' MUHAMMAD SAFDAR KHAN SIKANDARI, J.---The appellant namely, Abdur Rasheed has called in question the impugned judgment, dated 29-4-2009 passed by learned Additional Sessions Judge- III, Dera Ismail Khan, whereby, the appellant was convicted and sentenced under section 279, P.P.C.
To undergo rigorous imprisonment for one year and to pay a fine of Rs,500 (five hundred), in default of payment of fine, to undergo one month's S.I. The appellant was also convicted for seven
(7) years' R.I. On four counts under section 320, P.P.C. And sentenced him to pay "Diyat" according to the prevalent rate at the time of death of passengers namely, Habibullah, Mustafeez Ahmad, Muhammad Bukhsh and Lubna Waheed. The appellant was also convicted for 3 years as "Tazir" under section 337-G, P.P.C. And sentenced to pay "Daman" to all the injured. The appellant is convicted for the injuries of Kazeem Hussain under section 337-A(1), P.P.C. To undergo simple imprisonment of one year as "Tazir" and to pay "Daman". He was also convicted under section 337- F(1), P.P.C. To undergo simple imprisonment of six months as "Tazir" and to pay "Daman". For the injuries of Abdul Ghafoor, appellant is convicted under section 337-L(2), P.P.C. For one year as "Tazir" and to pay "Daman". For injured Zameer, the appellant is convicted for one year each under section 337-L(2) and 337-F(III), P.P.C. As "Tazir" and sentenced to pay "Daman" also. For injured Wahid Bakhsh, the appellant is convicted under section 337-A(1), P.P.C. For one year as "Tazir" and to pay "Daman". For injuries of Yaqoob, the appellant is convicted under section 337-F(1), P.P.C. For 6 months imprisonment as "Tazir" and to pay "Daman". For the injuries caused to injured Zafar Iqbal, the appellant is convicted under section 337-A(I), P.P.C. For one year S.I. As "Tazir" and to pay "Daman". All the sentences were directed to run concurrently, however, the benefit of section 382-B, Cr.P.C. Was not extended in favour of appellant.
2. Precisely, the facts of the prosecution case are to the effect that Khalid Mehmood, A.S.-I. Got the information about the accident occurred on Chashma, D.I. Khan Road and rushed to scene of occurrence. The accidental bus was present on the spot, however, the driver was not present. The injured persons were also shifted to hospital. The accidented Bus bearing No,0576-JB was taken into possession. The case under F.I.R. No,204, dated 20-3-2006 was registered for the offences under sections 279/320/337-G in Police Station Saddar, District Dera Ismail Khan.
3. At the very outset, the counsel for the appellant raised a few preliminary objections regarding the trial of the accused-appellant and pointed out the infirmities in framing of the charge against the appellant, which seriously prejudice the appellant for the reason that the appellant was only charged under section 320, P.P.C. For the murder of deceased Habibullah, Muhammad Bukhsh and Mustafeez but the appellant was not charged for the murder of Lubna Waheed and alleged that the charge formulated by the trial Court is defective in the sense that the trial on the charge was conducted without the notice to the appellant. Counsel for the defence contended that the appellant was erroneously convicted by the trial Court, which warrants setting aside the conviction of the appellant.
4. So far as this contention of counsel for defence is concerned, admittedly, the appellant has not been charged for murder of Lubna Waheed under section 320, P.P.C. But even then the appellant was convicted on four counts for four deceased and the alteration of charge at the belated stage was not brought into the notice of appellant and that seriously prejudiced the appellant. In this regard reference can be made to the title case, S. Hafiz Hussain v. State (1987 PCr.LJ Karachi 403), wherein it is handed down that trial Court failed to recall witnesses already examined before the amendment of charge for cross-examination and this factum will render the case fit for remand.
5. Counsel for defence further contended that the learned trial Court committed the mistake by altering and addition of so many sections of P.P.C. At the very late stage for which the appellant has not been afforded the opportunity of being heard and to produce the defence by the appellant. Viewing this argument forwarded by defence counsel, this Court is of the view that charge is normally formulated under Chapter-XIX (Nine) of Cr.P.C., which corresponds to indictment of specific accusation made against the accused person and to afford the opportunity to concentrate its attention on his defence and to communicate what materials prosecution intends to produce against him. Reference is made to Shah Jehan v. State (2005 PCR.LJ Peshawar 489).
6. It is also worthy to mention that in the 3rd count of charge, the accused was charged under section 337-G for causing injuries to so many passengers without disclosing their names to the accused, which had no nexus with the case of prosecution, which could also not disclose the nature of injuries sustained by the victims duly named in the concluding para. Of the judgment, therefore, the charge is not carrying sufficient information to appellant that what type of evidence the prosecution intends to produce, thus serious prejudice to accused-appellant has been caused and thus renders the case of appellant fit for remand to the trial Court.
7. Counsel for the appellant further referred to an application submitted by the complainant's counsel for addition of charge on account of death of Mst. Lubna Waheed but the trial Court did not pay any heed to this application, which would have deep effect on the case falling under the ambit of section 332, Cr.P.C., wherein, it is embodied that "if any appellate Court, or the High Court or the Court of Session in the exercise of its power of revision or of its powers under Chapter XXVII, is of opinion that any person convicted of an offence, which was misled in his defence by the absence of a charge or by an error in the charge, it shall direct a new trial to be held upon a charge framed in whatever manner it thinks fit".
8. In view of the above quoted legal position, undoubtedly, four deceased persons namely, Habibullah, Muhammad Bukhsh, Mistafeez and Lubna Waheed had lost their precious lives in the unfortunate accident, whereof, Six(6) persons sustained serious injuries of various nature and description on various parts of their bodies. As per the arguments of the defence counsel, no specific charge has been specified to the accused-appellant by the trial Court regarding the death of Mst. Lubna Waheed in spite of the fact that the complainant's counsel had cautioned the attention of the trial Court to this aspect of the case in writing, therefore, in view of section 227, Cr.P.C., the trial Court was supposed to have altered or added the charge against the appellant at the relevant time before pronouncement of the judgment subject to the condition that such alteration or addition shall be read and explained to the accused well in time, but presumably, the trial Court has not taken this trouble and the charge was amended after the pronouncement of the judgment, which directly prejudiced the appellant while giving him no chance to defend himself, which is his right.
9. It will be also of paramount significance to reproduce the third count of the charge sheet below:- - "That on the same date, place and time while you were driving Vehicle No,0576-JB rashly and negligently which collided with tree as a result of which many passengers received injuries and thus you have committed an offence punishable under section 337-G, P.P.C.And within the cognizance of this Court".
After recording the evidence, the trial Court has passed the award of conviction and sentence against the appellant for the demise of three deceased leaving the charge against the appellant for deceased Mst. Lubna Waheed but included at the end of trial without notice to the appellant.
Moreover, in concluding para of the judgment, the trial Court passed the sentences against the appellant which were not communicated to him before recording his statement under section 342, Cr.P.C., which defect is not curable under section 537, Cr.P.C. No doubt that sections 227 and 237, Cr.P.C. Allows the trial Court to alter the charge and pass conviction against a person so charged for one offence but he may be convicted for other offence, which he is shown to have committed but in case of material errors in absence of charge the Court shall direct a new trial to be held upon the charge framed thereafter.
10. For the aforementioned reasons, I have been led to the conclusion that the trial Court has committed illegality while altering the charge without giving notice to the appellant about the same well in time, which seriously prejudiced the appellant and as such the conviction and sentence is erroneous and warrants setting aside and consequently the appeal accepted and conviction of appellant is hereby set aside and the case is remanded back to the trial Court with direction to alter the charge properly while excluding the name of Mst. Lubna Waheed from injured persons and include with other three deceased with the description of the type and nature of the injuries of each victim and notice of such indictment be given to the accused while affording him the opportunity to be examined under section 342, Cr.P.C. Afresh. From perusal of record, it reveals that the evidence of P.Ws. Was produced after the hectic search and tracing out being the P.Ws., scattered in Punjab Province, therefore, no need to recall the witnesses again except any witness to whom the defence wishes to cross-examine in the light of amended charge against the accused- appellant and then the case be decided afresh on its merits according to law within three months.
As before his conviction, the appellant was on bail, therefore, he be released on bail on furnishing bail bonds in the sum of Rs,1,00,000 (Rupees one lac) with two sureties each in the like amount to the satisfaction of trial Court. Record of the trial Court be sent down to the trial Court as early as possible within five or ten days with further direction to accused to appear before the trial Court on 4-11-2009.