Law: Penal Code (XLV of 1860)

Section: 302(b),114,34

Law: Criminal Procedure Code (V of 1898)

Section: 231

Penal Code (XLV of 1860)--- ----Ss. 302(b), 114, 34---Criminal Procedure Code (V of 1898), S. 231---Qatl-i-amd, abettor present when offence committed, common intention---Appreciation of evidence---Accused was charged that he along with co-accused committed murder of the brother of the complainant---Record reflected that after amendment of the charge evidence of four witnesses already recorded after framing of the first charge was adopted not only by the prosecution but the defence as well---Such adoption of evidence was against the spirit of S. 231, Cr.P.C., which prescribed that if the charge was altered, added or amended, then the witnesses already examined were to be re-called and re-examined/cross-examined on the point of alteration, addition or amendment so made in the charge---In the first charge there was mention of only one deceased but in the amended charge, another deceased was also added---Adoption of evidence was contrary to the law---Procedure adopted by the Trial Court being incurable had not only occasioned in failure of justice, as was defined under subsection (b) of S. 537, Cr.P.C. but had prejudiced the accused in his defence seriously, which was against the mandate contained by Art. 10-A of the Constitution, which guaranteed chance of fair trial and due process to every citizen/accused for determination of his civil/criminal rights and obligations---In view of said legal position, Trial Court had committed illegality while adopting the same evidence which was recorded after framing of the first charge, therefore, conviction and sentence recorded against accused by Trial Court vide impugned was not sustainable in the law therefore, same was set-aside---Case of the accused was remanded to Trial Court for recording the evidence of four witnesses afresh (examination-in-chief, cross-examination and re-examination). Rajib Ali Naich and others v. The State 2019 MLD 306; Muhammad Asif v. The State 2019 PCr.LJ 521; Naimatullah v. The State 2018 PCr.LJ Note 64; Allah Dino and 2 others v. The State 2018 PCr.LJ 200 and Sibghatullah v. The State 2020 MLD 776 ref. Naimatullah v. The State 2018 PCr.LJ Note 64 rel. JUDGMENT NAIMATULLAH PHULPOTO,…

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