IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Cr. Rev. Appln. No. D- 36 of 2017

Before;

Mr. Justice Muhammad Iqbal Mahar

Mr. Justice Irshad Ali Shah

 

Applicant:                 The State/ANF through Assistant Director ANF P.S Sukkur  through Mr. Ubedullah Malano, SPP ANF Sukkur

                                    None for the respondents

 

Date of hearing:     31.01.2019

Date of order:         31.01.2019

                       

O R D E R

 

Irshad Ali Shah, J;- The State/ANF through its Assistant Director at Sukkur by way of instant criminal revision application has impugned order dated 17.3.2017 passed by learned Incharge 3rd Additional Sessions Judge / Special Judge (CNS) Sukkur, whereby he has disposed of Special Case No.39/2012 re- “State vs. Hazar Khan and another” outcome of FIR Crime No.06/2012 under Section 9(c) of CNS Act, 1997 of Police Station ANF Sukkur.

2.                    The facts in brief necessary for disposal of instant criminal revision application are that respondents Hazar Khan and Fazal Din with rest of the culprit allegedly on 08.6.2012 were found in possession / transporting through their Hino Truck 340 kilograms of charas by police party of P.S ANF Sukkur, for that they were booked and reported upon by the police to face trial for above said offence, they were charged for the above said offence on 12.10.2013 by learned trial Court, they did not plead guilty to the charge. When case against them was about to proceed, they on 17.03.2017 by way of an application pleaded guilty to the charge before learned Incharge 3rd Additional Sessions Judge / Special Judge (CNS) Sukkur . They were served with the notices and then were convicted and sentenced by learned Incharge 3rd Additional Sessions Judge / Special Judge (CNS) Sukkur, in following terms;

“I take lenient view and convict accused Hazar Khan S/o Imam Khan by caste Brohi and Fazal Din S/o Jeal Khan by caste Jakhrani and sentenced to suffer rigorous imprisonment for a period already undergone and fine of Rs.50,000/- each. In case of non-payment of fine they would suffer eight months S.I more. The accused are also extended benefit of Section 382-B Cr.P.C.”

 

3.                    The State/ANF being aggrieved of disposal of its case against the private respondents, in above said manner by learned Incharge 3rd Additional Sessions Judge / Special Judge (CNS) Sukkur by way of order dated 17.03.2017 has impugned the same before this Court by way of instant criminal revision application, as stated above.

4.                    The notices were issued against respondents Hazar Khan and Fazal Din repeatedly, the service whereof, they defeated successfully. Hearing to either of the party in case like the present one even otherwise, as per mandate contained by Section 440 Cr.P.C is optional, therefore, the learned counsel for the applicant/State/ANF was called upon to argue its case.

5.                    It is contended by learned counsel for the applicant/State/ANF that the learned Incharge 3rd Additional Sessions Judge / Special Judge (CNS) Sukkur was having no authority to have disposed of the case of another Court finally that too without providing chance of hearing to the applicant/prosecution/State. By contending so, he sought for setting aside of the impugned order, as same according to him being illegal has been passed by learned Incharge 3rd Additional Sessions Judge / Special Judge (CNS) Sukkur in excess of his jurisdiction and without lawful justification.

6.                    We have considered the above arguments and perused the record.

7.                    Charge in a criminal case by Sessions Court is to be framed under section 265-D Cr.P.C. If accused pleads guilty to the charge then his plea is to be recorded under Section 265-E Cr.P.C, and then the Court under sub-section (2) to Section 265-E Cr.P.C may in its discretion convict the accused. The use of word “may” would prima facie suggest that it is not necessary or mandatory for the Court that in every case accused is to be convicted of the offence for which he is charged, on the basis of his admission to guilt. It is the circumstances which are to be taken into consideration. In the instant case, there is no denial to the fact that respondents Hazar Khan and Fazal Din did not plead guilty to the charge in first instance, their pleas to that effect were recorded by learned trial Court seized of the matter. At subsequent stage when the case was ripe for recording the evidence of prosecution’s witnesses, they by way of making a separate application pleaded guilty to the charge that too before an Incharge Judge. It was taken as an admission to the guilt on their part, which infact was not in legal terms and then they were convicted and sentenced by learned Incharge Judge, without loss of time, significantly, without providing chance of hearing to Applicant/State/prosecution. It was against the spirit of natural justice and mandate contained by Article 10-A of the Constitution of the Islamic Republic of Pakistan, 1973 which prescribe that every person shall be entitled to fair trial and due process of law for determination of his rights and obligations in civil or criminal charges against him. None indeed is to be condemned unheard. The justification which prevailed with learned Incharge 3rd Additional Sessions Judge / Special Judge (CNS) Sukkur for making disposal of the instant case against the private respondents as is detailed by him in his order (dated 17.03.2017) was to the following effect;

“Prior to discussion it is mentioned that the I/C Judge of the Court can only deal with urgent matters whereas the case in hand requires urgency..as the accused persons due to their old age, youngness and poorness of their family are facing agony trial without any progress and voluntarily they plead their guilt with mercy. Reliance is placed on 2012 MLD 783.”

 

8.                    The above paragraph of the impugned order would go to suggest that the age and financial condition of the private respondents were found to be main factors, which apparently prevailed with learned Incharge 3rd Additional Sessions Judge / Special Judge (CNS) Sukkur to make disposal of the case of the Applicant/State/prosecution in hasty manner. Nothing was brought on the file of learned Incharge Judge by the respondents to show that they are financially poor. Needless to state that, no case of like nature is to be disposed of by considering the age and financial conditions of the accused facing such trial.

9.                    If it is believed that the urgent disposal of the case against respondents Hazar Khan and Fazal Din, on account of their age and financial condition being poor was essential then they ought to have been punished for the imprisonment which is prescribed by law. The offence which the private respondents allegedly committed, was entailing punishment for imprisonment of life/death and fine. By convicting and sentencing respondents Hazar Khan and Fazal Din to undergo imprisonment to which they have already undergone (which is spreading over 5 years and few months) with benefit of Section 382-B Cr.P.C with fine of Rs.50,000/- each, was too short to meet with the requirement of law in the case like the present one, such omission on the part of learned Incharge Judge could not be overlooked which has rendered the impugned order to be illegal.

10.                  In view of the facts and reasons discussed above, it could be concluded safely that the impugned order having been passed by learned Incharge 3rd Additional Sessions Judge / Special Judge (CNS) Sukkur in improper exercise of its jurisdiction being illegal could not be sustained. It is set aside with direction to learned trial Court to proceed with the case afresh in accordance with law.

11.                  The instant criminal revision application stands disposed of in above terms.

Judge

Judge

ARBROHI