1976 P Cr (PLP)

The appellant has assailed the judgment of the learned Sessions Judge, Sukkur, dated 7‑5‑1974, whereby he convicted the appellant and sentenced him to a term of five years' rigorous imprisonment and to pay a fine of Rs. 1,000 or in default further R. I. for six months .under sec tion, 304 P. P. C.

2. The facts forming the background of this case are that during the night between 2‑2‑1974 and 3‑2‑1974 the appellant killed his wife and on 3‑2‑1974 at about 6 a. m. be appeared in the Police Post Madaji, Taluka Garhi Yaseen, District Sukkur to report the matter. Accordingly an F. I. R. was registered by A. S. I. Ghulam Rasool of Police Station Madaji and finally the case was challaned under section 302, P. P. C.

3. Pre‑trial enquiry was held by the Civil Judge and F. C. M., Garhi Yaseen who committed the appellant to the Sessions Judge, Sukkur for‑trial on 28‑3‑1974. After the committal of the case to Sessions Court for trial the learned counsel for the State moved an application to the learned Sessions Judge, Sukkur that the prosecution evidence disclosed that only a case under section 304 (I), P. P. C. was made out against the appellant and therefore the charge may be amended from one under section 302, P. P. C. to section 304 (I), P. P. C. The request was allowed and the charge was accordingly amended by the learned Sessions Judge, Sukkur. The appellant pleaded guilty and was convicted to the above referred term of sentence.

4. The appellant has pleaded in appeal that he killed his wife out of 'Ghairat' as she was "Karl" with one Gulsher and he had actually found her asleep with him.

5. I have examined the case and found that the conviction is based on the plea of guilt of the appellant which has not been recorded in his own words. The amended charge reads as under:‑ "That you on 3‑2‑1974 at Asar time in your house in village Mandaji, Taluka Garhi Yaseen under sudden and grave provocation committed culpable homicide not amounting to murder by causing the death of your wife Mst. Hakim by giving her hatchet blows and thereby committed an offence punishable under section 304(I), P. P. C. and within the cognizance of this Court. And I hereby direct that you be tried by this Court on the above said charge." The provisions of section 271, Cr. P. C. require that before the commencement of the trial the charge shall be read out and explained to the accused and he shall be asked if he pleaded guilty of the offence of he claims to be tried. It is apparent from the plain reading of this section that law requires that the accusation should be put to the accused person in explicit terms when he is brought before the trial Court and he should be asked whether he pleaded guilty to the charge or claimed to be tried. The reply given by him shall be reduced into writing in his own words. In this case the correct procedure has not been followed and therefore it is a case of non‑compliance of the provisions of section 271, Cr. P. C. In these circumstances, the plea of guilt was wrongly accepted by the learned Sessions Judge, Sukkur.

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 view I am supposed by a judgment of a Division Bench of this Court in Akbar v. The State Cr. 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 guilt but as the consensus of the judicial authorities is that tire 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 person himself and that it was not sufficient to say in the charge that the accused had pleaded guilty.

7. In this view of the matter I set aside the impugned judgment and remand the case for re‑trial from the stage the plea of guilt was recorded. Case remanded.