SYED MUHAMMAD FAROOQ SHAH, J.---Jail Criminal Appeal No.137/2012 was initially instituted before the High Court of Sindh at Karachi, fromwhere it was transferred to this Court, being exclusively triable by the Federal Shariat Court. It was renumbered by the office of this Court as 05-K of 2018. On admission of appeal, notices were issued to all concerned. Arguments heard. Record perused.
2. Appellant Muhammad Irshad son of Nabi Hassan along with Wali Muhammad son of Khan Muhammad (acquitted under section 265-K, Cr.P.C. vide order dated 19.04.2010) were jointly booked in Crime No.360/2006, registered at Police Station Gulistan-e-Jauhar , Karachi East, for offences punishable under sections 365/34, P.P.C.
After full-dressed trial, the appellant was convicted and sentenced vide judgment dated 29.11.2012, pronounced by the learned IInd Additional Sessions Judge, Karachi East, in the following manner: "1 He is convicted and sentenced under section 363, P.P.C. to undergo for 05 years R.I. for kidnapping of deceased baby Tajalli and to pay fine of Rs.10,000/ - as compensation to the legal heirs of deceased Tajalli in view of section 544-A of Criminal Procedure Code and in payment of default he shall further suffer SI for 02 months.
2. He is further convicted and sentenced for an offence under section 10(2) read with section 365-B, P.P.C. to undergo imprisonment for life for comm itting zina bil Jabar with deceased Tajalli. He is also directed to pay Rs.50,000/- as compensation to the legal heirs of deceased Tajalli in view of section 544-A of Criminal Procedure Code and in payment of default he shall further suffer SI for 6 months.
3. He is further convicted and sentenced under section 302, P.P.C. to undergo imprisonment for life for committing Qatl-i-Amd of deceased baby Tajalli. He is also directed to pay Rs.100,000/-' as compensation to the legal heirs of deceased in view of section 544-A of Criminal Procedure Code and in payment of default he shall further suffer SI for 6 months.
The accused Muhammad Irshad son of Nabi Hassan is also entitled for benefit of section 382-B, Cr. P. C. being UTP period towards his conviction and all the sentences shall run concurrently ."
3. Story of the prosecution case in nutshell is that on 11.10.2006 at about 0025 hours, complainant Barkat Shah recorded his statement under section 154, Cr.P.C., incorporated in the FIR No.360/ 2006, stating therein that he is residing along with his family and doing job as a Security Guard. On the day of occurrence he was preparing food for opening fast with his wife when at about 6 O'clock his daughter Tajalli aged about 5/6 years was not seen in the house. He along with Mohalla people started her search, announcements were also made from loudspeakers of mosques and report was lodged at police station. During search, he came to know that accused Wali Muhammad who was residing in lane of his house along with a man of golden hair came there, was seen talking to victim/ Tajalli in the evening. The complainant lodged the report against Wali Muhammad and his unknown accomplice for kidnapping his daughter for unknown reasons. On completion of usual investigation, the I/O in final report submitted under section 173, Cr.P.C., charged both the accused that the appellant Muhammad Irshad (who confessed his guilt) along with accused Wali Muhammad kidnapped minor Tajalli, aged about 06 years from outside of her house No.KSSE Chishti Nagar , Sector 4/A Gulistan-e-Jauhar , and took her to near Mehakma Mosamyat, Block-6, Gulistan-e-Jauhar , where he committed Zina Bil Jabr with minor Tajali and subsequently killed her. After completion of usual investigation, both accused were challaned to face the trial.
4. On commencement of trial, the Charge (Exh:2) was framed and read over to the accused persons namely Muhammad Irshad and Wali Muhammad along with pleas under section 265-E, Cr.P.C. Strangely enough, the charge has been typed on 25th October , 2008, however , the handwritten date with signature of presiding officer shows as 20.10.2008. For the sake of convenience charge is reproduced as under: "CHARGE"
I, Mrs. Rana Zaki Shamsi, IInd Additional Sessions Judge, Karachi East, do hereby charge you;
1. Muhammad Irshad son of Nabi Hassan
2. Wali Muhammad son of Khan Muhammad As under:-- That on 13.03.2007 at about 1615 hours you both abovenamed accused in furtherance of your common intention kidnapped minor Tajjali daughter of Barkat Shah aged 6 years outside her house No.501, KESC Chishti Nagar Sector 4/A, Gulistan-e-Jauhar , Karachi and took her near Mehkama Mosamyat, Block-6, Gulistan-e-Jauhar where you committed zina bil jabr with the minor Tajjali and after commission of zina bil jabr, you committed Qatl-i-Amd of minor Tajjali by way of throttling and thereby committed an offence punishable under sections 302/363/34/109, P.P.C. read with Section 10(2) Zina (E.H.O.) 1979 and within my cognizance; And I hereby direct you to be tried by me on the aforesaid charge.
Given under my hand and seal of the Court, this the 25th day of October 2008.
SD/20/10/2008 (MRS. RANA ZAKISHAMSI)
II ADDITIONAL SESSIONS JUDGE, KARACHI EAST ."
5. After arguing the matter at some length, learned counsel for the parties formed opinion with consensus that neither the 'Charge' nor, "point for determination" or statement of the accused, recorded under section 342, Cr.P.C. have been formulated in accordance with the law and keeping in view the peculiar facts and circumstances of the case, in the larger interest of justice, the case may be remitted to the, trial Court for de novo trial in accordance with the law and the procedure as prescribed in the relevant statutes.
6. It is an admitted position that the Charge reproduced above was framed by the trial Court against both the accused with common role of kidnapping and committing Zina-bil-Jabar with minor and Qatl-i-Amd of minor Tajalli by way of throttling. Though, admittedly accused No.2 Wali Muhammad son of Khan Muhammad neither was involved in kidnapping nor in commission of Zina or murder of the minor . During trial, accused Wali Muhammad was acquitted by the trial Court, which fact reflects from title of impugned judgment and point No.2, framed for determination by the trial Court. Moreso, the date and time of occurrence i.e. 13.03.2007 at about 1615 hours has wrongly been mentioned in the charge though actual date of occurrence as mentioned in the FIR was 09.10.2006.
It needs to be reiterated that the object of framing a charge is to enable the defence to concentrate its intention on a case that he has to meet and if the charge is framed in a vague manner and that necessary ingredients of the offence with which accused held respon sible, then the foundation of the case viz 'Charge' is not tenable in law.
Admittedly , the charge being foundation of the trial is faulty . Undeniably , the legislature has provided an elaborate procedure for framing the charge under sections 221/222, Cr.P.C.; it should contain all material particulars as the time, place and specific name of the alleged offence, the manner in which offence committed and particulars of the accused to afford him an opportunity to explain the matter with which he is charged . The imperfection in the charge is not curable as both accused were charged being sharers in the offence and their liability was collective, vicarious and not individual. The form of the charge indicates that the prosecution was relying on collective responsibilities though as per prosecution version, the role in commission of charged offence was assigned only to the convict/appellant.
7. Point No.2 as formulated by the trial Court for determination, in the impugned judgment is reproduced as under:- - "Whether on 13.03.2007 at about 16:15 hours accused above named along with acquitted accused Wali Muhammad kidnapped minor Tajjali daughter of Barkat Shah aged about 6 years outside her House No.501, KESC Chishti Nagar Sector 4/A, Gulistan-e-Jauhar , Karachi, and took her near Mehakma Mosamyat, Block-6, Gulistan-e- Jauhar , Karachi, subsequently committed Zina bil Jabr with the minor Tajjali and after commission of Zina bil Jabr, committed Qatl-e-Amd of minor T ajjali by way of throttling her deadbody?"
It is an admitted fact that the date and time has incorrectly been mentioned by the learned trial Court, so much so, that acquitted accused Wali Muhammad has also been involved in kidnapping of minor Tajjali and subsequently committing Zina bil Jabr and her Qatl-e-Amd.
8. Ingredients of section 367, Cr.P.C. are imperative; perusal of which indicates that a judgment must contain therein points for determination, the decision thereon and reasons for the decision, this section of the Code of Criminal Procedure casts duty upon Courts to formulate point/points for determination and the Court while writing a judgment has to ponder over all possible situations and probabilities for drawing just conclusion. In the instant case, the point No.2 as framed by the trial Court reflects that the acquitted accused has also been involved in commission of the offence which does not reflect conscious application of judicial mind. The trial Judges holding senior position in hierarchy of subordinate judiciary were bound to ensure not only to dispense justice but what is equally a vital importance that justice also seems to have been done. The trial Judges dealt with the case needs considerable improvements. The question No.1 was also framed in a manner that date and time of occurrence has wrongly been shown with different allegations, neither mentioned in the 'Charge' nor in the 'points for determination', so much so, that the appellant/convict has not been confronted with the actual date and time of occurrence but he was questioned to the wrong date and time, mentioned in the charge, in the point No.2 for determination as well as in statement of accused recorded under section 342, Cr . P. C.
9. In our considered opinion, charge is defective for many reasons. Firstly because time and date mentioned in the charge run contrary to that of mentioned in the FIR, challan and rest of the docum ents. Secondly , section 365-B, P.P.C. is inapplicable nor the same fits in the circumstances of this case. If any provision of Pakistan Penal Code, in this respect, would be applicable that might be 364-A, P.P.C. Thirdly , the allegation of abduction has been levelled against both the accused in the joint charge, whereas, the allegation of zina-bil-jabr is preceded by the word only "you" without mentioning "you both" or referring to any accused specifically . Hence, this material defect in the charge is incurable. Adverting to the point of examination of accused under section 342, Cr.P.C, it appears that the first question, perhaps, a verbatim reproduction of the charge without taking into account that the co-accused has been acquitted of the charge, therefore, Question No.1 does not appear to have been framed after proper application of the judicial mind to the facts of the case. Similarly , formulated point No.2 for determination has been resolved in affirmative without bearing in mind that the accused No.2 had already been acquitted of the charge on 19.04.2010. On the same analogy provisions of section 367, Cr.P.C. were never adhered to. The appellant was convicted under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 read with section 365-B, P.P.C., whereas, section 365-B, P.P.C. does not find mention in the charge nor in the questionnaire maintained under section 342, Cr.P.C. Under section 10(2) of the Offence of Zina (Enforcement of Hudood)
Ordinance, 1979, the maximum sentence that has been provided is ten years and if someone is found guilty of offence under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, then the convict has to be sentenced with whipping numbering 30-stripes. Needless to observe that section 10(2) does not apply and the applicable section is 10(3). Fourthly , the appellant was convicted under section 302, P. P.C. Section 302, P.P.C. contains three clauses, which carry its own consequence, effect and impact keeping in view the facts and circumstances of each case but the trial Court without adhering to respective clauses has simply mentioned section 302, P.P.C. Suppose this sentence is treated to have been awarded under section 302-B, P.P.C. in that case as per the provision of section 367 subsection (5) Cr.P.C. major penalty is to be awarded and the option for lesser punishment needs mitigating circumstanc es that require to be dealt with specifical ly, justifying the option so taken.
In such state of af fairs, the sole remedy in the case left was the remand of the case.
10. We would not like to comment on the merits of the findings rendered by the learned trial judge lest it may prejudice the case of either side. As the procedure mandated for charge, the point No.2 for determination drawn in the impugned judgment as well as statement of the accused under section 342, Cr.P.C. were not recorded correctly . Therefore, the impugned judgment is not sustainable in the law; more particularly , it is bedrock principle of law that once statutes or rules direct that a particular act must be performed and shall be construed in a particular way then, acting contrary to that is implie dly prohibited; meaning thereby that doing of something contrary to the requirements of law and rules is impliedly prohibited. Judged and considered from all angles; on cumulative assessment of record and overall analysis of the material on record including the impugned judgment, we left no other option but to accept the request made by the learned counsel for the parties with their consensus that the case be remanded back to the trial Court for de novo proceedings after framing of fresh charge. We, therefore, by exercising powers under section 423, Cr.P.C. remand the case to the learned trial Court for re-trial, strictly in accordance with law, after rectification of omission, errors and defects, etc highlighted above in this judgment and thereafter give findings on merits. These are detailed reasons of our short order of even date, reproduced hereinbelow:-- "For the reasons to be drawn later on and with the consent of the parties, the appeal is accepted, judgment dated 29.11.2012 is set aside and the case is remanded to the learned trial Court for de novo trial with the direction to conclude the trial, preferably within a period of three months."
Hopefully , the learned trial judge shall adopt all necessary steps and endeavors to conclude the trial expeditiously within stipulated period under intimation to this Court through Incharge Bench Registry , Karachi.