2021 P Cr. L J Note 2
[Balochistan]
Before Naeem Akhtar Afghan and Rozi Khan Barrech, JJ
JAHANZAIB ---Appellant
Versus
The STATE--- Respondent
Criminal Appeal No. (T) 16 of 2020, decided on 25th August, 2020.
(a) Anti -Terrorism Act (XXVII of 1997) ---
----Ss. 11F, 11H, 11K & 11N ---Criminal Procedure Code (V of 1898), S. 221--- Membership,
support and meetings relating to a Proscribed Organization--- Supply of statements and
documents to the accused--- Charge to state offence ---Plea of guilty ---Scope ---Accu sed
assailed his conviction, which was awarded on his confession---High Court observed that no
counsel was appointed by the accused nor the Trial Court had asked the accused as to whether he required the service of a counsel or otherwise ---Trial Court had not mentioned in
its judgment that whether copies of the documents in question were provided to the accused or otherwise ---Charge was not framed in accordance with S. 221, Cr.P.C. and the basic
ingredients of Ss. 11H to 11K of the Act were missing---Appeal was accepted, conviction
and sentence recorded by the Trial Court was set aside and the case was remanded with directions to proceed with the trial of the accused afresh.
(b) Anti -Terrorism Act (XXVII of 1997) ---
----Ss. 11F & 11H ---Supply of statements and documents to the accused---Scope ---Criminal
trial commences with the distribution of copies of FIR, police report, statement of witnesses
recorded under Ss. 161 & 164, Cr.P.C., as well as inspection notes prepared by Investigating Officer and the copie s of these documents have to be delivered to the accused seven days
before the commencement of trial.
(c) Criminal Procedure Code (V of 1898) ---
----Ss. 265- E & 221 ---Plea of guilty ---Charge to state offence--- Scope ---When a person is
convicted on a plea of guilty, the contents of charge are to be construed strictly.
(d) Criminal Procedure Code (V of 1898) ---
----Ss. 243, 225 & 537--- Conviction on admission of truth of accusation---Effect of errors ---
Finding or sentence when reversible by reason of error or omission in charge or other proceedings ---Scope ---Accused cannot be convicted under S. 243, Cr.P.C., on the admission
of facts from which a fact essential to constitute the offence is missing, nor the prosecution
can urge that such omission is curable under Ss. 225 & 537(b), Cr.P.C. because accused, pleads not to a provision of law but to facts which purport to disclose an offence under such provision.
(e) Criminal Procedure Code (V of 1898) ---
----S. 412---No appeal in certain cases when accused pleads guilty ---Scope ---Accused who
pleads guilty to the charge has no right of appeal against his conviction but he can maintain an appeal only to the extent of the legality of the sentence passed against him by the Trial Court ---Section 412, Cr.P.C. does not r estrict the powers of High Court to consider the
legality of conviction in the exercise of its inherent jurisdiction.
Tahir Ali Baloch for Appellant.
Abdul Latif Kakar, APG for the State.
Date of hearing: 18th August, 2020.
JUDGMENT
ROZI KHAN BARRECH, J. ---This Criminal Appeal is directed against the order
dated 28.07.2020 (hereinafter "the impugned order") passed by learned Special Judge Anti -
Terrorism Court, Makran at Turbat (hereinafter "the trial Court") in Special case No.10 of
2020, FIR N o.17 of 2020, dated 2nd July 2020 under sections 11(F) and 11- N of the Anti -
Terrorism Act, 1997 ("the Act") PS CTD Makran, whereby the appellant confessed his guilt
before the learned trial Court so he was convicted and sentenced under section 11- F (6) of
the Act and sentenced to one year R.I. with fine a Rs.20000/ - or in default thereof to further
undergo Ten Days S.I. He was further convicted under section 11- N of the Act and sentenced
to one year's R.I. with fine of Rs.20000/ - or in default thereof to further undergo Ten Days'
S.I. Both the sentences shall run concurrently in favour of accused.
2. The prosecution story, in brief, as per contents of FIR, is that on 02.07.2020 the
complainant Abdul Ahmed SI/SHO Makran received spy information that the appel lant along
with absconding accused Muslim alias Guru son of Razai work for banned organization Baloch Liberation Army (BLA) as facilitators and that the accused/appellant Jahanzeo has taken various articles in a Suzuki vehicle to Charpanuk for further deli vering the same to
terrorists, upon which the police arrested the appellant at 12:30 p.m. from Charpanuk and recovered various articles i.e. Engine Oils, soaps, Motorcycle tubes, petrol and other edible articles etc to be provided to terrorists. Hence the crime report.
3. After completion of the usual investigation challan of the case was submitted before
the trial court. On 27.07.2020 charge was framed against the accused/appellant to which he pleaded guilty and confessed his guilt. A show cause notice was given to the accused as to
why he should not be convicted on basis of pleading guilty to which he stated that he is a psycho patient and he did a wrong and he will be careful in future and that being a poor
person he is dealt with leniently.
On 28.07.2020 the trial court convicted the accused/appellant on the basis of pleading
guilty as mentioned in the opening para.
Being aggrieved from the impugned order dated 28.07.2020 the appellant has filed the
instant appeal.
4. We have heard the learned counsel f or the appellant, the learned APG, and have also
gone through the record of the case with their valuable assistance.
5. It may be observed that no counsel was appointed by the accused nor the trial court
asked the appellant as to whether he required the se rvice of a counsel or not. The trial court
did not mention in its judgment that whether copies of the documents in terms of section 265,
Cr.P.C. were provided to the accused or otherwise. The trial court after framing charge but without following the requi rements of section 265, Cr.P.C. recorded conviction and sentence
against the appellant on the basis of his confessional statement. Prima facie, we feel that the trial court acted in a bit haste in proceeding to frame the charge and recording confessional statement of the appellant without following the requirement of section 265, Cr.P.C. and this
omission on the part of the trial court to comply with the provision of section 265, Cr.P.C. cannot be construed as a mere irregularity but is a serious illegality going against the
fundamental principle of safe administration of justice, inasmuch as, the trial court did not ask the appellant whether he required the services of a counsel or not, although the trial court adopted a safer method of framing the charge b efore recording confessional statements of the
appellant. A criminal trial commences with the distribution of copies of FIR, police report,
statement of witnesses recorded under sections 161 and 164, Cr.P.C., as well as the inspection notes prepared by the Investigating Officer and the copies of these documents
have to be delivered to the accused seven days before the commencement of trial but in the instant case, the trial court without following the procedure provided in section 265, Cr.P.C. jumped to fra me the charge in terms of section 265 -D, Cr.P.C. and recorded confessional
statement of the appellant, which is violative of the above provisions of Criminal Procedure Code, therefore, we are satisfied that the omission to comply with the provision of sect ion
265, Cr.P.C. When the charge was framed against the appellant he was not represented by any counsel.
6. The appellant was also convicted for an offence under section 11 -N of the Act, which
reads as under:
"11-N. Punishment under Sections 11H to 11K.--- Any person who commits an
offence under sections 11H to 11K, shall be punishable on conviction with imprisonment for a term not less than 1[five years] and not exceeding 1[ten years] and with fine."
From plain reading of the above section, it is manifest ly clear that if any person who
committed an offence under sections 11H to 11K of the Act he shall be punishable under section 11N of the Act. The sections 11H to 11K are reproduced hereunder:
11H. Fund Raising.---(1) A person commits on offence if he: -
(a) invites another to provide money or other property; and
(b) intends that it should be used, or has reasonable cause to suspect that it may be
used, for the purpose of terrorism 2[or by a terrorist or organization concerned in terrorism.]
(2) A person commits an offence if ---(a) he receives money or other property; and
(b) intends that it should be used, or has reasonable cause to suspect that it may be used, for the purposes of terrorism 1[or by a terrorist or organization concerned in terrorism].
(3) A person commits an offence if he: - (a) provides money or other property; and
(b) knows or has reasonable cause to suspect that it will or may be used for the
purpose of terrorism [or by a terrorist or organization concerned in terrorism].
(4) In this section a reference to the provision of money or other property is a
reference to its being given, lent or otherwise made available, whether or not for consideration.
11I. Use and possession. A person commits an offence if - (1) he uses money or other
property for the purposes of terrorism; or
(2) he: - (a) possesses money or other property; and
(b) intends that it should be used, or has reasonable cause to suspect that it may be
used, for the purposes of terrorism.
11J. Funding Arrangements (1) A person commits an offence if he - (a) enters into or
becomes concerned in an arrangements as a result of which money or other property is made available or is to be made available to another; and
(b) has reasonable cause to suspect that it will or may be us ed for the purposes of
terrorism.
11K. Money laundering.---(1) A person commits an offence if he enters into or becomes concerned in any arrangement which facilitates the retention or control, by or on behalf of another person, of terrorist property: -
(a) by concealment;
(b) by removal from the jurisdiction;
(c) by transfer to nominees; or
(d) in any other way.
(2) It is a defense for a person charged with an offence under subsection (1) to prove
that he did not know and had no reasonable cause to suspect that the arrangement
related to terrorist property.
It will be beneficial to reproduce the contents of the charge to which the appellant
pleaded guilty, which runs as under:
"That you along with absconding accused Muslim alias Gru son of Razai work for
banned organization B.L.A as facilitators. On 2nd July 2020 the police received secret information that you have taken various articles in a Suzuki vehicle to Charpanuk for further handing over to terrorists upon which the police arrested you at 12:30 p.m.
arrested you from Charpanuk Absar along with various kinds of articles i.e. Engine Oils, Soaps, Motorcycle tubes, Petrol etc to be provided to terrorists. Thus you have committed an offence punishable under sections 11/F, 11/N of the Anti -Terrorism
Act, 1997 and within the cognizance of this court."
7. A perusal of the charge shows that the same has not been framed in accordance with
section 221, Cr.P.C . and the basic ingredients of sections 11H to 11K are missing. The
perusal of charge shows that the same has not been framed in accordance with the provisions of section 221, Cr.P.C. and basic ingredients of sections 11H to 11K of the Act are missing. Normally any omission or defect in the charge is not sufficient to vitiate the trial but in our
humble view, when a person is convicted on a plea of guilt, the contents of charge are to be construed strictly. If there is any defect in the same, conviction order is liable to be set aside because prejudice is a natural result of such defect or omission. Keeping in view the above principle, it is painfully noted that the trial court while framing the charge has not kept in his mind the basic ingredient of sections 11 H to 11K of the Act.
8. In our considered view, a person cannot be convicted under section 243, Cr.P.C., on
the admission of facts from which a fact essential to constitute the offence is missing, nor the prosecution can urge that such omission is cur able under sections 225 and 537(b), Cr.P.C.,
because accused, pleads not to a section of law but to facts which purport to disclose an offence under such section. As an already observed basic ingredient of offence punishable under section 11N of the Act wa s missing in the charge, to which appellant pleaded guilty;
therefore, the conviction was illegal and liable to be set aside.
9. It is an admitted fact that by virtue of the provisions of section 412, Cr.P.C. an
accused, who pleaded guilty to the charge ha s no right of appeal against his conviction but he
can maintain an appeal only to the extent of the legality of the sentence passed against him by the learned trial Court. This section does not restrict the powers of the High Court to consider the legality of conviction in the exercise of its inherent jurisdiction. Even otherwise
since the trial court committed illegality and irregularity, therefore, section 412, Cr.P.C. would not stand in the way of the appellant.
10. For what has been discussed above the appeal is accepted and by setting aside the
conviction and sentenced recorded against the appellant by the trial court vide impugned order 28.07.2020, the case is remanded to the trial court with directions to proceed with the trial of the accused afresh after providing him a copy of FIR, 161, Cr.P.C. statements of witnesses, challan(s) etc and reading over the charge.
SA/176/Bal. Case remanded.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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