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Criminal Appeal No.274 of 1985, decided on 23rd October, 1986.
---S.231--Penal Code (XLV of 1860), S.408/34--Alteration of charge-Charge against accused originally framed by Special Judge under S.409/34, P.P.C. read with S.5(2) of Act II of 1947 but amended by Special Judge who charged accused under S.408 read with S.34, P.P.C.--One prosecution witness whose evidence had been recorded before amendment of charge was not recalled by Special Judge and no order passed by him on application of defence counsel to recall witness--Accused was convicted after recording his statement that he did not wish to lead evidence--Order of conviction set aside and case remanded for retrial with direction that said prosecution witness would be summoned for cross-examination and thereafter case would proceed in accordance with law.
1986 P Cr. L J 1236 rel.
S. Zaki Muhammad for Appellant.
Anwar Mansoor Khan and Rashid A. Nizamani for the State.
Dates of hearing: 21st, 22nd and 23rd October, 1986.
.--In respect of these two appeals Nos.173 and 174 of 1985 there was one judgment by the Special Court (Offences in Banks), Karachi dated 4-12-1985 whereby the accused were convicted under section 408, P.P.C. and sentenced to suffer R.I. for 4 years and to pay fine of Rs.50,000 - or in default to suffer further R.I. for one year.
Learned counsel for accused Deedar Ali has raised a preliminary point to the effect that the provisions of section 231 of Cr. P. C. were not properly complied with by the Special Court inasmuch as the charge originally framed by the Special Judge (Central), Karachi on 11-8-1980 was under section 409/34, r/w section 5(2) of Act II of 1947, but the charge was amended by the Special Court on 31-10-1984 and the appellants were charged under section 408, P.P. C. r/w section 34, P.P.C. One of the witnesses whose evidence had been recorded A before the amendment of the charge was P.W. Khamiso Khan. After the framing of charge, the learned counsel for accused Deedar Ali moved an application on 13-11-1985 for recalling P. W. Khamiso Khan and the learned Judge adjourned the hearing of that application to 16-11-1975 but it appears that he did not pass any order on that application and on the other hand he recorded the statements of the accused persons and further recorded the fact that the accused did not wish to lead any defence.
Mr. Rafique Khanzada, learned counsel for accused Deedar Ali placed reliance on 1986 P Cr. L J 1236 where a Division Bench of this Court held 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 resummoned 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 retrial. The learned counsel for the respondents concedes to this position.
Consequently the impunged judgment is set aside and the case is remanded to the Special Court (Offences in Banks), Karachi for retrial from the stage of 13-11-1985 P.W. Khamiso Khan would be summoned for cross-examination and thereafter the case will proceed in accordance with law .
M. Y. H./D-5/K Case remanded.
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