Naveed Khan Vs The State

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

D.I.KHAN BENCH

(Judicial Department)

Cr. Revision No.51-D/2025

Naveed Khan Vs. The State

For petitioner: Muhammad Naveed Mehsud Advocate

For State: Mr. Ghulam Muhammad Sappal Addl. Advocate General

Date of hearing 21.11.2025

JUDGMENT

INAMULLAH KHAN, J.- Petitioner has filed this petition under Sections 435 and 439 of the Code of Criminal Procedure to set aside the order dated 20.11.2023 passed by the learned Additional Session Judge-I/Judge Special Court, South Waziristan at Tank, in connection with the criminal case registered vide FIR No.14 dated 20.06.2023 under Section 9-D of K.P. CNSA-2019 at Police Station Makin, District South Waziristan.

2.Facts of the case in brief are that the petitioner was arrested for having possession of 1050 grams

Charas and the above referred FIR was registered against him. After completion of investigation and submission of final report, the case was tried by the Judge Special Court/Additional Sessions Judge-I, South Waziristan. After delivery of copies in terms of Section 265-C Cr.P.C. charge was framed against the petitioner to which he pleaded ‘not guilty’ and claimed trial. Hence, trial commenced and the prosecution was directed to produce its evidence. In the meanwhile, accused submitted an application for decision of his case on the basis of ‘plead guilty’. Notice under Section 265-E(2) Cr.P.C. was given to him to which he remained firm on his plea of guilt, and as such, the learned trial court vide order dated 20.11.2023 convicted him under Section 9-D of Khyber Pakhtunkhwa Control of Narcotic Substances Act, 2019, and sentenced him to undergo five months simple imprisonment with fine of Rs.50,000/- or in default thereof to suffer seven days further imprisonment. Now the petitioner has assailed the sanctity of said conviction through this petition.

3.Learned counsel representing petitioner at very inception of arguments, requested to convert this

revision petition into appeal and argued that the impugned order is against the mandate of Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973, therefore, limitation cannot be a hurdle for decision of this case on merits. He argued that the accused is a poor person and he could not engage his counsel therefore, filed application for arranging a pauper counsel to contest the charges of prosecution, and thereafter he was made to believe that he will have no harm to his life and liberty if he signed the application and notice, rather he will be released from jail. His thumb impression was obtained without informing him the consequences thereof and he put his thumb with the belief that the court will acquit him from the charge. He maintained that while passing the impugned order procedure has not been followed by the learned trial court, besides, the case of prosecution is not rehabilitated through the evidence and record on the file. He prayed that although the petitioner has undergone the period of sentence yet he is entitled for acquittal as conviction is a stigma for him`.

4.Learned Additional Advocate General

contended that the order was passed on 20.11.2023

which has attained finality and cannot be challenged.

He stated that petition is barred by Section 412 Cr.P.C.

to question the legality of impugned order being passed on the basis of plead guilty of petitioner. He prayed for dismissal of this petition.

5.Arguments heard and record perused with the able assistance of learned counsel representing petitioner and that of the learned AAG.

6.In the light of the contentions taken up during arguments as well as in the memorandum of the petition, although the law of limitation is the foremost element for the decision of a case, and in case of failure on complying with the law of limitation, other merits cannot help the party who travelled beyond the period of prescribed limitation. But in the criminal cases, particularly, involving conviction of an accused person, the situation is different and the delay always remains subservient to the merits of case because, the right to appeal provided either under Section 24 of the K.P. CNSA-2019 or Sections 408 and 410 of the Criminal Procedure Code against an order of conviction is also the fundamental right of an accused as enshrined in Article 9 of the Constitution of Islamic

Republic of Pakistan, 1973. The said Article 9 of the Constitution provides to a citizen for protection of life and liberty which reads that ‘no person shall be deprived of life or liberty save in accordance with law’.

7.The term ‘save in accordance with law’ means the modalities of regulating, restricting or even rejecting a fundamental right falling within Article 9 of the Constitution of Islamic Republic of Pakistan, 1973, have to be fair, carefully designed to effectuate, not to subvert, the substantive right itself. In this regard, a fair trial is the first imperative of the dispensation of justice. Further, Article 10 of the Constitution gives safeguard as to arrest and detention in certain cases.

Clauses (1) and (2) of the Article 10 apply to a person arrested or detained under law otherwise than preventive detention. Article 9 of Constitution supplements the various requirements laid down under Article 10 of the Constitution. Personal liberty cannot be cut out or cut down without fair legal procedure.

Enough has been set out to establish that a convict deprived of his freedom by the Court’s sentence but entitles to an appeal against such verdict as part of his

protection under Article 9 of the Constitution and as implied in his statutory right of appeal. It is a fact that the convict irrespective of any means, are particularly handicapped class. The morbid cell which confines them to walls cut off from the world outside. Legal remedies are obtained beyond their physical and even financial reach. Under the said circumstances denying the condonation of delay in filing the appeal/revision outrightly will cause further hardship, inconvenience and the same will be prejudicial to their interest. A fundamental right by no stretch of imagination can be taken away by way of technicalities. Thus, keeping these fundamental and statutory rights of a convict in mind, I deem it appropriate to convert the revision petition into criminal appeal under Section 24 of the KP CNSA in the interest of justice to ascertain the legality of impugned judgment and decide the question of limitation in view of the overall circumstances of the case.

8.A threadbare perusal of the record transpires that after submission of final report, the copies in view of Section 265-C Cr.P.C. were delivered to accused on 19.10.2023 and charged was framed on 28.10.2023 to

which accused/appellant denied the charge and claimed trial. Thus, trial commenced and prosecution witnesses were summoned. However, on 20.11.2023 accused submitted an application for decision of his case on the basis of ‘plead guilty’. A notice under Section 265-E(2) Cr.P.C. was served on him, to which accused replied that he places himself at the mercy of the Court, and he was thus convicted and sentenced vide order dated 20.11.2023. Now question before this court is ‘whether the trial Court was justified in convicting the appellant/accused’. To answer this, the scheme of criminal trial before the Court of Session as envisaged in the Code of Criminal Procedures has to be looked into.

9.Section 265-C of the Cr.P.C. mandates that a court must provide the accused with copies of all relevant documents free of cost at least seven days before the commencement of trial. Section 265-D Cr.P.C. outlines the process for framing a charge after a trial court has examined the police report or complaint, and all other documents and statements filed by the prosecution. If the Court finds sufficient grounds, it will frame in writing a charge against the

accused. Section 265-E mandates that the charge shall be read over and explained to the accused and he shall be asked whether he is guilty or has any defence to make. The plea of accused person then determines the subsequent steps in the case. sub-section (2) provides that if he pleads guilty the court shall record the plea and may in its discretion convict him thereon.

10.Section 265-F is crucial for ensuring a fair trial, allowing both the prosecution and the accused to produce evidence, and ensuring that all relevant witnesses and documents are considered by the Court. This section provides that if accused does not plead guilty to the Charge or the Court in its discretion does not convict him on his plead guilty, the Court shall proceed to record the evidence of prosecution.

11.In this case, upon framing charge under Section 265-D Cr.P.C. the accused/appellant denied the charge and claimed trial, thus there was no occasion for the learned trial court to proceed under Section 265-E(2), rather the provisions of Section 265-F come into play.

Accordingly, the learned trial court posted the case for recording evidence. Now the trial court was required by section 265-F Cr.P.C. to conclude the prosecution

evidence followed by statement of accused and then to process and conclude the trial as envisaged under Sections 265-G and 265-H Cr.P.C. But in this case, the learned trial court after scheduling the case for prosecution evidence, recorded the plea of accused by switching back to the provisions of Section 265-E(2) Cr.P.C. instead of proceeding forward. Learned trial court failed to comprehend that the provisions of Section 265-E are linked with Section 265-D Cr.P.C.

and the stage of recording plea was over after the accused denied charge and claimed trial. If accused wanted to admit his guilt after commencement of trial, then the trial court was required to call for the witnesses of prosecution and when the examination of the witnesses for the prosecution concluded, record the statement of accused under Section 342 Cr.P.C. to take on record the plea of accused regarding admission of his guilt. This Court in the case of Habib-ur-Rehman1 had already held that

After complying with section 265-E, Cr.P.C., and when the accused did not plead guilty and claimed trial, there is no other way for the Court but to call for the prosecution evidence in support of Habib-ur-Rehman Vs. The State (1997 P.Cr.L.J. 1930 Peshawar)

the charge from the stage when the charge was charged and answered by the accused till the statement of the accused under section 342, Cr.P.C. and the conclusion of the prosecution evidence. There is no other stage or section of law enabling the Court to ask the accused of the charge levelled against him. After pleading not guilty the accused can only be allowed to accept the charge in his statement under section 342, Cr.P.C.

12.In the case of Waqar Ahmad2 the Hon’ble Karachi High Court observed that the plea of guilt in the form of a written application received from the accused after the examination of witnesses is contrary to the principles of fair trial. Hence, after Section 265- F Cr.P.C. there is no stage enabling the Court to ask the accused of the Charge, as after pleading not guilty an accused person can only be allowed to accept the charge in his statement under Section 342 Cr.P.C. The impugned order of the learned trial court is totally perverse, violative of the procedure as laid down in the Code of Criminal Procedure and therefore the same is legally unwarranted.

13.As regard the objection of learned AAG that section 412 Cr.P.C. bars appeal in the cases of plead Waqar Ahmad Vs. The State (2025 MLD 1152)

guilty, suffice it to say that recording the plea as to admission of guilt, as mentioned above, suffer from incurable procedural lapses infringing the fundamental rights guaranteed under Articles 9 and 10-A of the Constitution of Pakistan, and as such, legal sanctity cannot be attached to the impugned order to shelter it under the provisions of Section 412 Cr.P.C. reliance in this regard is placed on the case of Jahanzeb3, wherein, Hon’ble Baluchistan High Court held that:

9.It is an admitted fact that by virtue of the provisions of section 412 Cr.P.C. an accused, who pleaded guilty to the charge has no right of appeal against his conviction but he can maintain an appeal only to the extent of the legality of the sentence passed against him by the learned trial Court. This section does not restrict the powers of the High Court to consider the legality of conviction in the exercise of its inherent jurisdiction. Even otherwise since the trial court committed illegality and irregularity, therefore, section 412 Cr.P.C. would not stand in the way of the appellant.

14.As amply discussed above, the learned trial court heavily relied upon the admission of guilt and ignored that the appellant, in the first instance, denied Jahanzeb Vs. The State (2021 P.Cr.L.J. Note 2)

the formal charge and pleaded innocence, therefore, the learned trial court should have probed into the mind of the appellant, as to what prompted him to make such an admission at a belated stage. While dealing with the identical matter in Muhammad Ismail’s case4, the Honourable Supreme Court of Pakistan was pleased to observe that:

12.True, that under section 265-E, Cr.P.C. the Trial Court in a session case, has a discretion to record the plea of the accused and if he pleads guilty to the charge, it may convict him in its discretion. Nevertheless, it is also provided in section 265-F, Cr.P.C. that if the Trial Court does not convict him on his plea of guilt, it shall proceed to hear the complainant (if any) and take all such evidence as may be produced in support of the prosecution. This discretion is to be exercised with extra care and caution, and ordinarily on such admission, awarding capital sentence of death shall be avoided and to prove the guilt of an accused, evidence of the complainant or the prosecution has to be recorded, in the interest of safe administration of justice.

The most important factors and required standards of confession may be cited below:-

Muhammad Ismail Vs. The State (2017 SCMR 713)

It should be ensured,

(i)that the accused is in full senses and understands the consequences of making a confession;

(ii)that, the confession was not a result of any duress, coercion or any promise by the prosecution, to be made an approver;

(iii)that, during transit of the accused by the police from and to the Trial Court from the prison, on each "Paishi" no threat or pressure was applied by the escorting police guard or incharge thereof;

(iv)what were the actual facts, which induced the accused to confess after facing trial, during which he pleaded innocence all the way;

(v)the court recording the confession has to ensure that the mental capacity of the accused is not diminished due to any illness and if some indication of abnormality is suspected by the Court, it is better to refer the accused to the Standing Medical Board to ascertain the true cause thereof;

(vi)While recording the confession, the same safeguards and precautions be adopted, by

directing the Public Prosecutor, the complainant's counsel, the Naib Court and all other officials to leave the Court. If need be, the counsel who represents him, may be given an opportunity to be present inside the Court during the whole process, if the accused person, on asking by the Trial Judge, so demands;

(vii)the handcuffs of the accused be removed and he be provided a chair on the dais. He may be given some time to think over the making of the confession and in that regard particular questions be put to him, as to why he was making the confession when he has already pleaded innocence and claimed trial at the time, the formal charge was framed;

(viii)the Trial Judge shall explain to the accused that, in case of making confession, he has to face a capital sentence in a murder case or any offence punishable with death;

(ix)the entire record of all the questions and answers recorded, be properly maintained and thereafter, a proper certificate be appended thereto, showing the satisfaction of the Trial Judge that the accused person was not mentally sick and he was making

the confession voluntarily, based on true facts and that, there was no other compelling reason behind that.

15.In this case the Hon’ble Apex Court while discarding the admission of the guilt by the accused during trial, discussed the merits of prosecution’s case and awarded conviction on the basis of prosecution’s evidence recorded prior to the plead guilty of accused.

The standards of the admission of guilt as hinted above, being not followed in the instant case, the conviction cannot be sustained legally.

16.Now, coming to the request of the counsel for appellant to condone the delay in filing appeal. Being a matter of fundamental and statutory right, relating to the life and liberty of a person, the limitation cannot take away such rights of a convict if he became able to prove that the conviction so awarded is unwarranted.

Ultimately acquittal by itself become a justified and sufficient reason to condone the delay. The right of life and liberty of a person being a fundamental constitutional right cannot be refused on the basis of any technical reason viz limitation. As mentioned above, the conviction order of the learned trial court

was totally violative of the procedure and no legal sanctity can be attached to same, therefore, the limitation cannot be a hurdle in the way of appellant.

The delay in appeal, in the overall interest of justice, is thus condoned and appeal is considered to be filed within time.

17.Additionally, by taking guidance from the judgment of Muhammad Ismail’s case supra whereby the Apex Court after discarding the plea of admission of the guilt of accused, decided the case on merits, when this case is taken on merits, discarding the plea of admission of guilt by appellant, it transpires that no evidence was recorded by the learned trial court after the framing of charge. However, the record of trial court being available with the learned Additional Advocate General was examined and as per prosecution’s case the appellant was arrested on 20.06.2023 during picketing made by Zubair Khan, SHO Police Station Makin, the appellant was arrested for having possession of 1050 grams Charas. Five grams was separated for forensic analysis and sealed into parcel No.1 while the rest quantity, 1045 grams, was sealed into parcel No.2. He sent Murasila for

registration of case. After registration of the case Investigating Officer came on the spot to whom he handed over the accused with both the parcels and then came back to the police station. But in the Daily Diary No.14 dated 20.06.2023 of the Police Station, the factum of arrest of accused and recovery of 1050 grams charas from him during Nakabandi, is mentioned, but there is no mention of preparation of parcels and handing over of accused and parcels to the I.O. (Sher Zaman OII) which creates a question mark over the proceedings allegedly conducted by the SHO on the spot.

18.Moreover, the copy of Register No.19, available on file transpires various discrepancies. The I.O. Sher Zaman, in arrival report vide daily diary No.13 mentioned that he handed over the case property to the Moharrir of Police Station, whereas, column No.2 of Register No.19 portrayed the name of depositor as Zubair Ahmad SHO and no date of deposit is mention.

Similarly, in column No.4, the weight of parcel No.1 has not been mentioned the words noted therein are:

رگامرچس1اپرلسربمن. Similarly, no entries have been made in the columns No.6, 7, & 8 of the Register No.19, meant

respectively for proceedings conducted, signatures of receiver and sender, and Remarks. Hence, Register No.19 does not state the weight of sample, its fate to whom and when it was handed over to the despatcher for delivering it to the FSL. The Receipt of Rahdari contains the date of dispatch of sample as 21.06.2023, whereas, sample received to FSL on 27.06.2023.

These are incurable dents in the prosecution’s case which create doubt regarding process of preparation of sample, its safe custody and safe transmission to the forensic lab. These lacunas go deep into the roots of the prosecution case and cannot be filled even the case is remanded for recording prosecution evidence.

Besides, it is a settled law that for giving benefit to an accused, it is not essential that there should be many grounds for the same, even a single doubt is sufficient to extend its benefit to an accused person as it is the cardinal principle of criminal administration of justice that, let hundred guilty persons be acquitted but one innocent person should not be convicted. In the case of Muhammad Mansha5 the Hon'ble Apex Court has held that while giving the benefit of doubt to an accused it is not necessary that there should be many Muhammad Mansha Vs. the State (2018 SCMR 772)

circumstances creating doubt. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of such doubt, not as a matter of grace and concession, but as a matter of right. It is based on the maxim, ‘it is better that ten guilty persons be acquitted rather than one innocent person be convicted’.

19.For what has been discussed above, this Court is of the firm view that the prosecution has failed to prove its case against the accused/appellant beyond reasonable doubt; therefore, his conviction cannot be maintained. Resultantly, while extending him the benefit of the doubt, this appeal is allowed and the impugned order/judgment of conviction and sentence dated 20.11.2023 recorded by the learned trial Court is hereby set aside and consequently the appellant is acquitted of the charges levelled against him.

Announced.

(*M/Subhan) -Sd/-

JUDGE

(S.B) Hon’ble Mr. Justice Inam Ullah Khan