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Criminal Appeal No. 813 of 1979, decided on 27th May, 1981.

----S. 236 read with Ss. 237& 238-Prejudice specific charge, effect of absence of-Accused charged under S. 302/34, P. P. C. but acquit ted of such charge and instead convicted under S. 364, P. P. C. Charge put to accused in their examination under S. 342, Cr. P. C. that they abducted deceased in order to murder him or so dispose of as to be put in danger of being murdered-Offence under S, 364, P. P. C. not being cognate to offence under S. 302, P. P. C., conviction of accused under S. 364, P. P. C. in absence of specific charge, held, prejudiced accused in his defence and hence unwarrant ed-Conviction set aside and retrial ordered, in circumstances. ---[Retrial].

Ghulam v. Crown P L D 1955 B 19 ref.

Shahid Hussain Kadri for Appellants.

Altaf Muhammad Khan for the State.

Mian Qurban Sadiq Ikram for the Complainant.

Dates of hearing: 12th April ; 3rd and 4th May, 1981,

Zahid Shehzad (16), Abdur Razzaq (15/16) and Muhammad Amir alias Beeri (16), residents of Bangla Gogera, were tried for the murder of Hamid Rashid by the learned Sessions Judge, Sahiwal, who, by his judgment dated 25th June 1979, acquitted them of the charge under section 302/34, P. P. C., but convicted them under section 364/34, P. P. C. and sentenced each of them to imprisonment for life. They have appealed Aman Ullah complainant has filed Criminal Revision No. 678 of 1979 to challenge their acquittal of the charge under section 302/34, P. P. C. Both these matters shall be disposed of by this judgment.

2. The facts of the case have been given in detail in the impugned judgment. However, for the purpose of this appeal and the connected revision petition, it may be mentioned that the case of the prosecution is that on 28th June 1978 all the three appellants abducted Hamid Rashid by deceitful means with intent that he may be murdered. His uncle Aman Ullah complainant along with others searched for him for two days but finding no clue he ultimately reported the matter to the police on 30th June 1978 vide written complaint (Exh. P. T.) on the basis of which a case under section 364/34, P. P. C. was registered against the appellants at Police Station, Gogera at 8 p.m.

3. Zahid Shehzad appellant was arrested on 2nd July 1978. While in custody, he led to the recovery of a dead body from a sugar-cane field, which was identified, by Ghulam Hussain (P. W. 18) and Mohammad Shafi (P. W. 23) as that of Hamid Rashid. Dr. Muhammad Athar, who conducted the post-mortem examination, however, made a categorical statement that the dead body was not identifiable.

4. Muhammad Amir alias Beeri and Abdur Razzaq appellants were arrested on 14^thJuly 1978. Ali Ahmad, S. H. O., took into his possession a pair of shoes from Amir appellant and a golden ring from Abdur Razzak appellant vide memos Exh. P. M. and Exh. P. L. respectively. On 17th July 1978 Abdur Razzaq appellant produced sewing a machine (Exh. P. 5) before the S. H. O. vide memo Exh. P. G. According to the prosecution, this machine belonged to the sister of Hamid Rashid and he had earlier collected it from her father-in-law Muhammad Afzal P. W. On the next day Amir alias Beeri led to the recovery of blood stained knife (Exh. P. 9) from a sugar-cane field, which was made into a sealed parcel, vide memo Exh. P. Q. After the investigation, the appellants were sent up under sections 302, 364 and 382 read with section 34 of the Pakistan Penal Code.

5. The appellants pleaded not guilty to the charge, denied the prosecution allegations against them and stated that they had been implicated on mere suspicion.

6. After examining the evidence on the record, the learned trial Judge came to the conclusion that it was fully proved beyond any shadow of doubt that the three appellants had abducted Hamid Rashid by deceitful means so that he might be murdered. He did not rely on the evidence relating to the recoveries and observed that the prosecution having failed to prove that Hamid Rashid had been put to death, "the prosecution evidence on the point of leading to the place of murder as well as the dead body by accused Zahid Shehzad, recovery of blood stained earth from there, securing of blood-stained knife (Exh. P. 9) at the instance of Amir accused recovery of pair of sandal (Exh. P. 8/1-2) from him, taking into possession of golden ring (Exh. P. 7) from the person of accused Abdur Razzaq and also recovery of sewing-machine (Exh. P. 5) at his instance, ceases to have any significance". In view of his above findings, he came to the conclusion that charge under sec tion 302/34, P. P. C. was not proved and consequently he acquitted them of this charge, but relying on the evidence of last-seen furnished by Aman Ullah, Ghulam Bakhtiar, Shamsul Haq, Muhammad Afzal, Maqbul Ahmad and Allah Yar, P. Ws. he convicted and sentenced them as mentioned above.

7. A legal objection has been taken to the conviction under sec tion 364/34, P. P. C. and as I am upholding that objection, setting aside the conviction and sentence and ordering retrial, I do not wish to go into the merits of the case under section 364, P. P. C. Legal objection raised by the learned counsel for the appellants is that the appellants were charged under section 302/34, P. P. C, but were acquitted of the said charge and instead convicted under section 364, P. P. C. for which they were never charged and were thus taken completely unawares in the matter of their conviction under section 364/34, P. P. C. therefore, a clear prejudice had been caused to them and in that view of the matter their conviction under section 364, P. P. C. is illegal. In support of the contention, he relied on Ghulam v. Crown (P L D 1955 B J 9).

8. The general rule is that an accused person cannot be convicted of an offence of which he was not charged. Sections 237 and 238, Cr. P. C., are, however, exceptions to this rule. Section 237, Cr. P. C. enables the Court to convict a person of an offence, which is disclosed in evidence and for which he might have been charged under the provisions of sec tion 236, Cr. P. C. though he was not charged with it. Section 237, Cr, P, C. is a corollary to section 236, Cr. P. C. and is attracted when there is a doubt as to the nature of the offence which the accused can be held to have committed on the basis of facts which can be proved against him, In the instant case, there was no such doubt. There was no direct evidence of the murder, and the position taken up by the prosecution was that the three appellants had abducted Hamid Rashid in order that he may be murdered. Both these sections are, therefore, not relevant for the purpose of this case. Subsections (1) and (2) of section 238, Cr. P. C., which provided another exception to the aforesaid general rule, read as under:---

(1) When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and such combination is proved, but the remaining particulars are not proved, he may be convicted of the minor offence, though he was not charged with it.

(2) When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence, although he is not charged with it."

A careful perusal of the above provisions would show that subsec tion (1) is attracted where the offence charged consists of several particulars, a combination of some only of which constitutes a complete minor offence and such combination is proved, but the remaining particulars are not proved. Subsection (2) applies to cases where facts are proved which reduce the offence charged to a minor offence. If this be not the position, the aforesaid provisions would not apply because the principle on which conviction for a minor offence proceeds, is that the major charge gives notice to the accused of the circumstances constituting the minor offence. As regards the instant case, the offence under section 364, P. P. C. is an aggravated form of offence of kidnapping or abduction and I do not see any thing common between this section and section 302, P. P. C. Kidnapping or abduction which is the main ingredient of an offence under section 364, P. P. C. is not a necessary element of the offence of murder under section 302, P. P. C. nor the elements of section 302, P. P. C. include the elements of an offence under section 364, P. P. C. In this case even if the abduction had been proved, a charge under sec tion 364, P. P. C. was necessary as it would have provided an opportunity to the appellants to explain the allegation of last-seen for an innocent purpose. It is to be noted that it was not put to the appellants in their examination under section 342, Cr. P. C. that they had abducted Hamid Rashid in order that he may be murdered or be so disposed of as to be put in danger of being murdered. The appellants were, therefore, prejudiced in their defence as far as the conviction under section 364, P. P. C. is concerned. Even the learned counsel for the complainant frankly conceded that the offence under section 364, P. P. C. is not cognate to the offence under section 302, P. P. C. In the absence of a charge the conviction under section 364, P. P. C. was, therefore, unwarranted.

9. For the foregoing reasons, I am constrained to quash the convic tion and sentence of the appellants. The case is sent back to the learned Sessions Judge, Sahiwal, with the direction that the appellants shall he retried after amending the charge by adding charge under section 364, P. P. C. in the alternative. The appeal and the revision petition stand disposed of accordingly.

Order accordingly.

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