SADIQ MAHMUD KHURRAM, J. This judgment shall dispose of the instant appeal lodged by Muhammad Alamgir son of Qazi Muhammad Ismail (appellant), assailing his conviction and sentence awarded to him by the Drug Court, Bahawalpur Division, Bahawal pur vide judgment dated 09.06.2015, passed in the case No. Judl/38/DCB/2009 titled "The State vs. Muhammad Alamgir". The Drug Court, Bahawalpur Division, Bahawalpur , convicted Muhammad Alamgir son of Qazi Muhammad Ismail (appellant) and sentenced him in the following terms: - Muhammad Alamgir son of Qazi Muhammad Ismail:- i) Rigorous imprisonment for two years under section 27 (1)(a) of the Drugs Act, 1976 and directed to pay fine of Rs. 50,000/- and in default whereof to further undergo simple imprisonment for one month. ii) Rigorous imprisonment for one year under section 27 (4) of the Drugs Act, 1976 and directed to pay fine of Rs.
50,000/- and in default whereof to further undergo simple imprisonment for one month.
All the sentences awarded to the appellant were ordered to run concurrently by the learned trial court.
2. Briefly stated, the facts of prosecution case are that on 27.01.2007 at about 4.30 pm., Muhammad Abid, Provincial Inspector of Drugs, Tehsil Ahmedpur East inspected the store of the appellant namely Muhammad Amin and found twenty three different kinds of drugs in the possession of the appellant for which the appellant had no license to sell and which all were also not registered drugs ,having nop warranties and Muhammad Abid, Provincial Inspector of Drugs, Tehsil Ahmedpur East seized the same and prepared Form-5 in the presence of the witnesses.
The case was referred to District Quality Control Board, Bahawalpur for permiss ion for prosecution. The District Quality Control Board, Bahawalpur issued personal hearing notices to the appellant. The District Quality Control Board, Bahawalpur , after going through the relevant record granted permission for prosecution against the appellant. After receiving the sanction for prosecution, Muhammad Abid, Provincial Inspector of Drugs, Tehsil Ahmedpur East drafted the complaint against the appellant, namely Muhammad Alamgir son of Qazi Muhammad Ismail and submitted the same for trial before the competent court of law .
3. On submission of the complaint, the accused was summoned to face the trial and after observing all legal requirements, the charge was framed against the accused on 03.02.2010 . The appellant pleaded not guilty and claimed trial and the learned trial court proceeded to examine the prosecution witnesses.
4. Subsequently , on 29.04.2015 , the appellant moved an application seeking the recording of his statement and the confessional statement of the appellant was recorded by the learned trial court on 07.05.2015 and thereafter the learned trial court held the appellant guilty of the offence and sentenced the appellant as referred to above vide judgment dated 09.06.2015.
5. It is contended by the learned counsel for the appellant that the appellant was innocent in the instant case; that the perusal of the impugned judgment reveals that the conviction awarded to the appellant is neither based on some incriminating evidence nor on some legal reasoning; that the confessional statement of the appellant recorded by the learned trial court was neither voluntary nor true.
6. The learned Deputy Prosecutor General strongly controverted the argumen ts advanced on behalf of the appellant and submitted that it was proved from the prosecution evidence that the appellant was guilty as charged and the appellant had confessed his guilt before the learned trial court and now could not assail the conviction and sentence.
7. We have thoroughly considered the respective arguments of learned counse l for the appellant, the learned Deputy Prosecutor General and have examined the entire record.
8. A perusal of the record reveals that the charge against the appellant was framed on 03.02.2010 . After the framing of the charge, the statement of the appellant was recorded as required under Section 242, Cr.P.C, as under:- "Q.No.1 Have you heard and understood the charge read out to you in court?
Ans. Yes Q.No.2 Do you posses the Drug Sale License, warranties. (sic)
Ans No Q. No.3. Do you plead guilty to the charge?
Ans I did not plead guilty and request for trial.
Q. No.4. Will you produce defence evidence?
Ans. Yes"
Thereafter the case was fixed for recording of prosecution evidence however , the same couldn't be recorded due to one reason or the other notwithstanding the fact that on a number of dates, summo ns of the prosecution witnesses were also issued to ensure their presence before the learned trial court. It was on 29.04.2015, i.e. after more than five years of the framing of the charge , when the application was filed on behalf of the appellant for recording his confessional statement wherein, he admitted his guilt and prayed for leniency in the awarding of the sentence.
9. 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 five years . Section 31(6) of the Drugs Act, 1976 provides that the Drug Court shall follow the procedure prescribed by the Code of Criminal Procedure, 1898 for the trial of summons cases by Magistrates. 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 the accused afterwards and convict him on the basis of such confession without recording of the prosecution evidence. 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. reads as under:- "242. Charge to be framed : When the accused appears or is brough t 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 the 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.
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. This proposition of law had been judicially recognized long ago and can be traced back in the case of "Lalji Ram vs. Corporation of Calcutta" (AIR 1928 Cal 243), wherein Justice Mukerji of Calcutta High Court, as he was then, 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 the case of "Farrukh Shehzad vs. The State" (2012 PCr.LJ 352) 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."
The 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 the case of "Khizar Hayyat alias Khizru vs. The State" ( 2001 MLD 1 145) 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."
While extracting wisdom from the aforementioned judgments, it is abundantly clear that the learned Drug Court had no occasion to record the confession of the appellant and convict him at a juncture when proceedings under Section 244 Cr.P.C. had commenced and Section 243 Cr.P.C. had become inoperative, thus, could not have been pressed into service. 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 a 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."
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 equally applies to the statement of the accused recorded during the 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 the statement of an accused is recorded during investigation or trial, is bound to follow the procedure laid down in Section 364 Cr.P.C. Rule 11 of the High Court Rules and Orders, Vol. III, Chapter XIII, 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 unde r Section 263, Cr.P.C. 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 the 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 a better understanding 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 answ er 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."
The statement of an accused is recorded under Section 342 Cr.P.C. to enable him to explain any circumstance appearing in the evidence against him. As far as the argument of the learned Deputy Prosecutor General that a learned trial court is fully competent to record the statement of an accused at any stage of the trial is concerned, the same has no substance. The condition precedent for invoking section 342 Cr.P.C. is that there must be some circumstances appearing in the evidence against an accused during the course of the 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. In the present case, 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 the appellant. Moreover , after indictment, not even a single prosecution witness was recorded for as many as five years, which apparently prolonged the agony of the appellant facing the trial. Such delay is against the right to a fair trial as ensured under Article 10-A of the Constitution of Pakistan, 1973. The poss ibility cannot be ruled out that such prolonged agony of trial, without its conclusion, might have been the sole factor compelling the appellant to file an application for recording of his confessional statement, in order to get done with the trial proceedings, therefore, it cannot be said that such confession was made voluntarily .
10. In view of the above discussion, the impugned judgment dated 09.06.2015, passed by the learned trial court, being against the judicial acumen, is set aside. Resultantly , the instant Crl Appeal No.316 of 2015 is disposed of, the conviction and sentence of the appellant namely Muhammad Alamgir son of Qazi Muhammad Ismail are set- aside and the matter is remanded back 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 during the pendency of the trial, the appellant shall be treated as an under trial accused.
11. Before parting with the judgment, keeping in view the fact that it is an old matter , this Court deems it appropriate to direct the learned trial court to conclude the proceedings of the trial within a period of three months after initiating the same and strictly in accordance with the law .