“9(c)-Death, or imprisonment for life, or imprisonment for a term which may extend to fourteen years and shall also be liable to fine which may be upto one million rupees, if the quantity of narcotics drug, psychotropic substance or controlled substance exceeds the limits specified in clause (b):

Provided that, if the quantity exceeds ten kilograms the punishment shall not be less than imprisonment for life.

13. In the present case, full-fledged trial was conducted by the trial Court, statements of accused were also recorded under Section 342 Cr.P.C and defence evidence was recorded. Thereafter, respondents/accused submitted an application before trial Court and admitted their guilt without disclosing sound reasons. Proper course for the trial Court was to decide the case on the basis of evidence available on record instead of relying upon application of admission of guilt submitted by the respondents/accused at the stage of final arguments but the Trial Court took lenient view and sentenced the respondents only for the period they have already undergone and completely ignored the fact that quantity exceeded ten Kilograms, the punishment shall not be less than imprisonment for life and fine. The learned Judge had not exercised its discretion judiciously, and had extended undue leniency to the respondents/accused. If exercise of such extraordinary leniency shown by the Trial Court is allowed to prevail, it would increase the smuggling of narcotics and after getting leniency, would again indulge in the narcotics business, which would frustrate the ends of justice and shatter the future of the Nation. Procedure adopted by the trial Court was absolutely illegal and it is not curable under the law as held in the case of Muhammad Ismail vs. The State (2017 SCMR 713). As regards to the contention of learned counsel for the respondents that there is no bar to accept plea of guilt, there is consensus of the judicial authorities that plea of guilt should not normally be accepted in the case of capital punishment and case should be decided on the basis of the evidence available on record keeping in view plea of guilt.

14. For the above stated reasons, the appeal is allowed. Conviction and sentence of the respondents/accused recorded by trial Court vide order dated 17.01.2012 are set aside; the case is remanded back to the trial Court with direction to decide the same on merits. During trial the respondents/accused shall be treated as under trial prisoners. Respondents/accused Ziaullah son of Habibullah, Khan Dil son of Mehar Dil Khan are present, they are taken into custody and remanded to jail with direction to be produced before the trial Court on the date of hearing. Respondent/accused Abdul Qayyum son of Qazi Abdul Qadir is called absent. Trial Court is directed to issue NBW against him for remanding him to the jail during trial. Case pertains to year 2009, trial Court is directed to decide it within one month under intimation to this Court.

15. Office is directed to send a copy of this Judgment to the Superintendent, Central Prison, Karachi for compliance.

J U D G E

J U D G E

**