Charge or discharge phenomenon goes side by side depending upon the material then available to push the expeditious trial or to keep away the hurdles unnecessarily impede the process is the function to be carried out by the court with utmost care and caution because it directly touches the fundamental rights of individuals for to be treated in accordance with law as enshrined in Article 4 of the Constitution of Islamic Republic of Pakistan, 1973.
It is command of the Constitution that no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law. Involving any person in a criminal process without sufficient evidence reflects against his right to life, liberty, body, reputation or property; therefore, such an action would be against the spirit of above Article: Court is duty bound to adhere to the law and follow precedents to safeguard this Constitutional right. 4. The Constitution being the supreme document, mother of all legislation in the country is to be respected in all circumstances particularly when anything not specifically prohibited in the statutory law. If the doing of anything under a law is conditional with certain proof or material then converse right accrues due to absence of such material. Charging is not an automatic phenomenon; court has to see the material available before it, in the form of Report u/s 173 Cr.P.C. and all other documents and statements filed by the prosecution.
in the current regime of legislation and then what documents and material are to be produced along with such report. Report u/s 173 Cr. P.C. is to be submitted by the SHO concerned as mentioned in section 173 Cr.P.C., on a prescribed form as set out in Police Rules, 1934 and attached with it all statements and documents as mentioned in 265-C Cr.P.C. and other documents necessary to be used as evidence to prove the case. if the investigation was conducted by a junior officer even then report must be submitted by the SHO as set out in section 168 of Cr. P.C. Report u/s 173 Cr. P.C would also be submitted through senior officer in any cases if directed by the Provincial Government by special or general order as reflected from sub-section 2 of Section 173 Cr.P.C. In any particular case Government can direct routing of report through any superior officer, yet to achieve this end, government has already introduced an institution of supervisory officer under Police Order, 2002.
This check in fact is a step to ensure protection of fundamental right that no one should be put into a situation where his liberty is curtailed due to the rigors of criminal process if no evidence is available. To avoid the tunnel vision approach by the police and a different ideology which they follow that every person is guilty unless proved innocent, Government has also intercepted the process of tagging a suspect with criminal liability through introduction of an institution of Prosecution, primarily in year 1992 through Code of Criminal Procedure (Amendment) Act XXV of 1992 but later through promulgation of Punjab Criminal Prosecution Service (Constitution, Functions And Powers) Act, 2006, hereinafter called as CPS Act. As per section 9(5) of CPS Act, prosecutors are obliged to scrutinize the police reports, forward it to the court if it is fit for filing or return the same for removal of defects, that can be of any types including applicability of proper offences or collection of any particular evidence.
The scrutiny carried out by the prosecutors is twofold, one for the police for removal of procedural defects in the Report including collection of relevant evidence; and, other for courts about preliminary and tentative assessment of evidence on record. Prosecutor General is authorized u/s 17 of CPS Act to issue code of conduct for prosecutors and as per section 17(2), all the prosecutors are bound to perform their function under the Act in accordance with the code of conduct so issued.
Submission of result of his assessment as to the availability of evidence and applicability of offences against all or any of the accused is a clear indication that no offender should be recommended for prosecution if the evidence is scanty or the offence is not attracted as per facts and circumstances. If the prosecutors assess that though evidence is available in the case but not against all the accused, they can single him out by recommending discharge so as to narrow down the process for expeditious disposal of case; even otherwise their opinion are suggestive in nature though not binding on the courts yet court is bound to give it due consideration as mentioned in above section. The prosecutors are required to undertake the assessment of evidence in accordance with the code of conduct issued u/s 17 of CPS Act. According to para 5 of the code of conduct for prosecutors, they are required to apply Full Code Test.
Standard that the prosecutors apply on evidence is either prima facie case known as 51% Rule and realistic prospect of conviction case; all such standards are less than the standard which the court apply that accused is guilty beyond reasonable doubt.
The utility and efficacy of evidential test is increased if following factors are properly considered as highlighted in the cited code of conduct.
All prosecutions are in the public interest unless there are factors in existence that require that a prosecution may not be made. The factors to be considered while applying public interest test are broadly noted in the code of conduct as under;
a) How serious is the offence?
b) The extent of culpability of the offender?
c) The circumstances of the victim
d) The age and circumstances of the offender
e) The impact of the offence on the community
f) The remorse shown by the offender or actions taken by him to undo the wrong
g) Is prosecution a proportionate response?
It is mentioned in the said code that in deciding the public interest, the prosecutors must take into account the views of the victims, however this is not the determining factor. The CPS does not act for victims or their families in the same way as lawyers act for their clients, and prosecutors must form an overall view of the public interest.
Introduction of evidential test and public interest test clearly indicates that the constitutional guarantee of equal protection of law and to be treated in accordance with law has well been met in the procedure given above so as to save the person subject of criminal process from the expected rigors. This procedure should be followed by the prosecutors while submitting their reports u/s 9(7) of CPS Act; they can recommend discharge of an accused against whom evidence is deficient. 10. Coming back to section 265-D Cr.P.C which requires the court to peruse the police report or, as the case may be, the complaint, and all other documents and statements filed by the prosecution before framing of charge. As the document in the form of report u/s 9(7) CPS Act is also filed by the prosecution along with report u/s 173 Cr.P.C.; therefore, it is to be perused by the Court before framing of charge against the offender/suspect and also bound to give it due consideration on the touch stone of evidential test and public interest test.
If after considering the police report, case review/result of assessment, statements of witnesses and any other document, court is of the view that sufficient material is available to frame the charge, it shall proceed accordingly; but if not, then in converse would oblige to discharge the accused. Discharge of accused is a legal requirement that can be resorted to u/s 265-D of Cr.P.C.
The court when opts to summon any accused in the process at early or subsequent stage should also attend to such consideration as set out above because mere mentioning of the name in the police report or deposing it by a witness is no ground to issue process in blindfold. However, if an accused has been summoned to face the process, even then before framing of charge, material must be examined in the light of criteria highlighted which is the command and mandate of law. A discharged accused can be summoned at any subsequent stage if any evidence worth appreciation is made available against him.
In a Magisterial trial where a provision like 265-D Cr.P.C. is not available yet there is no prohibition in section 242 Cr.P.C. as to not consider the material before framing of charge. The situation is now clearer in the light of provision of CPS Act that requires the court to give due consideration to the result of assessment submitted by the prosecutor. CPS Act being special law shall prevail over the general law. if the prosecutor recommends, the case as not worthy of prosecution or discharge of accused due to deficient evidence but the Court had a different observation and expects that evidence can be made available, it can frame the charge but otherwise court still has two option for the time being either to discharge the accused or stay the proceedings u/s 249 of Cr. P.C
It is clear that above section is applicable only to the case instituted upon police report and not in private complaint case. (in some books word “complaint” has been misprinted as “complainant” which has mislead the true interpretation).
Crl. Revision-Against Interim Orders
5-22
MUHAMMAD USMAN GHANI VS
THE STATE ETC
Mr. Justice Muhammad Amjad Rafiq
14-02-2022
2022 LHC 1485
0 Comments