' Shah Jehan appellant has filed instant appeal against judgment, dated 13-5-2004 recorded by learned Additional Sessions Judge-I, D.I. Khan whereby he was convicted under section 334, P.P.C.
And sentenced to suffer seven years' R.I. The appellant was also held liable to pay "Diyat" of the year 1997 amounting to Rs,1, 90,000 and in case of failure to pay Diyat, was ordered to be kept in jail and dealt with in the manner as if sentenced to simple imprisonment until Diyat is paid in full. Benefit of section 382-B, Cr.P.C. Was extended to him. However, co-accused Marwat was extended benefit of doubt and acquitted of the charge.
2. Shortly narrated the facts of the case are that on 4-7-1997 complainant Habibullah lodged a report to the effect that on the said day, he had gone to the house of Shah Jehan in village Kot Tagga on his motorcycle. Shah Jehan took his motorcycle and went towards village Azak. The complainant went to bed after having evening meals. At about midnight, complainant heard uproar and got awakened. He saw that Shah Jehan was cutting the nose of his (complainant) wife Mst. Sughran Bibi with Chhuri and his brother Marwat Khan was standing with him. Complainant asked Shah Jehan as to what was he doing, upon which, Shah Jehan along with his brother came towards the complainant and also cut his nose with Chhuri. Complainant and Mst. Sughran Bibi were taken to a room and made to sit there. Explaining the motive, it was stated that Shah Jehan was suspecting the appellant for having illicit relations with his wife Mst. Sughran Bibi.
3. S.-I. Hidayatullah Khan (P.W.6) recorded report of the complainant in the shape of Murasila Exh.P.A./1 and dispatched the same to police station for registration of case. He prepared injury sheets of complainant Habibullah and Mst. Sughran Bibi and sent them to hospital for medical treatment. He arrested accused Shah Jehan the same day. He took into possession blood-stained dagger produced by Shah Jehan and sealed it into a parcel vide memo. Exh.P.W.4/l and sent the same to Chemical , Examiner, Peshawar and placed his report (Exh.P.K./1) on the file. The witness in hand also collected bloodstained earth from the spot and sent the same to Serologist for opinion.
He also placed on file report (Exh.P.K.) of the Serologist. On completion of investigation, Inspector Sardar Bakhsh (P.W.3) submitted challan against the 'accused in Court.
4. The accused were charged under section 336/34, P.P.C. To which they pleaded not guilty and claimed trial. The prosecution in order to prove its case against the accused, examined eight witnesses in all including complainant (P.W.8), Lady Doctor Shamim Ara (P.W.1) and Dr. Abdur Rashid (P.W.5). Accused in their statements recorded under section 342, Cr.P.C. Repudiated the prosecution allegations, professed innocence and stated to have been falsely charged in the case.
They neither appeared as their own witnesses on oath as required under section 340(2), Cr.P.C. Not produced defence evidence.
5. Upon consideration of evidence brought on record, the learned trial Court convicted and sentenced the appellant as mentioned above whereas acquitted co-accused Marwat Khan by extending him benefit of doubt.
6. Mr. Sanaullah Khan Gandapur, Advocate for the appellant mainly contended that except bare allegations in the F.I.R., there is no ocular or circumstantial evidence on the file which could connect the appellant with the commission of crime; that learned trial Judge committed incurable mistake by changing section of law from 336 to 334, P.P.C. Without affording an opportunity of hearing and defence to the appellant; that punishment awarded to the appellant is totally illegal and unjustified as Diyat amount could not be imposed because sections 336 and 334, P.P.C. Are not the one allowing imposition of Diyat amount. The learned counsel requested for remand of the case for proper adjudication. To augment the contentions, he placed reliance on-Said Bahadur Shah and another v. The State 2000 PCr.LJ 850 (FSC), Mumtaz Ali and another v. The State 2000 PCr.LJ 367 Karachi and Syed Raza Ali v. The State 2001 M LD 916.
7. Mr. Muhammad Sharif Chaudhary, learned Deputy Advocate-General for the State assisted by Mr. Muhammad Afzal Nadir, Advocate for the complainant did not support the impugned judgment and conceded that the learned trial Court was not empowered to have changed section of law at the time of writing judgment without affording an opportunity of defence to the appellant and the omission on the part of learned trial Court has resulted in manifest injustice.
8. A charge is precise formulation of the specific accusation made against a person who is entitled to know its nature at the early stage. The purpose of a charge is to tell an accused as precisely and concisely as possible the matter in which he is charged and must convey to him with sufficient clearances and certainty what the prosecution intends to prove against him and of which he will have to, clear himself.
9. Having heard the arguments of learned counsel for the parties. I find myself in agreement with learned counsel for the appellant and learned trial Judge has taken an erroneous view of the matter. He could not change section of law without affording opportunity of hearing and defence to the appellant, which has caused prejudice to the appellant. Since the impugned judgment is legally incorrect, therefore, the case needs to he remanded back.
10. For what has been discussed above, I accept this appeal, set aside the impugned conviction and sentence awarded to the appellant and remand the case back to the learned trial Court for proper adjudication with direction to proceed with the same afresh after affording an opportunity of defence to the appellant in respect of altered charge.