GHULAM MUSTAFA and 2 others vs THE STATE
This matter involves three criminal appeals filed by the appellants against their conviction and sentencing by the Additional Sessions Judge, Nasirabad at Dera Murad Jamali, under Section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and Section 337-J/34 of the Pakistan Penal Code 1860. The core legal questions concerned the validity of the trial court's proceedings, specifically regarding the framing of the charge and the examination of the accused. Upon review, the Federal Shariat Court found that the trial judge failed to frame a proper charge by omitting necessary ingredients of the offence and incorrectly using the term 'Zina' instead of 'sodomy'. Furthermore, the court noted a failure to properly examine the accused under Section 342 of the Code of Criminal Procedure 1898 regarding incriminating evidence. Consequently, the appellate court set aside the conviction, remanded the case for a de novo trial starting from the stage of framing the charge, and granted bail to the appellants pending the conclusion of the proceedings.
- Does the failure to frame a proper charge containing all necessary ingredients of an offence vitiate the trial proceedings?
- Is a trial court required to put all incriminating evidence to the accused during their examination under Section 342 of the Code of Criminal Procedure 1898?
- Can an appellate court remand a case for trial proceedings to be corrected without recording fresh prosecution evidence?
- Section 12, Offence of Zina (Enforcement of Hudood) Ordinance 1979
- Section 337-J, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 382-B, Code of Criminal Procedure 1898
- Section 342, Code of Criminal Procedure 1898
ORDER
1. ' All the three Criminal Appeals Nos.76/Q of 2001, 81/Q of 2001, and 238/I of 2001 arising out of the same judgment dated 24-10-2001 of the learned Additional Sessions Judge, Nasirabad at Dera Murad Jamali, these are therefore, disposed of by this single order. The accused/ appellants were tried, convicted under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced to undergo rigorous imprisonment for ten years each and to pay a fine of Rs,20,000 each. In default of payment of fine each of them shall suffer further six months simple imprisonment. They were further convicted under section 337-J/34, P.P.C. And sentenced to suffer two years' rigorous imprisonment each and to pay a fine of Rs,15,000 in default of payment of fine to further undergo four months simple imprisonment, each. Both the sentences were ordered to run concurrently and the benefit of section 382-B, Criminal Procedure Code was extended to each of the accused.
2. ' I have heard the learned counsel for the parties and as I have formed my opinion to remand this case, therefore, I refrain from discussing the merit of the case which may prejudice the case of the parties at the trial. However, on perusal of record it is crystal clear that the learned trial judge has not framed a proper charge as no reference has been made to the ingredients which constitute the offence under section 12 of the Ordinance and similarly instead of referring to commission of offence of sodomy the learned trial Judge has used the word "Zina". Similarly the learned trial Judge failed to examine the accused under section 342, Criminal Procedure Code in the light of the prosecution evidence by putting the incriminating evidence to the accused.
3. ' In view of the above all the three appeals mentioned above, are therefore, accepted, the judgment of the learned Additional Sessions Judge is set aside and the case is remanded to the learned Sessions Judge for further proceeding in the light of the observation, i,e, the charge should be corrected and without recording any fresh evidence from prosecution side, the accused shall be examined under section 342, Criminal Procedure Code by putting incriminating evidence, which has already recorded, to the accused. If so desire the accused can lead evidence in their defence.
4. ' The learned counsel for the appellants requested that the accused are in jail since long, therefore, till the conclusion of the proceeding by the trial Court and decision on merit they shall be allowed the concession of bail. The request is genuine, the accused/appellants shall be released on bail on furnishing bail bonds in the sum of Rs,10,000 with one surety each to the satisfaction of the trial Court.