MUHAMMAD IMRAN alias Sanwal vs STATE and another
This criminal appeal challenges the conviction of the appellant, Muhammad Imran, for the molestation and subsequent death of a six-year-old child. The appellant was originally indicted under Section 10(3) of the Offence of Zina (Enforcement of Had) Ordinance, 1979, and Section 7(a) of the Anti-Terrorism Act, 1997. However, the trial court failed to frame a charge under Section 302 of the Pakistan Penal Code, 1860, regarding the death of the victim. The core legal question was whether the trial court's failure to indict the appellant for the murder charge constituted a curable defect or necessitated a retrial. The Court held that the omission was a fundamental illegality that could not be cured. Consequently, the Court set aside the judgment of the Anti-Terrorism Court, remanded the case to the Sessions Judge, Lodhran, for a de novo trial, and directed that a proper charge be framed. The Court also noted that child molestation is not currently a scheduled offence under Section 6 of the Anti-Terrorism Act, 1997, further necessitating the transfer of the case to the appropriate forum.
- Does the failure to frame a charge for murder in a case involving child molestation constitute a curable illegality?
- Is child molestation a scheduled offence under Section 6 of the Anti-Terrorism Act, 1997?
- What is the appropriate remedy when a trial court fails to indict an accused on a primary charge like murder?
- Section 10(3), Offence of Zina (Enforcement of Had) Ordinance 1979
- Section 7(a), Anti-Terrorism Act 1997
- Section 302, Pakistan Penal Code 1860
- Section 6, Anti-Terrorism Act 1997
ORDER
' Ramsha Bibi a child of six years was molested by appellant Muhammad Imran on 8.8.2005 within the area of Mauza Burhanpur of PS Kehror Pacca; the appellant was surprised by Imtiaz Bibi, mother of the child whereupon he fled away from the scene of occurrence; the child was found dead as a result of assault on her.
2. Appellant Muhammad Imran was subsequently arrested and sent to face trial before learned Judge, Anti Terrorism Court-II at Multan where he waa indicted on 17.1.2006 under Section 10(3) of the Offence of Zina (Enforcement of Had) Ordinance, 1979 read with Section 7(a) of Anti Terrorism Act, 1997.
3. What is conspicuously missing in the charge is appellant's indictment under Section 302, PPC which escaped notice till date.
4. Confronted with this anomaly learned counsel for the appellant frankly conceded that remission of the case for denovo trial is the only option available under law. According to learned counsel for the appellant presently offence involving child molestation is not a scheduled offence within the contemplation of Section 6 of Anti Terrorism Act, 1997. Learned law officer has also subscribed to the position taken by learned counsel for the appellant.
5. In our view illegality committed by the trial Court is not curable. Consequently judgment dated 24.11.2006 is set aside. Case is remanded to learned Sessions Judge, Lodhran for decision afresh after framing of proper charge within six months, as the case is fairly an old one and appellant is still in jail. Office is directed to send record of this appeal to the trial Court immediately.