1. ' IFTIKHAR HUSSAIN BUTT, J.--- Through the above titled reference, the Additional Tehsil Criminal Court, Bhimber seeks guidance of this Court on the point of non-framing charge against the accused under section 242, Cr.P.C.
2. ' Facts briefly stated are that Muhammad Rasheed, accused-respondent, is facing trial before Additional Tehsil Criminal Court, Bhimber in a case registered against him under section 18 of the Offence of Zina (Enforcement of Hudood) Act, 1985. After completion of the prosecution evidence, it came into the notice of the trial Court that the prosecution evidence has been recorded without framing charge against the accused under section 242, Cr.P.C. Hence, this reference.
3. ' Raja Gul Majeed Khan, the learned Advocate-General, appearing on behalf of the State, has submitted that section 242, Cr.P.C. Is mandatory provision of law and its non-compliance has rendered the whole proceedings as nullity; therefore, the trial Court should be directed to frame the charge under section 242, Cr.P.C. And proceed further in accordance with law. In support of his contention, the learned counsel relied upon PLD 1987 SC (AJ&K) 65.
4. ' In the light of arguments addressed at Bar, I have perused the record with care. The procedure of trial of cases has been provided in Chapter XX of Criminal Procedure Code. Section 241, Cr.P.C.
5. Postulates that the procedure provided in sections 242 to 249-A shall be observed by the Courts in trial of summon cases. In this manner, under section 241-A, Cr.P.C. When a case is filed against an accused upon a police report except the cases tried summarily are punishable with fine or sentence not exceeding six months, the copies of the statements of the prosecution witnesses recorded under sections 161, Cr.P.C. And 164, Cr.P.C. Along with other relevant material collected by the Investigating Agency have to be supplied free of cost to an accused not less than seven days before the commencement of the trial. Thereafter a formal charge shall be framed against an accused person relating to the offence of which he is accused as soon as he appears or is brought before the trial Court because by framing a formal charge, an opportunity is provided to an accused to explain his position and to take up any plea he likes. He may plead guilty or demand a trial. He may raise plea of alibi or any of the exceptions available to him under the law. If the accused admits the commission of offence, his admission shall be incorporated in the same words used by him and if he fails to show sufficient cause why he should not be convicted, the trial Court may convict him accordingly under section 243, Cr.P.C. But in the cases when an accused does not plead guilty and claims a trial then the Magistrate is bound to hear the complainant and record all such evidence as may be produced by the prosecution in support of its case. The trial Court will also provide an opportunity of hearing to the accused and record all such evidence produced in the defence.
6. A careful perusal of the procedure provided by Chapter XX of Cr.P.C. Along with relevant sections would show that framing of charge A means commencement of the trial on an accused and without framing of charge the recording of evidence and the other proceedings are nullity in the eye of law. Section 242, Cr.P.C. Is a mandatory provision which provides that charge shall be framed and the particulars of alleged offence had to be explained to accused so that he would be able to know about the charge against him which he had to face during the trial to defend himself.
7. Thus, the non-framing of the charge is not remediable under section 537, Cr.P.C.
8. ' Coming to the instant case, the challan report under section 173, Cr.P.C. Was filed in absence of the accused who did not appear before the Court even after issuance of non-bailable warrants. On 19- 3-1985, the proceedings under section 512, Cr.P.C. Were recorded against Muhammad Rasheed, accused. On 7-5-1985 co-accused Zahoor appeared before the Court and the trial Court without framing the charge under section 242, Cr.P.C. Summoned the prosecution witnesses 1, 2 and 3. After that Muhammad Rasheed absconder appeared before the trial Court on 29-12-1985 but the trial Court again ignored the mandatory provision of law and recorded the prosecution evidence without framing the formal charge against the accused, as required by section 242, Cr.P.C. At last after completion of the prosecution evidence, it appeared that the trial Court has recorded the prosecution evidence without framing the formal charge. In this manner, the departure from the mandatory provision of procedure has occasioned prejudice and injustice to the accused and the omission would not be curable under section 537, Cr.P.C. The effect of non-compliance of aforesaid section is that the whole proceedings are nullity in the eye of law which has vitiated the whole proceedings. My aforesaid view finds support from a case titled Ibrar Hussain Shah and another v.
9. The State and another PLD 1987 SC (AJ&K) 65, whereby after taking critical view of the dictum of other superior Courts, the apex Court of AJ&K enunciated the following principle on page 84 of the report:--- "With utmost respect which we have for their Lordship of the superior Courts in India, we are unable to follow the view taken by the Courts that even the omission to record the statements under section 242, Cr.P.C. Is curable if no prejudice can be shown to have been caused to the accused. An irregularity which occurs during examination of the accused under section 342, Cr.P.C. May be curable under section 537, Cr.P.C., if no prejudice is shown to have been caused to the accused, but failure to record the statements under section 242, Cr.P.C. At all, it is our considered belief, being violative of the mandatory provisions section 242, Cr.P.C. Be considered as a nullity nor curable under any provision of the Code. Such a defect would render the whole proceedings as invalid; and prejudice to the accused in such-like cases would be deemed as inherent."
10. The analysis of the above discussion is that the whole proceedings of the case have become invalid which are quashed and it is directed that the trial Court shall frame the charge against the accused as required by section 242, Cr.P.C. And proceed further in accordance with law. The reference is answered in the terms indicated above.