1. Petitioner Rana Abdul Ghani, has filed the titled petition assailing the legality of order dated 04.01.2016 passed by the learned Additional Sessions Judge, Yazman whereby application of the petitioner for amendment of charge dated 23.01.2015 adding offences Sections 337-D/337-F(vi)/337-F(iii) PPC in private complaint titled ‘Rana Abdul Ghani vs. Muhammad Ashiq alias Chooha’, for offences under Sections 302/324/109/34 PPC, Police Station, Saddar Yazman, District Bahawalpur, was dismissed.
2. Learned counsel for the petitioner submits that the injuries on the person of injured Muhammad Ashraf, was declared as Jurh Ghair-Jaifa Mutalahimha and Jurh Ghayr Jaifah Munaqqilah and injury on the person of injured Sagheer Ahmad was declared as Jurh Jaifah and their medico legal certificates are available on record but learned trial Court did not frame charge on the basis of material available on record, therefore, there is no bar in amendment of the charge adding the aforesaid offences.
3. On the other hand, respondent No.4 could not arrange his representation through counsel even on availing the opportunity on the last date of hearing. However, learned Law Officer, in all fairness, has conceded that there is no bar in alteration of charge at any stage of the trial.
4. Arguments heard. Available record perused.
5. Initially, learned trial Court framed charge under Sections 302/324/34/109 PPC on 23.01.2015, but ignored the material available on record regarding existence of aforementioned offences/injuries caused to Muhammad Ashraf and Sagheer Ahmad, the injured PWs respectively irrespective of the fact that their medico legal certificates were available on the file. At the time of framing of charge, under Section 265-D of The Act ibid, a Court is to see the existence of a prima facie case after perusing the police report, documents annexed therewith and the statements of the witnesses filed by the prosecution. Furthermore, Section 227 of The Code of Criminal Procedure, 1898 contemplates the alteration or addition of charge before the judgment is pronounced, which is reproduced for ready reference:
(1) Any Court may alter or add to any charge at any time before judgment is pronounced.
(2) Every such alteration or addition shall be read and explained to the accused.
The only condition for amendment of charge is that it should have been done before the judgment is pronounced in order to eliminate the possibility of prejudice to the accused person. I am armed with the dictum of august Supreme Court of Pakistan laid down in case titled “Muhammad Jameel Azeem versus Ghulam Shabbir and others (2011 S C M R 1145)” wherein it has been held as under:
“The learned trial Court is competent to amend the charge if circumstances so justify subject to one condition that it should have been done prior to the pronouncement of judgment in order to eliminate the possibility of prejudice to the accused person.”
6. In this case, the medico legal certificates of the aforesaid injured PWs are available on the record and omission to state the aforesaid offences would definitely mislead the accused in putting his defence and also cause prejudice to the prosecution as well, therefore, alteration/addition of the said offences would eliminate the possibility of a confusion and prejudice. Moreover, Section 235 of the Act ibid contemplates that if one series of the acts so connected together as to form the same transaction, more offences than one are committed by same person, he may be charged with and tried at one trial for every such offence. Though there is no bar for conviction of another offence than the offence(s) charged with yet at the time of framing of charge, the condition precedent for the trial Court is to see the existence of a prima facie case on the basis of material/evidence available on the record. In the circumstances, learned trial Court has erred in not amending the charge while ignoring the material available on record, therefore, the impugned order is not sustainable.
In view of above, the criminal revision in hand is allowed, impugned order dated 04.01.2016 is hereby set aside and application of the petitioner for alteration of charge dated 23.01.2015 shall be considered as allowed.
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