JUDGMENT SHEET

IN  THE  HIGH  COURT  OF  SINDH, CIRCUIT  COURT,  LARKANA

Criminal Appeal.No.S-75 of 2017.

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DATE                                       ORDER  WITH  SIGNATURE  OF  HON’BLE  JUDGE

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For hearing of main case.

31.01.2022

                        Mr. Safdar Ali Bhutto, Advocate for the appellant.

Mr. Safdar Ali Ghouri, Advocate for the complainant.

Mr. Ali Anwar Kandhro, Addl.P.G for the State.

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IRSHAD ALI SHAH, J.- The facts in brief necessary for disposal of instant criminal appeal are that the appellant allegedly with rest of the culprits, committed trespass into house of complainant Abdul Fattah and on being chased by the complainant party, not only committed murder of Abdul Razzaq by causing him fire shot injuries but caused lathies and hatchets injuries to PWs Abdul Sattar and Abdul Ghaffar; he was apprehended at the spot by the complainant party, while rest of the culprits made their escape good by making aerial firing to create harassment, for that the present case was registered.

                        After due trial, the appellant was convicted u/s.460 PPC and sentenced to undergo rigorous imprisonment for life and to pay fine of Rs.50,000/- to legal heirs of the deceased as compensation by learned Additional Sessions Judge, Kashmore, vide judgment dated 24.08.2017,   which is impugned by the appellant before this Court.

                        The appellant has been convicted and sentenced only for an offence punishable u/s.460 PPC, which is contrary to law. In addition to punishment prescribed for lurking house-trespass or house breaking by night, the person guilty for such offence is also made liable for the punishment for committing Qatl or causing hurts, as is specified under Chapter-XVI of the Penal Code. In the instant matter, no charge for committing Qatl of Abdul Razzaq or causing hurts to PWs Abdul Sattar and Abdul Ghaffar or creating harassment by making fires in air endangering lives of others has been framed against the appellant by learned trial Court. By that omission, not only the appellant but the State has been mislead, in its defence by trial Court, which has occasioned in failure of justice in terms of Section 535 Cr.PC.

                        In case of M.Younis Habib Vs. The State (PLD 2006 SC-153),          it has been held by the Honourable Apex Court that;

“4. The Criminal Procedure Code lays down an elaborate procedure for framing of the charge and the rationale is that the accused should know the exact nature of the accusations made against him so that he may give a proper reply and is not misled by any vagueness in the accusations levelled. Section 222 provides that while framing the charge particulars as to time and place of the alleged offence should be given. Section 223 mandates that the manner and mode of committing offence should be stated in the charge. Section 224 stipulates that while framing the charge the relevant law and the penal provision should also be mentioned. The Legislature .was conscious of the possible human error which may occur while framing the charge and perhaps precisely for this reason the section (section 225) which succeeds the afore-referred provisions caters to that situation and it reads as under: 

"Effect of errors.--No error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars, shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission, and it has occasioned a failure of justice."

                        Learned counsel for the parties when were confronted with above proposition, were fair enough to consent for remand of the case for denovo trial.

                        In view of above, the conviction and sentence awarded to the appellant by way of impugned judgment are set aside with direction to learned trial Court to frame the charge against the appellant afresh by considering the entire material brought before it and then to proceed with the case afresh in accordance with law.

                        The instant Criminal Appeal is disposed of accordingly.

                       JUDGE