' Sohrab Khan son of Abdul Muhammad stood his trial in the Court of. Sessions Judge, Skardu alongwith Hajat Khan and Fazloo, on a charge under sections 364, P.P.C. And 9, Hudood Ordinance, 1979. He was found guilty, convicted and sentenced to undergo 10 years' rigorous imprisonment, vide judgment, dated 3-6-1996. Dissatisfied with his conviction and sentence, he has come to this Court with the instant appeal.
2. The background of this appeal is that S.-I./S.H.O. Muhammad Riaz of Police Station Chilas was in Rawalpindi in connection with some official duty during the days of occurrence when on 4-2-1988 at about 18-00 hours one Haji Fazal Ali, Member of District Council Shigar, reported to him that he had received an information that his pick-up Datsun No,BIN-2021, which was being managed by one Muhammad Ayub as driver in Skardu, has been stolen from Skardu by some unknown persons.
The complainant further stated that he has received another information that accused Hajat Khan (since acquitted) alongwith the driver of the Datsun Muhammad Ayub are in Rawalpindi. On this information the S.-I./S.H.O., Muhammad Riaz went to Adda Pir Wadhai and raided the Hotel of Chotta Khan, but Hajat Khan fled away from the Hotel and the driver Muhammad Ayub disclosed that on 29-1-1988 one Akhtar Jan of Hunza Inn, Skardu asked him to book the Datsun for Hajat Khan up to Chilas, for which Rs,1,500 were settled as fare. Rs,1,000 was paid to the driver and it was promised that the balance of Rs,500 would be paid at the destination by the said Akhtar Jan. The driver accordingly departed for the destination and on reaching Chilas, the acquitted accused Hajat Khan told the driver MuhamMad Ayub that since his companion had gone to Peshawar, therefore, he should take him to Peshawar. Hajat Khan accused further promised to pay Rs,4,500 on account of fare charges. After a day hard journey when the Datsun reached Besham, the present appellant Sohrab Khan also joined them. At that time, it was further disclosed that one of their companions namely, Fazloo, now absconder, had gone to Peshawar, so they continued their journey. At about 7 p.m. They-reached in a city and the appellant Sohrab Khan and conductor Sharif stayed in a hotel. The driver of the Datsun was told by Hajat Khan that since Fazloo is at some distance, hence the driver was directed to proceed to that very direction. On reaching in a small town, accused Hajat Khan negotiated with some tribles and asked the driver to hand over the keys of the Datsun to him. On return from there, accused Hajat Khan gave some money to the present appellant Sohrab Khan and conductor Muhammad Sharif and told them that Fazloo will bring back the Datsun and we will accompany him on return. After two days of the occurrence, accused Hajat Khan purchased one revolver from Bara and told the driver Muhammad Ayub that if he disclosed the matter to anyone, he will be done to death.
3. Both the driver and accused Hajat Khan then came back to Rawalpindi and stayed there. Hajat Khan smelling the arrival of the police, fled away from the hotel. It is alleged in the concluding para. Of the Murasila that in the stealing of the Datsun, accused Hajat Khan son of Lahore Khan, Sohrab Khan son of Abdul Muhammad and one Fazloo are involved.
4. The said S.-I./S.H.O., Muhammad Riaz proceeded to the tribal area with the owner of the vehicle, namely, Haji Fazal Ali and driver Muhammad Ayub and after a lengthy negotiation, recovered the Datsun on payment of Rs,10,000. As per the complainant's statement, the Murasila was sent to Police Station Skardu for registration of F.I.R. And completion of other legal formalities.
5. Accordingly, F.I.R. No,54 of 1990 was lodged in Police Station Skardu on 27-10-1990, after a delay of two years, for which no plausible explanation has been given in column No,5 of the F.I.R. The case was sent for trial in the Court of Sessions Judge, Skardu against the three accused, Hajat Khan, Sohrab Khan and Fazloo. Copies required under section 265-C, Cr.P.C. Were supplied to the accused. Charge was framed to which they denied and pleaded "not guilty" and further claimed trial. The order-sheet shows that one Haji Fazal Ali submitted an application before the trial Court for acquittal of Hajat Khan accused on the basis of a compromise. This application was opposed by the District Attorney on the basis that the sections of law, with which the accused stand charged are not compoundable and that the applicant Haji Fazal Ali is only a witness, who cannot even affect a compromise. In spite of all this, the learned trial Judge, acquitted accused Hajat Khan on 11-4-1995 on the grounds that since the appellant Sohrab Khan has filed an affidavit exonerating accused Hajat Khan, taking responsibility of the offence committed by him, therefore, by exercising the powers under section 265-K, Cr.P.C. Hajat Khan was acquitted from the charges.
6. As there is no appeal either by the State or by the complainant against the said acquittal order of accused Hajat Khan, therefore, I refrain from commenting on the legality of the order of acquittal, qua Hajat Khan.
7. The record shows that after seeing so many adjournments, it was on A 16-5-1996 when the learned Sessions Judge recorded the statement of the present I appellant under section 342, Cr.P.C. And on the basis of the said statement, I A passed the order on 3-6-1996, which has been impugned in this appeal.
8. I have heard the learned counsel for the appellant as well as for the State. The learned defence counsel has taken me through the statements of the P.Ws. Recorded during the proceedings under section 512, Cr.P.C., in the Court of S.D.M., Skardu and drew my attention to the site plan also, where the name of the present appellant is not mentioned, but it is only stated at point No,1 of the site plan that accused Hajat Khan booked the Datsun in question and took it to Chilas. The learned counsel further submitted that offence under section 364, P.P.C. On the face of it, is not made out, as no "force" as contemplated under section 364, P.P.C. Was used, rather the Datsun was booked by the acquitted accused Hajat Khan from Skardu to Chilas and then to Peshawar. As per further submission of the learned defence counsel, provisions of section 9/14, Hudood Ordinance are also not attracted, as it was not a case of theft. The culpability of the present appellant could not be seen even with microscopic examination of the evidence on record, as even he was not a privy to offence of selling the vehicle. Here, I deem it appropriate to reproduce section 364, P.P.C. For the purpose of convenience:-- "Section 364, P.P.C.: Kidnapping or abducting in order to murder.--- Whoever kidnaps or abducts any person in order that such person may be murdered or may be so disposed of as to be put in danger of being murdered, shall be punished with imprisonment for life or rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine."
A plain reading of section 243, Cr.P.C. Read in conjunction with section 265-E, Cr.P.C. Make it obligatory for the Court to ask the accused after he had pleaded guilty or had made admission of the charge, to show cause as to why he should not be convicted and sentenced. There appears to be wisdom behind this provision of law and the purpose of this provision was to avoid involuntary confessions. The accused persons are often induced to make admission of the guilt. And plead guilty with the promise or the hope that normal sentence of fine or imprisonment will be awarded to them, whereas some of the accused persons do not know the implication of plea of guilty. In this case, a novel procedure has been followed and no searching questions have been put to the appellant, while examining him under section 342, Cr.P.C. Whatever the worth of such plea may be even it did not show that the trial Court had made any efforts by putting questions to appellant to find out if he had made the statement voluntarily. The trial Court should have taken more precaution to find out whether the appellant had voluntarily made the said plea and not in expectation of any lenient sentence.
9. The fact also cannot be lost sight of that if facts or record do not constitute an offence, accused cannot be convicted even if he had pleaded guilty.
10. The proper recourse would have been to remand the case for retrial, but it is stated at the Bar that the principal accused namely Hajat Khan has been murdered recently in Gilgit Bazaar. Since the principal accused is no more in this world and the involvement of the present appellant is not proved from the material placed on the judicial file, therefore, I have no option, but to allow the appeal in hand. Conviction and sentence of the appellant is set aside and he is acquitted of the charges leveled against him. He should be set at liberty from the jail, provided he is not required to be detained in any other offence.
11. The appeal was allowed by a short order, dated 24-11-1996 and these are the reasons for the same.