P L D 1955 Baghdad﷓ul﷓Jadid 9 (PLP)

FAIZ MUHAMMAD, C. J.

The Sessions Judge of Bahawal pur has convicted Ghulam son of Naurang of offence under section 364 P. P. C., for abducting Mst. Sharifan in order that she may be murdered or may be so disposed of as to be put in danger of being murdered, and sentenced him to life imprisonment. Ghulam has appealed to this Court against his conviction and sentence. The facts of the case are set out in detail in the judgment of the trial Court to which reference may be made. For the purpose of this appeal it would be enough to say that Ghulam appellant along with four others was challaned in 1950 under section 302 P. P. C., for committing the double murder of one Mst. Sharifan and her father wali Muhammad. While that case was still at the enquiry stage Ghulam appellant absconded and remained at large till 1952. The other accused in that case were however committed to the Court of Session, tried by the said Court, convicted and sentenced to life imprison ment for having committed the murder of Mst. Sharifan. Their appeal against the order of the then Sessions judge was also rejected by the High Court. On his arrest in 1952 Ghulam appellant was also committed for trial under section 302 P. P. C., but only in respect of the murder of Mst. Sharifan. The learned Sessions Judge Bahawal pur has however found that although charge under section 302 P. P. C., is not established against Ghulam appellant, he is proved to have been concerned with abducting of Mst. Sharifan in order that she may be murdered or may be so disposed of as to be put in danger of being murdered. Therefore convicting the appellant under section 364 P. P. C., he has sentenced him to life imprisonment. That Mst. Sharifan and her father Wali Muhammad had been murdered was held proved in the previous case. Their dead bodies were also recovered and identified by competent witnesses. Conviction of the four accused in that case was however based only on circumstantial evidence into which I cannot now go. The learned Sessions judge has held that the same circumstances relied upon in the present case do not justify the conviction of Ghulam appellant under section 302 P. P. C. The Crown has however filed an appeal against this finding of the learned Sessions judge alleging that on the evidence as it tands Ghulam appellant could be convicted of offence under section 302 P. P. C. It has therefore been prayed that he may be so convicted. Before going into the evidence on record to see what offence, if any, can be held to have been proved against the appellant it is necessary to decide a point of law on which lengthy arguments have been addressed to me by the counsel for the parties. This point of law is whether or not the learned Sessions Judge could convict the appellant of offence under section 364 P. P. C., without formally charging him with that offence. Both sides have cited authorities in support of their respective points of view. That the opinion of the various High Courts in this sub-continent is divided and divergent on the point is clear on the authorities cited before me. Instead of entering upon a discussion of these authorities and attempting to reconcile or distinguish views expressed in them I prefer to concentrate upon the statutory provisions on the subject. These provisions are contained in sections 236, 237 and 238 Cr. P. C. Taking each of these provisions separ ately I find that section 236 Cr. P. C., has no bearing on the facts of the present case. This section applies to cases in which "a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute". In the present case there was no such doubt. The position taken up by the prosecution in the previous case as well as in the present case has been that the accused in both cases had committed the murders of Mst. Sharifan and her father Wall Muhammad. But assuming for the sake of argument that there had been some doubt in this respect the proper course for the Committing Magistrate or the trial Court was to charge the accused with all such offences or to charge him in the alternative with having committed some one of the said offences. But, this was not done and therefore the applicability of section 236 to the present case must be ruled out of consideration. As regards section 237 Cr. P. C. it should be enough to point out that it is controlled by section 236 Cr. P. C, i.e., it comes into play when there is a doubt as to the nature of the offence which the accused can be held to have committed on the basis of facts proved against him. This is made quite clear by the opening words of section 237 Cr. P. C. Therefore provision contained in subsections 1 and 2 of section 238 Cr. P. C. is the only one which needs to be considered for the decision of the point raised. This provision is as follows: - "238. (1) When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence and such combina tion is proved, but the remaining particulars are not proved, he may be convicted of the minor offence, though he was not charged with it. (2) When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence, although he is not charged with it". A careful analysis of this provision of law indicates that the minor offence of which an accused person can be found guilty without being specifically charged with it must stand in a particular relationship with the major offence with which he has been charged. In the words of the section some particulars of the major and minor offences should be common and such particulars though insufficient to constitute the major offence should be sufficient to constitute the minor one. It is only then and then alone that on the failure of the major offence the accused can be convicted of minor one without being charged of the latter if evidence on record proves it. In other words if the major offence and the minor offence are quite distinct and apart as far as their essential ingredients are concerned then even section 238 will not help and conviction of the accused for the so-called minor offence will not be sustainable unless and until the accused is specifically charged with ir. The idea underlying this section is that major charge in such cases gives to the accused notice of all the circumstances which constitute the minor offence of which he is to be convicted without being charged with it. This principle has been laid down in an old Bombay ruling in which it is stated that the section is not intended to apply to a collateral offence (11 B H T R., page 240). Thus in order to attract the application of this section the major and the minor offences must be cognate offences. (1954 All. page 558). Bearing in mind the above interpretation of section 238 Cr. P. C., we have to see whether offence under section 364 P. P. C., can be considered a minor offence vis-a-vis offence under section 302 P. P. C. After carefully considering all aspects of the question I am definitely of the view that this is not so. Offence under section 364 P. P. C is an aggravated form of offences under sections 359, 361 and 362 P. P. C. There is in my opinion nothing in common between the ingredients of these offences and the ingredients of offence under section 300 P. P. C., which defines the offence of murder punishable under section 302 P. P. C. Reference in section 364 P. P. C. to the intention or purpose of the abductor is not sufficient to make offences under it and under section 302 P. P. C., cognate offences. For these reasons I am constrained to hold that the learned Sessions Judge was not justified in convicting Ghulam appellant of offence under section 364 P. P. C., without specifically charging him with it and without giving him the opportunity of meeting it. Further the learned Sessions judge does not appear to have take into confidence even the Assessors with whose aid he tried the case. Their verdict on the question whether on the evidence produced Ghulam could be found guilty of offence under section 364 P. P. C. was necessary. This being so I feel convinced that the accused was prejudiced in his trial as far as his convic tion under section 364 P. P. C., is concerned. I have already indicated that Crown has also appealed against the judgment of the learned Sessions Judge as far as it acquits the accused of an offence under section 302 P. P. C. I refrain from expressing any opinion on the merits of Crown's appeal because while accepting the appeal of Ghulam appel lant and setting aside his conviction under section 364 P. P. C. I am sending the case back to the Sessions judge with the direction that 'tie may amend the charge against the appellant by adding charge under section 364 P. P. C., in the alterna tive and decide the case afresh after giving the appellant opportunity to meet the amended charge. This judgment and the record of the case will therefore be returned to the Sessions Judge for compliance with the above directions. Note.

I may observe that according to the normal practice of the High Court this appeal should have been heard by two Judges. But it so happens that my other two colleagues had been concerned with the previous case, one as the Sessions judge who tried it and the other as counsel for one of the parties. Therefore taking advantage of Rule IV of Ch. 3-B of Vol. V of Lahore High Court Rules and Orders, I have dealt with this appeal as a single judge. The Lahore High Court Rules and Orders are applicable to proceedings before this High Court. A. H. Re-trial ordered.