' KHAWAJA MUHAMMAD SHARIF, J.---This is a revision petition against the order of learned Addl.
Sessions Judge, Narowal, dated 7-10-2006. In support of this revision petition, learned counsel for the petitioner submits that impugned order for summoning two eyewitnesses and the I.O. Passed by the trial Court is totally wrong, that these witnesses in examination in chief have stated that accused personswhile scaling over the wall entered into the house, committed the murder of the deceased and also caused injuries to P.W., that there was no need for summoning those eye- witnesses for cross-examination, as they have already been examined, lengthy cross-examination has been conducted on them and moreover, after so many years they will not be in a position to state the actual facts.
2. In order to reach at a just conclusion, I have asked learned Addl: A.G. And learned A.P.G. To assist me in this case. Learned Addl. A.G. Submits that present application is misconceived and accused has the right to cross-examine those witnesses if the Court at later stage had amended the charge while learned A.P.G. Has referred section 231, Cr.P.C. In this regard.
3. I have heard learned counsel for the parties. Occurrence in this case had taken place on 8-10- 2003. Initially Rana Riaz Ahmad Khan, learned Addl. Sessions Judge framed the charge against three accused persons under sections 302/149, 324 and 149, P.P.C. On 21-3-2005. In fact it was the duty of learned defence counsel, learned counsel for the complainant, learned P.P. And the Court to go through the F.I.R., report under section 173, Cr.P.C. And the statements of eye-witnesses recorded under section 161, Cr.P.C. And then to frame the charge, which in fact was not done in this case as charge under section 460, P.P.C. Could have also been framed in this case. Both the eye-witnesses, namely, Mst. Parveen and Akbar Ali were examined on 2-2-2006 while cross-examination was conducted on 4-4-2006, then, the statement of I.O. Muhammad Ashraf, who was S.H.O. At the relevant time, was recorded on 4-5-2006 and ultimately his cross-examination was concluded on 8-7-2006, thereafter, the statements of the accused were recorded under section 342, Cr.P.C. On 30-5-2006 and before that learned P.P. Closed the prosecution evidence on 29-5-2006, then, present learned counsel for the petitioner submitted an application on 24-6-2006 under section 227, Cr.P.C. Requesting the trial Court to add section 459, P.P.C. In the charge sheet also, thereafter, getting more wisdom he gave another application on 23-9-2006 that charge should also be amended and section 460, P.P.C. Be added in the charge sheet in which arguments were heard and ultimately learned trial Court on 19-7-2006 allowed the application and directed that charge under section 459, P.P.C. Is also A added, thereafter respondents/accused submitted an application for summoning whole of the prosecution witnesses for cross-examination in which learned Addl. Sessions Judge after hearing the parties and while relying upon 2006 SCM R 56 allowed the application only to the extent that P.W.10, P.W.11, who are eye-witnesses, draftsman and first Investigating Officer, namely, Ashraf S.H.O. P.W.13 be summoned for cross-examination. It is settled law that when a charge is altered, amended or added then, the accused has the full right to request theCourt for re-summoning the prosecution witnesses in order to cross-examine the witnesses on that charge and that right cannot be denied, even learned Addl. Sessions Judge, who has first framed the charge, never mentioned in whole of the charge while framing the charge under sections 302/149, P.P.C. That you (accused persons) while committing lurking house trespassed by night committing the murder of the deceased, even the present learned Addl.
Sessions Judge has not charged the accused persons under section 460, P.P.C., which is right charge. Even it has been held by the apex Court in the case of Zulfiqar Ali Bhutto v. The State (PLD 1979 Supreme Court 53), which reads as under:-- "826. The survey of the cases shows that the law as embodied in sections 236 and 237 of the Criminal Procedure Code read together appears to be that if on the facts alleged it was doubtful which of several offences the proved facts will constitute and on the facts eventually proved, of which the accused may be taken to have notice during the recording of evidence at the trial an offence other than the one charged has been committed, then he may be convicted of this other offence, even though he was not charged with it. Their Lordships of the Privy Council have indeed put it simply and shortly by saying that a man may be convicted of an offence, although there has been no charge in respect of it, if the evidence is such as to establish a charge that might have been made."
' After having heard learned counsel for the parties and getting assistance from learned Addl: A.G.
And learned A.P.G. I am of the considered opinion that accused has' indefeasible right to cross- examine the witnesses after framing of new charge against him, so, no case for interference is made out, therefore, this revision petition is dismissed in limine.
Revision .