JUDGMENT, Dost Muhammad Khan, J.--Younas Khan, the appellant has been convicted and sentenced to death on two counts for offence under Section 302 PPC , by the learned Additional Sessions Judge- IV Peshawar vide judgment dated 16.12.2002. Through the instant appeal he has questioned his conviction and the sentence awarded to him.
2. Facts of the case are not required to be reproduced or discussed because the appellant has been convicted and sentenced on plea of guilty recorded on 18.11.2002.
3. After completion of investigation, charge sheet against the appellant on which cognizance was taken and charge against him was framed on 7.7.2000 which he denied and claimed trial.
4. The case was repeatedly adjourned due to absence of PWs and in the course of the trial on 5.6.2002 the trial Court found the appellant acting abnormally in the Court, therefore, to find out his mental state of health he was referred to the Medical Board for examination and opinion which was received wherein he was found mentally and medically fit for trial.
5. For unknown reasons on 18.11.2002 the appellant disclosed before the trial Judge that he wanted to plead guilty to the charge and to that effect his short statement was recorded which is reproduced below:-- "I plead guilty to the charge u/S. 302 PPC in case FIR No, 600 dated 30.10.1998 Police Station Chamkani for having committed Qatl-eAmd of decd. Khadim Hussain and Barkat-Hussain by firing at them and place myself at the mercy of the Court".
RO & AC 18-112002Sd/- (Muhammad Salim Khan) Additional Sessions Judge-IV Thumb impression Younas accused.
6. After recording the above statement of the appellant, the case was posted finally to 16.12.2002 on which date through the impugned judgment the appellant was convicted and sentenced to death on two counts.
7. The procedure for trial before Court of Sessions is given in Chapter XXII-A.Cr.P.C. For the disposal of the present appeal the provisions of Section 265-E and 265-F are relevant for discussion.
8. U/S 265-E the Court is required to explain to an accused the charge framed u/S. 265-E and u/S. 2 of Section 265-E it is provided that if the accused pleads guilty, the Court shall record the plea and may in its discretion convict him thereon, however, under the provision of Section 265- F(1) if the accused does not plead guilty and claims trial then the Court is bound to hold the trial in the manner laid down therein.
9. From the plain reading of the above provision of law it is settled that when an accused denies the charge and claims trial then the Court is essentially required to hold the trial and the stage of recording the plea of guilt of an accused is over and no more available to the Court.
10. The right of an accused to claim trial is an indefeasible and it is for the accused alone to forfeit or surrender such right at a latter stage of the trial and if he communicate to the Court to that effect and intends to admit this guilt then in that case the proper legal procedure is to record a full statement/confession of the accused as nearly as possible in the same manner as laid down in Section 364 Cr.P.C. and the Court shall also probe into the mind of the accused as to what were the reasons which promoted or induced him in making a confession at a latter stage when he has earlier denied the charge against him. This exercise must be carried out because of the requirements of principles of justice as the Court must be satisfied that the subsequent confession made by the accused at a latter stage of the trial is free from any promptness or other inducing cause both from inside and outside quarters and then the Court would be within its jurisdiction and competent to record conviction but the Court is debarred from re-embarking on the premises of Section 265-E, Cr.P.C. when the accused admit his guilt at a latter stage of the trial because the recording of conviction on a plea of guilt is confined and limited to the stage of framing and explaining the formal charge to an accused.
11. Apart from the above, by now it is a consistent view of the superior Courts that in case/offence which carry capital punishment Court shall not record conviction on the mere plea of guilt of the accused made at a stage of framing of formal charge against him but to further satisfactory of its judicial mind about the guilt of an accused, evidence of the prosecution shall be recorded.
12.In the instant case, the learned trial Judge has failed to comply with the mandatory provision of law and settled principles of justice, therefore, in our view the conviction and sentence of the appellant is thus not sustainable in law.
13.For the above reasons, therefore, this appeal is allowed, the conviction and sentence of the appellant are set aside and case is remanded back for trial denovo from the stage when the impugned judgment was passed and pending trial the appellant shall be kept as under trial prisoner.