AKHTAR ALI G. KAZI, J.--- Appellant Tariq son of Tawab Khan resident of Sarfraz Colony, Hyderabad was charged under section 13-E, Arms Ordinance and was sentenced to suffer R.I. For 3 years by the learned Judge Special Court, Suppression of Terrorist Activities, Hyderabad vide his judgment, dated 10-7-1991 and the present appeal has been filed against the above judgment of conviction.
2. The brief facts of the prosecution case are that S.H.O. Inspector Mohammad Aslam of Market Police Station, Hyderabad was investigating Crime No. 76 of 1991 of Police Station Market under section 20, Harraba Hudood Ordinance. The present appellant was arrested as suspect in the matter and on interrogation after making the statement led the police party while in custody to his house situated in Cheepa Gali of Sarfraz Colony Hyderabad and voluntarily produced one Klashnikov rifle alongwith 5 live bullets. He also produced 29 watches. The police secured the same and prepared such Mashirnama in presence of Mashirs S.I.P. Salahuddin and Mohammad Aslam.
The appellant did not possess any licence for the same. The S.H.O. Lodged the F.I.R. On behalf of State under section 13-E Arms Ordinance at 9-30 on 15-6-1991 on the same day at Market Police Station. After usual investigation the appellant was challaned in the Court of Judge Special Court Suppression of Terrorist Activities, Hyderabad on 1-7-1991. The appellant was remanded to judicial custody and the case was put off to 10-7-1991 for further proceedings in the matter. On 10-7-1991 a formal charge was framed against the appellant Exh.2 and his plea was recorded which is Exh.3 of the record. According to this plea the appellant pleaded guilty and prayed for mercy. On the basis of this plea the learned trial Judge convicted the appellant and sentenced him to suffer R.I. For 3 years. The learned Judge took lenient view possibly because of his pleading guilty.
3. We have heard Mr. Agha Zafir Ali the learned counsel for the appellant and Mr. Abdul Latif Memon A.A.-G. For the State. We have gone through the record and proceedings of the case.
4. It has been argued by the learned counsel for the appellant that as per record of the case the charge has been framed by the trial Judge on 10-7-1991 which was also fixed as the date of hearing of the case, whereas the plea Exh.3 has been recorded a day prior i.e. On 9-7-1991 which appears to be in the writing of the trial Judge himself. The plea is to be recorded after the framing of the charge and not before it. The learned A.A.-G. Has also not been able to explain this material discrepancy. Apart from this it is well-settled law that before a plea of guilt can be relied upon for the purpose of basing conviction on it. The Court should satisfy itself by putting questions to the accused in order to see whether he is aware of the facts on which the charge is framed against him and also to see whether he has admitted his guilt voluntarily Without any pressure or expectation of lenient sentence. It is strange to note that the plea of guilt Exh.3 has been recorded one day before the charge is framed, as such, this cannot be even considered as the plea of guilt.
The plea whatever, its worth does not show that the learned trial Judge made any efforts to put questions to the accused in order to find out from his answers that he is making such statement voluntarily. On the contrary it shows that the accused only stated as under:- "Guilty and pray for mercy and unlicensed Klashnikov and 5 bullets were recovered from my possession."
5. The other question which the learned trial Judge put was regarding his recovery of watches which of course has no connection so far as the present appeal is concerned.
6. It appears from the plea as, recorded by the trial Judge that he has not properly recorded the plea of guilt of the accused. The plea should have been recorded in form, of questions and answers and in the exact words of the accused in order to find out what the accused exactly meant by pleading guilty and in absence of that the Court cannot convict the accused on the basis of such plea. It is clear from the record that the appellant was not even represented by a counsel in the proceedings before the Trial Court and as such the Court should have taken mote precaution to find out whether the plea which the appellant made was voluntary and not in expectation of any lenient sentence. In these circumstances we feel that no sentence and conviction can be maintained on such plea which has not been properly recorded and in this case it has been recorded before the charge is framed. The appeal is allowed, conviction and sentence of the appellant are set aside and we remand the matter to the learned Trial Court for retrial of the appellant from the stage of charge. This will dispose of also the Criminal Jail Appeal No. 57 of 1991, which was also filed against the same judgment. We had decided this appeal by a short order on 13-4-1992 and these are tic reasons for the same.
N.H.Q./T-140/K