1999 PLP 2450 (MLD)

(f) Criminal Procedure Code (V of 1898)

S. 561-A

Penal Code (XLV of 1860) Ss. 53 & 337-A

Sentence-- Modification

Sentence awarded to accused could be modified in exercise of powers under S.561-A. Cr.P.C. vested in Court. (g) Criminal trial

Sentence

Islamic punishment

Object

Object of Islamic punishment was reformation of convicts and not to penalize them in vengeance. (h) Criminal trial

Sentence

Modification

Sentence awarded to accused could be modified in exercise of powers under 5.561-A, Cr.P.C. vested in Court. Muhammad Akhtar v.The State 1993 MLD 370 and Muhammad Nawaz v. The State 1995 PCr.LJ 35 ref.Raja Muhammad Sattarullah for Petitioner. Mubeen Ahmad with Masud Ahmed for the State.Raja Muhammad Aslam for Respondent No.2. Date of hearing: 14th October 1998. Muhammad Jehangir was facing trial in a case under section 337-A(iv) of the Pakistan Penal Code, registered vide F.I.R. No. 104 of 1994, dated 17-8-1924, at Police Station Kallar Syedan, Tehsil Kahuta, District Rawalpindi. After conclusion of the examination of the complainant and two eye-witnesses of the incident and before recording evidence of other witnesses, the petitioner voluntarily confessed his guilt and pleaded for mercy. On the basis of said confessions, the learned Magistrate, 1st Class Resident Magistrate, Kahuta, by his judgment, dated the 17th August, 1995, convicted the petitioner under section 337-A(iv), P.P.C. and sentenced him to 9 months and 15 days imprisonment. Benefit in imprisonment available under section 382-B of the Code of Criminal Procedure was also allowed.

2. The complainant/respondent No.2 being not satisfied with the quantum of sentence moved a revision petition under the provisions of section 439, Cr.P.C. The learned Additional Sessions Judge, Rawalpindi, who was entrusted with the said petition, by his order, dated the 9th May, 1998, enhanced the sentence of imprisonment to three years and also imposed punishment of Arsh amounting to 15 % of Diyat calculated at Rs.2,29,000.

3. Being aggrieved of enhancement of the sentence the petitioner has brought the instant petition under section 561-A of the Code of Criminal Procedure for setting aside the judgment of the revisional Court claiming the same to be contrary to the legal provisions. The petition was opposed on behalf of the complainant contending that, in fact, for the injury caused at the head of Muhammad Sattar injured, the petitioner deserved maximum punishment of ten years imprisonment.

4. I have heard the learned counsel for the parties, including the learned counsel for the (sic).

5. Learned counsel representing the petitioner contended that in the first place after denial of charge by the petitioner, the confessional statement of the petitioner could not be recorded that too on oath nor on the basis of such confession the petitioner could be convicted. In this context, the learned counsel relied upon Sarfraz Khan v. The State (1985 PCr.LJ 167), wherein relying upon two Indian judgments in Lalji Ram v. Corporation of Calcutta (AIR 1928 Cal. 243) and another reported at AIR 1957 Trav. Co.

89. The learned Judge of the Peshawar High Court had held that once a formal charge is framed and put to accused who denies the same, it becomes imperative for the Court to proceed under section 244, Cr.P.C. by hearing the complainant and afterward the accused and his evidence in defence. Once the evidence of the prosecution commences, there cannot be staged a retreat to section 243, Cr.P.C. by procuring the plea of guilty from the accused. At this stage if an accused makes a voluntarily confession the same will be recorded within the requirement of section 364, Cr.P.C. and shall not be put to the accused for his explanation as incriminating circumstance under section 342, Cr.P.C. and such a confession shall not amount to a plea of guilty within the meaning of sections 242 and 243, Cr.P.C. as to be made a sole basis of conviction by the Court. It was also urged that in view of the plea of mercy by the petitioner, the enhancement of the sentence by the revisional Court was unwarranted.

6. At this stage, however, any objection to the recording of petitioner confession is not competent. The petitioner had not challenged the order of the learned trial Court which had convicted and sentenced him to imprisonment for nine months and fifteen days under section 337-A(iv), P.P.C. Hence, his conviction stood finalised on by the learned Magistrate as no appeal or revision was preferred against the said conviction. In fact, the learned counsel for the petitioner only objected that confessional statement could not be record under oath. But, since till the enhancement of his sentence, the petitioner had not objected to his conviction based on his confessional statement, he cannot turn around to object to the recording of his confessional statement made voluntarily which shall deem to be a statement made under the provisions of section 340(2) of the Code of Criminal Procedure. In this respect support is drawn from Muhammad Usman v. The State PLD 1991 FSC 39, wherein the Federal Shariat Court had held that by substituting the provisions of section 340(2), Cr.P.C. there seems to have been made a radical departure from the age old common law concept which has been in vogue in this sub-continent for over a century, that in criminal administration of justice the entire burden has been on the prosecution to prove and bring home the guilt to the accused. If the prosecution fails to produce requisite evidence, accused goes scot-free, and in case of civil liability the suit against the defendant stands dismissed. Under the Islamic Law since every one is he best Judge of his conscience and is ultimately answerable before Allah the Almighty and according to Faith is liable to punishment in the World Hereafter for all his wrongs and misdeeds, an accused/defendant is burdened with taking an oath of denial after the prosecution/plaintiff's evidence is closed. It may be added that the oath under the Islamic Law is an obedience to the precept of the Holy Prophet (Sallallaho alaihe wa sallam). It was further held therein that ' under the Islamic Law, as has come down to us through centuries, the oath was to be administered either on the demand of the plaintiff or by the Court itself. In Pakistan under the aforesaid provision of section 340(2), Cr.P.C., looking to the conditions prevailing in the society, it has been made incumbent on the Court to give oath to the accused in all situations after the prosecution evidence is over: --

7. In Nazir Ahmad v.The State (PLD 1975 Lahore 304). wherein Lalji Ram'.s case (AIR 1928 Cal. 243 (supra)) was also considered it was held by this Court that the law does not provide specific period until the confessional statement is recorded. For facility of reference the relevant extract of the said judgment is reproduced below: -- "Section 243, Cr.P.C., empowers a Court to convict an accused person on the basis of his confession provided the confession is recorded, as nearly as possible, in his words and he fails to show sufficient cause against his conviction. The language. of the section is not trammelled by any condition of fixation of time stage when the confession is to be recorded. The words of the section do not indicate that it shall cease to have operation at any subsequent stage of the trial. It is correct that the provisions of section 243, shall come into operation immediately after the particulars of the offences have been put to an accused person and he makes an admission of his guilt, but this does not mean that the section is operative only up to this particular stage and after this it becomes dormant, with the result that the Magistrate shall have to go through the exercise of recording the evidence in spite of the fact that the accused at some intermediary stage comes forward to make a clean breast of the whole matter. The object of the section is to permit a Court to convict a man on the basis of his confession without taking the trouble of recording evidence and it has been left to the trial Court to decide whether or not to record some evidence in support of the prosecution story to assure itself of the capability of the accused or to determine the quantum of sentence. The intention of the Legislature will not be fully achieved if we restrict the operation of the section to the particular stage when the particulars of the offence are put to an accused person under section

242. Wherever Legislature intends to fix a point of time, it does give an indication to that effect. In my humble view, the observations made in the case of LaIji Ram referred to above, to the effect that once the Magistrate has started recording evidence after the denial of the charge by the accused, he has to go through the whole process, do not reflect the correct legal position. " Hence, in the light of above dictums of the Federal Shariat Court and this Court and, in particular, substitution of section 340(2), Cr.P.C., the recording pf voluntary statement under oath in which all other legal formalities had been adhered to is not an irregularity which may vitiate the whole proceedings.

8. The petitioner has mainly stressed that in view of his voluntary admission of guilt and plea of mercy, the enhancement of his sentence was not justified. From the record, it is clear that the occurrence in which the petitioner had caused injury to Sultan was not a pre-planned incident but was a result of fight which had ensued suddenly because of grazing of cattle by the petitioner. Further, under section 337-A(iv), P.P.C. the punishment for hurt in the nature of Shajjah-i-Munaqqilah is Arsh being fifteen per cent of the Diyat. In addition to punishment of Arsh, the Court may award the punishment of imprisonment which may extend to ten years as Ta,zir. Meaning thereby that whereas in case of Shajjah-i-Munaqqilah, the punishment of Arsh is mandatory, the punishment of imprisonment is discretionary which may or may not be awarded by the Court keeping in view the circumstances and facts of each case.

9. In the instant case, the sentence of imprisonment only awarded by the learned trial Court was not a legal punishment as provided in section 337-A(iv) of the Pakistan Penal Code. In this respect, the learned Additional Sessions Judge was justified in altering such sentence to the sentence of Arsh and imprisonment. But the calculation of Arsh was, however, not correct as well as the punishment of imprisonment in the circumstances of the case was excessive. It is an admitted fact that the occurrence had taken place on 17-8-1994. Hence, the amount of Arsh had to be calculated on the basis of amount of Diyat announced by the Federal Government in pursuance to subsection (2) of section 323 of the Pakistan Penal Code for that year. In this connection, by its Notification S.R.O. 667(1) of 1993, dated the 1st July, 1994, the Federal Government had declared the value of 36630 grams of silver for the year 1994-95 for the purpose of determining the value of Diyat to be Rs.2,02,923.75 only. On the other hand, the learned Additional Sessions Judge, by his judgment, dated 9-5-1998 has erroneously determined such valuation as Rs.2,29,

000. Similarly, the contents of the voluntary statement made by the petitioner on 17-8-1995 admitting his guilt clearly indicate that he had completely been shattered and truly repentant of his guilt. The object of Islamic punishments is reformation of the convicts and not to penalize them in vengeance. In the circumstances, the punishment of imprisonment of three years in addition to compulsory punishment of Arsh was certainly excessive, Hence, as held by this Court in Muhammad Akhtar v. The State (1993 MLD 370) and Muhammad Nawaz v. The State (1995 PCr.LJ 35), the sentence awarded to the appellant can be modified in exercise of powers under section 561-A of the Code) of Criminal Procedure vested in this Court.

10. In view of the above discussion, no interference in the conviction of the accused is called for because of his clear admission of guilt before the trial Court. The punishment of sentence of Arsh is also maintained but the same shall be calculated at 15 % of the Diyat at Rs.2.02,923.75 as announced by the Federal Government under section 323 of the Pakistan Penal Code for the year 1994-95 when the occurrence had taken place. The sentence of imprisonment is also reduced from three years to 15 months with benefit in imprisonment available under section 382-B of the Code of Criminal Procedure, The present petition is partly allowed to the extent stated above. H.B.T./M-907/L Order accordingly.