Muhammad Hashim Khan Kakar, J.--This judgment will dispose of Criminal Appeal No, (S) 103 of 2009 and Murder Reference No, (S) 18 of 2009, as they arise out of common judgment of the trial Court.
2. The appeal is directed against the judgment dated 5th October 2009, passed by the Session Judge. Naseerabad at Dera Murad Jamali, by virtue of which, the trial Judge convicted appellant Ghulam Akbar for an offence, punishable under Section 302(b) of the PPC and sentenced him to suffer death as ta'zir with compensation of Rs, 100,000/- (rupees one hundred thousand only), payable to the heirs of the deceased, as provided under Section 544-A of the, Cr.P.C., in default whereof to further undergo for a period of six (06) months SI.
3. The prosecution case, in brief, as spelt out from FIR Ex.P/1- B, which was registered on the written report moved by complainant Veryal son of Abdul Hakeem, is that on 28th May 2009, at about 07:00 a.m., his son Nabi Bakhsh was proceeding towards the field for work, whereas he, along with his son Khameesa Khan and nephew Shafi Muhammad, made to sit outside of his house on the cots. In the meanwhile, Shah Muhammad raised a lalkara to his son Ghulam Akbar to kill Nabi Bakhsh, as he is "siyahkar with his wife, namely, Haseena Bibi (Ghulam Akbar's wife). On that, accused Ghulam Akbar took out a shotgun from his house and opened fire on the person of Nabi Bakhsh, who received bullet injury on his backside and fell on the ground. Thereafter, accused Ghulam Akbar, along with his father Shah Muhammad, fled away from the crime scene, whereas he, along with his other son Khameesa and nephew Shafi Muhammad, took the injured to civil hospital, Dera Murad Jamali, who, however, succumbed to the injuries on the way.
4. The trial Court framed charge under Section 302(c) of the PPC, to which the appellant pleaded not guilty. He was put on trial. On conclusion of the same, the appellant vide judgment dated 5th October 2009 was convicted under Section 302(b) of the PPC and sentenced to death, as detailed above.
5. The appellant, being not satisfied with the conviction and sentence, impugned the aforesaid judgment through instant appeal, whereas the Sessions Judge has sent murder reference for confirmation of the sentence of death or otherwise. The appeal and murder reference were heard together on 1st December 2011. Before advancing arguments on merits of the case, learned counsel for the appellant pointed out that although the conviction had been recorded under Section 302(b) of the PPC and sentence had been awarded thereunder, but no charge was framed under Section 302(b) of the PPC. Obviously, the offence under Section 302(b) of the PPC is graver than the offence as provided under Section 302(c) of the PPC. Conviction under Section 302(b) of the PPC. without framing distinct charge thereunder and examining the accused on that charge, the conviction recorded by the Session Judge suffered from material illegality, which is not curable by Section 537 of the, Cr.P.C. and due to this error and omission, a prejudice has been caused to the accused, which amounts to failure of justice. Such defect in the charge is not curable. He referred the' judgment passed by Hon'ble Supreme Court in case of 'Muhammad Aslam v. The State". 1981 SCMR 961.
6. Learned counsel for the State, duly assisted complainant's counsel, while feeling not in a position to controvert him, did not support the impugned judgment and conceded that the trial Court was not empowered to have changed the section of law, at the time of writing the judgment without affording an opportunity of defence to the appellant and the omission on the part of the trial Court has resulted in manifest injustice.
7. For better understanding of the controversy, it would be appropriate to reproduce Section 302 of the PPC, which speaks as under: "302. Punishment of qatl-i-amd.--Whoever commits qatl-i-amd shall, subject to the provisions of this Chapter be: (a)punished with death as qisas; (b)punished with death or imprisonment for life as ta'zir having regard to the facts and circumstances of the case, if the proof in either of the forms specified in Section 304 is not available; or
(c) punished with imprisonment of either description for a term which may extend to twenty-five years, where according to the Injunction of Islam the punishment of qisas is not applicable.
Provided that nothing in this clause shall apply to offence to qatl-i-amd if committed in the name or on the pretext of honour and the same shall fall within the ambit of clause (a) or clause (b) as the case may be."
The aforesaid provision of law clearly demonstrates that clause (b) of Section 302 of the PPC, entails punishment of death or imprisonment for life as ta'zir, whereas the maximum punishment provided in clause (c) of Section 302 of the PPC is imprisonment of either description for a term which may extend to twenty-five years, where according to the Injunction of Islam, the punishment of qisas is not applicable.
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 the charge is to ten an accused as precisely and concisely as possible the matter in which he has been charged and must convey to him with sufficient clearance and certainty, what the prosecution intends to prove against him and of which he will have to clear himself.
9. We have considered the matter. We feel persuaded to agree with learned counsel for the appellant. We find that the appellant was charged under Section 302(c) of the PPC, but was convicted and sentenced under Section 302(b) of the PPC. The appellant was charged with minor offence under Section 302(c) of the PPC and, therefore, could not have been convicted for major offence under Section 302(b) of the PPC without being charged under this section. Furthermore, under Section 238(2) of the, Cr.P.C. Court can convict an accused for minor offence than the offence charged. There is no provision in the, Cr.P.C., empowering the Court to convict an accused for offence graver than the offence charged. In peculiar circumstances of the case, the provisions of Sections 236 and 237 of the, Cr.P.C. are also not attracted. However, provisions of Section 232 of the, Cr.P.C. are attracted.
10. For the aforesaid reasons, we find ourselves 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 be remanded back.
For what has been discussed above, we accept this appeal, set aside the impugned conviction and sentence awarded to the appellant and remand the case to the 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 the altered charge. Consequently, the Murder Reference No, (S)18 of 2009 is answered in negative.