Before Ellis and Ispahani, JJ.
NURAL ISLAM AZIZI – Accused-petitioner
CROWN – Opposite Party
Criminal Revision No. 416 of 1948 decided on 18th November, 1949, against the order of conviction passed under section 161, Indian Penal code by Magistrate, 1st Class on 6th October, 1948 and the dismissal of appeal by Sessions Judge, Rajshahi.
Criminal Procedure Code (V of 1898), S. 231- Charge under S. 161 Pakistan Penal Code read with one under S. 5(2) of Act II of 1947 – Later charge subsequently withdrawn- Accused entitled to re-call prosecution witnesses.
A charge was framed against the petitioner under section 161 of the Pakistan Penal Code read with section 5(2) of Act II of 1947. On 6th March, 1948 arguments were heard and the case was adjourned to 13th July, 1948 for orders. On 16th August, 1948 however the charge under section 5(2) of the Act was purported to have been withdrawn and a petition by the defence under section 231 of the Code of Criminal Procedure was rejected and judgment was ultimately delivered convicting the petitioner. [p. 10].
Held, under section 231, Criminal Procedure Code, the petitioner had a right to re-call prosecution witnesses after the charge had been altered even if the alteration did not affect his defence. He still possessed the right in law and the Magistrate acted illegally in depriving him of that right and rejecting his application for the re-call of witnesses. [p.10].
D. C. Roy for A. K. Fazlul Huq and M. H. Khnodkar, for Petitioner.
S. Afzal Deputy Legal Rememberancer, for Crown.