IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Crl. Misc. Application No.S-50 of 2021

Date of hearing

Order with signature of Judge

For hearing of main case.

O R D E R.

17-02-2022.

Mr. Abdul Sattar Soomro advocate for applicant.

Mr. Muhammad Junaid Akram Arain advocate for respondents Nos. 2 to 7.

Syed Sardar Ali Shah Jilani, APG for the State.

AMJAD ALI SAHITO J., Through instant Crl. Misc. Application, the applicant Mst. Rehana impugned the order dated 11-8-2020 passed by learned III-Additional Sessions Judge/II-MCTC Sukkur in Cr. Case No. 251/2018 Re. The State Vs. Nadir Ali & others, offence u/s 147, 148, 149, 324, 114, 506/2 PPC bearing Crime No. 80/2017 registered at police Station Kandhra, on the application u/s 227 Cr.P.C filed by the applicant with the prayer to alter the section from 302 PPC to 324 PPC.

Per learned counsel for the applicant, initially FIR bearing Crime No. 80 of 2017 was registered under sections 324, 114, 506/2, 147 148, 149 PPC, therefore section 302 PPC was inserted and charge was framed on 25-09-2018, subsequently on the application of the accused party, the charge was amended and framed under section 324 PPC. He further contended that after recording of evidence, it was duty of the learned trial Court to ascertain as to whether the section 302 PPC is made out and if it is not made out then the charge can be amended under section 227 Cr.P.C, but without recording the evidence learned trial Court has framed charge under section 324 PPC on 11-08-2020, which is purely against the law, hence the impugned order is liable to be set aside.

On the other hand, learned APG for the States, assisted by learned counsel for the private respondents have opposed for grant of instant application and supported the impugned order and submit that two Medical Officers namely Dr. Muhammad Iqbal and Dr. Muhammad Wasim have been examined and as per their version that they being expert cannot ascertained the cause of death and declared it “undetermined”.

I have heard learned counsel for the parties and have gone through the material available on record.

Admittedly the charge against the accused was framed under section 302 PPC and two PWs/Medical Officers namely Dr. Muhammad Iqbal and Dr. Muhammad Wasim have been examined and after their examination, the application u/s 227 Cr.P.C for alteration of the charge was filed on the ground that as per expert evidence, they cannot ascertain the cause of death and declared it “undetermined”. It is appropriate to reproduce the relevant portion of the evidence of Dr. Muhammad Iqbal discussed in the impugned order, which is as under:-

“ I cannot ascertain cause of death with my expert opinion and i have declared it as an undetermined death. I cannot tell that deceased died unnatural death due to impact of firearm injury. I have not mentioned firearm injury as cause of death. We received injured and we gave him the treatment. Injury was of such nature that deceased could have died on the spot, but he was saved by the surgery and he fully recovered from injuries. I cannot tell about other disease of deceased. There is no possibility of death of any person after so much time of receiving firearm injuries, if there was no complication. I cannot say about natural death o deceased because I was no available at the time of his death. We discharge every injured after satisfying his condition. Injured did not come to hospital after his discharge for any complication. There is no medical evidence that injured died due to firearm injuries or its impacts. According to my information my medical opinion and post-mortem was not challenged before any medical board. I have not ascertained firearm injuries as cause of death.

From the perusal of above, it is observed that after receiving the injured, the medical officer gave him medical treatment. Injury was of such nature that deceased could have died on the spot, but he was saved by the surgery and he fully recovered from injuries. Tentatively it is crystal clear that cause of death was natural and firearm injuries were not declared as cause of death and medical officer disclosed that there is no medical evidence that injured died due to firearm injuries or its impacts.

In view of above, no illegally is found to be occurred in the impugned order, therefore the same is maintained and instant Crl. Misc. Application is dismissed. Learned trial Court is directed to expedite the matter and conclude the trial preferably within 60 days.

J U D G E

Nasim/P.A