2006SCMR56

[Supreme Court of Pakistan]

Present: Javed Iqbal, Mian Shakirullah Jan and Tassadduq Hussain Jillani, JJ

ABDUL GHAFFAR---Petitioner

Versus

THE STATE and another---Respondents

Criminal Petition No. 82-P of 2005, decided on 20th September, 2005.

(On appeal from the judgment, dated 20-6-2005 passed by the Peshawar High
Court, Peshawar in Criminal Appeal No.91 of 2005).

(a) Criminal Procedure Code (V of 1898)---

---Ss. 231 & 537---Penal Code (XLV of 1860), Ss.324 & 337-F(ii)---Constitution of
Pakistan (1973), Art.185(3)---Contention was that the amendment of the charge
by the Trial Court by adding S.337-F(ii), P.P.C. on the day of announcement of the
judgment with no opportunity to the accused to recall or resummon and
examine the witnesses as required under S.231, Cr.P.C. had vitiated the trial---
Section 23 I, Cr.P.C. provided that whenever a charge was altered or added by
the Court after commencement of the trial, the Prosecutor and the accused were
to be allowed to recall or resummon and examine with reference to such
alterations or additions, any witness who might have been examined---Wording
of 5.231, Cr.P.C. indicated that first a request or an application be made to that
effect as to allow or grant permission was generally preceded by a request or
application----Since no such request or application had been made, therefore, it
was not necessary for the Court to examine or recall or resummon the
witnesses---Even otherwise, resummoning and recalling or examination of
witnesses would be with reference to such alterations or additions---No
substantial alteration was made by the Court in the charges as the earlier charge
was for attempt at the life of the complainant by firing at him effectively and in
the later amended charge, the same allegation had been made i.e., the attempt
at the life of the complainant by firing at him effectively with additional of
causing injury to him---Earlier charge by mentioning the firing effectively was
reflective of the fact of causing injury to the complainant---First charge which
was graver offence punishable with sentence more than the one provided for
added offence under S.337-F(ii), P.P.C. had also covered the latter offence---
Additionally, if the same was taken to be an irregularity, it was curable under
S.537, Cr.P.C., moreso when the objection was not raised at the trial and even
during the hearing of appeal, it would negate the occasion of any failure of
justice in view of the Explanation to S.537, Cr.P.C.---Leave to appeal was refused
in circumstances.
Konmal and another v. Emperor AIR 1930 All. 215; Musahru and others v.
Emperor AIR 1940 Pat. 355 and Muhammad Bakhsh v. The State 1968 PCr.LJ
1901 ref.

(b) Criminal Procedure Code (V of 1898)---

----S. 231---Recall of witnesses when charge altered---Application and scope of

S.231, Cr.P.C.---No doubt, Court under S.231, Cr.P.C. 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
calling the witness and his examination---Party failing to do so cannot
subsequently complain that the examination contemplated by S.231, Cr.P.C. was
not allowed.

Konmal and another v. Emperor AIR 1930 All. 215; Musahru and others v.
Emperor AIR 1940 Pat. 355 and Muhammad Bakhsh v. The State 1968 PCr.LJ
1901 ref.

Shakeel Ahmed, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 20th September, 2005.

JUDGMENT

MIAN SHAKIRULLAH JAN, J.--- The petitioner, after having been found guilty
by the two Courts below i.e. the trial Court and the Appellate Court, was
convicted under section 324, P.P.C. and sentenced to four years' R.I. with a fine of
Rs.50,000 and under section 337-F(ii), P.P.C., the added section in the amended
charge, and was sentenced to two years' R.I. and was directed to pay Rs.50,000
as Daman, has filed the instant petition impugning his conviction and sentences.

2. The learned counsel for the petitioner did not challenge the judgments of the
Courts below on merits, and very rightly so, in view of credible evidence and
well-reasoned judgment of the High Court. However, he has argued by making
the only submission that in view of the amendment of the charge by adding
section 337-F(ii), P.P.C., on the day of announcement of the judgment with no
opportunity to the petitioner to recall or re-summon and examine the witnesses
as required under section 231, Cr.P.C., vitiate the trial.

3. The petitioner, along with the acquitted accused initially, at the

commencement of the trial, was charged under section 324/34,Pat for
"attempted at the life of complainant Umar Gul (injured) by firing at him
effectively and thereby committed an offence punishable under section 324/34,
P.P.C." and subsequently through the amended/altered charge, he was charged
for `attempted at the life of complainant Umar Gul by firing at him effectively
and you both thereby committed an offence punishable under section 324/34"
and further charged "caused injuries at the person of complainant Umar Gul by
firing at him with your pistol (fire-arm) and you thereby committed an offence
punishable under section 337-F(2), P.P.C.

4. Since the question of non-compliance of section 231, Cr.P.C. has been raised, it
would be appropriate to reproduce the said section 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. "

According to this section, whenever a charge is altered or added by the Court

after commencement of the trial, the prosecutor and the accused shall be
allowed to recall or re-summon and examine with reference to such alterations
or additions, any witness who may have been examined---. The section couched
in the words indicative of the fact that B first a request or an application be
made to that effect as `to allow' or grant of permission is generally preceded by
a request or application. Since no such request or application has been made,
therefore, it was not necessary for the Court to examine or recall or re-summon
the witnesses. In this respect reference can be made to cases from Indian
jurisdiction Konmal and another v. Emperor AIR 1930 All. 215, wherein it was
held:---

"There is no duty laid on the Court under or re-summon prosecution or

defence witnesses and so there is no breach of any provisions in section
231 if the Court does not so enquire. It is essential that the accused should
ask for permission. "

And another case of Musahru and others v. Emperor AIR 1940 Pat. 355, in
which it was held:--

"Had the accused after the amendment of the charges made a fresh
application or renewed their application to the, learned Judge to have
defence witnesses summoned, such application could hardly be resisted,
but in fact at the trial itself no such application was made and I think it
must be taken that the wish on the part of the accused to have those
witnesses summoned was abandoned."

In the case of Muhammad Bakhsh v. The State 1968 PCr.LJ 1901, it was held
that:---

"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 C 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."
5. Furthermore the re-summoning and re-calling or examination would be with
reference to such alterations or additions. If we read both the charges, there is
no substantial alteration in the charges as the earlier charge was for attempt at
the life of the complainant by firing at him effectively and in' the later amended
charge, the same allegations have been levelled i.e. the attempt at the life of the
complainant by firing at him effectively with addition of causing injury to him.
The earlier charge by mentioning the firing effectively is reflective of the fact of
causing injury to the complainant and hence the first charge, which is graver
offence punishable with sentence more than the one provided for added offence
under section 337-F(ii), P.P.C. also covers the later offence.

6. Moreover, if it is taken to be an irregularity by not recalling, re-summoning or

examining the witnesses after the alteration of the charge 537, of the nature as
in the instant case, then it is curable under section 537 Cr.P.C. and the conviction
and sentence passed against the petitioner cannot be reversed and moreso
when the objection was not raised at the trial and even, later on, during the
hearing of appeal which negate the occasion of any failure of justice in view of
the explanation to section 537, Cr.P.C. which reads as under:--

"Explanation.--- In determining whether any error, omission or

irregularity in any proceeding under this Code has occasioned a failure of
justice, the Court shall have regard to the fact whether the objection could
and should have been raised at an earlier stage in the proceedings."

7. Resultantly, we see no force in this petition and the same is dismissed. Leave
refused.

N.H.Q./A-
175/S?????????????????????????????????????????????????????????????????????
Leave to appeal refused.