1997 P Cr (PLP)

2. Briefly, the facts of the case are that one Fida ussam Shah moved a complaint (Exh.P.A./1) on 18-2-1994 before S.H.O. Police Station Swabi Maira stating therein that he is an employee to Air Force and his brother Imdad Hussain Shah has died 6/7 years back. His widow and her children are residing to the village. In the night of 2nd and 3rd February, 1994, his Bhabi Mst. Zahida Bibi was sleeping alongwith minor children in her house. Suddenly 3/4 persons entered into the house, but his Bhabi remained silent to save her honour. The culprits took T.V. (Black and While), Doorbeen, Cameras, V.C.R., Tape Recorders, watches, golden ornaments, clothes etc. There was none else in the house except minors, therefore, his Bhabi sent intimation of this incident to him to Rawalpindi. On this intimation he reached the village and investigated and got satisfied that this theft was committed by the appellants etc. On the basis of this complaint an F.I.R. was lodged on 18-2-1994 at 3-30 hours. The appellants were arrested challaned and charged by the trial Court on 13-11-1994.

3. I have heard both the learned counsel for appellants and State. At the outset the learned counsel for appellants has made a reference to section 222(1), Cr.P.C. which reads as under:-- "222 Particulars as to time, place and person.

(1) 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) to respect of which, it was committed, as are reasonably sufficient to give the accused notice of the matter with which he is charged." According to the learned counsel for appellants the charge dated 13-11-1994 neither contains such particulars as to the time and place of the alleged offence nor it contains particulars about the things in respect of which offence was committed. Substantial part of the charge is reproduced as below: "That you on the night between 2/3 February, 1994 at unknown time committed lurking house trespass in the house of Mst. Zubaida Bibi located within limits of village Kakotri Police Station Swabi Maira, with intent to commit theft after having made preparation to cause restrain and assault to the inmates of the house and thereby committed an offence punishable under section 458, P.P.C. and within my cognizance. That after the commission of the theft of house hold articles from the house of Mst. Zubaida Bibi, it was recovered from your possession the value of which exceeds Nisab as defined under section 6 of Offences Against Property (Enforcement of Hudood) Ordinance, 1979 and thereby committed an offence punishable under section 9 of the Order and within my cognizance." According to the counsel for the appellants, the charge makes reference to Articles 9 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 for which the punishment is that of the right hand from the wrist as a Hadd according to the impugned judgment the offence of Hadd was not proved and, therefore, it was brought under the purview of the Ta'zir but as Ta'zir the appellants have been punished under section 392, P.P.C. which is robbery and has nexus with Article 17 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 which punishment is higher than theft as it is punishment for Haraba but the appellants were originally charged for theft and not for Haraba. Reliance has been placed on 1991 PCr.LJ 369 in which the principle, which has been enunciated is quoted verbatim: "

S. 148/149 read with S.324

Conviction under S.148/149, P.P.C.

Appeal against

Appellate Court acquitting them but convicting them under 5.324, P.P.C.

Challenge to

Whether conviction was justified when no charge under S.324, P.P.C. was framed

Question of

Petitioners were charged under S.148/149, P.P.C.

Additional Sessions Judge set aside conviction under these sections and instead, convicted petitioners under S.324. P.P.C.

Held petitioners who were charged with minor offence under S.148/14g. P.P.C. without charge under this section

Held further: There can be no two opinions that conviction of petitioners by Additional Sessions Judge is bad in law

Petitioners acquitted." Another judgment on which reliance has been placed is that of this Court cited as NLR 1995 SD

585. The principle, which has been enunciated is quoted verbatim: "S.

22. Defect in framing of charge would cause prejudice to accused and would be a ground for setting aside conviction/sentence recorded against him with remand of case for retrial after framing a valid charge." The learned counsel for State has disagreed with the proposal that the case is fit for acquittal, but he has agreed with the proposal that this case in fact, falls within the meaning of the principle laid down in NLR 1995 SD

585. Consequently the conviction and sentences C, of the appellants are set aside and the case is remanded back to the trial Court with direction that a de novo trial shall be held after giving a proper charge to the appellants which should inter alia disclose as to what offence they had attempted to commit. The requirements of section 222(1), Cr.P.C. are mandatory to nature and, therefore, the charge should be framed in accordance with the provisions of the said section. The appeal is disposed of in the aforesaid terms. N. H. Q. / 1120/FSC Appeal remanded