2007 P Cr (PLP)

RAHMAT HUSSAIN JAFFERI, J.

This judgment will dispose of Special Anti-Terrorism Appeals. Nos.53, 54 and 55 of 2003 as they arise out of common judgment.

2. The appeals are directed against the judgment dated 8-10-2003 passed by the learned Judge, Anti-Terrorism Court No.1, Karachi Division, Karachi by which the learned Judge convicted the appellants for offence punishable under section 120-B read with section 34, P.P.C. and section 7(b) of Anti-Terrorism Act, 1997 (hereinafter referred to as "Act") and sentenced each of them to suffer R.I. for 10 years and fine of Rs.1,00,000 or in default thereof to suffer R.I. for one year with benefit of section 382-B, Cr.P.C.

3. Brief facts giving rise to the present appeals are that the appellants hatched a conspiracy to commit murder of President of Pakistan General Pervez Musharraf. In pursuance to the said conspiracy a plan was prepared to complete the conspiracy but it was failed, hence the substantive offence of murder could not be committed.

4. The appellants confessed their guilt before a Magistrate. The Investigation Officer collected some other evidence and challaned the appellants, acquitted accused Muhammad Waseem Akhtar and Shoib in the Court of law where they were tried. At the trial the learned trial Judge framed the charge for offence punishable under section 7 of the Act read with sections 324 and 120-B, P.P.C. The trial proceeded on the said charge. The appellants were convicted as mentioned above under the impugned judgment.

5. From the facts of the case and perusal of confessions it is apparent that the conspiracy was to commit the murder but the charge was framed for conspiracy to commit attempt to murder. Thus, the charge does not consonance with the facts of the case, as such, it is against the spirit of law. The conviction was also awarded to the appellants for the said offence treating the conspiracy as conspiracy to commit the offence of attempt to murder.

6. On the above point the learned Advocate for the appellants has stated that the appeal may be heard and decided on merits as the remand of the case would again delay the proceedings and that the appellants have already remained in jail for a period of more than 4 years.

7. The learned A.A.-G. has stated that the case had proceeded on the wrong charge, beyond and out of the scope of prosecution story, therefore, if the appeal is decided for the offence of conspiracy to commit the murder then it will prejudice the case of the appellants and furthermore the minimum sentence for the said offence is imprisonment for life whereas the trial Court has awarded 10 years imprisonment hence he has requested for the remand of the case.

8. We have given due consideration to the arguments, gone through the material available on the record and found that the conspiracy of the appellants was to commit the offence of murder, therefore, the case should have been proceeded for the said offence by framing the charge of conspiracy to commit the murder. It appears that the trial Court did not appreciate and examine the prosecution story as mentioned in police report, documents and statements filed by the prosecution as it considered the story and allegation as a case of conspiracy to commit the offence of attempt to murder, therefore, the case proceeded on wrong facts and charge. Hence the trial Court has violated the provisions of section 265-D, Cr.P.C.

9. If the appeal is heard for the offence of conspiracy to commit the murder as requested by the learned Advocate for the appellants then the appellants would be prejudiced in their defence as the minimum sentence provided for the said offence is imprisonment for life. Furthermore, under section 238(2), Cr.P.C. Court can convict an accused for minor offence than the offence charged. There is no provision in the Cr.P.C. empowering the Court to convict an accused for offence graver than the offence charged. In addition, the provisions of sections 236 and 237 are also not attracted. However, provisions of section 232, Cr.P.C. are attracted.

10. Thus, the proceedings of the case, from the stage of charge are illegal as it has caused prejudice to the appellants and occasioned a failure of justice, which cannot. be cured under section 537, Cr.P.C. as such the trial is vitiated. Hence, the case is required to be remanded to the trial Court for retrial from the stage of charge by framing the charge for offence mentioned in clause 3 of third schedule attached to the Act read with section 7(a) of the Act and section 120(b), P.P.C. read with section 302, P.P.C. Order accordingly.

11. Consequently, the impugned judgment is set aside. The appeals are allowed in the above terms. H.B.T./M-174/K Appeals allowed.