“Charge includes any head of charge when the charge contains more head than one.”
The afore-mentioned definition of charge is not exhaustive, thus needs elaboration for the clarity of proposition in hand. Precisely, the term “charge” can legally be described as formulation of allegations prior to recording of prosecution evidence so as to enable an accused facing criminal trial for making good his defence. The word “charge” is wider in purport and implies the accusation against a delinquent, mentioning all the requisite details of offence allegedly committed by him. Undoubtedly, the superstructure of a criminal trial stands upon the foundation of charge and any material defect therein entails consequences adverse to the purity of administering justice. According to Section 222 of the Code, charge must contain particulars regarding the time of crime, place where it is committed and the person against whom it was directed.
As is evident from the use of word “shall”, provision of Section 222 is mandatory in nature and no deviation can be made from it. It convincingly emerges from Section 222 that the particulars of person, against whom the crime is committed, are incumbently required to be set out in the charge. We reiterate here that purpose of charge is to explicate an accused about the allegations so as to enable him for countering them accordingly. Needless to mention here that a flawed indictment is likely to mislead the accused in his defence, thus causes prejudice to him. Chapter-XIX of the Code deals with the framing of charge and non-adherence to its provisions renders the charge so framed as defective and on occasions gives rise to intricate legal implications. We are not oblivious of the fact that as a general rule embedded in Section 225 of the Code, an error in framing of charge pertaining to the particulars of offence etc is not to be regarded as material in nature. At the same time, if such error in framing of charge misleads the accused facing trial, it calls for an interference through redressive measures. For this reason, the Legislature inserted Section 227 in Chapter XIX of the Code which is an enabling provision to alter charge. So far as, Section 227 is concerned, it empowers only the trial court to alter a charge at any stage of the case, even before the pronouncement of the final judgment but the foregoing provision cannot be invoked by the appellate court. The question arises that if some material error is noticed in the charge at appeal stage and such defect is of the nature that it actually misled the accused causing prejudice to him in the defence, what powers the appellate court can exercise.
The 232 CrPC is explicit in language, clear in sense and leaves no room for discussion that appellate court can remand the case for fresh trial on account of some material error in the charge, if it evinces that the convict was misled in his defence due to this defect. The most important aspect which spells out from Section 232 of the Code is to the effect that the appellate court after noticing material error in the charge will direct a new trial but in the manner it thinks fit. It can be concluded that the appellate court can even direct, if the circumstances so warrant, that after the framing of charge the trial court can rely upon the statements of witnesses earlier recorded and there is no need to order their re-summoning/re-calling.
Criminal Appeal No.774 of 2019 (Afzal Khan & another v. The State) and
Criminal Appeal No.744 of 2019 (Muhammad Akhtar v. The State) and
Murder Reference No.51 of 2019 (The State v. Afzal Khan & another)
Date of hearing: 18.01.2022
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