2018 P Cr (PLP)

NAIMATULLAH PHULPOTO, J.

Appellant Naimatullah son of Khair Muhammad was tried by learned Special Judge (Control of Narcotics Substance) Karachi in Special Case No.38 of 2015 under section 9(c), Control of Narcotic Substances Act, 1997 vide judgment dated 08.02.2016, appellant was found guilty. Appellant was convicted under section 9(c), Control of Narcotic Substances Act, 1997 and sentenced to five years and six months' R.I. and to pay fine of Rs.25,000/ -. In case of default in payment of fine, to further undergo five months and fifteen days S.I. The appellant was extended benefit of section 382-B, Cr.P.C.

2. Brief facts of prosecution case are that on 16-01-2015, Inspector Muhammad Asim Raza of Police Station A.N.F. Gulshan-e-Iqbal, Karachi received secret information that appellant while carrying narcotics would reach near Raees Hotel Karachi at 0700 hours. On such information, official of A.N.F. proceeded to the pointed place and saw present accused standing near Raees Hotel, Hub River Road, Karachi, he was carrying a shopper in his hand. Inspector Muhammad Asim Raza caught hold of him and recovered shopper/bag from his possession in presence of ASI Rashid Ali and PC Imran Khan. Inspector opened the shopper, it contained charas total weight of charas was 2400 grams. It is alleged in FIR that Inspector separated 10 grams as sample from each packet and sealed separately and prepared such mashirnama of arrest and recovery. Personal search of the accused was also conducted and cash of Rs.650/-, mobile phone Nokia along with two Sims, copy of the C.N.I.C. were also recovered from his possession. Case property was sealed at the spot in presence of mashirs. Thereafter, accused and case property were brought to P.S. ANF where FIR was lodged against accused under sections 9(c), 14 and 15 of Control of Narcotic Substances Act, 1997.

3. During investigation, investigating officer sent the sample to the Chemical Examiner. Positive chemical report was received. Investigating Officer recorded statements of prosecution witnesses under section 161, Cr.P.C. On conclusion of usual investigation, challan was submitted against accused under section 9(c) of Control of Narcotic Substances Act, 1997.

4. The learned Special Judge-I, Karachi (Control of Narcotic Substances) framed charge against the accused under section 9(c) of Control of Narcotic Substances Act, 1997 on 09.10.2015 at Ex.4. Accused pleaded not guilty and claimed to be tried.

5. In order to substantiate the charge, prosecution examined PW-1 Muhammad Asim Raza. PW-2 ASI Rashid Ali. Thereafter, Special Prosecutor ANF vide his statement at Ex-8 closed the prosecutor side.

6. Statement of accused was recorded under section 342, Cr.P.C. wherein accused denied all the prosecution allegations.

7. It appears that learned Special Prosecutor ANF submitted an application under section 227, Cr.P.C. before the learned trial Court dated 17.1.2015 to alter the charge. Learned Judge Special Court-I, Karachi vide his order dated 01.01.2016 allowed such application.

8. Amended charge was framed under section 9(c) of Control of Narcotic Substances Act, 1997 on 01.01.2016 at Exhibit 10 to which the accused pleaded not guilty and claimed to be tried. Learned Prosecutor ANF filed statement dated 08.01.2016 in which it was mentioned that prosecution did not want to examine any witness further and closed the prosecution side. On the same date i.e. 08.01.2016, learned advocate for accused also filed statement that he did not want to cross-examine the prosecution witnesses more. Thereafter, statement of accused was recorded on oath under section 342(2), Cr.P.C. at Exhibit 13.

9. Learned trial Court after hearing learned counsel for the parties and on assessment of evidence convicted the appellant under section 9(c), Control of Narcotic Substances Act, 1997 and sentenced him for five years and six months rigorous imprisonment and to pay Rs. 25,000/-. In case of default of payment of fine to further undergo simple imprisonment for five months and fifteen days as stated above.

10. Learned counsel for the appellant mainly contended that after amended charge, it was the duty of the prosecution to produce prosecution witnesses before the trial Court for recording their evidence to substantiate the charge but it was not done. It is further argued that trial Court without applying judicial mind acted upon the statement of the Prosecutor ANF. Learned advocate for the appellant also submitted that illegality committed by trial Court has vitiated the trial and same is not curable and judgment of trial Court is not sustainable in law.

11. Mr. Habib Ahmed, learned Special Prosecutor appearing on behalf of the State/ANF conceded to contentions of defence counsel to the extent of remand of the case and submitted that proper course would be to remand the case to the trial Court for recording evidence after amendment of the charge afresh, in accordance with law.

12. We have carefully heard the arguments of learned counsel for the parties and perused the evidence recorded by the learned trial Court. It is a matter of record hat charge was framed against the accused Naimatullah by learned trial Court under section 9(c), Control of Narcotic Substances Act, 1997 at Exhibit

4. Accused pleaded not guilty and claimed to be tried. Prosecution examined P.W.-1 Muhammad Asim Raza Inspector ANF at Exhibit 6, P.W.-2 ASI Rashid Ali ANF at Exhibit

7. Thereafter, learned SPP closed prosecution side at Exhibit

8. Statement of accused Naimatullah was recorded under section 342, Cr.P.C. at Exhibit

9. Thereafter learned SPP submitted application under section 227, Cr.P.C. for altering the charge dated 27.12.2015. Application was allowed by learned trial Court vide order dated 01.01.2016. Amended charge was framed by the learned trial Court under section 9(c), Control of Narcotic Substances Act, 1997 at Exhibit

10. After amended charge Special Public Prosecutor ANF filed statement dated 08.01.2016 that prosecution did not want to examine witnesses more and closed the prosecution side. Defence counsel also submitted statement on the same date for not cross-examining the prosecution witnesses more. Learned trial Court recorded statement of accused on oath and after hearing learned counsel for the parties passed the impugned judgment.

13. Section 231, Cr.P.C. is mandatory in nature, therefore, whenever a charge is amended, the Court is bound to allow the prosecution and the accused to re-call and re-examine witnesses, already examined. Filing of statement by the Prosecutor and accused that they would not examine the witnesses already examined would not fulfill the requirements of section 231, Cr.P.C. In the present case, charge was amended by adding description of samples. Section 231, Cr.P.C. is reproduced as under:- "

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.

14. We have carefully perused the relevant provisions of the law regarding recording of the evidence by the learned trial Court. We have come to the conclusion that trial Court had adopted illegal procedure by allowing the prosecution to rely upon the same evidence which was taken before amended charge. In the amended charge sufficient description of samples has been mentioned. It was the duty of the trial Court to re-call witnesses already examined for re-examination afresh. Slipshod method adopted by trial court in no way could be appreciated procedure adopted by trial court which led to a miscarriage of justice. Reliance is placed upon the case of S. Hifazat Hussain v. The State (1987 PCr.LJ 403) in which this Court had observed as under:- "Mr. Rafique Khanzada, learned counsel for accused Deedar Ali placed reliance on 1986 PCr.LJ 1236 where a Division Bench of this Court held that where the Special Court had framed second charge in which the misappropriated amount was increased and offences were also changed except one and the statement of the prosecution witness whose statement was transferred on record of Special Court had not been re-summoned as accused was said to have stated not to examine him, in these circumstances the provisions of section 231 of Cr.P.C. with regard to recalling of witness when charge is altered had not been properly complied with, hence conviction of the accused was set aside and the case was remanded for trial. The learned counsel for the respondents concedes to this position. Consequently, the impugned judgment is set aside and the case is remanded to the Special Court (Offences in Banks) Karachi for retrial from the stage of 13.11.1985. P.W. Khamiso Khan would be summoned for cross-examination and thereafter the case will proceed in accordance with law."

15. It is also surprising to note that after amendment of the charge, only statement of the accused has been recorded on oath which is again an illegality committed by the trial Court. We, therefore, hold that impugned judgment passed by the learned trial Court is not sustainable under the law, and as such the conviction and sentence of the accused are set aside. The case is remanded to the trial court for re calling and re-examination of prosecution witnesses already examined afresh by providing a fair opportunity to the defence, for cross-examination. Thereafter, trial Court shall pass the judgment afresh in accordance with law. 15(sic.) For the above stated reasons, appeal is allowed to above extent. Appellant shall be treated as under trial prisoner. Learned counsel for the appellant submits that the appellant is in custody for more than one year and prayed for bail. Since case has been remanded back to the trial court, counsel for the appellant would be at liberty to apply for the bail before the trial court and the trial court shall decide the bail application in accordance with law. However, trial court is directed to decide the case within a period of two months from the receipt of a copy of this judgment under intimation to this Court. JK/N-10/Sindh Case remanded.