MUHAMMAD ANWAR Versus State
The appellant challenged his conviction under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. The core legal question was whether a defective framing of charge—specifically charging the appellant under section 18 read with section 10(3) while convicting him under section 10(3) for a graver offence without proper notice—caused material prejudice. The Federal Shariat Court held that the defective charge caused material prejudice and entitled the appellant to a retrial. The court set aside the impugned judgment, remanded the case to the trial court for framing a proper charge and proceeding with the trial in accordance with the law, and ordered the appellant's release on bail pending retrial as he had been on bail during the original trial. The key principle laid down is that a fundamental defect in framing a charge for a graver offence without proper notice causes prejudice and warrants a retrial.
- Does a defective framing of charge regarding a graver offence cause material prejudice to an accused?
- Is an accused entitled to a retrial when convicted of an offence without proper notice in the charge?
- What is the appropriate remedy when a trial court frames a defective charge leading to prejudice?
- Section 10(3), Offence of Zina (Enforcement of Hudood) Ordinance 1979
- Section 18, Offence of Zina (Enforcement of Hudood) Ordinance 1979
The appellant has been convicted under section 10(3) of the Office of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced to seven ears' R.I. with fine of Rs.20,000 and in default six months' S.I.
2. Before commencement of the arguments, the learned counsel has pointed out that the very framing of charge is defective and it has caused a material prejudice to the appellant. According to the learned counsel the charge has been framed under section 18 read with section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, which is in the following manner.
3. The perusal of the charge reveals that the contention raised by the learned counsel is correct and is borne out from the record.
4. Needless to say that offence under section 10(3) of the Ordinance is more grave in nature and the punishment prescribed thereunder is two times as under section 18 read with section 10(3) of the Ordinance for which the appellant had no previous notice. Without even demonstrating any prejudice the appellant is entitled for retrial.
5. I accordingly accept the appeal, set aside the impugned judgment and remit the case back to the learned trial Judge/Sessions Judge, Shakargarh, District Narowal for framing of proper charge and thereafter proceeding with the trial according to law.
6. It has been stated at Bar by the learned counsel that the appellant was on bail during trial. It is also borne out from the judgment. The learned trial Judge by verifying this fact that the appellant was on bail during trial release him on bail.
7. The appeal is disposed of in above terms.
H.B.T./79/FSC Case remanded.