Cr.Appeal No.S-66 of 2001.

Present.

Mr.Arshad Noor Khan,J.

Date of Hearing 21.04.2009.

Appellant Amanullah in person.

Respondent The State through Mr.Ali Haider Ada              Dareshani, State counsel.

JUDGMENT.

ARSHAD NOOR KHAN, J.- By this appeal, the appellant has questioned his conviction and sentence recorded by the learned IInd Additional Sessions Judge, Sukkur in Sessions Case No.33 of 1995 The State v Aligul and others whereby the appellant has been convicted and sentenced to suffer 4 years RI under Section 459, 324, 337-A(v), PPC coupled with the deposit of fine for all the three offences vide judgment dated 18.8.2001.

The facts of the prosecution case in brief are that on 19.1.1995 at about 4 am the complainant alongwith PW. Abdul Hameed and PW. Piyaro were sleeping at his house and was awakened because of barking of the dogs and saw that Muhammad Bux son of Haji Moosa duly armed with lathi, Amanullah duly armed with hatchet, Razo son of Loung duly armed with lathi, Aligul son of Pehlwan duly armed with lathi, Badar son of unknown, and Talib son of unknown by caste Misrani duly armed with guns were present and they had opened the rope of his three buffaloes fastened with the shade of said buffaloes. Abdul Hamid son of Maroof and Piyaro son of Jaro raised hue and cry, the appellant Amanullah attacked with his hatchet on the complainant and inflicted hatchet blow on his head and after sustaining hatchet injury, he went unconscious and regained his senses on the following day in the hospital and police recorded his statement and incorporated the same in the FIR book. The appellant was arrested alongwith co-accused and after compliance of Section 265-C, Cr.P.C charge against all the accused was framed on 04.04.1997 to which the present appellant as well as the other co-accused pleaded not guilty and claimed trial.

After framing the charge, prosecution examined PW 1 PC Nazeer Ahmed who produced mashirnama of arrest of present appellant vide Ex.9/A. PW 2 Khawanddino son of Muhammad Abid Mahar, who produced copy of FIR vide Ex.10/A. PW 3 wrongly mentioned as PW 5 Raheem bux son of Abdul Ghani, who produced inspection memo of place of incident vide Ex.14/A, mashirnama of injuries vide Ex.14/B as well as mashirnama of recovery of lathi vide Ex.14/C. PW 4 wrongly mentioned as PW 6 Dr.Muhammad Ismail MLO who produced the MLC of the complainant vide Ex.15/A. The side of the prosecution was closed vide statement Ex.16.

The statement of the appellant and othr accused were recorded under Section 342, Cr.P.C wherein appellant denied to have committed the present occurrence and claimed innocence. He did not examine himself on oath nor he lead any evidence of his witnesses in his defence.

The learned trial Court after hearing of the learned counsel for the parties convicted and sentenced the appellant as stated above and acquitted the remaining accused from the charge; hence the present appeal.

The appellant, who was enlarged on bail vide order of this Court dated 14.09.2001 but was subsequently arrested in some other murder case and confined in jail, has been called by issuance of production order and he is present in Court in pursuance of the said P.O. He has contended that he has not committed the present offence and has been implicated falsely by the complainant.

The learned State counsel has pointed out that the charge has been framed by the learned trial Court under Section 459, PPC but the appellant has been convicted under Section 324 and 337-A(v), PPC also, besides his conviction under Section 459, PPC, as such the judgment passed by learned lower Court, suffers from legal infirmity therefore he will not support the judgment passed by the lower Court.

I have considered the arguments advanced on behalf of the parties and have gone through the material available before me.

The case of the prosecution as per the FIR as well as from the assertion of the complainant Khawandino in his statement, is that on the fateful day of incident, the appellant alongwith other co-accused was removing his three buffaloes and on his raising alarm, the present appellant attacked upon him with hatchet with which he was armed at the relevant time of incident and he sustained hatchet injury on his head and went conscious. The said assertion of the complainant, is supported with the medical evidence available on record as well as the mashirnama of injury prepared by the I.O vide Ex.14/B, which shows that the injury noted by the I.O vide mashirnama Ex.14/B, and the MLC produced by the medical officer vide Ex.15/A are in consonance with each other. It has therefore been born out from ocular evidence as well as medical evidence available on record that the complainant had sustained hatchet injury on his head and the appellant alongwith other co-accused were challaned under Section 459 and 324/34, PPC vide charge sheet dated 16.3.1995 but the perusal of the charge Ex.3 framed by the learned trial Court, shows that the charge against the appellant, was framed under Section 459, PPC and no where, it is mentioned in the charge Ex.3 that the appellant has been charged to face the trial under Section 324 or 337-A(v), PPC and the perusal of the judgment passed by the learned trial Court also shows that the appellant has been convicted and sentenced under Section 459, PPC to suffer 4 years R.I and fine of Rs.3000/- and for the offence under Section 324, PPC, he has separately been convicted to suffer RI for 4 years and fine of Rs.5000/- and he has further been convicted under Section 337-A(v), PPC to suffer RI for 3 years and fine of Rs.2000/-. The conviction and sentence recorded against the appellant shows that he has been convicted and sentenced for the offences, which have not been mentioned in the charge Ex.3, as such through out the proceedings before the learned trial Court, the appellant was made believe that he has only been charged and tried for the offence punishable under Section 459, PPC, therefore appellant could not put forward his defence, for the offence punishable under section 324 and 337-A(v), PPC. The conviction and sentence recorded by the trial Court, are therefore in excess of the charge framed against him for which he has not been afforded reasonable and plausible opportunity to put forward his defence for the said offence, for which, he has been convicted by the learned trial Court, even from the perusal of his statement under Section 342, Cr.P.C recorded before the learned trial Court, it is not evident that the learned trial Court had put any question to him regarding his inflicting hatchet injuries to the complainant as well as use of medical evidence against him for the purpose of his conviction and in absence of any such question from him, his proper defence has not come on record, on this aspect of the case, therefore, the conviction and sentence recorded by the learned trial Court under Section 324, 337-F(v), PPC are much against the charge framed against the appellant and in any way, could not be sustained and the learned State counsel rightly pointed out the legal infirmity apparent on the face of judgment passed by the learned trial Court.

For all the aforesaid reasons and circumstances, the appeal is allowed, the conviction and sentence awarded to the appellant by the learned trial Court, is set aside and the case is remanded back to the trial Court for decision afresh after framing the proper and appropriate charge against the appellant, and, in case, if necessity arises, the trial Court may record further evidence of the prosecution witnesses and the appellant will be afforded full and fair chance to rebut the evidence, which will now come on record after the remand of the matter and in case, if, no evidence of prosecution witnesses is recorded by the learned trial Court, then too the statement of the appellant under Section 342, Cr.P.C shall be recorded afresh in the light of the observations made in this judgment. The appellant is in jail, he is remanded back to jail custody. The bail granted to him under Section 426, Cr.P.C vide order dated 14.9.2001 is withdrawn.

JUDGE

Akber.