' Sarfaraz Khan the petitioner was charged on 28-5-1983 to have sold "suabeen" oil to the complainant on 6-5- 1982 at 0930 hours which was later on allegedly found below standard by the Public Analyst and as such he committed an offence punishable under section 6/23 of the Pure Food Ordinance, 1960. The charge put to him was denied and he pleaded not guilty.
2. Prosecution was called upon to produce evidence to substantiate the charge and during the course of hearing, one Muhammad Khan, A.S.I., who had submitted the challan in the Court, was examined as P.W.
Whereafter the case was adjourned some six times when on 28-8-1983 the petitioner made a confession whose English version runs as follows:- "I cannot put in appearance on each and every date of hearing. And cannot forebear further prolonging of the case. Hence I confess my guilt. The case may be decided."
' The said confession was made the sole basis of conviction by the Court which proceeded to sentence the petitioner to one year's imprisonment and since it was his first offence, he was, therefore, handed over to Probation Officer and his sentence as such was cancelled in en se he was to execute good behaviour bonds of two sureties in the sum of Rs, 10,000 each for period of one year.
3. The above order was set aside in revision by the learned Additional Sessions Judge, Bannu at Lakki who imposed on the petitioner a sentence of one year rigorous imprisonment and a fine of Rs, 1,000 or in default three months' further R.I. For reasons that there was prescribed a punishment of rigorous imprisonment extending to three years and a fine from Rs, 1,000 to Rs, 3,000 for the offence while the accused-petitioner has simply been sentenced to one year's imprisonment. The probation order was further declared illegal because under clause (b) of section 5 of the Probation of Offenders Ordinance, 1960 the Magistrate cannot place the accused on probation while sentencing him to imprisonment at the same time.
4. Since no other remedy was available to the petitioner, he accordingly filed a petition under section 561-A, Cr.P.C. With a prayer to set aside the order of the Court of revision and to acquit him of the offence or to restore the order of the trial Court which sent him on probation for a period of one year.
5.. Chapter XX of the Code of Criminal Procedure, 1898 deals with the trial of summons case by a Magistrate.
Under section 242, Cr.P.C. a formal charge is framed relating to the offence and the accused is asked if he admits that he has committed the offence with which he is charged. Under section 243, it is provided that if the accused admits that he has committed the offence charged with, his admission shall be recorded in his own words and if he shows not sufficient cause against his conviction, the Magistrate may convict him on the basis of his admission. Section 244 provides that if the Magistrate does not convict the accused on the strength of his admission under section 243 or if the accused does not make such an admission, the Magistrate shall proceed to hear the complainant and take all other evidence of the prosecution and also to hear the accused and take his evidence in defence. Thus the plain reading of sections 242, 243 and 244, Cr.P.C. Enjoins that on appearance of the accused before the Magistrate a formal charge shall be framed relating to the offence and he shall be asked if he admits to have committed the offence with which he is charged. In case the accused does not admit the offence, section 243, Cr.P.C. Shall be skipped over which prescribes the prerequisite in the admission of the guilt of the accused to be recorded in his own words for its application and the procedure contained in section 244, Cr.P.C. Shall be followed.
6. In the case in hand, the accused-petitioner did not plead guilty to the charge in the first instance and claimed a trial. The Court had also proceeded to record the evidence of the prosecution and there had thus commenced the trial under section 244, Cr.P.C. The so-called plea of guilty was subsequently recorded although at,.4hen the Court could not stage a retreat to sections 242 and 243, Cr.P.C. As to again put a formal charge to the accused and to record his admission followed by his conviction.
7. No doubt, sections 244 and 242, Cr.P.C.' provide for the examination of the accused at pertinent stages after the production of all or some of the evidence of the prosecution that the accused is examined to explain the incriminating circumstances appearing in the evidence against him. Anyhow the so-called confession of the accused petitioner obtained on 28-8-1983 cannot also be covered by his examination der the aforesaid provisions of law.
' But on certain occasions, the accused may volunteer to make his clean breast confession after having earlier pleaded not guilty to the charge in the first instance. A confession as such shall, however, be recorded within the requirements of section 364, Cr.P.C. To be duly certified thereunder. Instantly, the so-called confession also does not fulfill the said requirements of law at least to the extent of certificate. Even the bare reading of the so- called confession transpires that the accused was tempted to. Make the confession and is seemingly irrelevant in the criminal proceedings under section 24 of the Evidence Act. Further accused petitioner has only confessed. The offence in his statement. There has not been put particulars of the offence to him nor he has admitted the allegations constituting the offence. Even plea of guilty is to, involve admission of truth of all facts essential for the guilt and not that the accused has simply to state that he confesses his guilt. The so-called confession, even if assumed to amount to a plea of guilty to the charge, shall still not help the prosecution because the Public Analyst has reported the sample of "suabeen" oil to be that of a 'substandard' cottonseed oil while the charge against the petitioner, is of selling substandard "suabeen" oil. It thus comes to that the so- called confession could not in any way sustain the conviction of the accused as made a sole basis therefor by the trial Court.
9. On the subject there is an authority in the field published inP L D 1975 Lah. 304 titled Nazir Ahmed v. State in which a moharrir record in the office of the Sadder Kanungo was prosecuted for offences under section 161, P.P.C. Read with section 5(2) of the Prevention of Corruption Act, 1947 in accordance with the procedure laid down in the Pakistan Criminal Law (Amendment) Act, 1958. On examination under section 242, Cr.P.C. The accused had denied the charge and the case was adjourned for evidence when on the date of hearing after two adjournments the accused voluntarily made a confession, on the basis of which the Court proceeded to record his conviction under section 243, Cr.P.C. On the plea of guilty and sentenced him to a fine of Rs,15. Against the conviction a revision/appeal was taken in the High Court which was dismissed. The learned Judge had observed that the language of section 243, Cr.P.C. Was not trammeled by any condition of fixation of time or stage as when the confession is to be recorded and that the words of the section do not indicate that it shall cease to have operation at any subsequent stage at the trial. It was, no doubt, acknowledged that section 243 shall come into operation immediately after the particulars of the offence have been put to the accused and he makes an admission of his guilt when the Court may proceed to convict the accused on the basis of his confession.
10. King Emperror v. Kasim Waled Muhammad Saffer AIR 1925 Sind 188 and Lalji Ram v. Corporation of Calcutta AIR 1928 Cal. 243 were distinguished as in the Sind case the Judicial Commissioner's Court had emphasised the desirability of recording evidence in cases punishable with death even when the accused had offered to plead guilty. In case of Lalji Ram that once a Magistrate adopts the procedure in recording evidence after the denial of the charge by the accused then the Court was not competent to take a further plea from the accused-person of guilty and relieve himself of the duty of examining other prosecution witnesses, it was observed that the main ground for setting aside the order of conviction was that the confession of the accused has not been recorded in his own words. The facts of the said case were the the accused had presumably pleaded not guilty to the charge against him. The prosecution had also examined a witness and the case was adjourned for further evidence when on the said date the accused had allegedly admitted his guilt and the Court had fined him Rs, 60 on the plea of guilt. Admission of the accused was not recorded in his own words and the omission was taken due notice of by the Court but the said authority had also laid down a rule that once the accused pleads not guilty to the charge under section 242, Cr.P.C. Or the Court does accept the plea of guilt under section 243, Cr.P.C. And proceeds to hear the complainant in taking its evidence, the Court shall be deemed to have adopted the procedure prescribed by section 244 on the footing that there was no admission of guilt on the part of the accused and there cannot be taken a further plea of guilt from him subsequently as to be made a basis of conviction without recording further evidence of the prosecution.. With respect it is submitted that in PLD 1975 Lah. 304 the judgment was given under the influence as till then there had not been recorded any evidence and as such section 244, Cr.P.C. Had not commenced as yet and further the accused being a Court official pregumably fully knew the charge against him who was further found having voluntarily made the confession which has resulted in imposing a nominal fine of Rs, 15.00 on him. The failure on the part of the trial Court to ask the accused to show cause against his conviction as required under section 243, Cr.P.C. Was considered only a technical in the circumstances. On the other. Hand, in the case of Lalji Ram, the Magistrate has failed to record the confessional statement of the accused in his own words and he has also commenced proceedings under section 249, Cr.P.C, by examining a witness on behalf of the prosecution.
11. Hence placing the two authorities in juxtaposition, I submit with respect that the reasoning adopted in the Calcutta judgment seemingly appears more convincing and in confirmity with the criminal practice and procedure as compared to the interpretation of the point of law made in PLD 1975 Lah.
304. In support of the view a reference is made to PLD 1980 Azad J & K 18 wherein a Division Bench laid down a procedure for trial in the summons eases that when the accused does not make admission of his guilt under section 242, Cr.P.C., it is then incumbent upon the Court to proceed under section 244, Cr.P.C. To take evidence of prosecution and only after close of the evidence in support of the prosecution, the accused shall be examined under section 342, Cr.P.C. Whereafter his evidence may be taken in defence if any and that the trial of the case shall be conducted and completed in the manner as above. In 1980 P Cr. L J 988 it was observed that the failure of the Court to write answer of the accused to the charge under section 242, Cr.P.C. And proceeding to record of evidence of the prosecution will mean that the accused had not pleaded guilty and the Court had rightly proceeded with the case under section 244, Cr.P.C. In AIR 1931 Bom. 195 it was held that under section 243, Cr.P.C. The Magistrate has the discretion to accept the plea of guilty and convict the accused, or not to accept it. In case, if the Court takes evidence after proceeding in the case, he then must satisfy himself that the evidence which he hears justifies conviction of the accused and if the evidence does not.
Prove the charge, it will not be open to the Court to go back and accept the plea of guilty and convict the accused. The last is a Division Bench authority published in AIR 957 Tray.-Co.
89. The accused had first pleaded not guilty under section 242, .Cr.P.C. And the Court had fixed the case for evidence of the prosecution under section 244, Cr.P.C. The accused had meanwhile volunteered to admit his guilt. The Court had recorded the plea of guilty and proceeded to convict him. The High Court held that having once recorded the plea of not guilty, the Court was bound to examine the prosecution witnesses and dispose of the case on merits. It will be wrong on the part of the Magistrate to question the accused again and obtain a plea of guilty from him.
12. To sum up the legal position on the subject, 1 will humbly dissent from the judgment of my learned brother Attaullah Sajjad, J., published in PLD 1975 Lah. 304 and shall follow the principle of law laid down in AIR 1928 Cal. 243 and AIR 1957 Tray.-Co. 89 holding that once a formal charge framed and put to the accused is denied under section 242, Cr.P.C. The provisions of section 243, Cr.P.C. Shall ipso facto become inoperative and the Court has to proceed under section 244, Cr.P.C. By hearing the complainant and his evidence and afterwards the accused and his evidence in defence. Once the evidence of the prosecution commences there cannot be staged a retreat to section 243, Cr.P.C. By procuring a plea of guilty from the accused. At the stage if the accused makes a voluntary confession, the same will be recorded within the requirements of section 364, Cr.P.C. And shall be put to the accused for his explanation as incriminating circumstance under section 342, Cr.P.C. And such a confession shall not amount to a plea of guilty within the meaning of sections 242 and 243, Cr.P.C. As to be made a sole basis of conviction by the Court.
13. I shall now revert to another aspect of the case. Section 23 of the West Pakistan Pure Food Ordinance, 1960 as amended by N.-W.F.P. Amendment Act 1976, prescribes a punishment for the first offence under section 6 in rigorous imprisonment for a term extending to three years and with fine ranging from Rs, 1,000 to Rs, 5,000. The trial Court had herein erred to the extent not to impose the sentence of fine as rightly pointed out by the Court of Additional Sessions Judge in revision. But the learned Court of revision had declared the probation order as illegal with reference to clause (b) of section 5 of the Probation of Offenders Ordinance, 1960 which vests a power in the Court that in case of certain offences, the Court on conviction may instead of sentencing the person at once to send him on probation for a period from one year to three years place him under the supervision of a Probation Officer requiring him to execute a bond with or without sureties not to commit offence and to keep peace and be of good behaviour during the period of bond and in contravention of the terms of the bond to appear and receive the sentence when called upon. The learned Additional Sessions Judge held that the Court cannot pass the order of sentence of imprisonment while placing the accused on probation at the same time and if he has done so, the order of probation shall stand nullified. In PLD 1967 Pesh. 105, a Single Bench had laid down a rule that if the Magistrate passes the order of imprisonment against an accused-person while placing him on probation the sentence of imprisonment would nullify the effect of probation order. The said authority was, however, dissented from by a Division Bench in a judgment published in PLD 1969 Pesh. 226 and it was held that the mere fact that by inadvertence Magistrate while releasing the offender on probation has also at the same time nominated the sentence, the order of probation shall not be rendered unlawful and that rather the illegal part of the order of sentencing him to imprisonment shall struck off to give way to the valid and operative part of the order of releasing the accused on probation.
14. In view of what has been stated above, it is manifest that both the Courts below have not properly conducted themselves, rather they have abused the process of the Court and it is therefore, apt and proper to exercise the inherent powers under section 561-A, Cr.P.C. To upset their orders in order to secure the ends of justice. Since the petitioner had also accepted his conviction and was contended with the order releasing him on probation for one year under the bond and the prosecution had also not availed the opportunity to produce evident against him hence, to be fair both to the prosecution and the accused, the case is remanded to the trial Court with directions to take up the proceedings from the stage prior to the confession of the accused-petitioner recorded on 28-8-1983.