1. Ali Nawaz Chowhan, J.--This judgment shall dispose of Murder Reference No, 610/2000, Criminal Appeal No, 400/2000 and Criminal Revision No, 161/2000.
2. 2.The matter pertains to case FIR No, 102 dated 8.7.1990 registered at Police Station Chauntra, District Rawalpindi for the offences under Sections 302/148/149 PPC against the accused namely, Muhammad Amir Khan, Shah Nawaz, Mehr Khan, Khan Nawaz, Gulzar Khan, Muhammad Ashraf, Aurangzeb (since died) and Muhammad Aslam (proclaimed offender) on the report of Muhammad Aslam.
3. 3.Vide his judgment dated 30.9.2000 the learned Additional Sessions Judge, Rawalpindi convicted and sentenced the appellants as follows: Muhammad Amir Khan, Shah Nawaz, Mehr Khan, and Khan Nawaz, Gulzar Khan and. Muhammad Ashraf were convicted under Section 302(b) PPC read with Section 149 PPC and each convict sentenced to death on two counts. They were also convicted under Section 148 PPC and each convict was sentenced to 3 years R.I. and fine of Rs, 10,000/- each and in default of payment of fine, each convict shall have to further undergo for one year R.I. They were also directed to pay compensation in the sum of Rs, 1,50,000/-, to the legal heirs of the both the deceased persons as envisaged under Section 544-A Cr.P.C.
4. 4.At the very outset Khawaja Sultan Ahmad, learned counsel for the appellants raised a preliminary objection with respect to the trial of these cases while stating that the judgment is infirm and the matter calls for remission to the trial Court on the following grounds: (i)That whereas there were two counts with respect to the allegations of murder but the appellants Gulzar and Ashraf were not charged for the first murder of Jahangir Khan deceased.
5. (ii)That Amir Khan, Shah Nawaz, Mehr Khan and Khan Nawaz were not charged alongwith Gulzar and Ashraf for the murder of Amir Khan.
(iii) When the absconding accused/appellant Aslam was arrested and the charge was framed against him on 2.11.1994, he was charged for the murder of Jahangir Khan alone alongwith Amir Khan, Shah Nawaz, Mehr Khan and Khan Nawaz but he was not charged for the murder of Muhammad Hamad accompanied by Gulzar and Ashraf.
6. 5.This is a double murder case of deceased Jehangir Khan and Amir Khan. The case was launched against eight accused out of whom Aurangzeb expired before the commencement of the trial whereas, accused Muhammad Aslam is still an absconder.
7. 6.Making a reference to the charge sheet, learned counsel for the appellants stated that all the six accused were charged under Section 148 PPC. Charge sheet reads as follows: "I, Malik Ata Rasool Joya, Additional Sessions Judge, Rawalpindi do hereby charge you as under That you on 8.7.1990 at about 6.00 a.m. in the area of Rasta Naal, Miayana Mohra, Police Station Chauntra, having fromed an unlawful assembly and in furtherance of your common object when you Muhammad Ameer Khan, Shah Nawaz, Mehar Khan and Khan Nawaz were armed with rifles, Gulzar Khan with a .12 bore shot gun, Muhammad Ashraf with a hatchet and your co-accused Aurangzeb (since died) armed with a rifle, committed rioting, and as such, you committed an offence punishable under Section 148 PPC which is within the cognizance of this Court"
8. The second part of the charge excludes two accused namely, Gulzar Khan and Muhammad Ashraf as far as the murder of Jehangir Khan deceased is concerned. Second count reads as follows: "That on the same day, time and place, you Muhammad Ameer Khan, Shah Nawaz, Mehr Khan, Khan Nawaz alongwith your co-accused Aurangzeb (since died) in furtherance of your common intention fired one after the other on Jehangir and committed his intentional murder and as such you committed an offence punishable under Section 302/149 PPC which is within the cognizance of this Court."
9. Whereas in the third count only two person Gulzar Khan and Muhammad Ashraf were shown to be assailants. The third count reads as follows: "That on the same day, time and place you Gulzar Khan and Muhammad Ashraf, in furtherance of your common intention alongwith your co-accused committed the murder of Ameer Khan S/o Muhammad Khan with your respective weapons and as such, you committed an offence punishable under Section 302/34 PPC which is within the cognisance of this Court."
10. 7.Another objection to the charge is that whereas, in the second count the charge was under Section 302 read with Section 149 PPC but in the case of third count it was under Section 302 read with Section 34 PPC.
11. 8.Chapter 19 of the Cr.P.C. deals with the subject of charge and .requires specific name of the offence and sufficient description to be given in the charge unless the offence had no specific name. A charge corresponds to an indictment in the English law and is very much more than a just form of a charge. It is a precise formation of specific accusation made against a person. Its object being to afford a person an opportunity to concentrate its attention on the case that it has to meet.
12. A charge is, therefore, to be carefully drawn up in accordance with offence disclosed and an accused should be informed with certainty and accuracy the exact nature of the charge brought against him, otherwise he may be seriously prejudiced in his defence. Charge is also to contain particulars as to time, place and person against whom and the thing in respect of which the offence is alleged to have been committed.
13. 9.There may be errors committed in framing of a charge. Some errors may have no effect and these are covered by Section 225 of the Cr.P.C. While some errors may have deep effects and these are covered by the ambit of Section 232 of the Cr.P.C.
14. 10.Section 232 of the Cr.P.C.: reads as follows: "Effect of material error: (1) If any Appellate Court, or the High Court or the Court of Session in the exercise of its powers of revision or of its powers under Chapter XXVII, is of opinion that any person convicted of an offence was misled in his defence by the absence of a charge or by an error in the charge, it shall direct a new trial to be had upon a charge framed in whatever manner it thinks fit.
(2) If the Court is of opinion that the facts of the case are such that no valid charge could be preferred against the accused in respect of the facts proved, it shall quash the conviction."
15. 11.We have now to see whether the defective formulation of the charge in the present case has brought about, the prejudice necessary for ordering re-trial.
16. 12.This Court had also the opportunity of hearing the learned Advocate General for Punjab who too was of the view that remission of the case, although it would be a very belated act, would meet the ends of justice.
17. 13.Reference has been made to the following cases (1) Muhammad Shafiq etc. vs. The State (PLJ 1991 Cr.C. Lah. 396 (DB); (2) Mumthz AU vs. The State (2000 PCr.L.J. 367); (3) Makhan and others vs. Emperor (AIR 32, 1945 Allahabad 81); (4) Sarwar Shakir Vs. The State (1992 M LD 1253); (5) Kamakhya Prasad Agarwalla and others vs. The State (AIR 1957 Assam 39, V 44 C.
7. Mar.); (6) Pagla Baba and another vs. The State (AIR 1957 Orissa 130, V. 44 C. 40 July); and (7) Mallu Gope and another vs. Emperor (AIR 1929 Patna 712).
18. 14.The infirmities in the charge have already been pointed out in the preceding paragraphs which certainly reflect that these have caused a 13 serious prejudice to the case of the appellants who were charged for something different than for what they were sentenced. Unfortunately the lapse was because of the actors at the time of the trial i.e, the defence counsel, the prosecutor and the Court certainly and who has suffered, the parties. It is unfortunate that the learned trial Court both at the stage of the formulation of the charge and later at the stage of sentencing did not even bother to check as to what was being put as a charge to the accused and what was being handed down to them as a sentence. This further reflects casual disposition which calls for a check in such serious trials. The matter will be further taken up on the administrative side.
19. 15.Consequently, this Court is of the view that the trial on this basis gets vitiated and this becomes a case fit for re-trial. The judgment under reference is, therefore, set aside and case remanded to the learned Sessions Judge, Rawalpindi, with directions that he hears it himself or transfers it to any learned Additional Sessions Judge working under him. Whosoever may be dealing with the trial, he shall complete the trial of this old case within a period of four months from today. In view of what is said above, the connected revision petition is also disposed of.
20. 16.Parties are directed to appear before the learned Sessions Judge, Rawalpindi on the 2nd of May 2005.