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Criminal Appeal No. 275 of 1985, heard on 8th November, 1986.
---S. 227--Penal Code (XLV of 1860), Ss. 148, 307, 324 & 326--Charge, amendment of--Prejudice--Accused charged at trial under S. 326/34, P.P.C. but convicted under S. 307/149, P.P.C.--Charge not amended at any stage of the trial--Accused, held, might be convicted for lesser offence than one charged but converse would cause prejudice to accused and would be illegal--Order of conviction set aside being bad in law--Case remanded for trial afresh in. circumstances.
Dr. Khalid Ranjha for Appellants.
Zafar Pasha Chaudhry for the Complainant.
Dates of hearing: 3rd and 8th November, 1986.
Faiz Ahmad (60), Nabi Ahmad (55), Muhammad Hussain (26), Murad Ali (75) and Ghulam Mustafa (12) were tried for having murderously assaulted Muhammad Amin. On 9-4-1985 Syed Muhammad Mohsin Sherazi, Magistrate Section 30, Sargodha, convicted them under section 307/149, P.P.C. and except Ghulam Mustafa sentenced them to seven years' R.I. each with a fine of Rs.4,000 each in default to undergo six months' R.I. further. They were also convicted under section 148, P.P.C. and sentenced to two years' R.I. each. Being young, Ghulam Mustafa was ordered to furnish surety to the tune of Rs.20,000 for good behaviour for a period of three years in default, he was sentenced to three years' R.I. Three/fourth of the fine, if realised, was ordered to be paid as compensation to the injured. The convicts have come up in appeal. ,
2. At the trial, the accused were charged under section 326, P . P . C . read with section 149, P.P.C. but without amending the charge at any stage which the trial Court could under section 227, Cr.P.C. the accused were convicted under section 307/149, P.P.C. An accused may be convicted for a lesser offence than the one with which he is charged but the converse would be illegal. As such, the conviction under section 307/149, P.P.C. is bad in law. The illegality has caused a prejudice to the accused, inasmuch as, that they had no notice of the offence for which they have been convicted. This has vitiated the trial. The appeal is, therefore, accepted, conviction set aside and the case is remanded for trial afresh.
3. Record of the case be sent back to the District Magistrate for entrusting the case to a Magistrate other than the one who had convicted them.
4. The occurrence in this case took place as far back as July, 1983. The accused, are, therefore, allowed bail in the sum of Rs.5,000 each with two sureties each in the like amount to the satisfaction of A. C. /Duty Magistrate, Sargodha. The accused are directed to appear before the District Magistrate on 1-12-1986 for further proceedings.
S. A.
Case remanded.
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