PLJ 2023 Cr.C. 735 (DB)
[Lahore High Court, Bahawalpur Bench]
Present: Sadiq Mahmud Khurram and Ali Zia Bajwa, JJ.
MUHAMMAD SOHAIL ASIM--Appellant
versus
STATE and another--Respondents
Crl. A. No. 407 of 2015, heard on 17.2.2022.
Drugs Act, 1976 (XXXI of 1976)--
----S. 31-A--Criminal Procedure Code, (V of 1898), Ss. 164/242/243/244/ 265-E/342/364--Constitution of Pakistan, 1973, Art. 10-A--After filing of complaint, the appellant was formally indicated--He pleaded not guilty and claimed trial--Prosecution evidence was summoned--Subsequently, prior to recording of prosecution evidence the appellant filed an application through which he opted to make a confessional statement--The application of the appellant was allowed and his confessional statement--The application of the appellant was allowed and his confession was recorded--On the basis of such confessional statement, vide the impugned judgment, the trial Court convicted and sentenced the appellant--At the time of framing of charge the appellant had pleaded not guilty and procedure as provided u/S. 244, Cr.P.C. was adopted--After a formal charge has been framed and put to an accused is denied u/S. 242, Cr.P.C., the provisions of Section 243, Cr.P.C. shall ipso facto become inoperative--Not even a single prosecution witness was recorded which apparently prolonged the agony of the appellant facing the trial. Such delay is against the right to fair trial as ensured under Article 10-A of the Constitution of Pakistan, 1973--Possibility cannot be ruled out that such prolonged agony of trial without its conclusion might have been the factor compelling the appellant to file an application for recording of his confessional statement in order to get rid of burdensome trial proceedings--The impugned judgment passed by the trial Court being against the judicial prescriptions is not sustainable in the eyes of law. Accordingly, judgment passed by the Trial Court, Bahawalpur, is set aside--Crl. Appeal is allowed and the matter is remanded to the trial Court with the directions to proceed with the trial from the stage of recording of prosecution evidence.
[Pp. 737, 739 & 745] A, B, C, D, E
1985 PCrLJ 167; AIR 1928 Cal 243; 2012 PCr.LJ 352; 2001 MLD 1145; 1998 MLD 243 ref.
Mr. Mohammad Yousaf Khan, Advocate for Appellant.
Ch. Asghar Ali Gill, Deputy Prosecutor General for State.
Date of hearing: 17.2.2022.
Judgment
Ali Zia Bajwa, J.--Through the instant appeal filed under Section 31-A of the Drugs Act, 1976, Muhammad Sohail Asim son of Muhammad Ramzan, caste Arain, resident of Street No. 5, Mohallah Iqbal Nagar, Tehsil and District Rahim Yar Khan, appellant, has called into question the vires of impugned judgment dated 04.09.2015, passed by learned Drug Court, Bahawalpur, through which while adjudicating Case Judl. No. 413/DCB/2013, offences under Sections 27(1)(a) and 27(1)(b) of the Drugs Act, 1976, learned trial Court convicted and sentenced him as under:--
➢ Under Section 27(1)(a) of the Drugs Act, 1976, sentenced to undergo R.I. for one year. In case of default to further undergo S.I. for one month.
➢ Under Section 27(1)(b) of the Drugs Act, 1976, sentenced to undergo R.I. for one year with fine of
Rs. 50,000/-and in case of default, to further undergo S.I. for one month.
➢ Both the sentences awarded to the appellant were directed to run concurrently.
2. The prosecution story as portrayed in Complaint No. DI/RYK/1060 dated 04.10.2013 is that on 17.01.2013 Maqbool Hussain, Inspector of Drugs, Rahim Yar Khan inspected M/s. Zain Homeo Clinic, Chowk Pathanistan Rahim Yar Khan owned by the appellant. During inspection, the complainant found following drugs:-(a) Maxman Cream Batch No. 093 purported to be manufactured by M/s. NMC Pharma China (four in number), (b) Cap. Dona Batch No. Nil purported to be manufactured by M/s. Faazli Homeo Pharma Karachi (twenty four in number), (c) Timer MM-3 Cream Batch No. Nil manufactured by Nil (four in number), (d) Lactoo Cream Batch No. Nil purported to be manufactured by M/s. Cosmo Company International (one in number), (e) Star Link Cream Batch No. Nil manufactured by Nil (one in number), for which the appellant could not produce valid bill invoices/warranties. The recovered drugs were taken into possession through Form-4 duly thumb marked by the appellant. The samples were transmitted to Drug Testing Laboratory Multan; whereupon it was opined that except Cap. Dona, all other medicines contained Lignocaine (an allopathic ingredient). Thereafter permission was sought from Provincial Quality Control Board Punjab, Lahore to prosecute the accused/appellant, which was granted and consequently after adopting all codal/legal formalities, complaint was filed before the learned trial Court.
3. After filing of complaint, vide order dated 16.09.2014, the appellant was formally indicted. He pleaded not guilty and claimed trial. Prosecution evidence was summoned. However, subsequently, prior to recording of prosecution evidence the appellant filed an application on 01.09.2015 through which he opted to make a confessional statement. The application of the appellant was allowed and his confession was recorded. On the basis of such confessional statement, vide the impugned judgment, the learned trial Court convicted and sentenced the appellant as mentioned and detailed above.
4. Heard, record perused.
5. As per prosecution version, the appellant was running Zain Homeo Clinic, Chowk Pathanistan Rahim Yar Khan and on the fateful day when the Drug Inspector inspected the store, he recovered a number of suspected medicines duly detailed in Para No. 2 above. After adopting all codal/legal formalities, the complaint was filed and vide order dated 16.09.2014, following charge was framed:
“That on 17.01.2013 at about 05.00 P.M, Maqbool Hussain, Provincial Inspector of Drugs, Rahimyarkhan inspected your business premises namely M/s. Zain Homeo Clinic, situated at Chowk Pathanistan, Rahimyarkhan. During inspection, the Drug Inspector seized and sealed Maxman Cream, Batch No. 093, purported to be manufactured by M/S NMC Pharma China, Capsule Dona, Batch No. Nil, purported to be manufactured by M/S Faazli Homeo Pharma, Karachi, Timer MM-3 Cream Batch Nil, Manufactured by Nil, Lactoo Cream Batch Nil, Purported to be manufactured by Cosmo Company International and Star Link Cream Batch No. Nil, Manufactured by nil on Form 4 in the presence of the witnesses for the purpose of test/analysis. You admitted the recovery memo, made your statement, signed it and also marked thumb impression on Form-4 and copy of Form-4 and one portion of each seized sealed sample were handed over to you by the said Drug Inspector at the spot. The samples were sealed and sent to Government Analyst of Drugs Testing Laboratory, Punjab, Multan. The Government Analyst of Drugs Testing Laboratory Punjab Multan except Capsule Dona all the samples declared Lignocaine an allopathic drugs. The Drug Inspector sent a letter to you along with copies of test reports and was asked to explain your position and provide bill/warranty as a proof of your purchase but you did not reply. The case was referred to Chairman, Provincial Quality Control Board, Lahore for permission of prosecution. The Provincial Quality Control Board, Lahore sent show cause/personal hearing notices to you and finally permission for prosecution was granted for manufacturing/Selling/Stocking un-registered drugs, which will be read as part and parcel of the instant charge sheet.
And thereby you have contravened the provisions of Section 23(I)(a)(vii) and 23(1)(b) of the Drugs Act, 1976 punishable Under Section 27(I)(a) and 27(I)(b) of the said Act which is within the cognizance of this Court.”
After framing of charge, statement of the appellant/accused was recorded as required under Section 242, Cr.P.C., which is reproduced as infra:-
“Q.No. 1 Have you heard and understood the charge read out to you in Court?
Ans. Yes
Q.No. 2 Do you plead guilty to the charge?
Ans. I did not plead guilty and request for trial.
Q. No. 3. Will you produce defence evidence?
Ans Yes”
Thereafter the case was fixed for recording of prosecution evidence on 20.10.2014, 17.11.2014, 15.12.2014, 12.01.2015, 02.02.2015, 23.02.2015, 16.03.2015, 06.04.2015, 27.04.2015, 18.05.2015, 15.06.2015, 13.07.2015, 28.07.2015 and 28.08.2015, however, the same couldn’t be recorded due to one reason or the other notwithstanding the fact that on number of dates summons to the prosecution witnesses were also issued. It was on 01.09.2015 when an application was filed on behalf of the accused/appellant for recording his confessional statement; wherein he admitted availability of unregistered drugs at his store, its recovery by the Drug Inspector on the relevant date of inspection in his presence and prayed for leniency.
6. Perusal of record available on file reflects that at the time of framing of charge the appellant had pleaded not guilty and procedure as provided under Section 244, Cr.P.C. was adopted and it continued for more than ten months. It is a settled proposition of law that where an accused pleads not guilty at the time of framing of charge and claims trial, there is no discretion left with the trial Court to record the confession of accused afterwards and convict him on the basis of such confession without recording prosecution evidence. After a formal charge has been framed and put to an accused is denied under Section 242, Cr.P.C. the provisions of Section 243, Cr.P.C., shall ipso facto become inoperative. The trial Court has to proceed under Section 244, Cr.P.C. by hearing the complainant and recording his evidence and afterwards the accused and his evidence in defence. When the evidence of prosecution commences, there cannot be staged a retreat to Section 243, Cr.P.C. by procuring a plea of guilty from the accused.[1] This proposition of law had been judicially recognized long ago and can be traced back in the case of Lalji Ram[2] wherein Justice Mukerji of Calcutta High Court ruled as under:
“On 18th July the learned Magistrate examined the complainant in the case and it would, therefore, appear that he was proceeding under Section 244, Criminal P.C., and not under Section 243, which would apply if there was admission by the accused that he had committed the offence for which he was being tried. Having adopted the procedure prescribed by Section 244 on the footing that there was no admission of guilt on the part of the accused person the learned Magistrate was not competent to take a further plea from the accused person of guilty and relieve himself of the duty of examining other witnesses who could be called on behalf of the prosecution for the purpose of proving the case.”
While dealing with an identical proposition, it was held in Farukh Shehzad[3] by a Division Bench of this Court as infra:
“Bare perusal of above provisions of Sections 242, 243 and 244, Cr.P.C. clearly depicts that once a formal charge is framed and put to accused, which is denied by him under Section 242, Cr.P.C. provisions of Section 243, Cr.P.C. shall ipso facto become inoperative and Court has to proceed under Section 244, Cr.P.C. by recording the prosecution evidence as well as that of the accused, if lead in defence. Therefore, confessional statement made after 2/3 dates of hearing when at the time of framing of charge the appellant in explicit terms had denied the same, is of no legal effect in presence of Sections 244, 265-D, 265-E and 265-F of the Criminal Procedure Code, 1898.”
Question of law that whether an accused can be convicted on the basis of confession subsequently, when once he pleaded not guilty at the time of framing of charge was also adjudicated upon in Khizer Hayyat alias Khizru[4] and it was ruled as under:
“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.”
7. While extracting wisdom from the aforementioned judicial prescriptions, it is abundantly clear that learned Drug Court had no occasion to record the confession of appellant and convict him at a juncture when proceedings under Section 244, Cr.P.C. had been commenced and Section 243, Cr.P.C. had become inoperative, thus, could not be pressed into service.
8. Before arriving at the final fate of this appeal, it would not be out of place to take a bird eye view of provisions of law governing the recording of statements of an accused person during trial under the Code of Criminal Procedure, 1898.
Statement of an accused during Trial
9. During trial, statement of an accused can be recorded under the following provisions of law at appropriate and relevant stage. During the course of trial before the Magisterial Court under Chapter XX of Code of Criminal Procedure, 1898 statement of an accused can be recorded under Section 242, Cr.P.C. when charge is framed against him. Section 242, Cr.P.C. has been reproduced hereinafter for better elaboration:-
“242. Charge to be framed: When the accused appears or is brought before the Magistrate, a formal charge shall be framed relating to the offence of which he is accused and he shall be asked whether he admits that he has committed the offence with which he is charged.”
Under the aforementioned provision of law plea of accused is recorded at the time of formal indictment whether he pleads guilty or not. At this stage accused is free to make a statement containing his plea of guilt or innocence. Statement/plea of accused in summary trial is recorded under Section 263(g), Cr.P.C.
10. Chapter XXII-A provides the procedure of trial before the High Court and Court of Sessions as inserted under the Law Reforms Ordinance, 1972. Under Section 265-E, Cr.P.C. containing in this chapter, plea of accused is recorded qua his guilt or innocence. For better understanding, this Section has been reproduced hereinafter:
“265-E. Plea: (1) The charge shall be read and explained to the accused, and he shall be asked whether he is guilty or has any defence to make.”
Statement of an accused is recorded after framing of charge and he is free to take whatever stance he wants qua his guilt or innocence.
Applicability and scope of Section 364, Cr.P.C.
11. It would not be out of place to discuss the applicability of Section 364, Cr.P.C. It provides the mode and manner to record the statement of an accused by any Magistrate or Court except High Court. It would be advantageous to reproduce the aforementioned Section for better explanation of its scope hereinafter:-
“364. Examination of accused how recorded: (1) Whenever the accused is examined, by any Magistrate or by any Court other than a High Court, the whole of such examination including every question put to him and every answer given by him, shall be recorded in full, in the language in which he is examined, or, if that is not practicable, in the language of the Court or in English; and such record shall be shown or read to him, or, if he does not understand the language in which it is written, shall be interpreted to him in a language which he understands, and he shall be at liberty to explain or add to his answers.
(2) When the whole is made conformable to what he declares is the truth, the record shall be signed by the accused and the Magistrate or Judge of such Court, and such Magistrate or Judge shall certify under his own hand that the examination was taken in his presence and hearing and that the record contains a full and true account of the statement made by the accused.
(3) In cases in which the examination of the accused is not recorded by the Magistrate or Judge himself, he shall be bound, as the examination proceeds, to make a memorandum thereof in the language of the Court, or in English, if he is sufficiently acquainted with the latter language; and such memorandum shall be written and signed by the Magistrate or Judge with his own hand, and shall be annexed to the record. If the Magistrate or Judge is unable to make a memorandum as above required, he shall record the reason of such inability.
(4) Nothing in this section shall be deemed to apply to the examination of an accused person under Section 263.”
12. It is a self-explanatory provision of law that governs the procedure to record the statement of an accused by the Magistrate or a Court. It shall equally apply to the statement of accused recorded during investigation under Section 164, Cr.P.C. by a Magistrate or during the course of trial by the concerned Court under Sections 242, 265-E or 342, Cr.P.C. Every Court, except the High Court, where statement of an accused is recorded during investigation or trial, is bound to follow the procedure laid down in Section 364, Cr.P.C. High Court Rules and Orders, Vol. III, Chapter XIII, Rule 11 also states that Section 364, Cr.P.C. provides the mode in which the examination of an accused person is recorded. But nothing in Section 364, Cr.P.C. shall be deemed to apply to the examination of an accused person under Section 263, Cr.P.C.
13. Statement of an accused can be recorded by the trial Court at any stage for providing an opportunity to an accused to explain the circumstances brought on record through evidence. Examination of accused under Section 342 of Cr.P.C. is based on the principle of Audi-Alteram Partem i.e. nobody should be condemned unheard. For better interpretation of Section 342, Cr.P.C. it would be advantageous to reproduce it hereinafter:-
“342. Power to examine the accused: (1) For the purpose of enabling the accused to explain any circumstances appearing in the evidence against him, the Court-may, at any stage of any inquiry or trial without previously warning the accused, put such questions to him as the Court considers necessary, and shall, for the purpose aforesaid, question him generally on the case after the witnesses for the prosecution have been examined and before he is called on for his defence.
(2) The accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them; but the Court may draw such inference from such refusal or answers as it thinks just.
(3) The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into or trial for, any other offence which such answers may tend to show he has committed.
(4) Except as provided by sub-section (2) of Section 340, no oath shall be administered to the accused.”
14. Statement of an accused is recorded under Section 342, Cr.P.C. with the purpose of enabling him to explain any circumstance appearing in the evidence against him. As far as the argument of learned prosecutor that learned trial Court is fully competent to record the statement of an accused at any stage of trial, is concerned, same has no substance. The condition precedent for invoking Section 342, Cr.P.C. is that there must be some circumstances appearing in evidence against an accused during the course of trial. In case where no evidence has been recorded by the trial Court there would be no occasion for the trial Court to record the statement of an accused under Section 342, Cr.P.C. It is an admitted position that no evidence was recorded by the learned trial Court after formally indicting the appellant, hence, there was no occasion to invoke Section 342, Cr.P.C. to record the confessional statement of appellant.
15. Another disturbing aspect of this case, which can’t
be overlooked, is that at the end of the confessional statement, requisite memorandum under Section 164(3), Cr.P.C. at the foot of statement was also made, which has been reproduced as infra for ready reference:
“Certified that the above statement made by the accused, present in the Court in our presence and hearing and the accused was given sufficient time to decompose himself. Statement made truly and voluntarily and it contains a full and true account made by the accused which was read over to him in the language he understand as dictated by me. He has pleaded guilty. Further more we have also explained to the accused M. Sohail Asim that he is not bound to make a confession and that, if he does so, any confession he may make may be used as evidence against him and I believe that this confession was voluntarily made. It was taken in our presence and hearing and was read over to the person making it and admitted by him to be correct, and it contains a full and true account of the statement made by him.”
Subsequently statement of accused in response to show-cause as envisaged under Section 243, Cr.P.C. was also recorded on 04.09.2015. Again learned trial Court made memorandum regarding the voluntariness of such statement of appellant as under:
“Certified that the above statement made by the accused, present in the Court, was taken by one of us and in our presence and hearing and the accused was given sufficient time to decompose himself. Statement made truly and voluntarily and it contains a full and true account made by the accused which was read over to him in the language he understand. He has pleaded guilty.”
Perusal of both the memorandums reproduced hereinabove reflects that the Drug Court has mentioned that the accused was given opportunity to ‘ decompose himself’, which we are afraid, hits the very essence of voluntariness. Drug Court comprising of three members putting their signatures on such memorandums and making such confession very foundation of conviction of the appellant is a matter of great concern. Needless to mention that the judicial forums dealing with the life and liberty of the citizens are expected to be very cautious and vigilant. The confessional statement of the appellant, which in present case was recorded at a juncture where it should not have been recorded even otherwise, further loses its sanctity due to unwarranted memorandums.
16. Moreover, after indictment, not even a single prosecution witness was recorded which apparently prolonged the agony of the appellant facing the trial. Such delay is against the right to fair trial as ensured under Article 10-A of the Constitution of Pakistan, 1973. Possibility cannot be ruled out that such prolonged agony of trial without its conclusion might have been the factor compelling the appellant to file an application for recording of his confessional statement in order to get rid of burdensome trial proceedings, therefore, it cannot be said that such confession was made voluntarily. It further hits the very roots of such confession which was made sole basis for convicting the appellant.
CONCLUSION:
17. Now the question arises that when this Court has arrived at the conclusion that learned trial Court fell in error to pass the judgment of conviction only on the basis of confession, what modus operandi should be adopted further. Federal Shariat Court in Muhammad Sadiq[5] remanded the case back to trial Court on the ground that accused did not plead guilty at the time of formal indictment but thereafter he made a confessional statement before the trial Court and was convicted on the basis of such confession.
18. In sequel of what has been discussed above, the impugned judgment passed by the learned trial Court being against the judicial prescriptions is not sustainable in the eyes of law. Accordingly, judgment dated 04.09.2015 passed by learned Drug Court, Bahawalpur, is set aside, Crl. Appeal No. 407/2015 is allowed and the matter is remanded to the learned trial Court with the direction to proceed with the trial from the stage of recording of prosecution evidence and thereafter conclude the trial by fulfilling all the procedural requirements. It is, however, made clear that trial of the case in hand shall be deemed pending before the learned trial Court. During this period the appellant shall be treated as under trial prisoner.
19. Before parting with the judgment keeping in view the fact it is an old matter this Court deems it appropriate to direct the learned trial Court to conclude the proceedings within a period of three months.
(K.Q.B.) Appeal allowed
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