' This order would be read in continuation of my previous order dated 13th August, 1983 passed in Criminal Appeal No, 10 of 1982 and this revision.
2. The petitioner Abdul Rashid son of Muhammad Gul was apprehended by the Saddar Police Station on 1 1 th August, 1982 and three kilogram of chards was found concealed in his chaddar.
This search was conducted by the police party according to the police version, as a secret information was received by one Muhammad Ayyaz A. S.-I. That a person was carrying charas. The search of the petitioner according to the inventory made on 11th August, 1982 was conducted in the presence of the police constables accompanying this Sub-Inspector. After investigation a challan under section 4 of the Prohibition (Enforcement of Hadd) Order, 1979 was submitted in the Court of the E. A. C.-I and Magistrate 1st Class on 5th October, 1982 who convicted the petitioner on 21st October, 1982 and sentenced him to one year's rigorous' imprisonment and a fine of Rs, 1,000 or in default of payment of fine he was to undergo simple imprisonment for three months. An appeal was filed which was dismissed by the learned Additional Sessions Judge-II, Quetta, on 18th November, 1982. The petitioner has therefore, filed this revision in this Court.
3. The learned counsel for the petitioner has complained that with undue haste the 'petitioner has been proceeded with in the trial Court in complete violation of section 24I-A of the Code of Criminal Procedure, and he has been convicted and sentenced without affording him a proper chance for his defence and secondly the particulars of the charge have not been sufficiently explained to the accused and his plea has not been properly recorded and both the Courts below have misconstrued the statement of the accused as a confession of guilt..
4. Before I consider the contentions raised by the learned counsel it is necessary to ascertain the factual position with regard to the trial in the Court of Magistrate 1st Class, Quetta. From the perusal of the order- sheets appearing on page 4 of the file it is borne out that the challan was received in Court on 5th October, 1982 and the case was ordered to be registered and the accused was summoned for 12th October, 1982. On this date the summons issued to the accused was returned unserved accordingly the accused was ordered to be summoned through his surety for 19th October, 1982 for which a notice to the surety Nazar Muhammad son of Abdul Haq was issued the same day i. e. 12th October, 1982 (this appears at page 3 of the B portion of the file). Strangely enough the order-sheet mentions the date of hearing as 16th October, 1982. This is a manipulation in the record made in order to defeat the plea of the accused in appeal that the accused was present in Court only on 20th October, 1982 and without supplying him requisite copies and other documents as required under section 241-A, Cr. P. C. He was convicted on 21st October, 1982. The petitioner has produced a certified copy of the alleged statement of the accused/petitioner recorded on 20th October, 1982 while the charge-sheet and the order-sheet does not mention and admit any date of hearing either on 19th October, 1982 or 20th October, 1982. The order of conviction recorded on 21st October, 1982 takes into account an alleged statement of the accused wherein the accused is alleged to have admitted that three kilograms of charas was recovered from his possession but it was with him because it was given by a debtor to him. From the record it is clear that the charge was framed the same day when the order of conviction was passed. In the face of the notice issued to the surety of the petitioner and the fact recorded on 12th October, 1982 it is established beyond doubt that on 12th October, 1982 the accused was not present in Court and he was summoned through his surety, therefore, there can be no two opinions that the accused could be produced only through surety who could produce the accused only either on 19th October, 1982, the date fixed in the notice or thereafter. No summons to the accused was ever issued for his appearance in Court. The proceedings in the presence of the accused could, therefore, be not possibly taken earlier than 19th October, 1982. The statement, a certified copy whereof has been supplied to the petitioner, does not find place on record. The charge framed against the accused contains no such statement that the accused had said that charas was kept with him by the debtor. The accused could be supplied the copies as required under section 241-A, Cr. P. C. On the day he appeared in Court either on 20th October, 1982 as alleged by the accused/ petitioner or on 21st October, 1982 as indicated in the order of conviction, and the charge-sheet.
The fact, therefore, stands established that the copies of the statements of the witnesses recorded under section 161, Cr.P.C. Were not received by the accused 7 days before his trial. The contention of the learned counsel that the trial could not have commenced unless 7 days have elapsed, is not without force. The provisions of section 241-A, Cr. P. C. Which requires that the copies shall be supplied, is an essential stage preparatory to the trial. The insertion of this provision is obviously meant to enable the accused to know and understand the prosecution case against him so that when he is examined in Court he can take a plea upon full knowledge and understanding of the prosecution case. The interval of 7 days is, therefore, significant because it is meant to give the accused sufficient time to study and understand the allegations against him and to enable the accused to prepare the defence. It is necessary that he should have the prosecution cards against him fully laid on the table before the trial starts, by knowing beforehand what the prosecution witnesses had said against him during the police investigation. The contention of the learned counsel, therefore, that the plea could not have been recorded on 21st October. 1982 as 7 days have not passed and the stage was not reached to start the trial has force in it. The accused is an illiterate person and was unrepresented. The undue haste exhibited by the trial Court in the circumstances of the case has certainly prejudiced his case.
5. As is apparent from the words used in the charge it does not indicate that the accused was appraised of the substance of the accusation and it was not made clear to him for what he is being tried. The relevant provisions in this behalf are sections 221 and 222, Cr. P. C. The word charge has not been defined in Cr. P. C. But the term charge is used in the Cr. P. C. As the statement of a specific offence. Charge is a precise formulation of the specific accusation made against a person.
The provision of section 221 (3) reads as follows :- "221 Charge to state offence.
(2)..................................
(3) How stated where offence has no specific name. If the law which creates the offence does not give it any specific name, so much of the definition of the offence must be stated as to give the accused notice of the matter with which he is charged."
' Section 222 (1) also reads as follows :- "222 Particulars as to time, place and person.--(1) The charge shall contain such particulars as to the time and place of the alleged offence, and the person (if any) against whom ; or the thing (if any) in respect of which, it was committed, as are reasonably sufficient to give the accused notice of the matter with which he is charged."
' In this case the allegations against the petitioner were that he was apprehended while he was carrying the charas concealed in a chaddar. As the offence under section 4 of the Prohibition (Enforcement of Hadd) Order, 1979 lays down that "whoever owns, possesses or keeps in his custody any intoxicant shall be punished with imprisonment of either description for a term which may extend to two years, or with whipping not exceeding thirty stripes, and shall also be liable to fine." These particulars as were alleged against him were not put to the accused. The petitioner was not explained as to the accusation or the substance of accusation being levelled against him.
There is nothing in this case on record that besides using the printed charge-sheet form the offence was explained. It was necessary that in explaining the offence to the accused the Magistrate should have stated the necessary ingredients of the offence as otherwise the plea of guilty by the accused Might mean nothing more than an admission of fact which constitutes but a part of the offence punishable by law. The learned counsel for the petitioner has submitted- in this behalf that it has not been explained to the petitioner that the offence with which he is tried was punishable with imprisonment and was liable to fine and was liable to whipping also. The accused did not know the implication of the plea/admission of the fact and it was not explained to him that the plea of guilty would invite the punishment of imprisonment and of whipping. The basis of the findings of the learned trial Court is that the accused had admitted the possession of the cha.As and has said that it was given to him by a debtor, if this was so (which I am constrained to say is not found anywhere in the charge) it was certainly not a plea of guilt because the accused admitted only this much that he was found in possession of charas but had explained that it was given to him by a debitor. This statement amounted to a qualification of this plea. Thus the plea of guilty was of no value. The refusal of the Magistrate to explain the charge to the accused is so vital that it cuts the very root of the case and is so abhorrent to what one might term "natural justice" and that a trial of that kind is only a mockery of a trial and not of the kind envisaged by the law. The contention of the learned counsel for the petitioner, therefore, that prejudice is apparent in this case cannot be ignored because the accused appears to have admitted the offence without understanding the nature of the accusation and the punishment that entails therefrom. And that was done only due to the failure of the Magistrate to comply with the provisions of section 221 (3) and section 222 in explaining the nature of the charge to the accused. I am not prepared to say that the defect here is not inconsequential, the accused has certainly been misled and prejudiced in his defence and it cannot be asserted that if the Magistrate had properly explained the gist of the evidence to the accused or the ingredients of the offence and the punishment that it entails the accused would have pleaded guilty. It is unfortunate that the appellate Court did not examine the record and remained content with the assertion contained in the trial Court's order that the accused had pleaded guilty and the conviction was affirmed. As has been said above the said plea is based upon an erroneous conception of facts altogether. The appellate Court should have satisfied itself that the plea of guilty was properly made after the nature of the offence the accused was charged with was explained to and understood by the accused. After examining the record I am convinced that the petitioner has had no fair trial and his plea of guilty is based on misconception of facts.
' For the above reasons I am of the opinion that the conviction and sentence recorded against the accused cannot be sustained.
6. Ordinarily in such cases when conviction is set aside the case has to be remanded to the trial Court for retrial according to law but in this particular case I am of the opinion that the accused has already suffered irreparable injury both physically and mentally. The offence with which the petitioner was charged was boilable but unfortunately the police did not intimate to the petitioner that he was entitled to be released on bail as of right, instead remand in police custody was applied by the police and in fact the Magistrate before whom the petitioner was alleged to have been produced during investigation heeded to the demand of the police twice and thus he suffered illegal confinement for seven days. The reasons for which the remand was applied for was also untenable because the moment the alleged recovery was made from the accused, no further step was to be taken and in fact no further material was collected during these seven days except that it was utilized for keeping the accused in wrongful confinement. The accused has served a sentence after the order of conviction and again after his appeal was rejected. In these circumstances I do not think that justice requires any further trial could serve the interest of justice.
I therefore, accept the revision, set aside the order of conviction and sentence of the petitioner. The fine, if paid shall be refunded. The bail bonds executed by the petitioner in this Court stand discharged.