2001MLD916 (PLP)

‑‑‑‑S. 227‑‑‑Alteration of charge‑‑‑Once charge was framed, it could only be altered after some material was available on record to justify that charge should have been framed for some other major offence and only then charge could be amended without recording evidence. Muhammad Hanif Kashmiri for Applicant. Ashiq Hussain Mehar for the State. This application has been filed by the applicant, challenging the proprietary and legality of the order dated 25‑4‑1997, passed by the learned IVth Additional Sessions Judge, Karachi‑East in Session Case No. 588 of 1995, registered under F.I.R. No. 181 of 1995 by Police Station New Town, Karachi, under sections 342/34, P.P.C. whereby the learned trial Judge after framing the charge under sections 342, 364‑A, P.P.C. read with section 34, P.P.C. had passed an order referring the case to the S.T.A. Court, Karachi -East, forming an opinion that the offence indicated would fall under section 365‑A, P.P.C. Briefly, the facts are that on 3‑8‑1995 Abdul Hameed, the son of the complainant Abdul Majeed, was abducted by the present applicant and his companions and was threatened of sodomy and his pictures would be taken in case the boy did not arrange for Rs.10,

000. It is alleged that the boy promised the applicant and his companions to steal Rs.10,000, from the almirah of his father, who may have gone to Subzimandi. The culprits released the boy and accompanied him to his house. When the boy reached his home at 11 O'clock his father was present in his house and was apprised of this fact. His father, the complainant, was enraged and chased the culprits. Subsequently, the F.I.R. was lodged on 15‑8‑1995. After registration of the case, police took up the investigation, and during the investigation the applicant and his other companions were arrested. On completion of the investigation the case was challaned under sections 342 and 364‑A, P.P.C. and the accused were sent up to face their trial before the Court of Session. The charge, it appears, was also framed against the applicant on 12‑9‑1996, after a lapse of almost over a year of the challan. Case was fixed for evidence when the application was moved by the prosecution that the challan should be returned for presentation before the S.T.A. Court, as the offence under section 365‑A, P.P.C. was indicated. The learned trial Court passed the impugned order on 25‑4‑1997, whereby the case was sent to the S.T.A. Court holding the offence fall under section 365‑A, P.P.C. This order is impugned by way of this revision application. It has been contended on behalf of the applicant that the F.I.R. was registered for offence under section 342, P.P.C. and after collecting of incriminating material the challan was submitted in the Court on 29‑8‑1995. Thereafter, the case was sent to the Sessions Court for trial and it seems that all the accused were granted bail by the Sessions Judge, which has not been disputed by the learned counsel for the State. The IVth Additional Sessions Judge had framed the charge against the accused on 12‑9‑1996 for offences punishable under sections 342/34 and 364‑A, P.P.C. Thus the trial Court had taken cognizance of the offence, but before the evidence could be recorded an application was moved on 3‑12‑1996 by the prosecution that the challan submitted earlier should be returned for presentation before the S.T.A. Court, as the offence indicated would fall under section 365‑A, P.P.C. which was not within the jurisdiction of Sessions Court. It is contended that it was a premature stage to file such application as the cognizance had already been taken by the Court under section 364‑A, P.P.C. It is contended that it was the duty of the Court to have recorded some evidence and if it warranted an offence under section 365‑A. P.P.C., thereafter, the case could have been referred to the S.T.A. Court. It is contended that this action of the trial Court seems to be illegal, unwarranted and requires to be set aside. The learned counsel for the State, on the other hand, frankly states that the charge was framed by the trial Court only after examining the statements of the witnesses and the material placed before the Court by the prosecution when it was of the view that offence under section 364‑A, P.P.C. was made out, only then the charge was framed. Consequently, it was incumbent upon the trial Court to have recorded some evidence which could justify that the offence would fall under section 365‑A, P.P.C. otherwise in the present circumstances the impugned order does not seem to be proper. I have given a patient consideration to the contentions made at the bar and the opinion of the learned counsel for the State. It appears that the F.I.R. was lodged under section 342, P.P.C., but after collecting of some material it was found that an offence under section 364‑A, P.P.C. was made out. Consequently, challan was submitted, too, for the said offence. Even the trial Court right at the outset after going through the material available on record was of the view that an offence under section 364‑A, P.P.C. was made out, hence charge was framed by the trial Court. Incidentally; it may be pointed out that even before framing of charge, the applicant/accused was granted bail, alongwith the other co -accused by the Sessions Judge, Karachi‑East. It is a settled law that once the charge is framed it is only altered after some material is available on record to justify that the charge should have been framed for some other major offence, only then the charge would be amended. Without recording the evidence, I do not find it was justified for the Trial Court to straightaway send the matter to the S. T. A. Court. Hence I am of the opinion that the impugned order by itself is defective. I, therefore, accept the application and set aside the impugned order of the trial Court, referring the matter to the S.T.A. Court. This Criminal Revision stands disposed of. H.B.T./17/K Revision accepted.