NAZIR AHMAD Versus THE STATE

The petitioner in this revision petition filed under section 439, Cr. P. C. was Muharrir Record in the office of the Sadar Kanungo, Gujrat. He was prosecuted for offences under section 161, P. P. C. read with section 1(2) of the Prevention of Corruption Act, 1947, for accepting a bribe of Rs. 10" and was sentenced to a fine of Rs. 15 on the basis of his confessional statement made to the Special Judge on 14th of July, 1973.

2. The petitioner was tried according to the procedure laid down under the Pakistan Criminal Law (Amendment) Act, 1958, which provides for appeal as also for revision under section 10 of the Act to the highest Court having appellate jurisdiction in the territorial limits in which the .offence is tried by the Special Judge. Section 439, Cr. P. C. was, therefore, in terms not applicable to the present case. Perhaps a revision petition -was filed under the impression that the sentence being Rs. 15 only, no appeal lay under the provisions of section 413, Cr. P. C. The Pakistan Criminal Law (Amendment) Act, 1958, is a special law laying down a special procedure for the trial of criminal cases falling within its purview and on the general principle that the special excludes the general, an appeal under section 10 of the Criminal Law (Amendment) Act was the proper remedy. ;I order that this petition may be converted into an appeal.

3. The appellant. appeared before the Special Judge on 19th of April, 1973, and was examined under section 242, Cr. P. C. He denied the charge. -The case was then adjourned for evidence to 26th of May, 1973. On this date, the accused appeared to be ailing and his lawyer was also busy before the Sessions Court. The witnesses who were present were bound down and -the case was adjourned to 23rd of June. 1973. On this date, one of the witnesses was given up and the other being ill, his statement was not recorded. The case then came up for hearing on 14th of July, 1973. The accused indicated to the Court that he wanted to make a statement. The Court -proceeded to record his statement which is in the following terms:

"I confess to the commission of the offence and pray for mercy."

The learned Special Judge thereafter announced orders convicting the petitioner and imposing upon him a fine of Rs. 15.00 or in default to undergo ,Imprisonment for one week.

4. Mr. Barkat Ali Saleemi, attacked the legality of the conviction by arguing that in a summons case a confessional statement could be made by an accused person only at the time when the charge is put to him under section 242, Cr. P. C. but when he denies the charge at that stage, it is the duty of the Court to proceed to record the entire evidence and at no intermediary stage a confessional statement could have been recorded and made the basis of conviction. He in this conviction referred to Lalji Ram v. Corporation of Calcutta A I R 1928 Cal. 243. The learned counsel also contended on the basis of Emperor v. Kasim A I R 1925 Sind 188 and Habibar Rehman Serang and others v. State P L D 1960 Dacca 213 that even if a confessional statement had been made, the Court is bound to record evidence before coming to the conclusion that the accused is guilty. The Dacca judgment relied upon by the learned counsel in support of this proposition does not go so far as to prove his contention. All that is said in this judgment is that where a plea of guilty has been .repudiated and confession has not been recorded in accordance with the provisions of section 243, Cr. P. C., a conviction cannot be sustained in the -absence of some other evidence. The Sind judgment referred to above . dealt with some murder cases where the accused had pleaded guilty and wherein light or nominal sentences had been passed. The Judicial Com missioner's Court emphasised the desirability of recording evidence in cases -punishable with death even when the accused had offered to plead guilty. The reason given was that the Court in such cases in order to determine the nature of offence and quantum of sentences had to examine the question -whether any extenuating plea was open to the accused and for this ,purpose evidence had to be recorded. The Court had laid down a rule of procedure and had not said that no conviction could be based on the confessional statement of an accused without evidence. Section 243, Cr. P. C., gives a discretion to the Court to convict an accused person on the plea of guilty. No judgment could possibly override this clear provision of law.

5. The case of Lalji Ram in a way does lend some support to the contention of the learned counsel that when an accused denies a charge put to him under section 242, Cr. P. C., and the Court has started recording evidence under section 244, Cr. P. C., conviction cannot be sustained on the basis of a confessional statement at an intermediary stage. A careful reading of the judgment would indicate that the observations supporting the contention of the learned counsel were in the nature of obiter and the main ground for setting aside the order of conviction was that the confession of the accused had not been recorded in his own words.

6. 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 condi tion of fixation of time or stage when the confession is to be recorded. The words of the section do not indicate that it shall cease to have opera tion 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 offence 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 culpability 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 Lalji 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.

7. The appellant did not deny that he had made a confessional state ment. In the grounds for revision it was said that he had done so on the persuasion of the counsel for the prosecution, but nothing was urged at the time of hearing in support of this bald assertion. The confessional statement is not, therefore, denied. It has been written in the words of the appellant. Mr. Saleemi said that no question was put to the accused as to why he should not be convicted. The appellant was a Muharrir in the office of the Deputy Commissioner dealing with judicial records and is supposed to have some educational qualifications. He knew the charge, against him which he denied at the earlier stage. He had offered to make a confessional statement after three adjournments had been occasioned in the case. The failure of the learned Magistrate, therefore, to ask him to show cause against his conviction is only a technical omission. It was not shown that any prejudice had been caused to the appellant because of this omission of the learned Magistrate.

8. I, therefore, do not find any force in this appeal, which is, hereby,, dismissed.

9. I had issued notice for enhancement in this case. It was, however, argued before me that the appellant was about to retire when the case was. registered against him and had thus suffered a tremendous loss because of his conviction. It was also submitted that the appellant having made. a clean breast of the matter, had a legitimate expectation that a lenient view of his misdemeanour shall be taken. In view of these considerations. I discharge the notice of enhancement.

S. A. H. Appeal dismissed.