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Criminal Revision No. 733 of 1974, heard on 9th February, 1981.

-----S. 439 read with S. 231-Revision (criminal)-Prejudice-After recording entire evidence charge against petitioner framed under S. 354, P. P. C. but subsequently altered to S. 376, P. P. C.--- Trial Court proceeding to pass judgment without asking prosecutor or accused if they wanted to examine, with reference to such altera tion, any witness, already examined-Petitioner, held, badly prejudiced for non-compliance of mandatory provisions of S. 231, Cr. P. C. and trial hence vitiated-Conviction and sentence set aside, in circumstances.-[Prejudice].

Manzoor Hussain Lashari for Petitioner.

Habib Subhani for A.-G. (Punjab) for the State.

Date of hearing: 9th February, 1981.

Muhammad Anwar petitioner was convicted by Magistrate Section 30, Jaranwala, on 30^thMay, 1973, under section 376, P. P. C. and sentenced to undergo rigorous imprisonment for one year. He filed an appeal against his conviction and sentence but the same was dismissed by the learned Additional Sessions Judge, Lyallpur (now Faisalabad), on 7^thOctober, 1974.

2. The learned counsel for the petitioner has rightly contended that the trial of this case had vitiated on account of non-compliance of the mandatory provision of section 231, Cr. P. C.

3. Originally, the case was registered under sections 376, 452, P. P. C. The challan was submitted in Court and there appears to be some cutting in Column No. 7 of report under section 173, Cr. P. C. with respect to the offence and the offence appears to have been converted to section 354, P. P. C. After recording entire evidence, the charge was framed against the petitioner, on 3rd May, 1972, under section 354, P. P. C. Subsequently, an order was passed on 8th December, 1972, that prima facie case under section 376, P. P. C. had been made out. The charge was altered to section 376, P. P. C. on 4^thDecember, 1972. The trial Court did not ask the prosecutor or the accused if they wanted to recall, summon or examine with reference to such alteration, any witness, who had already been examined. The learned Magistrate proceeded with the case and passed the judgment. Since the case of the petitioner had been badly prejudiced for non-compliance of the mandatory provision of section 231, Cr. P. C. I hold that the trial had vitiated. The impugned judgments passed by the lower Court and the appellate Court are set aside.

3-A. The case is pending against the petitioner for the last nearly ten years, I do not consider it proper at this stage to pass an order for the retrial of the case. With this direction, the revision petition stands disposed of.

Revision allowed.

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