1992 P Cr (PLP)

(c) Criminal Procedure Code (V of 1898)

Ss. 242 & 243

Azad Jammu and Kashmir Islamic Penal Laws Enforcement Act (IX of 1974), S. 5

Confession

Accused at the stage of their examination under S.2A2, Cr.P.C. admitted the charge as correct and said nothing beyond that

Trial Court as a matter of precaution was advised under circumstances to proceed to record prosecution evidence in order to give decision on merits, instead of recording conviction of accused at such stage. Muhammad Akram Mughal, Addl. A.-G. for the State. Abdul Basit for the Complainant. Respondents in person. This reference has been made by the District Criminal Court, Kotli, vide its order of February 23, 1991, on account of difference of opinion between the members of the Court on the question of conviction of Mst. Karim Jan and Mst. Nisaj Begum, accused, on their confession of the charge of murder of Muhammad Yaqub deceased, at the stage of their statements under section 242, Cr.P.C.

2. A case was registered on the report of Sakhawat Khan, on the charge of murder of Muhammad Yaqub, deceased under section 5, Islamic Penal Laws Act, on November 28, 1988. It was stated that Muhammad Yaqub deceased was brother of Sakhawat Khan. Muhammad Yaqub had no male issue out of his previous marriage. However, he had 3 daughters among whom Mst. Nisaj Begum was elder one. In order to marry Khudija, the step-sister of Muhammad Yaqub son of Kamma, he proposed the hand of Mst. Nisaj Begum, his daughter to Muhammad Yaqub. The aforesaid arrangement was carried through. Mst. Nisaj Begum was not happy in marriage, on account of old age of her husband. She deserted her husband. She was sent back many times by her father. Khudija also reciprocated by leaving the house of her husband, the deceased. On November 26, Muhammad Yaqub, husband of Mst. Nisaj Begum, visited the house of the deceased to take his wife back, but he was sent back with the promise that Mst. Nisaj Begum will go to the house of her husband on November

28. On the night of November 27 and 28, at 2-30 a.m., it was alleged that Sakhawat Khan, complainant went out of his house to urinate when he beard cries of Mst. Nisaj Begum that someone had killed her father. He found the dead body of the deceased soaked in blood. She told him that some 3 unknown persons killed her father. On completion of investigation, the prosecution challaned Abdul Ghafoor and Muhammad Saghir. They were examined under section 242, Cr.P.C. on August 11, 1990. Subsequently, on the basis of the confession recorded by the Magistrate on December 20, 1990, the present accused were put to trial. Jehandad Khan and Mahboob pleaded not guilty, whereas Mst. Nisaj Begum and Mst. Karim Jan, daughter and widow of the deceased, pleaded guilty in their examination under section 242, Cr.P.C. The trial Court was persuaded to record conviction of the accused who pleaded guilty. The learned District Qazi was of the view that the order of conviction should be passed after recording evidence of the prosecution. The learned Sessions Judge disagreed with the learned District Qazi and proposed to convict the accused who pleaded guilty at that stage. On account of difference in the aforesaid opinion, the reference was made.

3. The relevant provisions of law applicable to such situation have been provided under section 243, Cr.P.C. It is postulated that when an accused pleads guilty of the charge, the Magistrate is enjoined upon to record the plea of guilt of the accused in the words of the accused and if the accused shows no sufficient cause as to why he should not be convicted, the Magistrate may convict him accordingly. The spirit of law is that the confession of the accused should be reduced into writing, possibly in his own words, to enable the Court to ascertain the text of such confession, to reach the conclusion that such words constituted a legal confession, sufficient to record the conviction. On recording such confession, it was further enjoined upon the Magistrate or the Court to provide an opportunity to the accused pleading guilty, to show cause as to why he should not be convicted. When no sufficient cause was shown, the Magistrate or the Court was empowered to record conviction or to proceed to record evidence of the prosecution, as it deemed fit.

4. The scheme of law suggests to take necessary precaution while recording confession of an accused. This is so as such confession was likely to result in his conviction. The confession by itself not having been deemed sufficient, the A Legislature further ensured that the words uttered by the accused should be reduced into writing, to assess whether such words or language were compatible with the alleged charge so as to constitute the confession. Moreover, the Legislature further conferred discretion on the Court to convict the accused on 1A 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 basis of his confession.

5. In the present case, as noticed earlier, according to prosecution, Jahandad and Mahboob, accused were hired to murder Muhammad Yaqub deceased. Mst. Karim Jan and Mst. Nisaj Begum hired them for the job in consideration of Rs.8,

000. The lady accused are daughter and widow of the deceased. Jahandad is an old man. Mahboob is quite young. The lady-accused were read out the charge at the stage of their examination under section 242, Cr.P.C. They admitted the charge as correct and said nothing beyond that.

6. In view of the circumstances listed above, the trial Court, as a matter of precaution, is advised to proceed to record the evidence of prosecution in order to give decision on merits, instead of recording conviction of the accused at this stage. The reference is answered accordingly. N.H.Q./125/Sh.C.A.??????????????????????????????????????????????????????????????????????????? Order accordingly