ORDER SHEET

IN THE HIGH COURT OF SINDH,

CIRCUIT COURT, HYDERABAD.

Crl. Revision Application No.S-138 of 2013

DATE           ORDER WITH SIGNATURE OF JUDGE

 

 

Date of hearing:  25th October, 2013

Date of decision: 25th October, 2013

 

 

Mr. Hidayatullah A. Abbasi, Advocate for applicants

Mr. Sajjad Chandio, Advocate for complainant

Mr. Shahid Ahmed Sheikh, A.P.G. Sindh

 

 

O R D E R

 

 

SALAHUDDIN PANHWAR, J:- The applicants have assailed the order dated 27th August 2013, passed by learned Sessions Judge, Tando Allahyar, on  application  under section 231 Cr.PC in Sessions Case No.11 of 2012 (“Re-S/v Nawab Liaquat Ali & others”) for re-calling of PW(s)       Dr. Shaheena and PW Dr. Shamsuddin for further cross examination and to call Civil Surgeon Civil Hospital, Hyderabad.

2.                     Succinctly, the facts of the case are that Dhani Bux lodged F.I.R with Police station Tando Allahyar as Crime No.97 of 2006 u/s 302, 324, 34 PPC, against applicants and one Nawab Rehan Khan with an allegation that on 28.6.2006, complainant and others were working on the lands while at 6.30, a.m, all applicants with Nawab Rehan, duly armed with fire arms, came there and started straight firing at the tenants as a result of one girl Mst. Siyani received fatal shot at the hands of Nawab Rehan, whereas due to firing of others, Darya Khan, Abdul Wahid, Gulzar, Mst. Fatima and Dadly received injuries. After registration of FIR the police conducted investigation and submitted the challan which was initially tried by the court of 1st Additional Sessions Judge, Hyderabad; charge was framed on 08.8.2007. Later on, case was transferred to Sessions Judge, Tando Allahyar on administrative grounds, after recording evidence of PWs matter was fixed for statements of accused u/s 342 Cr.P.C. At such stage the complainant Dhani Bux through his counsel moved an application for amending the charge. Consequently the altered charge was framed on 27.7.2013. On framing of altered charge the applicants moved an application u/s 231 Cr.PC with request to recall P.Ws Dr. Shaheen and Dr. Shamsuddin, who were already examined as Ex.15 and 22, respectively, for further cross examination with further prayer to summon Civil Surgeon to produce the record of Medical Board, constituted for purpose of examination of injured persons but such application of the applicants was dismissed by the learned trial court judge vide order dated 27.8.2013.

3.                     Learned counsel for the applicants, inter- alia, has contended that provision of Section 231 Cr.P.C, is mandatory in nature to summon and examine those witnesses, who already were examined either at request of prosecution or by accused hence no discretion is left with the court to reject the request on any ground except that the evidence of witness is not relevant to the fact for which the charge was altered; learned trial court judge failed to exercise the jurisdiction by dismissing the application of the applicants; reasons for dismissal of the application of the applicants, recorded by learned trial court judge, are not in line with spirit and objective of Section 231 Cr.PC.

4.         On the other hand, learned counsel for the respondent stoutly resisted the revision petition, while arguing that the order of the learned trial court judge is well reasoned and that applicants has not shown , any prejudice to have been caused to them hence revision petition is devoid of merits; instant Sessions Case is old matter, hence this application is filed with the sole object to delay the matter.

5.         Before examining the merits of the case, it is pertinent to mention that the charge is the foundation of the trial therefore the legislature, has provided an elaborate procedure for framing of the charge and the rational is that the accused should know the exact nature of the accusation made against him so that he may give a proper reply and should not, at later stage, come with a plea of being misled or prejudiced in his defence. Thus the Court (s) should always adhere the procedure, so provided for framing the charge. 

6.                     The present  Revision involves a question of non-compliance of the Section 231 of the Code, therefore, before coming to the provision of Section 231 of the Code, it would be conducive to refer sections 227 and 228of the Code,  wherein the procedure is enshrined, if charge is altered or amended. The same for clarity are reproduced hereunder :-

“S.228.—When trial may proceed immediately after alteration. If the charge framed or alteration or addition made under (…..)section 227 is such that proceeding immediately with the trial is not likely, in the opinion of the Court, to prejudice the accused in his defence or the prosecutor in the conduct of the case, the Court may, in its discretion, after such charge or alteration has been framed or made, proceed with the trial as if the new or altered charge had been the original charge”

 

 “S.229.—When new trial may be directed, or trial suspended. If the new or altered or added charge is such that proceeding immediately with the trial is likely, in the opinion of the Court, to prejudice the accused or the prosecutor as aforesaid, the Court may either direct a new trial or adjourn the trial for such period as may be necessary”

 

The comparative reading of the above provision (s) would show that to proceed immediately after alteration or addition in the charge can come into play only when the Court, in its opinion, find such alteration or addition to be not likely to cause prejudice to the accused or the prosecutor, therefore the amended or altered charge shall be taken as original (so as to give a legal cover to witnesses already examined). However, once the court, in its opinion, comes to a conclusion that such addition or alteration, in its opinion, likely to cause prejudice then the Court can competently direct even a de novo trial. What the legislature has insisted is that there should not be a likelihood of a prejudice to the accused or the prosecutor for no other reason but to ensure a fair trial and justice within their true meanings.

7.                     Reverting to the root question, revolving around the applicability of Section 231 of the Code, which is reproduced hereunder for ready reference:-

“231. Recall of witnesses when charge altered.—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 recall or re-summon, and examine with reference to 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”

 

It is patent that the use of the word shall in above Section is the deliberate move of the legislatures because this word ‘shall’ has not been used in the preceding sections i.e Sections 228 and 229 of the Code. Needless to add that the use of the word ‘shall’ is always presumed to have been used to give a mandatory right or to create a mandatory obligation, casting a mandatory obligation upon the court (s) in the provision of 231 of the Code (which follows the Section 228 and 229 ) and same is also not without wisdom but for the simple reason that when the court (s) do not, in their opinion, resort to the earlier provisions of Section 228 and 229 of the Code, the accused and prosecutor be allowed an opportunity to move an application / request for summoning, re-examining witnesses who already stood examined so that the accused or prosecutor may not come with plea of having not been given an opportunity of fair trial because in Sections 228 and 229 the whole discretion lies with the Court. I would refer to the relevant portion of the case of Mohammad Bakhsh v. The State (1696 P.Cr.LJ 1901), which was referred by honourable Supreme Court in the case reported as 2006 SCMR 56. The operative part reads as follows :-

“It is true that under section 231, Cr.P.C, the Court is bound to allow the prosecution and the accused to recall and examine any witness who may have been already examined but then the party has to make an application for the calling of any witness and their examination. Where the party does not do so, it cannot be subsequently complained that the examination contemplated by the section was not allowed”.

 

8.                     Thus, it would be just and proper to have a comparative look at both charges which are :-

 

 

      EARLIER CHARGE

     That you on or about 28.6.2006 at 0630 hours at village Muhammad Sadiq Khaskheli, accused Rehan Khan Laghari duly armed with rifle and co-accused Liaquat Ali, Mansoor Khan and Iskar Khan duly armed with D.barrel Gun came in land cruiser and attack at complainant party. Rehan Khan Laghari made fire from his rifle with intention to commit murder of complainant party and hit on the head and Mst. Siama and (and) she fell down nd (and) accused Liaquat Khan, Izkar Khan and Mansoor Khan mde (made) strainght (straight) firing with intention to committed (commit) murder and injured Darya Khan, Abdul Gulzar, Mst. Fartima, and Mst. Warli and thereby you have committed an offence punishable under section 302, 324, 34 PPC within cognizance of this Court.

      AMENDED CHARGE

    That you on or 28.06.2006 at 0630 hours at village Mohammad Sadiq Khaskheli, in furtherance of your common intention, you all accused alongwith absconding Rehan Khan Leghari armed with deadly weapons, committed murder by intentionally (or knowingly) causing the death of Mst. Siyani and thereby you have committed an offence punishable U/s 302, 34 PPC and within the cognizance of this court.

     I hereby further charge you that you all accused alongwith absconding Rehan Khan Leghari on the above date, time and place in furtherance of your common intention made straight firing upon complainant party, which had his to PWs namely Mst. Dadli, Darya Khan, Abdul Hameed, Mst. Fatima and Gulzar with intention to commit their Qatl-i-Amd, thereby you have committed an offence punishable U/s 324, 34 PPC and within the cognizance of this Court.

     I hereby further charge you all accused alongwith absconding Rehan Khan Leghari that on the above date, time and place in furtherance of your common intention, due to your firing injured Mst. Dadli, Darya Khan, Abdul Hameed, Mst. Fatima and Gulzar received bullet injuries falling u/s 337-A(i)) and 337-F(i) PPC, and thereby you have committed an offence punishable U/s 337-A(i) and 337-F(i) PPC and within the cognizance of this court.

 

The plain readings of the above charge (s) would show that how the first charge was framed which even did not include the name of one of the injured i.e injured Abdul Hameed, even name of one injured Mst. Dadli was wrongly mentioned as Mst. Warli and deceased Siani was mentioned as Siama. The purpose and objective of the Chapter XIX of the Code is not so but requires the Court (s) rather cast a mandatory obligation to strictly adhere the requirements and procedure, so explained in this Chapter.

9.                     Since in the amended charge not only the section (s) have been added but there has come an allegation of causing injuries to one person i.e Abdul Hameed, who was not named in the earlier charge, therefore, even if the Court did not resort to the provisions of Section 228 and 229 of the Code, in its opinion, yet the learned trial court judge was not legally justified in declining the request of the defence to recall and re-examine the two already examined witnesses which re-examination shall, however, be with reference to such alteration / addition. However, as regard the second part of the request of the accused to summon Civil Surgeon, Civil Hospital, Hyderabad, it would suffice that the defence shall have full opportunity for such a request within meaning of Section 265-F of the Code at the conclusion of prosecution case.

10.                   The outcome of the above discussion is that the learned Trial Court judge did not exercise the jurisdiction, vested in it by Section 231 Cr.PC, by which the learned trial Court was required to have allowed the request of the defence to re-summon and re-examined the already examined witnesses. Accordingly, the revision petition was partly allowed by order dated 25.10.2013, to the extent of re-examination and re-summoning of the P.W. Dr, Saheena and Dr. Shamsuddin, already examined witnesses, however the re-examination must be for limited purpose, with reference to alteration or addition in the amended / altered charge only. 

11.                   These are the detailed reasons of short order dated 25.10.2013, whereof instant revision application was partly allowed.

 

                                                                         J U D G E