' ABDUS SATTAR ASGHAR, J.---This appeal under section 48 of Control of Narcotic Substances Act, 1997 is lodged against the order dated 14-5-2011 passed by learned Additional Sessions Judge Toba Tek Singh whereby appellants' application for amendment of the charge framed on 12-4-2011 was dismissed.
2. Precisely the essential facts as per record leading to this appeal are that case F.I.R. No,216 of 2011 dated 9-3-2011 under section 9(c) of. The Control of Narcotic Substances Act, 1997 was registered with the Police Station City Toba on the complaint of Nisar Ahmed Inspector/ SHO against the present appellants and two other co-accused namely Waqar Sarwar Alvi Assistant Superintendent Jail and Hassan Mujtaba with the allegations that on 9-3-2011 at 9-30 p.m. They all were found present in the quarter of Waqar Sarwar Alvi using `charas' by filling in the cigarettes and on search of the appellants and their above named co-accused `charas' weighing 25 grams was recovered, which was taken into possession through recovery memo. During interrogation, the appellants disclosed that they had taken the recovered `charas' from their co-accused Waqar Sarwar Alvi and Hassan Mujtaba, who may lead to further information about possession of any more `charas' whereupon the co-accused Waqar Sarwar Alvi further got recovered `charas' weighing 1020 grams from the cupboard of his quarter, which was also taken into custody through a separate recovery memo.
3. On submission of challan learned Additional Sessions Judge framed a joint charge against the appellants and their co-accused under section 9(c) and 15 of the Act ibid on 12-4-2011. Appellants being aggrieved of the framing of joint charge lodged an application for amendment in the charge, which was dismissed by the learned Additional Sessions Judge Toba Tek Singh vide order dated 14-5-2011 impugned in this appeal.
4. Learned counsel for the appellants argued that in the first episode of the occurrence, only 25 grams `charas' is alleged to be recovered from the appellants and their co-accused taken into possession through recovery memo, whereas in the second episode of the same occurrence; co- accused Waqar Sarwar Alvi got recovered more `charas' weighing 1020 grams from the cupboard of his quarter having no concern whatsoever with the appellants; that the appellants cannot be charged for the act or offence, which they have not committed; that SHO was required to submit separate challans on the basis of separate alleged recovery memos although arising out of one and the same F.I.R.; that the alleged recovery of 25 grams `charas' from the appellants and their co-accused attracts the offence under section 9(a) of the Act ibid whereas appellants have been jointly charged with their co-accused under section 9(c) of the Act ibid causing serious prejudice to the appellants; that the impugned order whereby appellants' request for amendment in the charge has been declined is against law and facts, perverse, based on misreading and non- reading of the material available on record and amounts to miscarriage of justice.
5. Conversely, learned Deputy Prosecutor-General for the State has argued that both the alleged recoveries were effected in one transaction at the same time and place of occurrence, therefore, learned trial court keeping in view the provisions of sections 14 and 15 of the Act ibid has rightly framed a joint charge against all the accused in terms of section 9(c) of the Act ibid; that appellants are equally liable for the subsequent recovery of 1020 grams of `charas' from their co- accused Waqar Sarwar Alvi, therefore, learned trial court has rightly declined the appellants' request to amend the charge through the impugned order.
6. We have given patient hearing to learned counsel for the appellants, learned Deputy Prosecutor- General for the State and perused the record with their able assistance.
7. The term "charge" is defined in section 4(c) of Criminal Procedure. Code 1898 and includes any head of charge when the charge contains more heads than one. The purpose of a charge is to tell an accused as precisely and concisely as possible about the matter what the prosecution intends to prove against him in order to afford him an opportunity to defend himself. As envisaged under section 265-D of the Criminal Procedure Code 1898 while framing the charge, trial court is bound to consider not only the F.I.R. And report under section 173, Cr.P.C. But all other documents and material filed by the prosecution, which would include the recovery memos, the site plans, the statements of witnesses under section 161, Cr.P.C. And 164, Cr.P.C., etc. To rule out any prejudice to the accused and to ensure just and fair trial on the basis of material placed by the prosecution before the Court. Needless to mention that court is empowered to alter and change the charge in terms of section 227, Cr.P.C. If so warranted by the circumstances.
8. In the instant case it is evident on the record that different quantities of `charas' were allegedly recovered from the possession of the appellants and their co-accused in two episodes at one and the same time and place of occurrence for which different recovery memos were prepared by the Investigating Officer at the spot, therefore, in the given circumstances law requires that each accused should have been separately charged for possessing the `charas' allegedly recovered from them. Framing of a joint charge against the appellants with regard to separate recovery of `charas' 1020 grams from their co-accused Waqar Sarwar Alvi recorded through a separate recovery memo is likely to cause prejudice to the appellants' case. Therefore, charge framed by the learned trial court on .12-4-2011 is liable to be altered on the basis of above noted material available on the record. The impugned order of the learned trial court declining the request of appellants for amendment in the charge is against law and facts, based on misappraisal of the incriminating material available on the record likely to cause prejudice to the case of the accused, not sustainable in the eye of law and thus liable to set aside.
9. For the above discussion and reasons, this appeal is accepted and the impugned order dated 14-5-2011 is set aside with a direction to the learned trial court to amend the charge on the basis of incriminating material available on the record in accordance with law.