HIFAZAT HUSSAIN Versus STATE S. Zaki Muhammad , Anwar Mansoor Khan

1. MUHAMMAD ZAHOORUL HAQ, J .‑‑In respect of these two appetite Nos. 173 and 174 of 1985 there was one judgment by the Special Court (Offences in Banks), Karachi dated 4‑12‑1985 whereby the accused were convicted under section 408, P.PX. and sentenced to suffer R.I, for 4 years and to pay fine of Rs.50,000 or in default to suffer further R.I. for one year.

2. Learned counsel for accused Deedar Ali has raised a preliminary point to the effect that the provisions of section 231 of Cr.P.C. were not properly complied with by the Special Court inasmuch as the charge originally framed by the Special Judge (Central), Karachi on 11‑8‑1980 was under section 409/34 read with section 5(2) of Act II of 1947, but the charge was amended by the Special Court on 31‑10‑1984 and the appellant were charged under section 408, P.P.C. read with section 34 P.P.C. One of the witnesses whose evidence had been recorded before the amendment of the charge was P.W. Khamiso Khan. After the framing of charge, the learned counsel for accused Deedar Ali moved an application on 13‑11‑1985 for recalling P.W. Khamiso Khan and the learned Judge adjourned the hearing of that application to 16‑11‑1975 but it appears that he did not pass any order on that application and on the other hand he recorded the statements of the accused persons and further recorded the fact that the accused did not wish to lead any defence.

3. Mr.Rafique Khanzada, learned counsel for accused Deedar Ali placed reliance on 1986 P Cr. L J 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.

4. 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.

5. S.G.D. Case remanded.