' Through this Jail Appeal No,(S) 37 of 2002 convict/appellant Nehal Khan has assailed the judgment of Sessions Judge, Sibi Division Sibi, dated 5-8-2002, whereby the appeal filed by the appellant against the judgment of Judicial Magistrate, Sibi, dated 5-6-2002, was dismissed by upholding the judgment of learned Judicial Magistrate.
2. It will be pertinent to mention here that a second appeal is not competent against the judgment of the Appellate Court. However, this appeal has been filed by the appellant through jail authorities having no legal assistance, therefore, I am inclined to convert this appeal into revision petition and decide the same on merits.
' I heard the learned State Counsel and also perused the record including the impugned judgments with his assistance.
3. Briefly stated, facts of the case are that on 4-5-2002, a case under section 337-A(ii), P.P.C. Was registered in City Police Station, Sibi vide No,49 of 2002 on the report of one Abdul Rashid son of Muhammad Khan, wherein it was alleged that he alongwith Gul Muhammad was eating cucumbers while standing near a hand cart, when at about 7-30 p.m. Accused Nehal Khan came there and injured him by inflicting knife blows on his abdomen and hand.
' On his report a case was accordingly registered and after usual investigation the challan was sent to Judicial Magistrate, Sibi for trial. It will not be out of place to mention that the challan was forwarded by learned District Attorney to the Magistrate with the request that accused be tried under section 337-A (ii), P.P.C.
4. On 29-5-2002, according to order-sheet copies of statements recorded under section 161, Cr.P.C.
Were supplied to the petitioner, who was not represented by any counsel and the case was adjourned to 5-6-2002. On the said date charge under section 337-D and F, P.P.C. Was read over to him, to which he pleaded guilty. The learned Judicial Magistrate, on the plea of accused, convicted him under section 337-D, P.P.C. Sentenced to suffer one year's R.I. And also ordered him to pay Arsh of Rs,91,890 to the injured.
' Being aggrieved by the said judgment, the petitioner filed an appeal before the learned Sessions Judge, Sibi which was dismissed on 5-8-2002 on the ground that the same is not maintainable under section 412, Cr.P.C. In view of his plea of guilt.
' The petitioner has, now knocked the door of this Court.
5. In order to appreciate the correct legal position, it would be beneficial to reproduce the contents of charge to which the petitioner has allegedly pleaded guilty:-- ' Charge.
"I Zahoor Ahmad Langove, Judicial Magistrate 1st Class, Sibi do hereby charge you:-- ' Nehal Khan son of Mirza Khan as follows:-- ' That on 4-5-2002 at about 7-30 p.m. You had inflicted a knife blow to the complainant's abdomen when he was purchasing cucumbers from a cart standing at Chakar Road, Sibi, thus you had committed an offence under section 337-D & F, Qisas and Diyat Ordinance within the cognizance of this Court.
' And I hereby direct that you be tried by this Court on the said charge.
' Dated. 5-6-2002. (Sd )
(Zahoor Ahmed Langove), Judicial Magistrate, 1st Class, Sibi.
Plea of Accused ' The charge having been read over and explained to the accused in Urdu language which he understands and he is asked as to whether he pleads guilty to the charge or has any defence to make to which he replied as under:-- ' Ans. I plead guilty to the charge." Nehal Khan son of Mirza Khan.
(Sd.)
(Zahoor Ahmed Langove), Judicial Magistrate, 1st Class, Sibi.
6. The perusal of charge shows that the same has not been framed in accordance with the provisions of section 221, Cr.P.C. And basic ingredients of section 337-D, P.P.C. Are missing. Normally any omission or defect in the charge is not sufficient to vitiate the trial but in r ty humble view, when a person is convicted on plea of guilt, the contents of charge are to be construed strictly. If there is any defect in the same, conviction order is liable to be set aside because prejudice is natural result of such defect or omission.
' Keeping in view the above principle, it is painfully noted that the learned Judicial Magistrate while framing the charge has not kept in his mind the basic ingredient of section 37-D, i,e, injury extending to the body cavity of the trunk. The charge merely says "you had inflicted knife blow to the complainant's abdomen" which does not constitute the offence punishable under section 337- D, P.P.C.
' This conclusion is further strengthened by the fact that the trial Court has made reference to Medical Certificate while convicting the petitioner which means it was not satisfied by the plea of petitioner. In such circumstances it was incumbent upon the Trial Court to have at least recorded the statement of doctor in presence of accused before convicting him.
' In my considered view, a person cannot be convicted under section 243, Cr.P.C. On the admission of facts from which a fact essential to constitute the offence is missing, nor the prosecution can urge that such omission is curable under sections 225 and 537(b), Cr.P.C. Because accused pleads not to a section of law but to facts which purport to disclose an offence under such section. As already observed, basic ingredient of offence punishable under section 337-D, P.P.C. Was missing in the charge, to which petitioner pleaded guilty; therefore, the conviction was illegal and liable to be set aside.
7. The appeal of the petitioner was dismissed by the learned Sessions Judge, being not maintainable in view of bar contained in section 412, Cr.P.C. So far as the Court of appeal is concerned, section 412, Cr.P.C. Makes it manifestly clear that there shall be no appeal except as regards the extent or legality of the sentence or in other words, there can be no appeal against conviction. The powers of High Court are, however, wider enough to consider the legality of conviction as well, while exercising its jurisdiction under section 439, Cr.P.C. This is clear from the very language of section 412, Cr.P.C. Which lays down that "there shall be no appeal except as to the extent or legality of sentence". This section does not restrict the powers of High Court to consider the legality of conviction in exercise of its revisional jurisdiction. Reaching to this conclusion, I am fortified by the case-law reported in Kevishan Chandra v. Emperor AIR 1943 Pat. 313 and Muhammad Razzaq-ul-Islam v. State 1969 PCr.LJ 373.
8. Thus, for the foregoing reasons I am of the considered view that this Court while exercising its powers in revisional jurisdiction is competent to interfere in the judgment of Appellate Court, no matter whether the appeal has been decided on merits or dismissed being not maintainable, more particularly when it comes to the conclusion that material illegality or irregularity has been committed by the trial Court while reaching to a conclusion.
9. As discussed above, I find that the charge was defective and the petitioner was misled by it, therefore, conviction based on the plea of guilt in consequence of said charge, is not sustainable and the same is set aside. Consequently, the case is remanded to the learned Judicial Magistrate, Sibi for fresh trial from the stage of charge.