' MIAN SHAKIRULLAH JAN, J.--- This appeal is directed against the judgment, dated 12-1-1998 delivered by Additional Sessions Judge, Haripur, whereby he convicted the appellant under section 302-A, P.P.C. And sentenced him to death as Qisas for the murder of Muhammad Akram deceased.
2. Brief facts of the case are that Jehandad son of Misri Khan brought the dead body of his son Muhammad Akram to the police station on 6-7-1997 at 9-30 p.m. And lodged the report there.
According to the report that when he was taking meal in the house of Aslam Khan in connection with "Khatam-ul-Qur'an". In the meantime a small boy came to him and informed him that Muhammad Akram was beaten by Tariq Mahmood the appellant. On this he went to the spot and saw the dead body of his son lying on a cot in the courtyard of Muhammad Ashraf. Alongwith the dead body his wife Mst. Anwar Jan, Mst. Naseem Akhtar wife of Muhammad Ashraf and Bashir Muhammad son of Abdul Rashid were standing. They told him that Muhammad Akram deceased while going out of the house and he hardly stepped out of the main gate when the accused caught hold of him and gave him blow on his left ear as a result of which he fell down on the ground. The appellant started giving him screw-driver blows on his back. Mst. Naseem Akhtar and Hawa Jan wife of Muhammad Yaqoob were trying to rescue the deceased from the appellant. However, he succeeded in giving him blows and after which he left him there and made good his escape. The deceased later on succumbed to the injuries. It was stated that there was no motive. However, the accused used to quarrel with them.
3. In consequence of the lodging of this report a case was registered under section 302, P.P.C.
Against the appellant. He was found guilty by the police and sent up to face the trial in Court.
4. The appellant was charged under section 302, P.P.C. To which he pleaded guilty and has stated that he has committed the murder of Muhammad Akram. The learned trial Court after recording of his plead guilty asked him as to why he should not be convicted. The appellant again repeated his plead guilty and in consequence of which the impugned order of conviction and sentence was passed against him and against this order of conviction and sentence the appellant has now preferred this jail criminal appeal.
5. Being a jail criminal appeal Mr. Ghulam Younas Khan Tanoli, Advocate was appointed as counsel for the appellant at State expenses.
6. The learned counsel for the appellant has contended that the learned trial Court has committed an illegality/irregularity that on a capital charge the appellant ought not to have been convicted on mere plead of guilty but the trial Court in addition to his (appellant) admitting the guilt ought to have recorded the evidence. He has further submitted that no motive was stated and in the absence of which the award of capital punishment is unwarranted. That the weapon of offence is not the one with which in the ordinary course of nature a death of a person could have been caused and at the most it was an offence of Qatl Shibh-i-Amd and the appellant should have been convicted under section 316, P.P.C. Instead of section 302(a), P.P.C.
7. The learned A.A.-G. Has opposed the arguments advanced by the learned defence counsel and has contended that in view of the clean breast admission of the crime by the appellant he deserves the punishment awarded to him.
8. The relevant provisions under which the trial Court, after taking the cognizance of the matter will have to proceed as prescribed in sections 265-D and 265-E, Cr.P.C. Which are reproduced as below:-- "265-D. When charge is to be framed.--- If, after perusing the police report or, as the case may be, the complaint, and all other documents and statements filed by the prosecution, the Court is of opinion that there is ground for proceeding with the trial of the accused it shall frame in writing a charge against the accused.
265-E Plea.-- (1) 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;
(2) If the accused pleads guilty, the Court shall record the plea, and may in its discretion convict him thereon."
9. By reading section 265-E it is quite clear that it is not mandatory for the Court that on pleading guilty the Court, in all circumstances, shall have to record conviction rather a discretion/option has been given to the Court that despite the plea of guilty it is for the Court to record conviction or not and in case of not recording the conviction the Court may record the evidence.
10. In a case of Habibur Rehman v. The State 1997 PCr.LJ 1930 the learned Division Bench of this Court while dilating upon the provisions of section 265-E, Cr.P.C. It has been held as under:-- "If the accused accepted the charge and pleaded guilty it shall be recorded into writing, and the Court in its discretion may convict the accused there and then. Even in case of pleading guilty by the accused it is not mandatory for the Court to pass an order of conviction, and the Court even then can summon the prosecution witnesses. There is wisdom behind the use of word 'may' in section 265-E(2), Cr.P.C. Instead of 'shall' because the facts and circumstances differ from case to case, and keeping in view the circumstances of the case the Court may convict the accused on plea of guilty or may call for the prosecution evidence.
(8) The discretion in recording conviction on plea of guilty 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.
The State 1976 PCr.LJ 204."
11. In another judgment from the jurisdiction of High Court of Azad Jammu and Kashmir in case State v. Jehandad Khan 1992 PCr.LJ 592, in a case where the two Presiding Officers of the Court deferred on the point of recording of conviction on the basis of plead guilty, though under different provisions of law but similar to that of section 265-E, Cr.P.C. It was held in para. 4, as under:-- "Moreover, the Legislature further conferred discretion on the Court to convict the accused on such confession or to proceed to record the evidence. These precautions were enforced as, occasionally the confession was made under pressure, coercion, temptations and influences of external forces.
Therefore, the Court has to be alert and be careful while recording the conviction of an accused on the Oasis of his confession."
12. In another case Loung v. The State 1976 PCr.LJ 204 in this case also though under different provisions of law but the principle enunciated is the same as observed in para. 6 of the judgment, which is as under:-- "(6) There is concensus 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 y. The State Criminal Jail Appeal No,134 of 1974."
13. In view of the amendment brought in by Qisas and Diyat Ordinance, later on became an Act, the mode of proof of Qatl-i-Amd liable to Qisas has been prescribed in section 304, P.P.C., which is reproduced as under:-- "304. Proof of Qatl-i-Amd liable to Qisas etc.--- (1) Proof of Qatl-i-Amd liable to Qisas shall be in any of the following forms, namely:-
(a) The accused makes before a Court competent to try the offence a voluntary and true confession of the commission of the offence, or
(b) by the evidence as provided in Article 17 of Qanun-e-Shahadat, 1984 (P.O. No,10 of 1984)."
(2) The provisions of subsection (1) shall mutatis mutandis, apply to a hurt liable to Qisas."
14. Under subsection (1)(a) of section 304, P.P.C. Reproduced above one of the mode of proof is when the accused may make before a Court competent to try the offence voluntary and true confession of the commission of offence.
15. It is true that the proceedings before the trial Court indicate that the appellant has made a confession voluntarily but whether it is true or not is still to be seen and which conclusion can be arrived at by reference to the material on record. Though no specific reference has been made to this aspect of the case in the impugned judgment, yet it appears that the trial Court in order to satisfy itself about the nature of the confession as to whether it is true or not has referred to some material on record by reproducing the medical report submitted by the doctor and also the evidence collected by the Investigating Officer but their evidence to that aspect was not recorded in the Court and in the absence of which such material i,e, the medical report and the various evidence collected by the Investigating Officer referred to in the judgment cannot be considered as a legal evidence against the appellant.
16. The pleas taken by the learned counsel for the appellant at the time of hearing of the appeal, as referred to in the earlier part of this judgment, and the memorandum of appeal whereby the true nature of the commission of offence which entails a Qisas punishment has been challenged.
According to the appellant's counsel in the absence of the motive the appellant was not liable to capital punishment and that is also of Qisas and in view of the instrument with which the deceased was done to death i,e, the screw-drive; and bringing the case within the ambit of Qatl Shibh-i-Amd punishable under section 316, P.P.C. It cannot be said that the confession or plead guilty made by the appellant entailing punishment of Qisas is true and if the evidence had been recorded and had this aspect been attended too then the trial Court might have not awarded the impugned punishment.
17. Resultantly, we accept this appeal, set aside the impugned order of conviction and sentence passed by the learned trial Court on 12-1-1998 and the case is remanded back to the trial Court for de novo trial, recording of evidence A=and decision afresh. The murder reference is answered in the negative.
' The appellant shall not be released from jail and he shall be kept in jail as under-trial prisoner.
' The murder reference is answered in the negative.