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Criminal Revision No. 416 of 1948 decided on 18th November, 1949, against the order of conviction passed under section 161, Indian Penal Code by Magistrate, 1st Class on 6th October' 1948 and the dismissal of appeal by Sessions Judge, Rajshahi.

S. 231‑Charge under S. 161 Pakistan Penal Code read with one under S. 5 (2) of Act 11 of 1947‑Latter charge subsequently withdrawn‑Accused entitled to re‑call prosecution: witnesses.

A charge was framed against the petitioner under section 161 of the Pakistan Penal Code‑read with section 5 (2) of Act II of 1947. On 6th March, 1948 arguments were heard and the case was adjourned to 10^th July, 1948 for orders. On 16^th August, 1948 however the charge under section 5 (2) of the Act was purported to have been withdrawn and a petition by the defence under section 231 of the Code of Criminal procedure was rejected and judgment was ultimately delivered convicting the petitioner.

Held, under section 231, Criminal Procedure Code, the, petitioner had a right to recall the prosecution witnesses after the charge had been altered even if the alteration did not affect his defence. He still .possessed the right in law and the Magistrate acted illegally in depriving hire of that right and rejecting his appli cation for the recall of witnesses.

D. C. Roy for A. K. Fazlul Hug and 111. H. Khondker fore Petitioner.

S. Afzal Deputy Legal Remembrancer, for the Crown

In this case a Rule was issued on the District Magistrate, Rajshahi, to show cause why the conviction of the petitioner. Nural Islam Azizi, Under Section 161 of the Pakistan Penal Code and the sentence of rigorous imprisonment for one year and the fine of Rs. 500 imposed on him thereunder should not be set aside on appeal to the Sessions judge the sentence was modified and the term of imprisonment imposed was reduced to one of rigorous imprisonment for six months while the sentence of fine was sustained.

The petitioner Nural Islam Azizi was a petrol officer and the charge against him was that on the 14th September, 1947 he detained three boats loaded with paddy belonging to three persons and received sums of Rs. 250, Its. 294 and Rs. 56 from the owners thereof as illegal gratification for their release.

The occurrence was dated 14th September 1947. Sanction for the prosecution of the petitioner was accorded by the authority competent to do, so on the 16th October, 1947. The First Information Report was lodged on the 18th October, 1947 and on the 8th November. 1947 the petitioner surrendered in Court. On the 18th December, 1947 the prosecution began its examination of witnesses and on the 11th March 1948 a charge was framed against the petitioner' under section 161 of the Pakistan Penal Code read with section 5 (2) of Act II of 1947, on 6th March 1948 arguments were heard and the case was adjourned to 13th July 1948 for orders. On 16th August 1948 however the charge under section 5 (2) of the Act was purported to have been withdrawn and a petition by the defence under section 231 of the Code of Criminal Procedure was rejected‑ and judgment was ultimately delivered convicting the petitioner.

This Rule must be made absolute on the one ground that the Court below erred in not giving effect/ to the petitioner's prayer under section 231 of the Code.

The record shows that other formalities were all complied with and the previous sanction of the authority competent to remove the petitioner from his office was obtained, but the charge framed against the petitioner was a charge under section 161 Pakistan Penal Code read with section 5 (2) of Act II of 1947. It was a charge under one head only and if the learned Magistrate intended to accede to the prosecution's prayer to withdraw from the charge under section 5 (2) of Act 11 of 1947 he should have followed the procedure, which we see was adopted, in another case and framed an entirely new charge under section 161 of the Code by itself.

But the serious defect is that after the alteration of the charge (and it cannot be denied that this was an alteration of the one charge under section 161 Pakistan Penal Code read with section 5 (2) of Act II of 1947), the Magistrate was bound in law to give effect to the defence prayer to ask prayer for the re‑call of witnesses.

Section 231 reads Whenever a charge is altered or added to by the Court after the commencement of the trial, the prosecutor and the accused shall be allowed to re‑call or re summon, and examine with reference t6 such alteration or addition, any witness who may have been examined, and also to call any further witness whom the Court may think to be material. " The' petitioner had a right to re‑call the prosecution witnesses after the charge had been altered even if the alteration did not affect his defence. He still possessed the right in law 'and the Magistrate acted illegally in depriving him of that right and rejecting his, application for the re‑call of witnesses.

In these circumstances the Rule is made absolute, the conviction and. sentence set aside and the case remanded to the Magistrate for him to afford the petitioner an opportunity of re‑call ing any witness he likes under the provisions of section 231 of the Code and thereafter to dispose of the case according to law. The petitioner may remain on the same bail pending the disposal of the case.

A.H Case remanded

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