PLJ 2022 Cr.C. 871 (DB)
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302(b)/34--Criminal Procedure Code, (V of 1898), Ss. 4(c)/221/ 222/225/227/232/403--Constitution of Pakistan, 1973, Art. 13--Conviction and sentence--Qatl-e-Amd--Challenge to omission in Charge--Autrefois convict or autrefois acquit--Re-trial--Three persons, met homicidal death after the receipt of multiple fire-arm traumas--The term “charge” can legally be described as formulation of allegations prior to recording of prosecution evidence so as to unable an accused facing criminal trial for making good his defence--An error in framing of charge pertaining to the particulars of offence etc is not to be regarded as material in nature--Appellate Court after noticing material error in the charge will direct a new trial but in the manner it thinks fit--Appellants at no point of time were charged for the murder of one deceased and as a necessary corollary their conviction or even acquittal in no manner attracts the principle of autrefois convict or autrefois acquit--The two appellants were confronted only with the allegation of taking the lives of two deceaseds--Conviction and sentence of all the appellants passed by the trial Court are set aside, the case is remanded to the trail Court with the direction to re-frame the charge in the light of observation mentioned above, to re-examine the appellants in terms of Section 342, Cr.P.C. and pass a fresh verdict.
[Pp. 876, 877, 878, 880 & 881] A, B, C, D, E, F
2021 YLR 2352; 2000 PCr.LJ 367 ref.
M/s. Raja Ghaneem Aabir Khan & Malik Fateh Khan Awan, Advocates for Appellants.
Mian Muhammad Arif, Advocate for Complainant.
Mr. Sajjad Hussain Bhatti, Deputy Prosecutor General Punjab for State.
Date of hearing: 18.01.2022
PLJ 2022 Cr.C. 871 (DB)
[Lahore High Court, Rawalpindi Bench]
Present: Raja Shahid Mehmood Abbasi and Ch. Abdul Aziz, JJ.
AFZAL KHAN and another--Appellants
versus
STATE etc.--Respondents
Crl. A. Nos. 774, 744 & M.R. No. 51 of 2019, heard on 18.01.2022.
Judgment
Ch. Abdul Aziz, J.--Afzal Khan, Muzaffar Khan & Muhammad Akhtar (appellants) along with another co-accused, namely, Muhammad Sajid involved in case FIR No. 153/2014 dated 08.10.2014 registered under Sections 302 & 34, PPC at Police Station Tamman, Tehsil Talagang were tried by learned Additional Sessions Judge, Talagang, District Chakwal. Trial Court vide judgment dated 28.06.2019 while acquitting the afore-said co-accused proceeded to convict and sentence the appellants in the following terms:
(1). Muzaffar Khan (appellant)
Under Section 302(b), PPC to suffer death sentence for committing qatl-i-amd of Shazia Bibi and Sami Ullah on two counts. He was also directed to pay compensation of
Rs. 3,00,000/-each to the legal heirs of both the said deceased as required under Section 544-A, Cr.P.C. and in default whereof to undergo six months S.I.
(2). Afzal Khan (appellant)
Under Section 302(b), PPC to suffer death sentence for committing qatl-i-amd of Shah Jahan. He was also directed to pay compensation of Rs. 3,00,000/-each to the legal heirs of both the said deceased as required under Section 544-A, Cr.P.C. and in default whereof to undergo six months S.I.
(3). Muhammad Akhtar (appellant)
Under Section 302(b), PPC to suffer imprisonment for life for committing qatl-i-amd of Shazia Bibi. He was also directed to pay compensation of Rs. 3,00,000/-to the legal heirs of the said deceased as required under Section 544-A, Cr.P.C. and in default whereof to further undergo six months S.I. Benefit of Section 382-B, Cr.P.C. was also extended to him.
Challenging their conviction and sentence, Afzal Khan & Muzaffar Khan (appellants) filed Criminal Appeal No. 774 of 2019, Muhammad Akhtar (appellant) filed Criminal Appeal No. 744 of 2019, whereas trial Court sent reference under Section 374, Cr.P.C. which was numbered as Murder Reference No. 51 of 2019 for the confirmation or otherwise of death sentence awarded to Afzal Khan & Muzaffar Khan (convicts). All these matters since are interconnected, hence are being disposed of through this single judgment.
2. Succinctly stated the facts of prosecution case as disclosed by complainant Habib Ullah in FIR (Exh.PX) are that he is resident of Dhoke Mail Dakhli Kotghula; that his son Sami Ullah contracted marriage with Shazia Bibi at Bhakkar contrary to the wishes of her family; that the spouses kept on living at Bhakkar but for the last 10/12 days they were having abode at Dhoke Mail; that on the night of 08.10.2014 his son Sami Ullah along with wife Shazia Bibi, mother Shah Jahan Bibi, sisters Sumera Bibi and Musarat Bibi slept in the Baithak due to the rain; that other son of complainant Shafqat Hussain and his wife Sakina Bibi slept in a separate room, whereas the complainant had his cot in the veranda; that the electricity bulbs of rooms and Courtyard were illuminating and the complainant was awakening because of the rain; that at about 12:05 a.m. (night) Muzaffar Khan armed with .222 bore rifle, Muhammad Afzal armed with .30 bore pistol and Muhammad Khan armed with .12 bore gun along with an unknown person emerged on the scene; that Muzaffar Akhtar (appellant) exhorted to the effect that they would teach a lesson for abducting Shazia Bibi; that the complainant raised hue and cry upon which his son Shafqat Hussain and daughter-in-law Ghulam Sakina woke up; that Muzaffar Khan, Muhammad Afzal, Muhammad Akhtar and unknown accused entered the Baithak and Muzaffar Khan fired successive shots from his .222 bore rifle which hit Shazia Bibi at different parts of her body; that the pistol shot made by Muhammad Afzal landed at the eye of Shah Jahan; that thereafter Muzaffar Khan made a fire shot which landed at the forehead of Sami Ullah; that the unknown accused made a pistol shot which hit at the chest of Shazia Bibi, whereas the fire shot made by Muhammad Akhtar from his pistol also hit Shazia Bibi at her left shoulder; that besides complainant, the occurrence was also witnessed by Shafqat Hussain, Ghulam Sakina, Sumera Bibi and Musarat Bibi; that the perpetrators after committing the crime decamped from the spot while brandishing their weapons; that Shazia Bibi and Musarrat Bibi succumbed to the injuries at the spot, whereas Sami Ullah was shifted to RHC for treatment where he also took his last breath. The motive behind the occurrence statedly was the love marriage of Sami Ullah with Shazia Bibi which irked the complainant and he had resort to the murderous aggression.
3. On 08.10.2014 Safdar Hussain SI (PW.11) along with other police officials after the receipt of information qua the incident reached RHC Tamman where he recorded the statement of Habib Ullah complainant (Exh.PBB) and thereafter sent it to the police station through Atif Mehmood 882/C for the registration of formal FIR. Subsequent thereto, he prepared injury statement of Sami Ullah (Exh.PCC), drafted applications for autopsy (Exh.PT & Exh.PW), inquests reports (Exh.PS & Exh.PV) and handed over the dead bodies of Shah Jahan and Shazia Bibi to Misri Khan 394/C along with relevant police papers for post-mortem examination. From the spot, he also secured blood stained cloths lying near the dead body of Shazia Bibi and from the place where Sami Ullah received injuries vide memos Exh.PDD & Exh.PEE. He took into possession blood stained earth from the place of murder of Shah Jahan deceased through memo. Exh.PFF. From the spot, he also secured five empties of rifle .222 (P.19/1-5), two empties of pistol .30 bore (P.20/1-2) and three empties of .12 bore gun (P.21/1-3) vide memo. (Exh.PGG). He also got issued non-bailable warrants and proclamations of Muhammad Akhtar, Muaffar Khan and Muhammad Afzal (appellants).
Investigation of the case was also conducted by Mirza Muhammad Aslam SI (PW.17) who arrested Muhammad Akhtar (appellant) on 30.06.2016 and in pursuance of his disclosure got recovered .12 bore rifle (P.14) on 08.07.2016 which was secured through recovery memo. Exh.PZ. Muzaffar Khan & Muhammad Afzal (appellants) were arrested on 04.09.2016, who during interrogation made separate disclosures and got recovered .222 bore rifle (P.17) & pistol (P.16) which were taken into possession through memos Exh.PAB & Exh.PAA, respectively. He after recording the statements of witnesses under Section 161, Cr.P.C. got submitted report under Section 173, Cr.P.C.
4. Prosecution in order to prove its case against the appellants produced 19-PWs including Shafqat Pervez (PW.9) & Ghulam Sakina (PW.10) who are eyewitnesses of the occurrence, Safdar Hussain SI (PW.11) & Mirza Muhammad Aslam SI (PW.17) who investigated the case and Dr. Malik Muhammad Zubair (PW.3) who on 09.10.2014 at about 04:10 a.m. conducted autopsy of Sami Ullah (deceased) and issued PMR No. 24/2015 (Exh.PM) along with pictorial diagrams (Exh.PM/1 & Exh.PM/2), Dr. Darkhshanda Bakht Raza Shaad (PW.6) who on 08.10.2014 at about 7:25 a.m. conducted the post-mortem examination of Shazia Bibi & Shah Jahan and issued PMR No. 23/14 (Exh.PR) along with pictorial diagrams (Exh.PR/1 & Exh.PR/2) and PMR No. 22/14 (Exh.PU) along with pictorial diagrams (Exh.PU/1 & Exh.PU/2) and Dr. Nazeer Ahmad (PW.18) who on 08.10.2014 conducted the medico legal examination of Sami Ullah (when he was alive) and issued MLC No. 399/2014 (Exh.PAC). The remaining witnesses, more or less, were formal in nature. After the conclusion of prosecution evidence, the learned trial Court also examined the appellants under Section 342, Cr.P.C. during which they were asked the questions arising out of the prosecution evidence but they denied almost all such questions while pleading their innocence and false involvement in the case. Appellants neither made statements under Section 340(2) of Cr.P.C. nor produced any evidence in their defence. On the conclusion of trial, the appellants were convicted and sentenced as afore-stated, hence, the instant criminal appeals and murder reference.
5. It is contended by learned counsel for the appellants that FIR in this case was registered with unexplained delay of more than 4-hours; that incident occurred in the dark hours of night and prosecution failed to prove the presence of light at the spot; that absence of light at the crime scene gives rise to question of mistaken identification; that the medical evidence is in conflict with the ocular account; that the eyewitnesses failed to substantiate their presence at the spot and that though prosecution evidence is discrepant from all angles but still conviction was awarded to the appellants. With these submissions, learned counsel urged that the conviction awarded to the appellants be set-aside.
6. On the other hand, learned law officer assisted by learned counsel for the complainant submitted that delay of 4-hours in no manner can be considered detrimental to the case of prosecution; that even otherwise, the police station was situated 18-miles away from the eventful place, thus some time was likely to be consumed for imparting the information of crime to police; that the PWs are inmates of the house and their presence by no stretch can be denied at the spot; that the narrators of ocular account put forth simple and straightforward account of the incident and their statements are otherwise in line with the medical evidence; that the statements of eyewitnesses are corroborated from the recovery of weapons, positive report of PFSA and duly proved motive and that since prosecution successfully proved its case, hence the conviction awarded to the appellants calls for no interference.
7. Arguments heard. Record perused.
9. Though initially both sides argued the case on factual aspects, however we noticed some flaws in the trial proceedings which swayed us to give a decision only on legal aspects. During this incident Sami Ullah along with his newly wedded wife Shazia Bibi and mother Shah Jahan lost his life. The post-mortem examination of Sami Ullah was conducted on 09.10.2014 by Dr. Malik Muhammad Zubair (PW.3) whereas the autopsy of Shazia and Shah Jahan was carried out by Dr. Darakshanda Bakht (PW.6) on the same date. The charge in this case was twice framed firstly on 27.09.2016 which was to the extent of Muhammad Akhtar (appellant) and later on 22.10.2016 when three other perpetrators, namely Sajid, Afzal and Muzaffar were arrested. To our dismay, it is noticed that on both the occasions, the accused were indicted only for the murder of Shah Jahan and Shazia Bibi, whereas on each occasion the name of Sami Ullah (deceased) was not included in the charge sheet. Since this is an important aspect, hence the charge sheet dated 22.10.2016 is being reproduced hereunder:
“That on 08.10.2014, at 12:05 night, in the area of Kotgullah, within the territorial jurisdiction of police station Tamman Talagang (District Chakwal), you above named accused persons made straight fire shots upon Shah Jahan Bibi and Shazia Bibi. Whereupon said Shah Jahan Bibi and Shazia Bibi succumbed to the injuries caused by you accused persons, thus you committed murder of Shah Jahan Bibi and Shazia Bibi by intentionally causing death of Shah Jahan Bibi and Shazia Bibi, thereby committed offence of Qatl-i-Amd which is punishable u/S. 302 with sec.34, PPC which is within the cognizance of this Court.”
10. We are confronted with the question of foremost importance that whether in the given circumstances the charge so framed by the trial Court is legally defective and if it is so, what method is to be adopted for rectifying it while sitting in the appellate jurisdiction. The term charge is defined in Section 4(c) of Code of Criminal Procedure, 1898 (hereinafter referred to as “the Code”) in the following manner:
“Charge includes any head of charge when the charge contains more head than one.”
“The charge shall contain such particulars as to the time and place of the alleged offence, and the person (if any) against whom, or the thing (if any) in respect of which, it was committed, as a reasonably sufficient to give the accused notice of the matter with which he is charged.” (emphasis provided)
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. In a wrestle with the proposition, we came across Section 232 (1) of the Code which on account of its relevancy is mentioned below:
“It is mandatory that the 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 defence. Charge is the very start of the 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 the 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.”
Similarly, the Hon’ble Federal Shariat Court of Pakistan in case reported as Muhammad Irshad v. The State (2021 YLR 2352) while discussing the significance of charge held as under:
“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 responsible, then the foundation of the case viz ‘Charge’ is not tenable in law”.
11. Having discussed the legal provisions pertaining to the framing of charge, we now consider it appropriate to ponder upon the defect of framing charge in the instant case and its legal implications. While recapitulating that in the instant case three persons, namely, Sami Ullah, Shazia and Shah Jahan were murdered, it is observed that name of Sami Ullah was not mentioned in the charge framed by the trial Court. In the given scenario, it can inevitably be held that the appellants indeed were not tried for the murder of Sami Ullah. The anomaly so mentioned, gives rise to the proposition that whether the appellants can still be prosecuted for the murder of Sami Ullah through another trial. Article 13 of the Constitution of Islamic Republic of Pakistan, 1973 places an embargo that no person shall be vexed twice for the same offence and for reference sake the relevant portion of foregoing Article is being mentioned hereunder:-
“No person--(a) shall be prosecuted or punished for the same offence;”
The afore-mentioned rule has its roots in the maxim “nemo bis puniture aut vexature pro odum delico” which means that no one should be subjected to peril twice for the same offence. Article 13 is based on the principle of autrefois convict and prohibits the subsequent prosecution of an accused for the same cause if he is punished/convicted in an earlier trial. The same rule is postulated in Section 403 of the Code with the modification of adding the principle of autrefois acquit and thereby further embargo is placed on subsequent prosecution if the earlier one had culminated in acquittal. The terms “autrefois acquit” and “autrefois convict” are defined in Halsbury’s Laws of England (2 nd Edn), Vol.9, pages 152-153 as under:
“The plea of ‘autrefois convict’ or ‘autrefois acquit’ avers that the defendant has been previously convicted or acquitted on charge of the same offence as that in respect of which he is arraigned. The question for the jury on the issue is whether the defendant has previously been in jeopardy in respect of the charge on which he is arraigned, for the rule of law is that a person must not be put in peril twice for the same offence. The test is whether the former offence and the offence now charged have the same ingredients in the sense that the facts constituting the one are sufficient to justify a conviction of the other, not that the facts relied on by the Crown are the same in the two trials. A plea of “autrefois acquit” is not proved unless it is shown that the verdict of acquittal of the previous charge necessarily involves in acquittal of the latter.” (emphasis supplied)
exercised after noticing material error in the charge. According to Section 232 of the Code, a case can be remanded to the Court of original jurisdiction for fresh trial to be held in whatever manner the appellate Court thinks fit. It can be extracted from Section 232 of the Code that order for de novo trial can be passed and at the same time direction can be given to re-frame the charge and if no prejudice is caused to the accused, proceed with the trial without re-examining the prosecution witnesses. During arguments, a consensus developed between learned counsel for the appellants and complainant to the effect that after re-framing of charge there is no need to re-summon or re-examine the prosecution witnesses. They further submitted that trial Court be directed to decide the fate of case after fresh indictment and by giving opportunity of arguments to both sides.
13. In the above terms, Criminal Appeal No. 774 of 2019 & Criminal Appeal No. 744 of 2019 are disposed of. Resultantly Murder Reference No. 51 of 2019 is answered in the NEGATIVE and Death Sentence awarded to Afzal Khan & Muzaffar Khan (convicts) is NOT CONFIRMED.
(K.Q.B.) Appeal disposed of
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