1. ' MUHAMMAD MOOSA K. LEGHARI, J.--- This criminal appeal is directed against the judgment, dated 15-10-1998 passed by the learned 1st Additional Sessions Judge, Badin, whereby he convicted the appellant under section 302, P.P.C. And sentenced him to death penalty for five times to be hanged by neck till death and to pay compensation of Rs,1,00,000 (one lac) to the heirs of deceased under section 544-A, Cr.P.C. Recoverable as land revenue, and in default to suffer imprisonment for six months more. He was further convicted for an offence under section 324, P.P.C. To suffer R.I. For ten years and to pay fine of Rs,30,000 and in default to suffer R.I. For six months more. He was also convicted for an offence under section 380, P.P.C. To suffer R.I. For seven years and a fine of Rs,20, 000 and in default to suffer R.I. For six months.
2. ' According to the allegations levelled in the F.I.R. Crime No,79 of 1997 registered on 29-12-1997 at Police Station Shaheed Fazil Rahu under sections 302, 324 and 380, P.P.C. By complainant Feroze Khan, a retired Army Subedar, accused/appellant Muhammad Shafquat was his elder son from first wife. He allegedly committed murders of Mst. Amna Bibi, Mst. Maryam, Ahsanullah, Mst. Bal Bibi and Mst. Bano Bibi, daughters, son, wife and mother-in-law of the complainant; caused injuries to Hafizullah son of the complainant and committed theft of DBBL gun, pension book and the documents of the tractor and the land.
3. ' The appellant was arrested on 30-4-1998. After usual investigation police sent up the appellant/accused to stand trial.
4. ' On 15-10-1998 the charge was framed against the accused/ appellant. The appellant pleaded guilty. Accordingly plea of guilt of the appellant/accused was recorded, and on the basis of his pleading guilty, the appellant was convicted in terms as stated hereinabove.
5. ' Learned counsel for the appellant and learned State Counsel have been heard.
6. ' Mr. Muhammad Azeem Panhwar, learned State Counsel submitted that the major penalty of death awarded to the appellant could not be sustained merely on the basis of plea of guilt. He submitted that it was incumbent upon the learned trial Court to have recorded material evidence in support of the conviction as the offence involved capital punishment. The other illegality pointed out by learned State Counsel is that the confession of the accused was relied upon by the learned trial Court which was not brought on record in accordance with the law. The accused was not even confronted with the confession, which was relied upon by the learned trial Judge for basing his conviction.
7. ' It is argued by learned counsel for appellant that apart from above illegalities the judgment is unlawful as it has not been recorded in accordance with the provisions of section 367, Cr.P.C.
8. Inasmuch as that no points for determination have been framed.
9. ' We have considered the arguments advanced at the bar, examined the judgment, and perused the R&Ps. And the paper book. Besides we have scrutinized the law on the point.
10. ' It is an undisputed fact that the appellant was convicted on the basis of his plea of guilt. The appellant was awarded capital punishment The judgment is silent as to whether the charge was explained to th accused and whether any question was asked from the appellant as whether he was pleading guilty voluntarily or under some duress inducement. The conviction on the admission is to be governed by provisions of section 243, Cr.P.C. Section 243, Cr.P.C. May reproduced advantageously:-- "Section 243.--- If the accused admits that he has committed the offence with which he is charged his admission shall be recorded as nearly as possible in the words used by him; and, if he shows no sufficient cause why he should not be convicted, the Magistrate may convict him accordingly."
11. ' In Mehmood Khan v. The State reported in 1991 PCr.LJ 2158 a learned Division Bench of Lahore High Court set aside the conviction and sentence of seven years under Explosive Substances Act recorded on the basis of admission. The relevant portion of the said judgment, wherein, the wisdom behind section 243, Cr.P.C. Was discussed is reproduced hereunder:-- "The plain reading of this section will show that before awarding sentence, the trial Court was obliged to ask the appellant after he had pleaded guilty or had made admission of the charge, to show as to why he should not be convicted and sentenced. There appears to be wisdom behind this provision of law. The purpose of this provision was/is to avoid involuntary admission. The accused persons are often induced to make admission of the guilt and plead guilty with the promise or the hope that nominal sentence of fine or imprisonment will be awarded to them. Some of the accused persons do not know the implication of the plea of guilt. Since in the instant case, the mandatory requirement of further notice to the accused to show cause as to why he be not convicted on the basis of the admission, was not complied with, so there is no exception but to set aside the conviction and sentence of the appellant."
12. ' On perusal of the above judgment it appears that a sentence of mere seven years was set aside though in the case before us the appellant was awarded death penalty.
13. ' According to section 265-E, Cr.P.C. The charge shall be read and explained to the accused and he shall be asked whether he is guilty or has any defence to make. Subsection (2) of section 265-E provides "if the accused pleads guilty, the Court shall record the plea, and may in its discretion convict him thereon".
14. ' The word "may" appearing in subsection (2) of section 265-E, Cr.P.C. Is quite significant. There is wisdom behind the use of word "may" in the said subsection instead of "shall" and keeping in view the circumstances of the case the Court may convict the accused on plea of guilt or may call for the prosecution evidence. In Habib-ur-Rehman v. The State reported in 1997 PCr.LJ 1930 a Division Bench of the Peshawar High Court has observed as under:-- "8. The discretion in recording conviction on plea of guilt has also got nexus to the punishment. In case of a charge of carrying minor punishment the Court may on the plea of guilt by the accused convict him there and then but where the charge is of an offence carrying capital punishment of death or transportation of life, the Court is required to examine the prosecution evidence even if the guilt is admitted by the accused in response to a .Charge, as discussed in the case of Loung v.
15. The State 1976 PCr.LJ 204. 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 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."
16. ' In Loung v. The State 1976 PCr.LJ 204 following principle of law as enunciated:-- "There is consensus of judicial authorities that in spite of the fact that there is no bar to the acceptance of the plea of guilt but in cases involving capital punishment for life term the conviction should not normally be based on the plea of guilt. The practice has been that plea of guilt is not usually accepted. It is desirable for a trial Court to record the evidence itself and judge the case in the light of the evidence so recorded instead of relying on the plea of guilt or on the evidence recorded by the Enquiry Court. In this view I am supported by a judgment of a Division Bench of this Court in Akbar v. The State Criminal Jail Appeal No,134 of 1974."
17. ' The said view was upheld by a learned Division Bench of Peshawar High Court in Tariq Mchmood v.
18. The State 2000 PCr.LJ 837.
19. ' On perusal of the judgment, we noticed that the learned trial Court also relied upon the confession of the appellant recorded before the Magistrate. The said confession was not produced on record in accordance with law. Even the accused was not confronted with the said confession allegedly made by him.
20. ' Since the appellant was awarded capital punishment, we are of the view that the learned trial Court was under obligation to require the appellant/accused to show cause as to why he was pleading guilty. There is nothing on record to show that the admission of guilt by accused/appellant was voluntary and that no element of inducement or duress was involved. The authorities as cited hereinabove are squarely applicable in the facts and the circumstances of the present case. We are persuaded to follow the dictum laid down in the above mentioned pronouncements.
21. ' On the basis of the above discussion we have arrived at the conclusion that the impugned judgment of conviction and sentence was recorded in derogation of law and is not sustainable.
22. The same is accordingly set aside. The case shall be remanded to the trial Court for trial after framing the charge. In case the accused pleads guilty, his plea of guilt shall be recorded in accordance with law, and the observations made hereinabove. We would further direct that some material evidence be brought on record and the matter shall be decided after hearing the parties.
23. ' The appellant/accused shall, however, remain in prison and shall not be released. He shall be produced before the trial Court as and when so ordered.
24. ' For the above reasons the murder reference is not confirmed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.