P L D 2020 Sindh 491
(a) Criminal Procedure Code (V of 1898)---
----S. 190(3)---Trial by Sessions Court---Jurisdiction---Sessions Court has no original jurisdiction to take cognizance of such offence and it cannot try a case unless it is sent to it by a Magistrate duly empowered in such regard within the purview of S. 190 (3) Cr.P.C.
(b) Criminal Procedure Code (V of 1898)---
----Ss.190 & 193---Term 'cognizance'---Scope---'Cognizance' is a term of art implying application of mind to facts of a case in order to determine whether facts disclosed constituted an offence triable--- Application of mind for the purpose of cognizance under S.190(1) and (3) Cr.P.C. read with S. 193 Cr.P.C. is for the purpose of determining whether the facts disclosed commission of an offence triable exclusively by Court of Session in which case Magistrate is bound to send the case to Court of Session for trial.
(c) Criminal Procedure Code (V of 1898)---
----Ss.169 & 173---Cognizance of offence---Accused placed in column No. 2 of Investigation Report (Challan)---Opinion of Investigating officer---Trial Court, powers of---Finding of investigating agency to place accused person in column No.2 by extending benefit of S.169 Cr.P.C. is not binding on Courts---Trial Court has legal competence under law to summon such accused if the Court is satisfied regarding his involvement in the case---Court can take cognizance of offence even in the case where a report for cancellation is submitted by police--- Court while taking cognizance on a police report takes cognizance of the offence but not of a particular person charged in report as an offender---Trial Court can issue process against other accused persons who also appear to it to be connected with the offence on the basis of material placed before it.
Muhammad Akbar v. The State and others 1972 SCMR 335 and Safdar Ali v. Zaffar Iqbal and others 2002 SCMR 63 rel.
(d) Penal Code (XLV of 1860)---
----Ss. 364-A & 376---Criminal Procedure Code (V of 1898), Chaps.XIV, XV, [Ss.154-199-B], Ss.190 & 193---Abduction and rape---Appreciation of evidence---Summoning of accused---Benefit of doubt---Accused was not nominated in FIR and the one who was duly nominated was acquitted---Accused was summoned under S.193 Cr.P.C. by Trial Court and after framing of charge he was convicted and sentenced to imprisonment for life---Validity---No incriminating evidence was collected against accused during course of investigation nor witnesses had deposed against him---No material was available against accused but charge was framed against him---During whole process of investigation and cognizance was taken into the matter by Court of law on the basis of material against co-accused who was acquitted---Allegedly only one person was involved in commission of offence, therefore, substitution of said single person with accused was against the Chaps. XIV & XV [Ss.154-199-B] of Cr.P.C.---Trial Court was not competent to issue notice for joining accused in the case---Joining of accused in the trial and passing of judgment by Trial Court was erroneous conclusion---High Court set aside conviction and sentence awarded to accused by Trial Court and he was acquitted of the charge---Appeal was allowed in circumstances.
Mian Taj Muhammad Keerio for Appellant.
Shahid Ahmed Shaikh, Deputy Prosecutor General, Sindh for the State.
Kanji Mal for the Complainant.
Dates of hearing: 24th October and 7th November, 2019.
P L D 2020 Sindh 491
Before Amjad Ali Sahito, J
AIJAZ ALI---Appellant
Versus
The STATE---Respondent
Criminal Appeal No.S-01 of 2019, decided on 24th December, 2019.
JUDGMENT
AMJAD ALI SAHITO, J.---Being aggrieved and dissatisfied with the judgment dated 19.12.2018, passed by the learned Additional Sessions Judge-I, Umerkot in Sessions Case No.01/2013 arising out of the FIR No.64/2012 for offence under sections 364-A, 376 P.P.C. registered at P.S. Pithoro, whereby the appellant was convicted under section 364-A P.P.C. to suffer R.I for life imprisonment as well as under section 376 P.P.C. to suffer R.I for life imprisonment with fine of Rs.50,000.00 [Rupees fifty thousand only] and in case of failure thereof, to undergo S.I for six months. However, both the convictions were ordered to run concurrently.2. Briefly the facts of the case lodged on 04.12.2013 by the complainant Bhano Mal Menghwar alleging therein that on 02.12.2012 at about 1730 hours, he heard cries of a baby, on which he, Harchand and Ramchand went running towards the Panchaiti otaque and found his niece baby Vijenti daughter of Munwar was lying on the ground and one person with opened face was committing zina with her and she was crying, who seeing the complainant party made his escape good, whom they clearly seen and will identify. They saw baby Vijenti, her clothes were stained with blood and blood was oozing from her private part. She disclosed that she was playing in the open plot, when one person came there, kidnapped and brought her in the otaque, removed her clothes and started committing zina with her, she raised cries which attracted complainant and others. According to complainant, then she went unconscious and was brought at Civil Hospital, Umerkot wherefrom referred to Mirpurkhas Hospital. Then the complainant after leaving her father at hospital, went to police and lodged FIR of the incident.
3. After registration of FIR, police referred victim baby Vijenti for medical check-up, visited place of wardat, prepared such memo, recorded 161 Cr.P.C. statements of P.Ws, arrested Rano Mallah (acquitted accused), secured his clothes and sent to Chemical Examiner, got recorded confessional statement of Rano Mallah and after completing the investigation of the case, the challan was submitted by the Investigating Officer against the accused Rano Mallah before the concerned Court.
4. A formal charge framed against the accused Rano Mallah was framed, to which he did not plead guilty and claimed his trial.
5. In order to establish its case, the prosecution has examined PW.1 complainant Bhano Mal, who in his evidence since exonerated the accused Rano Mallah from the alleged offence and implicated the appellant Aijaz Mangrio, hence, the learned trial Court issued a notice under section 193, Cr.P.C. against appellant, who appeared and filed objection, but he was joined in the case through an order dated 18.10.2014. Resultantly, charge against appellant was framed, to which, he did not plead guilty and claimed his trial. However, during proceedings the accused Rano Mallah was acquitted on application filed under section 265-K, Cr.P.C. Further evidence of complainant was recorded. PWs Ramchand and victim baby Vijenti were examined by the prosecution whereas PW-2 Harchand P.W.3 Dr. Ameen were given up by learned ADPP through his statement. PW.4 Lady Dr. Leela Pardeep, PW.5/I.O/ASI Abdul Sattar Samoon, PW-6 I.O. Abul Sattar Gurgej, PW-7 mashir Muhammad Ibrahim, PW-8 Rajni Bai and PW-9 Foot Tracker Muhammad Ramzan were examined. Thereafter prosecution closed its side through statement.
6. Statement of the appellant was recorded under section 342 Cr.P.C, wherein he denied the prosecution allegation levelled against him and claimed for his false implication. However, neither he examined himself on oath nor led defense evidence.
7. Learned trial Court, after hearing the learned counsel for the parties and going through the material brought on record, awarded conviction and sentence to the present appellant as stated above, through the impugned judgment, which the present appellant has impugned before this Court by way of filing instant appeal.
8. Learned counsel for the appellant mainly contended that the appellant is innocent and has falsely been implicated in the instant case; that initially the one Rano Mallah was arrested in the instant case and during evidence the complainant did not implicate him in the offence but falsely named the appellant; that the learned trial Court was not competent to join the appellant in the trial merely on the statement of complainant by issuing notice under section 193 Cr.P.C. which the learned trial Court has misconstrued and such act of the trial Court is illegal, unlawful and unwarranted under the law; that whole trial against the appellant was unjustified by joining him an accused in the trial which was initiated against other accused who subsequently was acquitted but the appellant was convicted and sentenced without convincing material based on initiation of wrong interpretation. He prayed for acquittal of the appellant.
9. Conversely, learned counsel for the complainant and learned D.P.G. has supported the impugned judgment.
10. I have heard the learned counsel for the parties and gone through the evidence as well as impugned judgment with their able assistance. The case of the prosecution is that on 02.12.2012 at about 1730 hours, the complainant Bhano Mal, Herchand and Ramchand reached to place of incident on cries and seen that one person with open face was committing zina upon the baby Vijenti, on seeing them who ran away. Such FIR was lodged. During course of investigation, statement of the PWs under section 161 Cr.P.C. was recorded. With the help of an official Foot Tracker, the foot prints were tracked through spy dog. Thereafter, during course of investigation of the case suspicious accused namely Sarwan, Muhammad Hashim, Imam Bux, Aijaz, Lacho, Kheta Ram were joined in the investigation and interrogated, however, subsequently they were released as no evidence was found against them vide entry dated 06.12.2012. Accused Rano son of Jumo Mallah who was arrested on 05.12.2012, who during interrogation admitted the commission of offence, hence, he was referred to hospital for his medical checkup; the accused handed over the clothes which were wearing by him at the time of commission of offence. On 07.12.2012, the accused was brought at Shadi Pali Railway Phatak where the foot prints of the accused were compared through Foot Tracker Dost Muhammad and H.C. Muhammad Ramzan. The Foot Tracker opined that foot print marks which were seen at place of incident are same of accused. The Investigating Officer of the case recorded the statement of victim baby Vijenti and PWs Manohar and Vishan. On 10.12.2012 confessional statement of accused Rano Mallah was recorded before Civil Judge and Judicial Magistrate, in which he admitted his guilt. In last question 'What you have to say?" he replied as under:-
Translation
"Sir whatever, I have done, it is wrong. I have done it in the state of intoxication. I may be pardoned. My mother has also gone towards the parents of girl [victim].
LTI of Rano Mallah."
Swabs of victim and accused Rano Mallah and clothes of accused and Victim were sent to the Chemical Examiner, so also for the (DNA test) as per I.O but I could not find DNA report in the R&Ps nor produced by PW-6 I.O/or PW-4 Lady Dr. Leela. After completing the investigation, the report under section 173 Cr.P.C. was filed before Civil Judge and Judicial Magistrate as under:-
1 2 3 4 5 6 7
Complai-nant Absconder accused Arrested accused Accused Property Name of witnesses Detail of FIR
Bhano son of Khakoo resident of Meghwar Para City Ghulam Nabi Shah Nil Rano son of Jumoon Mallah resident City Ghulam Nabi Shah Taluka Bithoro Nil Clothes of accused Rano which includes Shalwar Qamees and Nara Complainant Ramchand. Harchand. C/Muhammad Ibrahim C/Noor Muhammad HC/ Muhammad Ramzan. Dr. Muhammad Ameen Bhatti. Dr. Leela Pardeep. Mr. Sodagar Solangi J.M. Samaro. Abdul Sattar Samoon. Insp. Abdul Sattar Vijni. R/W C/Haji Muhammad. C/Mumtaz Ali Same facts as already stated
After receiving the report under section 173 Cr.P.C. (challan) the learned Magistrate passed following order:-
ORDER
Challan accepted.
(Sd)/-20-12-2012
Civil Judge and Judicial Magistrate,
Samaro.
On receipt of the R&Ps from the Court of Civil Judge, the learned Sessions Judge transferred the case to the Court of Additional Sessions Judge, Umerkot. On 10.01.2013, the charge was framed by the learned Additional Sessions Judge, Umerkot [Syed Manzir Hussain Zaidi] which reads as under:-
CHARGE
Syed Manazir Hussain Zaidi, Additional Sessions Judge, Umerkot, do hereby charge you accused:
Rano son of Jumo Mallah,
Resident of Ghulam Nabi Shah, Taluka Pithoro District Umerkot.
as follows:-
That you on 02.12.2012 at about 1730 hours kidnapped/ abducted baby Vijenti daughter of Munawar (niece of complainant Bhano Menghwar), aged about 05 years and took her in the Panchaitee otaque and have thereby committed an offence punishable under section 364-A PPC and within the cognizance of this Court.
And I further charge you that in the same date, time and place you have committed rape with baby Vijenti aged about 05 years and thereby committed an offence punishable under section 376 P.P.C. and within the cognizance of this Court.
And I hereby direct that you accused be tried by this Court for the aforesaid charges.
Dated this 10th day of January, 2013,
Sd/-10.01.2013.
(SYED MANAZIR HUSSAIN ZAIDI)
ADDL: SESSIONS JUDGE UMERKOT.
Accused did not plead guilty and claimed to trial. On 20.08.2013, PW-1 complainant Bhano Mal was examined and he deposed that "on 2.12.2012 at about 05.30 p.m. we heard cries of baby Vijenti, we went there, where we saw, one person was running away, his face was opened and victim/baby was lying on the ground. Vijenti disclosed that she was standing in open plot where one person taken away her towards otaque, removed her shalwar and tried to commit zina with her. He lodged FIR with delay of two days viz. 04.12.2012. He further deposed that the accused present in the Court is not same as we have seen him at the time of incident. The actual culprit was Aijaz Mangrio [present appellant] son of Usman, but police with mala fide intention and due to his influence has not arrested him and implicated the present accused at his place. The foot prints were also tracked, through spy dogs who have also taken foot prints towards the otaque of Aijaz Mangrio [appellant] whose otaque is also situated near his house after three house but due to his influence he was not challaned." In cross examination, PW-1 complainant Bhano Mal admits that "the accused is neighbourer. The present accused is not previously known to us clearly". After recording the evidence the following order was passed by learned Additional Sessions Judge, Umerkot [Mr.Manzoor Ahmed Memon];
"ORDER
Dated 20.08.2013.
From the evidence of complainant, it appears that one accused Aijaz son of Usman Mangrio is the actual culprit, but police in order to save him has challaned the present accused in his place to save real culprit from the action against him for the offence committed by him according to law, therefore, let notice under section 193 Cr.P.C. be issued to the accused to appear and explain as to why he should not be joined and face the trial.
SD/-
(MANZOOR AHMED MEMON)
ADDL; SESSIONS JUDGE UMERKOT'
After passing the above order, notice was issued to the appellant on 31.08.2013, which is as under:
"Aijaz son of Usman by caste Magrio
Whereas complainant namely Bhano Mal son of Thakoo Mal Menghwar in Sessions Case NO.01/ 2013 S/V Rano Mallah, under section 376, 364-A P.P.C. (Crime No.64/2012 of P.S Pithoro) has deposed against you in his evidence that you are actual culprit in the above said Crime. It has also been come in the evidence that police in order to save you not challaned you and another accused Rano Mallah has been challaned to save you.
You are, therefore hereby called upon appear before this Court on 31.08.2013, and show cause as to why you may not be joined and prosecuted to face the trial in the above said Case/ Crime.
Given under my hand and the seal of this Court on this 31st day of August 2013.
Sd/ -
Additional Sessions Judge,
Umerkot.'
After receiving notice, the accused filed his objection on 31.08.2013, the learned Judge Mr. Manzoor Ahmed Memon passed the order dated 18.10.2014, the operative part of the order is as under:-
"I have heard learned advocates for both sides, complainants advocate has placed his reliance on case law reported in PLD 2008 Karachi 280, 2008 P.Cr.L.J 345 and also press clippings, it is settled law that courts are not bound by the ipse dixit of police and cognizance could be taken even on a negative report of police and a person exonerated by police could be joined as accused, therefore, from the complainant's evidence it appears that there is some material in the shape of evidence of complainant, who has no reason to exonerate the real culprit who has committed rape with his minor niece and implicated the present proposed accused, therefore, it would be seen after recording evidence of the P.Ws and complainant and present accused side that whether prosecution has been able to prove a case against accused Aijaz Mangrio or not, therefore, in view of case law relied upon by learned complainant's advocate, I am of the humble opinion that it is a fit case where accused can be summoned to face his trial other accused Rano who was challenged has already been acquitted by this Court under section 265-K Cr.P.C. on moving application under section 265-K Cr.P.C. on his behalf and by extending no objection by complainants and his advocate, therefore accused Aijaz Mangrio is joined to face the trial. He is already attending the court. Let the charge be framed against him after supplying papers. Case put off to 25.10.2014 for supply of copies. Accused Aijaz is directed to attend.
Announced in open Court.
Given under my hand and seal of the court, this 18th day of October 2014.
(MANZOOR AHMED MEMON)
ADDL: SESSIONS JUDGE
UMERKOT."
The application under section 265-K Cr.P.C. was filed on behalf of accused Rano Mallah and vide order dated 17.07.2014, he was acquitted from the charge. On 15.10.2014, the photo copies of police papers viz. FIR, challan, statements and mashirnama was received by accused Aijaz [appellant] and on 15.11.2014, the charge was framed against accused Aijaz by Mr. Manzoor Ahmed Memon, Additional Sessions Judge, which is as under:-
CHARGE
I, Manzoor Ahmed Memon, Additional Sessions Judge Umerkot, do hereby charge you accused:-
Aijaz son of Usman Mangrio,
as follows:-
It has come on record during the evidence of complainant Bhano Mal Menghwar and P.W Ramchand, recorded by this Court on 20.08.2013 at this time of trial of acquitted accused Rano Mallah (acquitted under section 265-K Cr.P.C., vide order dated 17.07.2012), that you on 02.12.2012 at about 1730 hours kidnapped/ abducted baby Vijenti daughter of Munawar (niece of complainant Bhano Mal), aged about 05 years and took her in the Panchaitee otaque, but police due to your political influence accused Rano Mallah was challaned in this case, and have thereby committed an offence punishable under section 364-A P.P.C. and within the cognizance of this Court.
And I further charge you that on the same date, time and place you have committed rape with baby Vijenti, aged about 05 years and have thereby committed an offence punishable under section 376 P.P.C. and within the cognizance of this Court.
And I hereby direct that you accused be tried by this Court for the aforesaid charges.
Dated this 15th November 2014.
Sd/-15.11.2014.
(MANZOOR AHMED MEMON)
ADDITIONAL SESSIONS JUDGE,
UMERKOT."
11. After framing of charge against accused [appellant], the cross examination of complainant to the counsel for accused Aijaz [appellant] was recorded though the examination-in-chief was recorded in the absence of the appellant before his joining in the trial. Victim Vijenti, Dr. Leela, I.O/AS1 Abdul Sattar Samoon and I.O/SHO Abdul Sattar Gurgej were also examined. The prosecution examined PW-02 eye witness Ramchand, he has also narrated the same facts as disclosed by the complainant. However, he admitted that "I have not seen the accused therefore I cannot say whether accused present in the Court is same who has committed zina with baby Vijenti." Police has also taken the sample for DNA test of the culprit. Samples were also taken of baby Vijenti and accused Rano Mallah for D.N.A. test by the police. Same were sent to Chemical Examiner. But report was not produced nor its available on the record. In cross examination he admitted that "the accused Rano Mallah was not nominated or identified by us but SSP Riaz Soomro disclosed his name before the media and they have arrested the actual culprit Rano Mallah." He further disclosed that victim Vijenti was not examined by police nor she is able to identify any person. Even she is not able to identify her family members. During protest before press club the name of Mangrio accused was taken that he is actual culprit but he admitted that the other person have taken the name of Mangrio but they have not taken the name of Mangrio accused. The accused Rano Mallah also confessed the guilt before the media persons. He further disclosed that he has identified the accused at the time of incident, but he was not aware about his name. His statement was recorded before the Court on 20.08.2013. The challan was submitted on 20.12.2012. It is admitted that during that period he has not moved any application before any forum including before the trial Court that the accused Rano Mallah is not a real culprit. The police has taken swab of vitim Vijenti and accused Rano Mallah to the office of Chemical Examiner. The learned trial Court vide order dated 17.07.2014 acquitted the accused Rano Mallah under section 265-K Cr.P.C. on the ground that no reliance can safely be placed on the judicial confession, which was recorded after five days of arrest and after grant of first remand by same Magistrate to police in police custody; the complainant and eye witnesses have not identified the accused.
12. The following points/questions are involved in the instant case:-
(1) Whether the Sessions Judge/ Additional Sessions Judge has power to summon any person on the disclosure of his name by the complainant/ witnesses during evidence before the trial Court despite his name did not appear in the FIR, statements recorded under section 161 Cr.P.C. or in report under section 173 Cr.P.C. [challan]?
(2) Whether while recording evidence of the complainant if he say that the accused present in Court is not my accused, but my real accused is 'A"; in such a situation, the trial Court has power to issue notice to join 'A" as an accused; even in the entire police papers, name of "A" is not appearing and on the basis of one line a charge can be framed against "A"?
It is well settled principle of law that opinion of the police officer is not binding upon Court. In this case after completing the investigation the report under section 173 Cr.P.C. [challan] was submitted before the Civil Judge and Judicial Magistrate, Samaro against accused Rano s/o Jumoon Mallah [not against present appellant]; in column No.2 any absconder [Nil]; in column No.4 [Nil] even neither any accused was released under section 497 Cr.P.C. nor under section 169 Cr.P.C.by the police. In this case, the police officer collected evidence against accused Rano Mallah, who was referred for his medical check-up; he has also produced cloths which were worn by him at the time of commission of offence. The foot prints of accused Rano were compared through foot tracker, who opined the same to be that of accused Rano. Police officer recorded statement under section 161 Cr.P.C. of PWs Vijenti, Manohar and Vishan; confessional statement was recorded before the Civil Judge and Judicial Magistrate, in which accused Rano Mallah admitted his guilt. The swab of victim and accused Rano were sent to the office of Chemical Examiner and received a positive report, and on the basis of such evidence accused Rano was challaned but the complainant has not identified him/Rano Mallah in the Court room and on the basis of one line that the actual culprit was Aijaz Mangrio son of Usman, but police with mala fide intention and due to his influence has not arrested him and implicated the present accused [Rano Mallah] at his place. In such scenario of the case as to whether mere on disclosure of the complainant implicating a person who did not come into picture during whole process of investigation upto the examination of complainant in the trial, learned trial Court issued summons to the appellant Aijaz is in accordance with the Code of Criminal Procedure, 1898?
In the Code of Criminal Procedure, 1898 a Sessions Court has no original jurisdiction to take cognizance of such offence and it cannot try a case unless it is sent to it by a Magistrate duly empowered in this regard within purview of section 190(3) Cr.P.C. At this stage, it is appropriate to have a guidance of the relevant provisions. Section 190 of the Criminal Procedure Code which provide for "Cognizance of offence" by Magistrate reads as follows:-
Section 190. Cognizance of offence by Magistrates. All Magistrates of the first class, or any other Magistrate specially empowered by the Provincial Government on the recommendation of the High Court may take cognizance of any offence:
(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a report in writing of such facts made by any police-officer;
(c) upon information received from any person other than a police-officer, or upon his own knowledge of suspicion.
that such offence has been committed which he may try or send to the Court of Session for trial.
(2) A Magistrate taking cognizance under subsection (1) of an offence triable exclusively by a Court of Session shall, without recording any evidence, send the case to Court of Session for trial.
The word "cognizance" is a term of art implying application of mind to the facts of a case in order to determine whether the facts disclosed constituted an offence triable. Application of mind for the purpose of cognizance under section 190(1) and (3) read with section 193 Cr.P.C., is for the purpose of determining whether the facts disclosed the commission of an offence triable exclusively by the Court of Session in which case the Magistrate is bound to send the case to the Court of Session for trial. Section 193 of Cr.P.C. which accumulate for cognizance of offence by courts of Session reads as follows:-
Section 193. Cognizance of offence by Courts of Session: (1) Except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction [unless the case has been sent to it under section 190 subsection (2)].
(2) Additional Sessions Judges and Assistant Sessions Judges shall try such cases only as the Provincial Government by general or special order may direct them to try, or as the Sessions Judge of the division, by general or special order, may make over to them for trial.
From above, it appears that Court of Session is debarred under section 193 Cr.P.C. from taking cognizance of a case as a Court of original jurisdiction unless case is sent to it by a Magistrate under section 190(3) Cr.P.C.
In this case on the basis of one line evidence of the complainant PW-1 Bhano Mal that "the actual culprits was Aijaz Mangrio", the trial Court issued notice to the appellant under section 193 Cr.P.C. to appear and explain as to why he should not be joined and face the trial. Nothing is mentioned any where including above referred proviso to be exercised by trial Court/Court of Session to call/summon any person and to join him as co-accused during the trial. In other words the learned trial court by using Suo Motu powers issued summon to accused for which he has no power. Nevertheless, such proviso is to be exercised when there is sufficient material collected before the Court connecting such person in the alleged offence, which includes the record of the proceedings of the trial or material collected by the Investigating agency and not extraneous material which does not form part of the record or of the investigation. As already mentioned that finding of the Investigating Agency to place some accused person in column No.2 by extending benefit of section 169 Cr.P.C. is not binding on the courts and a trial Court has a legal competence under law to summon such accused of the prosecution if the Court satisfies regarding his involvement in the case. A court can take cognizance of an offence even in the case where a report for cancellation is submitted by the police. A Court while taking cognizance on a police report takes cognizance of the offence but not of a particular person charged in the report as an offender. The trial Court can therefore, issue process against other accused persons who also appear to it, to be connected with the offence on the basis of the material placed before him. Material means the evidence collected by the police but released him under section 169 Cr.P.C. or 497 Cr.P.C. The Magistrate is empowered to take cognizance against accused whose name has been placed in column No.2 even trial Court has power to issue summon to the accused person whose name has been placed in the column, if any strong evidence is placed. In the case of "MUHAMMAD AKBAR v. The STATE and others' [1972 SCMR 335], where it was observed, inter alia, that "After all the police is not the final arbiter of a complaint lodged with it". No doubt Court of Session can take cognizance of the offence by summoning any person as is envisaged under section 193 (1) Cr.P.C. but in appropriate case where incriminating evidence is found on record of the case or when strong material implicating him is brought on the record after evidence is recorded at the trial. In the case of 'SAFDAR ALI v. ZAFFAR IQBAL and others' [2002 SCMR 63], the Hon'ble Supreme Court of Pakistan has held that "Trial Court can summon the accused placed in column No.2 of the challan to face the trial and there is no legal bar what so ever that at first instance evidence should be recorded to ascertain as to whether prima facie case is made out against him. Repetitively stated that in the instant case, summons was issued against the appellant on revelation in evidence by the complainant Bhano Mal, which before the trial Court, stating that the real culprit was "Aijaz Mangrio". For determining the question of competency of the trial Court to summon and join to a person in the trial in such a situation, I observe that it does not bear any justification or is in accordance with law rather it collapses the provision of the Code of Criminal Procedure, 1898 as referred above. Accordingly, my answer to the point of competence or power of the trial Court for summoning any person mere on the disclosure of his name by the complainant/ witnesses during evidence before the trial Court despite his name did not appear in the FIR, statements recorded under section 161, Cr.P.C. or in report under section 173 Cr.P.C. [challan] would be "No" because the "Cognizance" is a term of art implying application of mind to the facts of a case in order to determine whether the facts disclosed constitute an offence triable.
13. Under the law the charge has to be framed by the Court on the basis of the material placed before it and in doing so the Court is not bound by the report submitted under section 173 Cr.P.C. The court has to frame the charge under section 265-D, Cr.P.C. after perusing the police report or complaint but all other documents and statements available on record and material provided by the prosecution. In a Sessions trial the Court has to frame Charge under section 265-D, Cr.P.C, if on the consideration such material, the Court is of the opinion that there is ground for proceeding with the trial, the Court would frame the charge. It is appropriate to reproduce section 265-D, Cr.P.C:-
Section 265-D. When charge is to be framed. If, after perusing the police report or, as the case may be, the complaint, and all other documents and statements filed by the prosecution, the court is of opinion that there is ground for proceeding with the trial of the accused it shall frame in writing a charge against the accused.
In this case the prosecution collected the material/evidence against the accused Rano son of Jumoon Mallah. After his arrest, police secured his cloths, during interrogation he admitted his guilt and he was referred for his medical check-up, he was brought at Shadi Pali Railway Station where the foot prints of accused were compared through Foot Tracker. The Foot Tracker opined that foot marks which were seen at the place of incident to be same of accused Rano. His confessional statement was recorded before the learned Magistrate wherein he has admitted his guilt; report received from the office of the Chemical Examiner is in positive. On the basis of material, the charge was framed against accused Rano but he was acquitted on 17.07.2014 about five years ago by the trial Court and joined the present appellant Aijaz Mangrio and framed the charge against him. Now question is this what evidence was available against appellant Aijaz to frame charge against him, then my reply would be that no evidence was available on record to connect him in this case except one line of the complainant stated above. The requirement for framing of charge is that, after perusing the police report or, as the case may be, the complaint, and other documents and statement filed by the prosecution, the court is of opinion that there is ground for proceeding with the trial of the accused the charge can be framed against accused but it is not necessary that the trial court is of the opinion that no material is available against accused even he can frame charge, but in such situation the trial court can discharge him until unless sufficient evidence/material will come against him/accused.
14. Apart from joining the appellant in the trial though is without legal justification, the trial Court relying upon the evidence of complainant Bhano Mal and PW Ramchand, framed the charge against appellant, despite fact that the legal requirement for framing the charge against a person, which he is being charged, is otherwise as incorporated under section 265-D, Cr.P.C. according to which, the charge can be framed against accused if sufficient material available with the prosecution, however, in the instant case, there was no material against appellant except mere words involving the appellant by complainant during his evidence. Admittedly, the complainant has lodged FIR [Ex:3/A] against unknown person by stating that "We heard cries of baby Vijenti daughter of Munwar aged about 05 years. On hearing the cries we went running, we were present near our house, where we saw one person was running away his face was opened and baby Vijenti was lying on the ground." The foot prints were also tracked through spy dogs who have also taken foot prints towards the otaque of Aijaz Mangrio whose otaque is also situated near one house after three houses. It means that the complainant and appellant Aijaz are neighbourers, hence, they are know to each other, therefore, the complainant should have named him in the FIR, during press conference, at the time of challan, at the time of confession made by the accused Rano Mallah but he never disclosed his name nor made any such application to any agency or have filed direct complaint against appellant. He has produced FIR Ex:3-A and stated that it is same, correct and bears his signature. This also proves that he still sticks with his FIR. The prosecution also examined the eye witness Ramchand, who has stated in his examination-in-chief that "I have not seen the accused, who was run away prior to my arrival." The most important witness in this case was victim baby Vijenti. According to her, "It was evening time at about 05.30 p.m. I was playing with my friend. At that time one boy came there and caught me and daughter of my uncle namely Rajni and brought us in the otaque. Rajni escaped away from the otaque." In cross examination, she disclosed that "At the time when I was brought at Hospital, I was not in my senses. The police brought the accused before me and I identified the accused before the police. It is correct to say that my father and mother dictated me to depose before the Court. It is correct that my parents asked me to identify the accused who will be present in the Court. It is correct in the year 2002 I was too little." From the cross-examination of the victim, it appears that she identified the accused when he was arrested and brought before her and he was Rano Mallah because at that time "Rano Mallah" was arrested by the police not "Aijaz Mangrio".
15. During course of investigation, no incriminating evidence was collected against the appellant nor witness has deposed against him. Hence, no material was available against appellant but the charge was framed against him. During whole process of investigation and cognizance was taken into the matter by Court of law on the basis of material against accused Rano Mallah and since there was allegedly involved one person only in commission of the offence, hence, substitution of that single accused with appellant Aijaz Mangrio would be entirely against the Chapter XIV so also Chapter XV of the Code of Criminal Procedure, 1898. In view of such position, the trial Court was not competent to issue notice for joining the appellant in the instant case and accordingly my answer for this point is in negative. It is worthwhile to observe that right course for the trial Court was that after acquitting accused Rano Mallah, at the most, it could observe that if complainant intends to prosecute appellant, the complainant to file Direct Complaint, if desires so.
16. As a result of what has been discussed above, the joining of the appellant in the trial by the learned trial Court and passing the impugned judgment was an erroneous conclusion. Resultantly, the instant appeal was allowed. The conviction and sentence awarded to the appellant were set-aside and he was acquitted of the charge. The appellant was ordered to be released forthwith if not required in any other custody case. These are the reasons for my short order dated 07-11-2019.
MH/A-27/Sindh Appeal allowed.
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