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