2006 PLP 359 (YLR)

MUHAMMAD MOOSA K. LEGHARI, J.

This appeal is directed against the judgment dated 14-1-2002, passed by Ist Additional Sessions Judge, Nawabshah, whereby the appellant was convicted under section 302, P.P.C. and awarded death penalty.

2. At the outset it has been pointed out by learned counsel for the appellant that the charge in the case was defective inasmuch as that it did not contain the correct name of deceased, as it was in fact Muhammad Ayoob who was murdered and not Muhammad Yakoob as mentioned in the charge. Besides the weapon of crime by which the murder was allegedly committed, also does not find mention in the said charge. Relying upon certain authorities of this Court 'learned counsel submits that the charge is in violation of section 222, Cr.P.C. He therefore, contends that the impugned judgment was not sustainable and liable to be set aside.

3. Learned Asstt. A.-G. has not rebutted the above facts. He has further pointed out that the judgment itself is defective, having not been recorded in accordance with law. Learned Asstt. A.-G. has, therefore, frankly conceded that the judgment be set aside, and the matter be remanded for re-trial.

4. We have considered the submissions and have examined the record.

5. In fact a charge is precise formulation of the specific accusation made against a person who is entitled to know its nature at the early stage. The whole object of framing a charge is to enable the defence to concentrate its attention on the case that he has to meet. Therefore, the charge must contain all material particulars as to time, place as well as specific name of the A alleged offence, the manner in which the offence was committed and the particulars of the accusation so as to afford the accused an opportunity to explain the matter with which he is charged. Purpose behind giving such particulars is that the accused should prepare his case accordingly and may not be misled in preparing his defence. It needs no emphasis to state that a defective and misleading charge causes serious prejudice to the accused and vitiates the whole trial.

6. After examining the charge framed by the trial Court we are persuaded to agree with the submissions made before us. The charge has not been correctly framed. It is misleading besides lacking in, material particulars. It has certainly vitiated the trial and has resulted in miscarriage of justice. Additionally the impugned judgment is manifestly untenable, for having been recorded in violation of the provisions of section 367, Cr.P.C.

7. For the above reasons the appeal is allowed to the extent that the impugned judgment is set aside. The case be remanded to the trial Court for de novo trial after framing a fresh charge containing full material particulars of the offence committed to make it in consonance with the provisions of section 222, Cr.P.C.

8. Consequently, the murder reference submitted by the trial Court is rejected.

9. After the judgment was dictated, it was pointed out on behalf of the appellant that at the time of conviction the appellant was on bail and therefore, it was pleaded that the appellant be released on bail.

10. Learned A.A.-G has however, opposed the grant of bail to the appellant contending that the guilt was proved against the appellant.

11. Admittedly the appellant was on bail, when the judgment was pronounced, as evident from the perusal of the judgment. After being convicted through judgment dated 14-1-2002, the appellant was taken in custody. He is continuously in prison since then. The case is being remanded on account of omission on the C part of trial Court and not because of any fault committed by the appellant. Conclusion of trial may take enough time as could be visualized keeping in view the pendency of cases. In the circumstances it seems appropriate to release the appellant on bail. The appellant is accordingly, directed to be released on bail subject to his furnishing surety in the sum of Rs.2,00,000 (two lac) and P.R. bond in the like amount to the satisfaction of the trial Court. H.B.T./M-5/K????????????????????????????????????????????????????????????????????????????????????? Case remanded.