IN THE HIGH COURT OF SINDH, AT KARACHI

Criminal Appeal No. 419 of 2022

Appellants: Ahtisham @ Rohan Saleem and Qamar Iqbal through Mr. Hasnain Ali advocate

The State: Through Mr. Faheem Hussain Panhwar, Deputy Prosecutor General Sindh

Date of hearing: 18.11.2022

Date of judgment: 18.11.2022

J U D G M E N T

IRSHAD ALI SHAH, J.- It is alleged that the appellants in furtherance of their common intention attempted to commit rape with baby Rehana, a girl aged about 06 years, for that they were booked and reported upon; on conclusion of trial, they were convicted under Section 376 PPC r/w section 511 PPC and sentenced to undergo R.I for 05 years and to pay fine of Rs.50,000/- each and in default whereof to undergo simple imprisonment for 03 months with benefit of section 382(b) Cr.P.C by learned III-Additional Sessions Judge Karachi South vide judgment dated 13.06.2022, which is impugned by them before this Court by preferring instant appeal.

2. At the very outset, it is pointed out by learned counsel for the appellant and learned DPG for the state that after amendment of the charge, the examination-in-chief of complainant Khan Muhammad, which was already recorded was adopted, which is contrary to Section 227 Cr.P.C, which prescribes recalling and re-examination of the witnesses already examined, on the amendment/alteration/ addition so made in the charge. By pointing out so, they suggested for setting aside of the impugned judgment with direction to learned trial Court to proceed with the case afresh and in accordance with law.

3. Heard and perused.

4. The omission pointed out by learned counsel for the parties, takes support from the record, consequently, the impugned judgment is set aside with direction to learned trial Court to recall and re-examine the complainant (or any of his witnesses, if need be), as prescribed by law and then to make disposal of the case afresh and in accordance with law.

5. The appellants were enjoying the concession of bail at trial, they may enjoy the same concession, subject to their furnishing fresh surety in sum of Rs.50,000/-(Rupees Fifty Thousand) each and P.R bond in the like amount to the satisfaction of learned trial Court.

6. The instant appeal is disposed of accordingly.

JUDGE