' CH. EJAZ MSAF, C.J.--- This appeal is directed against the judgment, dated 11-6-'002 passed by II- Additional Sessions Judge, Mirpurkhas whereby he has convicted the appellants under section 10(4) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as "the Ordinance") and sentenced both of them to death as Tazir. Murder Reference No,2/K of 2002 has been sent for confirmation of the above sentences.
2. The facts are in as very short compass. On 23-4-1999 at 23-00 hours report was lodged by one Ghulam Muhammad son of Mashkool with P.S. Kot Ghulam Muhammad District Mirpurkhas wherein, it was alleged that on the said date the complainant was grazing sheep near the sugarcane crop of his landlord whereas, her daughter Mst. Waziran, aged about 12/13 years was cutting grass for cattle in the sugarcane crop. On hearing shrieks of Mst. Waziran he along with Muhammad Sharif Kandero Kapri and his son Haji rushed to the place of occurrence and saw that appellants were trying to flee. They also noticed that Shalwar of Mst. Waziran was lying removed and blood was oozing out of her private parts. On inquiry, Mst. Waziran disclosed that she was subjected to Zina- bil-Jabr by the accused persons, turn by turn. On the stated allegation formal F.I.R. Bearing No,28 dated 23-4-1999 was registered at the said police station under section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and investigation was carried out in pursuance thereof.
On the completion of investigation the appellants were challaned to the Court for trial. Charge was accordingly framed against the accused persons to which they pleaded not guilty and claimed trial.
3. At the trial, the prosecution in order to prove the charge and substantiate the allegation levelled against the accused persons produced nine witnesses, in all, whereafter, the appellants were examined under section 342, Cr.P.C. In their above statements both the appellant denied the charge and pleaded innocence. They did not opt to appear as their own witnesses in terms of section 340(2), Cr.P.C. However, appellant Jan Muhammad alias. Jani got examined one witness namely, Muhammad Rafique son of Hussain Bakhsh in his defence as D.W.1.
4. After hearing arguments of the learned counsel for the parties the trial Judge convicted both the appellants and sentenced them to the punishments as mentioned in the opening para. Hereof.
5. We have heard Mr. Shaukat Hussain Zubedi, Advocate, learned counsel for the appellants, Mr. Arshad Lodhi, Assistant Advocate-General, for the State and have also perused the entire record with their assistance.
6. Mr. Shaukat Hussain Zubedi, Advocate, learned counsel for the appellants has, at the very outset, submitted that he would not challenge conviction of the appellants on merits, but would pray for remand of the case only, primarily for the reason that the appellants having been charged under section 10(3) of "the Ordinance" for committing Zina-bil Jabr liable to Tazir could not have been convicted under section 10(4) of "the Ordinance" without alteration of the charge because the latter being major and graver offence, carrying more sentence, conviction could not have been recorded against the appellants on the charge already framed.
7. Mr. Arshad Lodhi, Assistant Advocate-General, appearing for the State while candidly conceding to the.Proposition submitted that since maximum sentence provided for the offence under section 10(3) of "the Ordinance" is twenty-five years imprisonment as against the death sentence provided for the offence under section 10(4) of "the Ordinance" therefore, the appellants could not have been convicted for the offence under section 10(4) of "the Ordinance" without having been specifically charged for the same.
8. Notwithstanding the fact that the learned Assistant Advocate-General, has not controverted the contention raised by the learned counsel for the appellants, we have given our anxious consideration to the proposition. Record reveals that the appellants, on 20th October, 1999, were charged under section 10(3) of 'the Ordinance" for allegedly committing Zina-bil-Jabr with Mst.
Waziran. At the trial, neither the charge was altered nor was it substituted so as to enable the appellants to understand that they were answerable under section 10(4) of "the Ordinance". The omission so made, therefore, in our view, was fatal because apparently though both these sections i,e, 10(3) and 10(4) of "the Ordinance" appear to be one and the same with the difference of number of culprits but a minute study thereof indicates that in pith and substance there is a marked difference between the two provisions. Here, it would be advantageous to have a glance at the relevant provisions which read as follows:-- "Section 10(3). Subject to subsection (4), whoever commits Zina-bilJabr liable to 'Tazir shall be punished with imprisonment for a term which shall not be less than four years nor more than twenty-five years and shall also be awarded the punishment of whipping numbering thirty stripes."
"Section 10(4). When Zina-bil-Jabr liable to Tazir is committed by two or more persons in furtherance of common intention of all each of such persons shall be punished with death."
' A plain reading of the above provisions would lead to the inference that both these sections i,e, 10(3) as well as 10(4) of "the Ordinance' have not only considerable elements of difference between them but deal with altogether two different situations. Where section 10(3) covers all those cases, in which, offenders guilty of Zina-bil-Jabr liable to Tazir are liable individually, section 10(4) takes care of the situation, in which, the offence of Zina-bil-Jabr is committed by two or more persons in furtherance of their common intention. Meaning thereby that application of section 10(4) of "the Ordinance" is limited to those cases only, in which, the rule of constructive liability is required to be applied. Besides, section 10(4) of "the Ordinance" is a major offence in comparison with section 10(3) of "the Ordinance" because it carries sentence of death as against the sentence of twenty- five years rigorous imprisonment provided for the offence under section 10(3) of "the Ordinanc
9. It may be noted here that though an accused person charged with one offence may, under section 237 or 238, Cr.P.C. Be convicted of another yet, since both these provisions are exceptions to the general rule contained in section 233, Cr.P.C. That; for every distinct offence there shall be a separate charge, therefore, a person charged with one offence, cannot be convicted of another unless it is doubtful as to what offence is made out against the accused and the offence is cognate to, or a part of or attempt to commit the principal offence, with which the accused was originally charged as provided by sections 236 and 238, Cr.P.C. Here it would be advantageous to have a glance at sections 236, 237 and 238, Cr.P.C. Which read as follows:-- "Section 236. When it is doubtful what offence has been committed.--- If a single act or series of acts is of such a nature that it is doubtful which of several offences, the facts which can be proved will constitute the accused may be charged with having committed all or any of such offences, and any number of such charges may be tried at once; or he may be charged in the alternative with having committed someone of the said offences. Section 237. When a person is charged with one offence, he can be convicted of another.--- (1) If, in the case mentioned in section 236, the accused is charged with one offence, and it appears in evidence that he committed a different offence for which he might have been charged under the provisions of that section, he may be convicted of the offence which he is shown to have committed, although he was not charged with it. Section 238. When offence proved included in offence charged.--- (1) When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and such combination is proved, but the remaining particulars are not proved, he may be convicted of the minor offence, though he was not charged with it.
(2) When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence, although he is not charged with it.
(2-A) When a person is charged with an offence, he may be convicted of an attempt to commit such offence although the attempt is not separately charged.
(3) Nothing in this section shall be deemed to authorize a conviction of any offence referred to in section 198 or section 199 when no complaint has been made as required by that section."
' No doubt, an accused person charged with a graver offence may, subject to the conditions contained in the above provisions, be convicted for a minor offence but he, in no circumstances can be convicted for a major offence on the charge of a minor offence. This view received support from the following reported judgments:--
(i) Sultan Ahmed and others v. The State PLD 1960 SC (Pak.) 173,
(ii) Sangaraboina Sreenu v. State of Andhra Pradesh AIR 1997 SC 3233.
(iii) Shanmugham and another v. State 1989 Crl.LJ 203.
(iv) Asad Khan v. The State 2004 PCr.LJ 245
(v) Mazullah v. The State 2000 PCr.LJ 534.
(vi) Said Bahadur Shah and another v. The State 2000 PCr.LJ 850.
(vii) Mangloo v Emperor AIR 1930 Lah.
544.
(viii)Saubaraub Lal v. Emperor AIR 1935 Pat.
431.
(ix) Balmukan and others v. State AIR 1952 Rajasthan 123.
(x) Ghulam v. The State PLD 1955 BJ 9.
(xi) Ahmed Din v. The State PLD 1959 (W.P.) Lah.
760.
(xii) Fateh Muhammad v. The State PLD 1961 (W.P.) Lah.
212.
(xiii)Ahmad Yar and another v. The State 1991 PCr.LJ 369. And
(xiv) Habib-ul-Wahab-ul-Khairi v. Prof. Dr. Saad Rana 2002 YLR 234.
' Any since, in the instant case, the accused persons were not charged' under section 10(4) of "the Ordinance" which was a graver offence in relation to section 10(3) of "the Ordinance" and thereunder entirely different facts were required to be given prominence therefore, convictions and sentences recorded against appellants under section 10(4) of "the Ordinance" in our view, on the charge framed, cannot sustain. The impugned judgment, dated 11-6-2002 passed by II-Additional Sessions Judge, Mirpurkhas, therefore, is set aside and case, with consent of the parties, is remanded to the trial Court for its trial and decision afresh, in accordance with law with the direction that the accused persons may be charged again properly and be proceeded against thereafter.
' Since the impugned judgment has been set aside, therefore, Murder Reference bearing No,2-K of 2002 is decided in negative.