IN THE HIGH COURT OF SINDH, AT KARACHI
Criminal Appeal No. 711 of 2021
Criminal Appeal No. 712 of 2021
Criminal Appeal No. 713 of 2021
Appellants: Zamin
Ali, Muhammad Majid @ Kala and Muhammad Ashraf through Mr. Ammad Ghaffar advocate
The State: Through
Mr. Talib Ali Memon, Assistant Prosecutor General Sindh
Date of hearing: 27.09.2022
Date of judgment: 27.09.2022
J U D G M E N T
IRSHAD ALI SHAH,
J-
It is alleged that the appellants in furtherance of their common intention took
baby Asma, a girl aged about 10/11 years to their house and then attempted to
subject to her rape, for that they were booked and reported upon. On conclusion
of trial, they were convicted for offence punishable under Section 367/A PPC
and sentenced to undergo rigorous imprisonment for 05 years and to pay fine of
Rs.100,000/- each and in default whereof to undergo simple imprisonment for 03
months, without awarding them benefit under Section 382-B Cr.P.C being mandatory
by learned Additional Sessions Judge-III, South Karachi vide judgment dated
25.11.2021, which is impugned by the appellants before this Court by preferring
three separate appeals.
2. On perusal of record, it transpired that after
amendment of the charge, evidence of P.Ws Mst. Gulzara and IO/SIP Ghulam
Muhammad, which was already recorded was adopted, such adoption after amendment
of charge was contrary to the mandate contained by Section 353 Cr.P.C, which
prescribes recording of evidence in presence of the accused. Even otherwise, as
per mandate contained by section 231 Cr.P.C, witnesses already examined are to
be recalled and re-examined on alteration/addition so made in the charge. By
such omission, not only the appellants but the State too have been prejudiced
in its defense seriously.
3. In case of S. Hifazat Hussain vs. The State (1987
P.Cr.L.J 403), it has been held by Division Bench of this Court that;
“…….where the Special Court had framed second charge
in which the misappropriated amount was increased and offences were also
changed except one and the statement of the prosecution witness whose statement
was transferred on record of Special Court had not been re‑summoned as
accused was said to have stated not to examine him, in these circumstances the
provisions of section 231 of Cr.P.C. with regard to recalling of witness when
charge is altered had not been properly complied with, hence conviction of the
accused was set aside and the case was remanded for trial….”
4. On being confronted with learned counsel
for the parties were fair enough to say that such omissions could only be cured
on remand of the case.
5. In view of above, the impugned judgment
is set aside with direction to learned trial Court to recall and re-examine the
witnesses, whose evidence has been adopted after amendment of the charge and
then to proceed with the case afresh, in accordance with law.
6. Appellants were on bail at trial, they to
enjoy the same concession subject to their furnishing fresh surety in the sum
of Rs.50,000/- (Rupees Fifty Thousand) each and P.R bond in the like amount to
the satisfaction of the learned trial Court.
7. The instant appeals are disposed of
accordingly.
JUDGE