' MANZOOR AHMAD MALIK, J.---This judgment shall dispose of Criminal Appeal No,156 of 2004 (Atif Abaidullah v. The State) and Murder Reference No,169 of 2004 sent by the learned trial Court for confirmation or otherwise of the sentence of death awarded to the appellant, as they arise out of the same judgment, dated 22-1-2004 passed by Rao Sultan Ali Tahir, Additional Sessions Judge, Sheikhupura, whereby, appellant was convicted under section 302(b), P.P.C. And sentenced to death with a further direction to pay a compensation of Rs,1,00,000 as provided under section 544- A, Cr.P.C. To the legal heirs of the deceased.
2. As the appellant was convicted solely on the basis of his confessional statement made before the learned trial Court after framing of charge for the murder of Ali Hassan and no prosecution evidence whatsoever was recorded by the learned trial Court, therefore, before proceeding further with the case, this Court asked learned counsel for both the parties to address the Court qua legality or otherwise of the impugned judgment of conviction.
3. Learned counsel for the appellant contends that the conviction recorded by the learned trial Court, against the appellant solely on the basis of confession of the appellant is bad in the eye of law as not even a single prosecution witness was examined; that it was incumbent upon the learned trial Court to record the prosecution evidence even if there was a confession by the appellant as the prosecution was required to prove its case against the appellant beyond any shadow of doubt irrespective of the appellant's confession. Learned counsel further contends that if the confession of the appellant is accepted as a whole, the provisions of section 85, P.P.C. Are attracted. Learned counsel submits that this case should be remanded back to the learned trial Court for recording of prosecution evidence from the stage of confessional statement of the appellant. In support of the above contentions, learned counsel has placed reliance on Ashiq Hussain v. The State (1993 SCMR 417), Ali Sher v. The State and 3 others (PLD 1980 Supreme Court 317), Mehmood Khan v. The State (1991 PCr.LJ 2158) and Loung v. The State (1976 PCr.LJ 204).
4. Conversely, learned counsel for the complainant, contends that the appellant made the confession voluntarily without any pressure or duress; that the learned trial Court has rightly accepted the said confession and convicted the appellant; that the provisions of section 85 P.P.C.
Are not attracted in this case because it was for the appellant to show that he was intoxicated against his will or without his knowledge and that this appeal is liable to be dismissed. He has placed reliance on Khyzar v. The State (1974 SCMR 295) and Ghulam Qadir v. The State (2007 SCMR 782).
5. We have heard learned counsel for the parties, have given anxious consideration to their arguments and have also gone through the precedent case-law cited at the Bar.
6. We have noted that in this case the appellant was convicted and sentenced solely on the basis of his confession which was recorded by the learned trial Court on the day of framing the charge i.e, 22-1-2004. Perusal of the order sheet shows that on 14-1-2004, appellant was produced before the learned trial Court when he showed his desire to make a confessional statement. However, the learned trial Court adjourned the case to 21-1-2004, so that the appellant may think again. On the said date i.e, 21-1-2004, the appellant was again produced before the learned trial Court and the appellant submitted two applications. Through application (Mark-A), the appellant requested the Court that a counsel, at State expense be provided to him, whereas, through application (Mark-B), the appellant stated that he had committed the blunder because of intoxication. In the said application, it was also mentioned that the appellant came to know about this incident on next day through an A.S.-I. When he (the appellant) was in lock-up. The case was adjourned to 22-1-2004 for framing of charge and recording of confessional statement of the appellant, if any, on which date, charge was framed. On the same day, certain questions were put to the appellant and in answer to a question "Whether you are still willing to make voluntarily and freely a confessional statement before this Court?", the appellant made the following statement:-- "I confess causing the murder of Ali Hassan son of Saifullah voluntarily and with my free consent. I am making this statement without any fear or favour. There is no pressure or coercion upon me and nor any inducement. I was under intoxication at the time of this incident. I have committed this mistake. I leave myself at the mercy of the Court which should take a lenient view."
7. Most of the precedent case-law relied upon by the learned counsel of the appellant is irrelevant as in the case of Ashiq Hussain v. The State (1993 SCMR 417), prosecution evidence and the defence plea raised by the accused were taken into juxtaposition, case of Ali Sher v. The State and 3 others (PLD 1980 Supreme Court 317) was delivered on an appeal against acquittal in which evidence was recorded while Iytglunood Khan v. The State (1991 PCr.LJ 2158) was not a case of capital punishment. However, in the case of Loung v. The State (1976 PCr.LJ 204), relevant observations of the Court are as under:- "(6) 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 or 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 I am supported by a judgment of a Division Bench of this Court in Akbar v. The State (Criminal Jail Appeal No,134/74). Incidentally, I was a Member of the Bench which decided this case. It has been held, in this case that although there is no bar to accept the plea of guilty but as the consensus of the judicial authorities is that the plea of guilt should not normally be accepted and the capital cases should be tried despite plea of guilt. It has also been held in this case that the plea of guilt should always be recorded in the words of the accused persons himself and that it was not sufficient to say in the charge that the accused had pleaded guilty."
8. The precedent case-law cited by the learned counsel for the complainant is also of not much relevant. As the case of Khyzar v. The State (1974 SCMR 295) would be relevant on hearing case on merits while the case of Ghulam Qadir v. The State (2007 SCMR 782), talks qua conviction of the accused on the basis of circumstantial evidence and retracted confession coupled with the fact that the prosecution evidence was recorded in the said case.
9. It is evident from the impugned judgment that the appellant has been convicted and sentenced to death on the basis of this plea of guilt/confession which he made before the learned trial Court, as quoted above, of killing the deceased, However, we feel restraint to comment much on the evidentiary value of the confession and leave this question for the learned trial Court to see whether the provisions of section 85, P.P.C. Are application or not, suffice it to say, that as capital punishment was likely to be awarded to the appellant solely for the reason that the appellant had admitted his guilt, therefore, the learned trial Court should have recorded the prosecution evidence, but it failed. In our view, the learned trial Court Judge acted in an undue haste and proceeded to record judgment warranting death penalty in a cursory and careless manner, rather, over zealous manner. In this regard, reference is made to cases of Khalil Ahmad v. The State (2006 SCMR 685), Tariq Mehmood v. The State (2000 PCr.LJ 837) and Khan Baig v. The State (PLD 1984 Lahore 434).
10. In the afore-referred circumstances, we are in agreement with the argument of the learned counsel for the appellant that it was the duty of the learned trial Court to record the prosecution evidence after recording the plea of the appellant. Therefore, keeping in view the mandate of subsection (b) of section 376, Cr.P.C., the impugned judgment is termed as no judgment in the eye of law, the same is set aside and the case is remanded back to the learned District and Sessions Judge, Sheikhupura either to try this case himself or entrust it to some learned Additional Sessions Judge for its trial from the stage of plea of guilt/confessional statement of the appellant on the same charge which was framed against the appellant. As the case pertains to the year, 2003, therefore, in the paramount interest of justice, the learned trial Court is directed to complete the trial within a period of four months, positively, from the date of receipt of this judgment. It is observed that during the pendency of the trial, the appellant shall remain in jail as an under-trial prisoner. The Additional Registrar (Judicial) of this Court is directed to immediately send back the record of this case to the learned District and Sessions Judge, Sheikhupura, for compliance.
' Murder Reference is answered in the negative and sentence of death is not confirmed.