' ABDUL HAMEED DOGAR, J.--- The appellants have called in question judgment, dated 15-1-1995, passed by the learned Special Judge for Suppression of Terrorists Activities, Larkana in Special Case No,13 of 1993, whereby they were convicted under section 302/149, P.P.C. To imprisonment for life and fine of Rs,50,000 or in default whereof to suffer further R.I. For two years more and were also convicted and sentenced under section 365-A/149, P.P.C., with imprisonment for life and forfeiture of entire property. Irrespective of the above, they were also convicted under section 307/324/149, P.P.C. For five years and fine of Rs,5,000 or in default whereof to suffer further R.I. For six months more. They were also ordered to pay Rs,50,000 each to the legal heirs of deceased Arshad Hussain or in case of their failure, the same was ordered to be realised from the fine or from the sale proceeds of forfeited property. The sentences were ordered to run concurrently and the benefit of section 382-B, Cr.P.C., was allowed towards computation of their sentences.
2. Precisely the facts of prosecution case are that in the night in between 18th and 19th of January, 1991 at about 1-30 a.m. The complainant Ghous Bux, his son Arshad Hussain and abductees, namely, Noorullah, Ahmed Ali and Rustam Ali were chitchatting when at that time there came 12 dacoits armed with Klashnivkov, rifles and guns, out of whom the complainant party identified appellants and, accused Hashim Chandio, Gulab, Asghar, Muhammad, Irshad, Hubdar, Sodho and three were not identified. The abovementioned dacoits caught hold of Irshad Hussain and the abovementioned three abductees on gun point, on which Irshad Hussain resisted, as such accused Hashim Chandio fired from Klashnikov upon him, who fell down and succumbed to injuries. They also fired upon the complainant party and abducted the abovementioned three abductees and asked the complainant to pay ransom for their release. The above case was registered, the appellants were arrested and were booked to face trial alongwith absconding accused, namely, Gulab, Irshad, Imdad, Babu alias Muhammad Essa and Asghar.
3. A formal charge was framed against the appellants, to which they pleaded not guilty and claimed trial.
4. The prosecution at trial examined complainant Ghous Bux, P. Ws. Muhammad Nawaz, Ellahi Bux, Ahmed Ali, Noorullah, Dr. Abdul Sattar, Muhammad Ismail, Ali Sher, Amanullah, Jawed Shah, Rustam, Karim Dino, Ali Gohar and gave up P.Ws. Muhammad Ebrahim and S.I.P. Faqir Muhammad.
5. The appellants in their respective statements under section 342, Cr.P.C., denied the case of prosecution and claimed innocence and pleaded that they were involved because of longstanding enmity with the complainant.
6. The learned Trial Court framed the followings points for determination:
(1) Whether Arshad Hussain son of Ghous Bux Heesbani died an unnatural death by receiving fire- arm injuries at the hands of dacoits on the date, time and place of the incident?
(2) Whether dacoits fired upon complainant Ghous Bux and P.Ws. Ahmed Ali, Noorullah and Rustam with their common object to commit Qatl-e-Amd of any of them?
(3) Whether P.Ws. Ahmed, Noorullah and Rustam were abducted by the dacoits in order to obtain ransom from them or their relatives?
(4) Whether accused or any of them is guilty of offences charged against them?
7. On assessm ent of evidence the appellants were found guilty and were convicted and sentenced as mentioned above.
8. We have heard Mr. Nuruddin Sarki, the learned counsel for the appellants and Mr. Syed Jalil Hashmi, the learned Assistant Advocate-General, Sindh, on behalf of the State at length and have gone through the record and proceedings of the case.
9. At the very outset we have noticed that the charge in this case has been framed in clear contrast to the case of prosecution and has no nexus with the same. According to the F.I.R. As well as statements of P.Ws. It was in the night in between 18th and 19th January, 1991 at about 1-30 a.m.
That irrespective of appellants, co-accused Hashim Chandio, Gulab, Asghar, Muhammad, Irshad, Hubdar, Sodho and three unidentified dacoits entered in the house of complainant and caught hold of deceased Arshad Hussain and three abductees, namely, Noorullah, Ahmed Ali and Rustam Ali. On the residence of Arshad Hussain, he was fired at by co-accused Hashim Chandio, who fell down and succumbed to injuries, whereas the rest three abductees were abducted for the purpose of extortion of ransom amount. In the charge it is mentioned that on 19-1-1991 at about 1-30 a.m.
The appellants alongwith absconding accused Gulab, Irshad, Imdad, Babu alias Muhammad Essa and Asghar came in the complainant's house and in furtherance of their .Common object formed an unlawful assembly and fired from their respective weapons on the complainant party and injured Arshad Hussain, who fell down and died at the spot and, thus, committed Qatl-e-Amd. They were further charged alongwith abovemementioned absconding accused that they after forming unlawful assembly being armed with Klashnikov and other deadly weapons abducted Noorullah, Ahmed Ali and Rustam Ali for obtaining ransom amount from their relatives. They were also charged alongwith the abovemementioned absconding accused for forming unlawful assembly and for attempting to commit Qatl-e-Amd punishable under section 307/324 read with section 149, P.P.C. It is pertinent to note that complainant Ghous Bux, abductees Rustam Ali, Noorullah, Ahmed Ali as well as P.Ws. Ellahi Bux and Muhammad Nawaz have fully supported the case of prosecution as putforth in the F.I.R. And have specifically assigned roles to the appellants and co- accused Hashim Chandio, Gulab Jaskani, Muhammad Shabani, Irshad Jaskani, Rahim, Hubdar and Sodho. Another aspect of this case which has lost sight of the learned Judge while recording B statements under section 342, Cr.P.C., is that he has not applied mind to the case of prosecution, but has simply considered the abovemementioned charge and had recorded statements of the appellants to that extent alone, is also a serious defect. 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 C 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 defence. Charge is the very start of trial and it is at this stage that an accused comes across the accusation levelled by the prosecution against him, as such he will have to keep such material in his mind during the proceedings of the trial. By now it is well-settled that if any person is misled in preparing the defence 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 Arshad Hussain and had abducted Noorullah, Ahmed Ali and Rustam Ali alongwith co-accused Hashim Chandio, Gulab, Muhammad, Irshad, Rahim, Hubdar and Sodho, 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 their 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.
10. The Supreme Appellate Court in the case of lqbal Hussain Shah and another v. The Drugs Inspector Jamal Anwar and another, 1992 PCr.LJ 1781, remanded the case and ordered its 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.
11. 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.
12. 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.
13. Consequently we set aside the conviction and sentence and remand E the case for retrial from the stage of framing charge. The Trial Court should immediately proceed with the case and conclude the trial within four months positively.