P L D 2024 Balochistan 70
Before Iqbal Ahmed Kasi, J
DILAWAR KHAN--- Appellant
Versus
The STATE--- Respondent
Criminal Appeal No. 55 of 2023, decided on 20th November, 2023.
(a) Foreigners Act (XXXI of 1946) ---
----Ss. 3 & 14--- Criminal Procedure Code (V of 1898), Ss. 242, 243, 244, 265- D, 265- E &
265- F---Illegally entering into Pakistan ---Appreciation of evidence ---Benefit of doubt ---
Confessional statement recorded at belated stage ---Effect ---Accused was charged that he
being Afghani National entered into Pakistan without any legal documents ---Record showed
that charge against accused was framed on 26.12.2022 and he pleaded not guilty--- Accused
filed an application on 25.03.2023 through his counsel and voluntarily made an offer to make
a confessional statement ---Now the issue to be determined was whether the Trial Court was
justified in accepting the offer of the appellant/ convict to record the appellant's/convict confessional statement at a belated stage, when admittedly as per the order sheet dated 26.12.2022 and impugned order the appellant/convict did not plead guilty and claimed trial
in explicit terms or otherwise ---Bare perusal of the provisions of Ss. 242, 243 & 244, Cr.P.C.
clearly depicted that once a formal charge was framed and put to the appellant/convict,
which was denied by him under S. 242, Cr.P.C. provisions of S. 243, Cr.P.C., shall ipso facto
become inoperative and Court had to proceed under S. 244, Cr.P.C., by recording the
prosecution evidence as well as that of the accused, if led in defence ---Thus, the confessional
statement made after so many dates of hearing when at the time of the framing charge, the appellant/convict in explicit terms had denied the same, was of no legal effect in the presence of Ss. 244, 265 -D, 265- E & 265 -F of the Criminal Procedure Code, 1898---Hence, in the
foregoing circumstances, the conviction and sentence inflicted by the Trial Court in terms of the impugned order dated 29- 03-2023 was not sustainable in the eyes of the law, which was
set-aside and the case was remanded to the Trial Court to decide the same in accordance with
law, after recording the evidence.
King Emperor v. Kasim Waled Mohamed Saffer AIR 1925 Sindh 188 rel.
(b) Foreigners Act (XXXI of 1946) ---
----Ss. 3 & 14---Illegaly entering into Pakistan---Appreciation of evidence ---Benefit of
doubt ---Time barred appeal ---Scope ---Allegedly appeal was filed with delay ---Right of
appeal is a substantial right which normally should not be denied on technical counts/reasons
particularly when it came to the criminal administration of justice ---Normally condonation of
delay would do nothing with the merits of the case, but would only require the Court to decide the lis on merits ---Condonation of delay is normally subject to giving a "reasonable
explanation" which might have prevented party in approaching the Court ---Thus, while
examining the question of limitation, the circumstances claimed to have prevented one in approaching the Court in time, would always be a decisive ---If the circumstances pleaded
appear to be justified or even likely to be believable though no proof is offered then the delay
must always be condoned---Even condonation of delay would not absolve the party from
establishing his case on merits ---Hence, in the foregoing circumstances, the conviction and
sentence inflicted by the Trial Court in terms of the impugned order dated 29- 03-2023 was
not sustainable in the eyes of the law, which was set -aside and the case was remanded back
to the Trial Court to decide the same in accordance with law, after recording the evidence.
Fazli Hakeem and another v. Secretary: State and Frontier Regions Division and
others 2015 SCMR 795 rel.
Awais Ahmed Kasi for Appellant.
Fazal -ur-Rehman, State Counsel.
Date of hearing: 15th November, 2023.
JUDGMENT
IQBAL AHMED KASI, J. ---The Criminal Appeal No.55 of 2023 is directed against
the order dated 29.03.2023 ("the impugned order") passed by the Additional Sessions Judge -
VII, Quetta ("the trial Court") whereby, the appellant has been convicted under Sections 3/14
of Foreigners Act, 1946 ("the Act of 1946") and sentenced to suffer for a period of detention, which he had already undergone as under trial prisoner and to pay fine of Rs.2000/ - (Rupees
Two Thousand) or in default to further undergo S.I. for five (05) days, with the benefit of Section 382 -B, Cr.P.C.
2. Brief facts arising out of the instant appeal are that on 27.11.2022, complainant,
namely, Saeed Khan, Inspector, lodged a report to Police Station Cantt, Quetta with the
allegation that during the course of investigation in case FIR No.59/2022, offence under
Section 15 -D of Balochistan Arms Act, 2022, the appellant deposed that he is permanent
resident of Afghanistan, his father had died and his other family members are residing in
Quetta. The complainant further added that the appellant being an Afghani National entered
into Pakistan without any legal documents, as such, the instant FIR was registered against the appellant.
3. After registration of the case, investigation was carried out and challan of the case
was submitted before the Court of Judicial Magistrate -IV, Quetta, thereafter, the same was
forwarded to the trial Court on the ground that the appellant is a juvenile.
4. After receipt of challan, attendance of appellant was secured through production
warrant. As such after fulfilling due legal and procedural formalities on 26.12.2022, a formal
charge was framed and read over to the appellant, who denied the charge and claimed his
innocence. When the case was fixed for prosecution evidence, the appellant filed an application for pleading guilty. In this regard, a show cause notice provided under Section
243, Cr.P.C. was issued to the appellant and also explained him the consequences of his
pleading guilty that he may be convicted. In reply, the appellant stated that he is firm on his
plea of guilt, but requested for taking a lenient view in his favour.
5. The trial Court on the basis of pleading guilty convicted and sentenced the appellant
under the Act of 1946, as mentioned in para -supra, hence this appeal.
6. Learned counsel for appellant/convict inter alia contended that the impugned order
dated 29.03.2023 is against the law, facts and natural justice. He at the very outset submitted
that admittedly when the charge was framed against the appellant/convict by the learned trial Court, the appellant/convict had not pleaded guilty and claimed trial. He further submitted that thereafter on certain dates of the hearing due to non- appearance/non -attendance of the
prosecution witnesses, the case was adjourned and subsequently on the appellant's/convict's volunteer confessional statement, he was convicted and sentenced. It was argued by the learned counsel for the appellant/convict with a vehemence that once the charge was denied and the accused claimed for trial, there was no occasion for the learned trial Court to accept the offer made by the appellant/convict for recording his confessional statement. Learned counsel further argued that admittedly the appellant/convict was juvenile and as per Section 5(a) Juvenile Justice System Act, 2018, a notice should be issued to the guardian of the juvenile.
7. Learned State Counsel opposed the contention of learned counsel for the
appellant/convict and contended that the appellant/convict himself pleaded guilty, thus, there is no room to interfere in the impugned order.
8. I have heard arguments advanced by learned counsel for both sides and perused the
record available on the touchstone of case law referred by learned counsel for the appellant/convict.
9. There is no cavil to this proposition that according to the order sheet dated 26- 12-
2022 and the impugned order, the appellant/convict did not plead guilty. The order sheet dated 26.12.2022 is reproduced as under: -
"Called. Accused is present in judicial custody. State counsel also present. Charged framed. To come up for evidence on 30.12.2022. "
The record available on file further reveals that after denial of the appellant/convict qua
verity/veracity of the prosecution version the case was fixed for prosecution evidence on
30.12.2022 and thereafter the case was adjourned on account of non- appearance of the
prosecution witnesses.
10. It is worthwhile to mention here that the trial Court observed that appellant/convict is
a poor person and cannot afford to engage a counsel for his defence, therefore, appointed a counsel on State expenses for appellant/convict during the trial. The appellant/convict filed an application on 25.03.2023 through his counsel and voluntarily made an offer to make a confessional statement. Now the issue to be determined by this Court is, as to whether the learned trial Court was justified in accepting the offer of the appellant/convict to record the appellant's/convict confessional statement at the belated stage, when admittedly as per the order sheet dated 26.12.2022 and impugned order the appellant/convict did not plead guilty and claimed trial in explicit terms or otherwise. To determine this question it would be advantageous to go through the provisions of Sections 242, 243 and 244, Cr.P.C. dealing with the question, are reproduced herein below for ready reference: -
"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.
243. Conviction on admission of truth of accusation. If the accused admits that he has committed the offence [with which he is charged] his admission shall be recorded as nearly as possible in the words used by him; and, if he shows no sufficient cause why he should not be convicted, the Magistrate may convict him accordingly.
244. Procedure when no such admission is made. (1) If the Magistrate does not convict the accused under the preceding section or if the accused does not make such admission, the Magistrate shall proceed to hear the complainant (if any), and take all such evidence as may be produced in support of the prosecution, and also to hear the accused and take all such evidence as he produces in his defence."
(2) .............................................................
(3) ............................................................. "
A bare perusal of the above provisions of sections 242, 243 and 244, Cr.P.C. clearly depict that once a formal charge is framed and put to the appellant/convict, which is denied by him under section 242, Cr.P.C. provisions of section 243, Cr.P.C. shall ipso facto become inonerative 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, the confessional statement made after so many dates of hearing when at the time of the framing charge, the appellant/convict in explicit terms had denied the same, is of no legal effect in the presence of Sections 244, 265- D, 265- E and 265 -F of the Criminal Procedure Code, 1898.
11. Moreover, the superior Courts always support that even if the accused pleads guilty
during the course of the trial, in addition to his plea, independent evidence should be gathered by the Court. Reliance is placed on the dictum of law in the case of "King Emperor v. Kasim Waled Mohamed Saffer" AIR 1925 Sindh 188, wherein it was held as under: -
"Independent evidence should be taken by Court notwithstanding accused's plea of guilty."
12. As regard filing of appeal with delay, I would insist that the right of appeal is a
substantial right which normally should not be denied on technical counts/reasons particularly when it comes to the Criminal Administration of Justice. I would also insist that normally condonation of delay would do nothing with the merits of the case, but would only require the Court to decide the lis on merits. This has been the reason that condonation of delay is normally subject to giving a 'reasonable explanation which might have prevented party in approaching the Court'. Thus, while examining the question of limitation, the circumstances claimed to have prevented one in approaching the Court in time, would always be a decisive. I would further add that if the circumstances pleaded appear to be justified or even likely to be believable though no proof is offered then the delay must always be condoned. This is for the simple reason that even condonation of delay would not absolve the appellant (party) from establishing his case on merits. Guidance is obtained from the case of
"Fazli Hakeem and another v. Secretary: State and Frontier Regions Division and others"
2015 SCMR 795, wherein it is observed as: -
"7. Even otherwise: the Courts of law are not supposed to perpetuate what is unjust and unfair by exploring explanation for an act which is prima facie against law and thus void. They should rather explore ways and means for undoing what is unfair and unjust. Even the question of limitation: if at all: created any Impediment in the fair adjudication of the case: has to be looked from such angle of vision....."
Hence, in the foregoing circumstances, I have been persuaded to hold that the
conviction and sentence inflicted by the learned trial Court in terms of the impugned order dated 29 -03-2023 is not sustainable in the eyes of the law, which is set -aside and the case is
remanded back to the trial Court to decide the same in accordance with law, after recording the evidence.
JK/155/Bal. Case remandeThis 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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