Muhammad Hanif & Others vs The State
This criminal appeal challenges the conviction and sentence of the appellants for the murder of Muhammad Nadeem, for which they were sentenced to life imprisonment by the trial court. The core legal question before the High Court was whether the trial court's procedure was vitiated by procedural irregularities, specifically the failure to re-examine witnesses after the amendment of the charge against one of the appellants. The parties collectively submitted that the trial court erred by adopting evidence recorded in the absence of one appellant and failing to re-examine witnesses following the amendment of the charge, violating the statutory requirements of the Code of Criminal Procedure 1898. The Court held that the impugned judgment was legally flawed due to these procedural lapses. Consequently, the Court set aside the conviction and remanded the case to the trial court with directions to recall and re-examine the complainant and witnesses, ensuring the appellants are afforded a fair trial in accordance with the constitutional right to due process. The principle established is that a trial court must strictly adhere to procedural mandates requiring the fresh examination of witnesses upon the alteration or amendment of a charge.
- Does the failure to re-examine witnesses after the amendment of a charge violate the Code of Criminal Procedure 1898?
- Is it permissible for a trial court to adopt evidence recorded in the absence of an accused person?
- Does the right to a fair trial under Article 10-A of the Constitution of Pakistan 1973 require the re-examination of witnesses when a charge is altered?
- Section 302(b), Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 353, Code of Criminal Procedure 1898
- Section 231, Code of Criminal Procedure 1898
- Article 10-A, Constitution of Islamic Republic of Pakistan 1973
ORDER
1. It is alleged that the appellants in furtherance of their common intention committed murder of Muhammad Nadeem by strangulating his throat, for that they were booked and reported upon by police.
2. On conclusion of trial, the appellants for an offence punishable u/s 302(b), 34 PPC were convicted and sentenced to undergo Rigorous Imprisonment for Life and to pay fine of Rs.200,000/-each to the legal heirs of the said deceased as compensation and in default of payment whereof to undergo Rigorous Imprisonment for six months by learned IIIrd Additional Sessions Judge, Hyderabad vide his Judgment dated 04.05.2018, which is impugned by appellants before this Court by preferring instant Criminal Jail Appeal.
2. At the very outset, it is pointed out by the learned counsel for the appellants, learned D.P.G for the State and learned counsel for the complainant that on joining of trial by appellant Imran, the charge already framed was amended, the evidence already recorded in his absence was adopted, which is contrary to the mandate contained by section 353 Cr.P.C which call for examination of witnesses in presence of accused and then all the three appellants were convicted and sentenced accordingly by learned trial Court which is against the mandate contained by sections 231 Cr.P.C which call for examination of the witnesses afresh when charge is altered, amended or added. By pointing out so, they sought for remand of the case to learned Trial Court for its fresh disposal in accordance with Law .
3. In view of above, the impugned judgment is set-aside with direction to learned Trial Court to recall and re-examine the complainant and his witnesses by providing fair chance to the appellants to contest the case against them as per mandate contained by Article-10(A) of the constitution of Islamic Republic of Pakistan 1973.
4. Needless to state that appellant Muhammad Shahbaz was enjoying the concession of bail at trial, he to enjoy same concession subject to furnishing fresh surety in the sum of Rs.100,000/-to the satisfaction of learned trial Court.
5. The instant appeal is disposed of f in above terms.