1997 P Cr (PLP)

SHAH JEHAN KHAN YOUSUFZAI, J.

Accused-appellant Habibur Rehman was tried by a learned Sessions Judge/Zila Qazi, Dir at Timargera and on conviction under section 302, P.P.C. was sentenced to imprisonment for life with a fine of Rs.20,000 payable to the legal heirs of the deceased by way of compensation under section 544-A, Cr.P.C. or in default thereof to suffer further imprisonment for six months. The appellant was, however, extended the benefit under section 382-B, Cr.P.C. Feeling aggrieved the appellant has filed this appeal through Jail against his conviction and sentence as aforesaid.

2. The prosecution case in brief is that on 3-5-1990 at 7-00 hours Ghaniur Rehman complainant made a report to Mohabat Khan, S.H.O., Police Station Khall at Village Kamar Tall, District Dir to the effect that on 30-4-1990 at 9-00 his first cousin Zahirullah was sitting on a Kacha road near the graveyard of Village Kamar Tall. Meanwhile, Habibur Rehman, accused-appellant, armed with a klashnikov emerged and fired at Zahirullah, as a result of which he was hit on his head and back and died on the spot instantaneously. The accused decamped from the spot. As per custom prevailed in the area the deceased was buried in the graveyard of Village Kamal Tall without post-mortem/medical examination. The motive disclosed in the F.I.R. was that 4/5 years back the accused had suspected his other first cousin Inayatullah for having illicit relation with his wife. The said Inayatullah was alleged to have gone to Raiyad for the last 3/4 years and the accused committed the murder of the deceased in substitution of the former. The delay in lodging the report was stated to be unawareness of law. The occurrence was allegedly witnessed by one Shad Muhammad apart from the complainant.

3. The Investigating Officer allegedly recovered two empties of Klashnikov, took blood-stained earth from the spot, prepared the injury-sheet death report of the deceased and the site plan, recorded the statements of the P. Ws. and conducted house search of the accused as preliminary investigation Subsequently he produced the eye-witnesses for recording their statements under section 164, Cr.P.C. Proceedings under sections 87 and 204, Cr.P.C were initiated against the accused-appellant, The accused-appellant was arrested from his house on 20-7-1990 and was produced for recording his confessional statement before the Magistrate First Class on 24-7-1990 and thereafter, he was remanded to judicial lock-up. On completion of investigation challan under section 173, Cr.P.C. was submitted to the Court of Magistrate 1st Class exercising the powers under the P.A.T.A. Regulation, 1975 on 31-5-1994. The case was then received by the Court of Sessions Judge Dir on the same date. The accused-appellant was summoned by the Court for framing of charge on 31-10-1994 on which date the charge was framed to which he pleaded guilty and admitted his crime. The accused neither engaged a private counsel to defend him nor acceded to the assistance of any counsel at the State expenses but opted to defend himself his case. On 17-7-1994 some of the P.Ws. were examined while some of them were abandoned and the remaining witnesses were summoned for 25-8-1994 on which date the Presiding Officer was on leave and thereafter, the case was continuously adjourned for one reason or the other till 31-10-1994 when formal charge for the second time was framed. On this date, not only the accused pleaded guilty but had also admitted his crime contrary to his earlier stand on 5-7-1994 when he pleaded not guilty and claimed trial. The accused was then kept in judicial custody till 3-11-1994 when his confessional statement was recorded and one another opportunity for thinking about the confessional statement was again provided. Thereafter, the case was adjourned for four times and, as stated earlier, ultimately on 18-1-1995 the impugned judgment/order was passed whereby the accused-appellant was convicted and sentenced.

4. The learned counsel appearing for the appellant contended, firstly, that under the law an accused person cannot be charged twice and in the instant case the first charge was framed against the accused-appellant on 5-7-1994 to which he pleaded not guilty and then formal charge was framed on 31-10-1994 for the second time, therefore, the learned trial Court was not competent to again frame formal charge. In support of his contention reliance was placed on Faiz Muhammad v. The State 1986 PCr.LJ 2250 and The State v. Muhammad Iqbal 1986 PCr.LJ 2730 and secondly, that a confessional statement cannot be recorded on oath under section 5 of the Oaths Act, 1873. In support of this submission the learned counsel has placed reliance on (i) Muhammad Bukhsh v. The State PLD 1956 SC 420, (ii) Gulab Khan and another v. The State PLD 1971 Kar 299 and (iii) Manzur v. The State PLD 1973 Lah. 714.

5. The learned Assistant Advocate-General objected to the maintainability of this appeal and argued that since the accused/appellant has pleaded guilty to the charge before the learned trial Court, therefore, he cannot file an appeal against his conviction questioning the legality or the quantum of sentence. The learned Assistant Advocate-General pointed out that the convict-appellant has confessed his guilt at three different dates, firstly during the investigation before Magistrate 1st Class on 24-7-1990, secondly, on 31-10-1994 when his admission of guilt was recorded on oath and; thirdly, on 3-11-1994 when his detailed confessional statement was recorded. In these circumstances, the learned Assistant Advocate-General supported the impugned judgment.

6. We have heard the learned counsel for the appellant and the learned Assistant Advocate-General at the Bar and given our anxious consideration to their respective contentions.

7. In so far as the maintainability of this appeal is concerned, suffice it to say that even in a case where accused pleaded guilty at the time of framing the charge the legality of the sentence can validly be challenged in appeal. After considering the aforesaid two legal submissions of the learned counsel for the appellant in the light of the relevant provisions of the law and the judgment cited at the Bar we find that it would appropriate to reproduce below section 265-D, Cr. P.C.:-- "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." Section 265-E(1) of the Criminal Procedure Code, 1898 reads as under:-- "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." If the accused did not plead guilty the Court to proceed further under section 265-F, Cr.P.C. which reads as under:-- "If the accused does not plead guilty on the Court in its discretion does not convict him on his plea, the Court shall proceed to hear the complainant (if any) and take all such evidence as may be produced in support of the prosecution: Provided that the Court shall not be bound to hear any person as complainant in any case in which the complaint has been made by a Court. (2) The Court shall ascertain from the Public Prosecutor or, as the case may be, from the complainant, the names of any persons likely to be acquainted with the facts of the case and to be able to give evidence for the prosecution, and shall summon such persons to give evidence before it. (3) The Court may refuse to summon any such witness, if it is of opinion that such witness is being called for the purpose of vexation or delay or defeating the ends of justice. Such ground shall be recorded by the Court in writing. (4) When the examination of the witnesses for the prosecution and the examination (if any) of the accused are concluded, the accused shall be asked whether he means to adduce evidence. (5) If the accused puts in any written statement, the Court shall file it with the record. (6) If the accused, or any one of several accused, says that he means to adduce evidence, the Court shall call on the accused to enter on his defence and produce his evidence. (7) If the accused, or any one of several accused, after entering on his defence applies to the Court to issue any process for compelling the attendance of any witness for examination or the production of any document or other thing, the Court shall issue such process unless it considers that the application is made for the purpose of vexation or delay or defeating the ends of justice. Such ground shall be recorded by the Court in writing. " A bare reading the abovereferred sections would reveal that the trial Court after the perusal of the police report or complaint shall come to the conclusion that the materials placed before it are sufficient to proceed with the trial of the accused, it shall frame the charge against the accused, and after recording the charge before the accused and explaining to him it shall ask the accused in writing, whether he admits the charge by pleading guilty or offers some defence to the charge levelled against him? 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. 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 Ieve1.leu 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.

9. In the present case, the charge against the convict-appellant was framed on 5-7-1994 to which he pleaded not guilty, and the Court rightly issued summons against the prosecution witnesses. Three prosecution witnesses formal in nature were duly examined on 17-7-1994, some of the witnesses were abandoned and some of them though present could not be examined for the reason that proceedings were adjourned to 25-8-1994 and fresh summons were ordered to be issued to the remaining prosecution witnesses. Thereafter, few adjournments were granted for different reasons and on 31-10-1994 formal charge was framed for the second time without any legal authority, to which the convict-appellant pleaded guilty. The Court can alter the charge subsequently, but could not frame the charge for second time. The conviction and sentence of the accused-appellant based on the plea of guilt in response to the second charge are illegal and against the prescribed procedure. The judgments cited by the learned counsel for the convict-appellant also support the aforesaid conclusion.

10. As far as the second contention of the learned counsel for the accused -appellant is concerned, the same is also based on facts. The statement of the convict appellant was taken on oath, which is prohibited under section 5 of the Oaths Act, 1873. The accused may be examined as his own witness on oath under section 340(2), Cr.P.C. but not in case of pleading guilty. An accused can only give a statement on oath in his defence and will also be cross-examined. In the instant case, the statement of the accused was not only recorded on oath in disregard of section 5 of the Oaths Act, 1873 and section 340(2), Cr.P.C. but his statement was also attested/certified under section 364, Cr.P.C. The statement of the accused can be recorded under section 164, Cr.P.C. and certified under section 364, Cr.P.C. at the stage of investigation. The learned trial Court was, therefore, not competent to record the statement in a manner attested/certified under section 364, Cr.P.C.

11. For the reasons stated above, we would allow this jail criminal appeal, set aside the conviction recorded and the sentence imposed upon the accused -appellant and would remand the case back to the learned trial Court for proceeding with it from the stage of recording the order-sheet, dated 17-7-1994 strictly in accordance with law and the observations made above. The accused- I appellant shall be treated as under-trial prisoner with no benefit of the order of remand by us. The learned trial Court shall conclude the trial of the accused- appellant within a period of three months on day-to-day hearing basis. N.H.Q./2181/P Case remanded.