GUL HASSAN Versus State
KHADIM HUSSAIN M. SHAIKH, J .---It is alleged by the prosecution that the appellant and his mother Mst. Taj Bibi were found transporting 2000 grams of Heroin powder by police party of Police Station Qubo Saeed Khan, which was led by SIP Attaullah Mirani, for that they were booked and reported upon by the police.
2. At trial, the appellant and his mother Mst. Taj Bibi were charged for transporting 200 grams of Heroin powder, to which they pleaded not guilty to the charge and the prosecution to prove it, examined complainant SIP Attaullah Mirani and PW/Mashir PC Muhammad Ali and then closed the side.
3. The appellant and his mother Mst. Taj Bibi in their statements recorded under section 342, Cr.P.C. denied the prosecution's allegation by pleading innocence; they examined none in their defence or themselves on oath in disproof of the prosecution case against them.
4. Consequently, Mst. Taj Bibi was acquitted while the appellant was found guilty for having committed an offence punishable under section 9(c) of the CNS, Act, for transporting 2000 grams of Heroin powder and was convicted and sentenced to undergo rigorous imprisonment for 05 years with fine of Rs.50,000/- and in case of default to make payment of fine to undergo simple imprisonment for period of 06 months, by learned Additional Sessions Judge-I, MCTC/Special Judge (CNS), Shandadkot, vide his judgment dated 07.12.2019, which is impugned by the appellant before this Court by way of the instant appeal.
5. It is contended by learned counsel for the appellant that the appellant being innocent has been involved in this case falsely by the police; the charge framed against the appellant was defective; the report of the Chemical Examiner was not confronted to the appellant during course of his examination under section 342, Cr.P.C.; neither the incharge of Malkhana nor the person who taken the contraband substance to the Chemical Examiner was examined by the prosecution to prove the safe custody and transmission of contraband substance to the Chemical Examiner and the appellant has been convicted and sentenced on the basis of improper assessment of the evidence by learned trial Court, therefore, the appellant according to him is entitled to his acquittal.
6. Learned D.P.G for the State was fair enough to concede that the charge framed against the appellant is defective and the incharge of "Malkhana" and the person, who had taken the contraband substance to the Chemical Examiner, have not been examined at trial. By conceding so, he sought for remand of the matter for de novo trial against the appellant.
7. We have heard learned counsel for the parties and perused the record.
8. Legally, the charge is a notice to the accused thereby making it clear for him that 'what the case of prosecution against him is?' and that 'what offence or offences prima facie is/are made out against him?. The former is meant to let the accused to make his defence while the latter is to detail what punishment the accused may receive on conclusion of trial. It is foundation of a trial hence the importance thereof needs no much debate. A whole Chapter (Chapter-XIX) is included in the Code (Criminal Procedure). It may be added that punishment which is likely to fall is one of circumstances which may convince the accused to plead guilty even. This seems to be the reason that first provision of this Chapter i.e. section 221, Cr.P.C. says that;
"221. Charge to state offence. (1) Every charge under this Code shall state the offence with which the accused is charged".
9. The importance thereof is further evident from subsection (4) of section 221, Cr.P.C., which reads as;
(4) The law and section of the law against which the offence is said to have been committed shall be mentioned in the charge;
10. Section 222 Cr.P.C. provides that charge shall contain such particulars as to time and place of alleged offence and person (if any) against whom, or the thing (if any) in respect of which it has been committed, as are reasonably sufficient to give the accused notice of the offence with which he is going to be charged. We are quite conscious that normally an otherwise legally conducted trial is not be regarded as illegal merely for error in stating the offence or other particulars but when such error or omission is claimed to have misled or prejudiced the accused so as is evident from section 225, Cr.P.C., which reads that;
"225. Effect of errors. No error in stating either the offences 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".
11. However, when such error or omission is claimed to have misled or prejudiced the accused in his defence then such error or omission, being in deviation to guaranteed fundamental right of fair trial as is prescribed by Article 10-A of Constitution of Islamic Republic of Pakistan, 1973, would be sufficient for amending/altering charge, during course of trial or if trial is concluded for remand thereof on appeal for doing the needful. Every claim of failure of justice because of act of Court, if is appearing to be carrying weight, then it would always be advisable to ensure fair trial.
12. In case of M.Younus Habib v. 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 accuse should know the exact nature of the accusation made against him so that he may give a proper reply and is not misled by any vagueness in the accusations levelled....
"6. ..... they could warrant annulling of the finding of conviction justifying retrial only if the accused (a) had been misled by it and (b) if it had occasioned miscarriage of justice...."
13. After examination of the above legal position, now for proper examination of plea of appellant, it would be appropriate to refer the charge, so framed against him by trial Court, which reads that;
"That you both of accused persons above named on 21.10.2019 at 1300 hours at PP Rabi Pul bypass motorway road situated in Deh Dhori, Taluka Qubo Saeed Khan were arrested by police party headed by SIP Attaullah Meerani of Police Station Qubo Saeed Khan and you accused Gul Hassan were found in possession of Heroin weighing about 200 grams and thereby you have committed an offence punishable under section 9-Control Narcotic Substances Act, cash of Rs.2000/- one mobile phone and one Hundai Car of golden colour being registration No.PG-4504, engine number nil, chassis No.776984 within the cognizance of this Court"
14. The prosecution's case is that the appellant was found transporting two shopping bags each containing 1000 grams, total 2000 grams of Heroin powder but the appellant was charged for transporting 200 grams of Heroin powder. The failure of learned trial Court in mentioning the actual weight of Narcotic Substance allegedly recovered from the possession of the appellant, in charge cannot be regarded as mere error or omission, as the same was not found sufficient to let the appellant know the actual nature of accusation against him.
15. In case of M.E.N Rowail v. The State, which is reported in PLD 1957 SC(Pak)-257, it has been held by Hon'ble Apex Court that; "that the charge to the jury was vitiated by mis-direction as well as by non-direction on matters which were of direct importance to the charges preferred against the accused".
16. The learned counsel for the appellant when was confronted with the above said legal position, was fair enough to consent for remand of the matter for fresh/de novo trial for appellant.
17. Based upon above discussion, the impugned judgment is set-aside only to the extent of the appellant with direction to learned trial Court to proceed with the case afresh/de novo in accordance with law. The appellant is on bail; he shall join the trial on execution of fresh bail bond to the satisfaction of the learned trial Court.
18. The surety furnished by the appellant before this Court would stand discharged on furnishing of fresh surety by the appellant before the learned trial Court.
19. The instant appeal is disposed of in above terms.
JK/G-25/Sindh Case remanded.