' ABDUL HAMEED DOGAR, J.--- The appellants have called in question judgment, dated 15-2-1996 of tote learned Special Judge (Suppression of Terrorists Activities), Larkana, whereby they were convicted under sections 302 and 149, P.P.C. And sentenced to death anneals with fine of Rs,50,000 each or in default whereof to suffer further R.I. For 3 years. It was ordered that if the fine is realized the half of the same would be paid to the legal heirs of the deceased and the remaining Rs,25,000 was ordered to be paid to injured Roshan Ali. They were also convicted under sections 307, 324, Qisas and Diyat read with section 149, P.P.C. With 10 years' R.I. And fine of Rs,10,000 each or in default whereof to suffer further R.I. For one year each. They were extended benefit of section 382-B, Cr.P.C.
Towards computation of their sentence.
2. The case of the prosecution in brief is that on 27-8-1991 at about 8 p.m. While complainant Mahboob Ali was sitting in Autaq along with his brother Asghar Ali, son Roshan Ali, Karim Bux Miramar, Abdul Qadir, Ghulam Murtaza and Nabi Bux Sargani, there appeared 8 culprits duly armed with weapons and overpowered them. They were identified on electric bulb to be absconding accused Ali Hassan, Mir Hassan and appellants Muhammad Ali, Ghulam Haider, Mashooq Ali and Deedar Ali, whereas two could not be identified. Out of them Ali Hassan, Muhammad Ali and Ghulam Haider were armed with Kalashnikov, whereas Mir Hassan, Deedar Ali and Mashooq Ali were armed with rifles while rest with guns. Ali Hassan, Mir Hassan and Muhammad Ali disclosed that the complainant party had got their persons murdered by spying the police, as such they would not be spared, saying so, they fired at Ali Asghar, which hit him at his chest and other parts of body. Absconding accused Mir Hassan and appellant Deedar Ali and Mashooq Ali also fired at Ali Asghar and Roshan Ali, but the fire hit Karim Bux Mirbahar, who raised cries and fell down. Unidentified culprits fired from their guns at the door in the air. The appellants and other co-accused took away licensed gun of Ali Asghar and Nabi Bux Mirbahar. On cries persons from village got attracted and thereafter they saw Ali Asghar lying dead, whereas Roshan Ali and Karim Bux Mirbahar had sustained injuries and were unconscious. Injured Karim Bux Mirbahar also succumbed to injuries on the same day in Baten Hospital.
3. A charge-sheet was put up against the appellants wherein Ali Hassan and Mir Hassan were shown absconders.
4. A formal charge was framed against the appellants, to which they did not plead guilty and claimed trial.
5. At trial the prosecution examined complainant Mahboob Ali, injured Roshan Ali, P.W. Ghulam Murtaza, Abdul Ghaffar, Mashir Abdul Jabbar, P.W. Nabi Bux, Mashir Ghulam Mustafa, P.C. Karim Bux and P.C. Ali Gohar were given up, prosecution also examined A.S.-I. Fida Hussain Gopang. Dr. Wahid be Junejo, Tapedar Muhammad Yousuf, Mashir P.C. Sikandar Ali, Investigating Officer, A.S.-I.
Obaidullah Jagirani, S.H.O. Qurban All Soomro, P.C. Barkat Ali and then the prosecution closed its side.
6. The appellants in their respective statements recorded under section 342, Cr.P.C., denied the case of prosecution and claimed innocence. They, however, neither led any evidence in defence nor examined themselves on oath.
7. The following points were framed by the learned trial Court for determination:--
(1) Whether the injured Roshan Ali sustained rifle shot injuries?
(2) Whether deceased Ali Asghar and Karim Bux died as a result of firearm injuries?
(3) Whether the present accused along with absconding accused Ali Hassan and Mir Hassan formed an unlawful assumably duly armed with Kalashnikov and other deadly weapons?
(4) Whether the present accused and absconding accused in prosecution of the common object of unlawful assembly committed the murders of deceased Ali Asghar, Karim Bux and caused injuries to P.W. Roshan with intention to commit Qatl-e-Amad?
(5) What offence or offences are committed by the accused?
8. On assessm ent of evidence the appellants were found guilty and were convicted and sentenced as abovementioned.
9. We have heard Mr. A.Q. Halepota, the learned counsel for the appellants and Mr. Habib Ahmed, the learned Assistant Advocate-General for the State at length and have gone through the R&P of the case.
10. At the very outset we have seen that the charge in this case has been framed contrary to the case of prosecution and has no nexus with the same at all. Not only this, but the statements of the appellants under section 342, Cr.P.C. Too have been recorded in consonance with the charge, quite contrary to the case of prosecution, which goes to show that the learned Judge while framing charge and recording statements of the appellants had not applied mind to the facts and th,' evidence adduced at trial.
11. According to the case of prosecution as enumerated in the F.I.R. As well as from the evidence at trial, the absconding accused Ali Hassan and Mir Hassan and appellant Muhammad Ali fired from Kalashnikov and rifles at Ali Asghar which hit him at his chest and other parts of body. Thereafter, absconding accused Mir Hassan and appellants Deedar Ali and Mashooq Ali also fired from rifle at Ali Asghar and P.W. Roshan Ali, but the fire hit Karim Bux Mirhahar, who raised cries and fell down.
Unidentified culprits fired from their guns in the air. Thereafter, the appellants and absconding accused took away licensed guns of All Asghar and Nabi Bux and threatened to remain silent.
Whereas in the charge as well as in the statements under section 324, Cr.P.C. Quite different type of accusation have been put to the appellants which had no bearing with the case of prosecution. It is mentioned in the above that on the day of incident at about 8 p.m. Appellants as well as absconding accused Ali Hassan and Mir Hassan and two unidentified culprits in furtherance of their common object formed unlawful assembly, fired on the complainant party in the Autaq of the complainant and the shots of absconder Ali Hassan and appellant Ghulam Hassan hit Ali Asghar and Karim Bux Mirbahar, who died at the spot and, thus, committed Qatl-i-Amd punishable under section 302/149, P.P.C. They were also further charged that all of them opened fire from their respective weapons on complainant party and caused injuries to P.W. Roshan Ali and, thus, committed Qatl-i-Amd punishable under sections 307(324) and 149, P.P.C.
12. It is pertinent to note that no charge under section 392 or 395, P.P.C. About robbery/dacoity of guns of Ali Asghar and Nabi Bux was framed. Irrespective of above, the entire evidence was recorded on solemn affirmation and the requirement of section 304, P.P.C. Were not complied with while conducting the trial, as such the very trial has proceeded in a manner contrary to the case of prosecution and Islamic provisions of law as ordained by Qur'an and Sunnah.
13. It is mandatory that charge shall contain all material particulars as to time, place as well as specific name of the alleged offence, the manner in which the offence was committed and the particulars of the accused so as to afford accused an opportunity to explain the matter with which he is charged. The purpose behind giving such particulars is that the person against whom such charge is framed should prepare his case accordingly and may not be misled in preparing his defense. Charge is the very start of trial and it is at that stage that an accused comes across the accusation leveled by the prosecution against him, as such he will have to keep such material in his mind during the: proceedings of the trial.
14. By now it is well-settled that if any person is misled in preparing the defense by absence of necessary particulars, as stated above, or there is a serious defect in the charge, retrial is the remedy. The material thing for directing the retrial is to be seen as to whether by framing an improper charge, quite contrary to the case of prosecution, a prejudice was caused to the accused or not. Here in the case in hand a serious prejudice was caused to the appellants as the charge has not been framed in accordance with the case of prosecution, of which they had knowledge, whereby they were alleged to have committed death of All Asghar and Karim Bux Mirbahar, whereas in the charge the appellants are said to have committed offence by quite different sets of accused. On the other hand, no fault of any sort has been committed by the complainant party or his-, witnesses during the trial, as such there seems to be no reason to discard the evidence. If that is done so, it would definitely prejudice the case of the complainant also. Discarding their evidence on the basis of defective charge or a defective statement under section 342, Cr.P.C. Would not only be against the norms of justice but would be in violation of principles of natural justice.
15. The Supreme Appellate Court in the case of Iqbal Hussain Shah and another v. The Drugs Inspector Jamal Anwar and another 1992 PCr.LJ 1781, remanded the case and ordered it retrial finding the charge framed by the trial Court not precisely conforming to the number and quantity of the drugs and other articles that were seized by the raiding party from the vehicle of the appellant. It was further observed that charge might necessitate rectification with all necessary legal consequences.
16. In the case of Muhammad Ahsan Khan v. The State 1968 PCr.LJ 759, the case was remanded to trial Court for fresh decision on the grounds that there was a patent inconsistency in charge as framed and charge as put to the accused in examination under section 342, Cr.P.C.
17. This Court in the case of Sarwar Shakir v. The State 1992 M LD 1253 had also remanded the case for retrial as the charge was defective.
18. Consequently, we set aside the conviction and sentence and remand the case for retrial from the stage of framing charge. The trial Court should E immediately proceed with the case and conclude the trial within four months positively.
' The above are the reasons of our short order, dated 23-2-1999.