1. These two connected appeals i,e, Criminal Appeal No, 238/L of 2005 filed by Muhammad Ayub Bhatti son of Dewan Ali Bhatti and Criminal Appeal No, 242/L of 2005 filed by Muhammad Azam son of Muhammad Boota, Shahzad Masih son of Rehmat Masih and Muhammad Arif son of Haji Muhammad are directed against the judgment dated 26.6.2005 passed by the learned Additional Sessions Judge, Sialkot whereby all the afore-mentioned appellants were convicted under Section 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the Ordinance") and sentenced to undergo two years' R.I. each alongwith a fine of Rs, 10,000/- each or in default thereof to further suffer R.I. for six months each. Appellants Muhammad Azam, Muhammad Ayub Bhatti and Muhammad Arif were further convicted under Section 10(3) of "the Ordinance" and sentenced to suffer five years' R.I. each. Benefit of Section 382-B Cr.P.C. was, however, extended to all the appellants. Since both these appeals arise out of the same judgment, therefore, these are being disposed of by this single judgment.
2. 2.In the instant case, the appellants were on 14.9.2004 charged under Section 16 of "the Ordinance" for allegedly enticing away Mst. Naureen daughter of complainant Munir Ahmad Dirveesh with an intention to commit illicit intercourse with her. Since, at the trial, the accused persons not pleaded guilty to the charge, therefore, the learned trial Court after recording statement of eight witnesses for the prosecution and the accused persons under Section 342 Cr.P.C. convicted and sentenced them vide the impugned judgment.
3. 3.I have heard Rai Muhammad Nawaz Kharal and Mr. Muhammad Irfan Malik, Advocates, learned counsel for the appellants respectively, Mehr Sardar Ahmad Abid, Advocate, learned counsel for the State and have also perused the entire record with their assistance, carefully.
4. 4.It has been mainly contended by the learned counsel for the appellants that since the accused persons, at the trial, were not charged under Section 10(3) of "the Ordinance", therefore, their convictions and sentences thereunder are bad in law and the impugned judgment, therefore, is not sustainable.
5. Mehr Sardar Ahmad Abid, Advocate, learned counsel for the State while candidly conceding to the proposition has submitted that since the learned trial Judge has omitted to frame charge under Section 10(3) of "the Ordinance" against the accused persons, therefore, the case may be remanded to the trial Court for rectification of the defect.
5. 6.I have given my anxious consideration to the respective contentions of the learned counsel for the parties. Admittedly, the accused persons in the case were not charged under Section 10(3) Of "the Ordinance". They were only. charged under Section 16 of "the Ordinance". Hence, the contention raised by the learned counsel for the appellants appears to have force in it because the accused persons having been charged under Section 16 of "the Ordinance" only, could not have been convicted under Section 10(3) of "the Ordinance' which was not only graver and major offence in comparison with Section 16 of "the Ordinance" because it carries twenty-five years sentence of imprisonment as against the sentence of seven years imprisonment provided for the offence under Section 16 of "the Ordinance, but being. distinct offences also requited altogether different facts to be given prominence. I am mindful of the fact that under Section 237 Cr.P.C. though a person charged with one offence can be convicted of another yet, application thereof is limited to those cases only which fall within the provisions of Sections 236 as Well as 237 Cr.P.C.
6. 7.It would be pertinent to mention here that proposition, in hand, came up for consideration before a Full Bench of this Court in the case of Pir Imtiaz and another vs. The State 2005 P.Cr.L.J. 721 and the same was answered in the following words: "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 offence.
7. 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.
8. 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.
9. (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.
10. (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.
11. (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."
12. 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 receives support from the following reported judgments:-- (i)Sultan Ahmed and others v. The State PLD 1960 SC (Pak.) 173.
13. (ii)Sangaraboina Sreenu v. State of Andhra Pradesh AIR 1997 SC 3233.
14. (iii)Shanmugham and another v. State 1989 Crl.LJ 203.
15. (iv)Asad Khan v. The State 2004 P.Cr.LJ 245.
16. (v)Mazullah v. The State 2000 P.Cr.LJ 534.
17. (vi)Said Bahadur Shah and another v. The State 2000 P.Cr.LJ 850.
(vii) Mangloo v. Emperor AIR 1930 Lah. 544.
(viii) Saubaraub Lal v. Empror AIR 1935 Pat. 431.
18. (ix)Balmukhan and others v. State AIR 1952 Rajasthan 123.
19. (x)Ghulam v. The State PLD 1955 BJ 9.
20. (xi)Ahmed Din v. The State PLD 1959 (W.P..) Lah. 760.
(xii) Fateh Muhammad v. The State PLD 1961 (W.P.) Lah. 212.
21. (xiii)Ahmad Yar and another v. The State 1991 P.Cr.LJ 369; and
(xiv) Habib-ul-Wahab-ul-Khairi v. Prof. Dr. Saad Rana 2002 YLR, 234."
22. And since, in the instance case, the accused persons were not charged under Section 10(3) of the Ordinance" which was a graver offence in relation to Section 16 of the Ordinance' and there-under entirely different' facts were required to be given prominence, therefore, convictions and sentences recorded against appellants under Section 10(3) of "the Ordinance" in my view, on the charge framed, cannot sustain. The impugned judgment, dated 26.6.2005 passed by Additional Sessions Judge, Sialkot, therefore, is set aside and the 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.