Mian Shakirullah Jan, J.--The petitioner, after having been found guilty by the two Courts below i.e. the trial Court and the Appellate Court, was convicted under Section 324 PPC and sentenced to four years ILL with a fine of Rs, 50,000/- and under Section 337-F(ii) PPC; the added section in the amended charge, and was sentenced to two years R.I. and was directed to pay Rs, 50,000/- as Daman, has filed the instant petition impugning his conviction and sentences.
2. The learned counsel for the petitioner did not challenge the judgment of the Courts below on merits, and very rightly so, in view of credible evidence and well-reasoned judgment of the High Court. However, he has argued by making the only submission that in view of the amendment of the charge by adding Section 337-F (ii) PPC, on the day of announcement of the judgment with no opportunity to the petitioner to recall or re-summon and examine the witnesses as required under Section 231 Cr.P.C., vitiate the trial.
3. The petitioner, alongwith the acquitted accused initially, at the commencement of the trial, was charged under Section 324/34 PPC for "attempted at the life of complainant Umar Gul (injured) by firing at him effectively and thereby committed an offence punishable under Section 324/34 PPC" and subsequently through the amended/altered charge, he was charged for "attempted at the life of complt: Umar Gul by firing at him effectively and you both thereby committed an offence punishable under Section 324/34" and further charged "caused injuries at the person of complainant Umar Gul by firing at him with your pistol (fire-arm) and you thereby committed an offence punishable U/S. 337/F(2) PPC."
4. Since the question of non-compliance of Section 231 Cr.P.C. has been raised, it would be appropriate to reproduce the said section for ready reference:
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."
According to this section, whenever a charge is altered or added by the Court after commencement of the trial, the Prosecutor and the accused shall be allowed to recall or re- summon and examine with reference to such alterations or additions, any witness who may have been examined--The section couched in the words indicative of the fact that first a request or an application be made to that effect as 'to allow' or grant of permission is generally preceded by a request or application. Since no such request or application has been made, therefore, it was not necessary for the Court to examine or recall or re-summon the witnesses. In this respect reference can be made to cases from Indian Jurisdiction "Konmal and another us. Emperor (AIR 1930 Allahabad 215"), wherein, it was held: "There is no duty laid on the Court under or re-summon prosecution or defence witnesses and so there is no breach of any provisions of Section 231 if the Court does not so enquire. It is essential that the accused should ask for permission." and another case of "Musahru and others vs. Emperor (AIR 1940 Patna 355)", in which it was held: "Had the accused after the amendment of the charges made a fresh application or renewed their application to the learned Judge to have defence witnesses summoned, such application could hardly be resisted, but in fact at the trial itself no such application was made and I think it must be taken that the wish on the part of the accused to have those witnesses summoned was abandoned."
In the case of 'Muhammad Bakhsh vs. The State 1968 P.Cr.P.J. 1901", it was held that: "It is true that under Section 231 Cr.P.C. the Court is bound to allow the prosecution and the accused to recall and examine any witness who may have been already examined but then the party has to make an application for the calling of any witness and their examination. Where the party does not do so, it cannot be subsequently complained that the examination contemplated by section was not allowed."
5. Furthermore the re-summoning and re-calling or examination would be with reference to such alterations or additions. If we read both the charges, there is no substantial alteration in the charges as the earlier charge was for attempt at the life of the complainant by firing at him effectively and in the later amended charge, the same allegations have been leveled i.e. the attempt at the life of the complainant by firing at him effectively with addition of causing injury to him. The earlier charge by mentioning the firing effectively is reflective of the fact of causing injury to the complainant C and hence the first charge, which is graver offence punishable with sentence more than the one provided for added offence under Section 337-F(ii) PPC also cover the later offence.
6. Moreover, if it is taken to be an irregularity by not recalling, re-summoning or examining the witnesses after the alteration of the charge of the nature as in the instant case, then it is curable under. Section 537 Cr.P.C. and the conviction and sentence passed against the petitioner cannot be D reversed and moreso when the objection was not raised at the trial and even, later on, during the hearing of appeal which negate the occasion of any failure of justice in view of the explanation to Section 537 Cr.P.C. which reads as under:-- "Explanation. In determining whether any error, omission or irregularity in any proceeding under this Code has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings."
7. Resultantly, we see no force in this petition and the same is dismissed. Leave refused.