Halid s/o Twalibu v. R., Crim. App. 351-D-68, 23/8/68, Saidi J.

Halid s/o Twalibu v. R., Crim. App. 351-D-68, 23/8/68, Saidi J.

Accused was convicted of one count of throwing or introducing prohibited articles into a prison and of a second count of possession of bhang. The first count was laid under section 119(1) of the Prisons Ordinance, Cap. 58 which had been repealed and had been replaced by section 85(1) of the Prisons Act, 1967. The second count was added by amendment during the trial. After the amendment accused requested that the first prosecution witness be recalled for cross-examination, but this request was refused.

            Held: (1) The trial court had the power under section 209(1) of the Criminal Procedure Code to amend the charge by substituting the section of the new Act for that of the repealed Ordinance, and the High Court has power under section 319(1), 329(1) and 346 to do what the trial court ought to have done. Such an amendment can be made provided that no failure of justice would result and provided that the offence under the old and the new statutes is in every essential the same. [Citing R. v. Indo Parsad Jamictram Dave, Crim. Rev. 40 of 1963; Abdulrasul G. Sabur v. R., (1958) E.A. 126]. (2) In the present case, the ingredients of the offence in section 119(1) of the Prisons Ordinance and section 85(1) of the Prisons Act, 1967, are essentially the same, and no injustice would result from the substitution of the latter. (3) After the amendment adding the second count accused should have been given the opportunity to cross-examine prosecution witnesses who had previously testified and it cannot be said positively in this case that accused was not prejudiced by the failure to do so. Conviction on first count amended to specify the new statute; conviction on second count quashed.