PLJ 2022 Cr.C. (Note) 42
Criminal Procedure Code, 1898 (V of 1898)--
----Ss. 265-K, 249-A & 417(2)--Jurisdiction u/S. 265-K, Cr.P.C.--Exercise of powers--Appeal against acquittal--The object of exercise of powers is to prevent abuse of law available to learned trial Court under sections 265-K and 249-A of Cr.P.C., however, in a case where sufficient, prima facie, evidence is available, powers may not be exercised as to throttle process of justice--The primary consideration to be kept in view would be whether continuance of proceedings before could be a futile exercise, wastage of time and abuse of process of Court or not--If on basis of facts admitted and a patent on record no offence can be made out, then it would amount to abuse of process of law to allow prosecution to continue with trial--If facts of present case are scrutinized on touchstones of above criteria, then it would be obvious that there was sufficient oral and documentary evidence, i.e. medical certificate and same would be established through evidence, and no fair opportunity was provided to prosecution to prove its version by producing evidence.
[Para 10 & 11] A & B
Criminal Procedure Code, 1898 (V of 1898)--
----S. 265-K--Exercise of powers--Jurisdiction u/S. 265-K, Cr.P.C.--Acquittal--On behalf of accused/Respondent Nos. 1 to 3 and ordering their acquittal at a time when prosecution evidence was yet to be recorded against accused/respondents--There was no bar of limitation as to trial or stage of proceedings for filing an application for acquittal of accused, but propriety required that fair opportunity should be provided to prosecution to prove its case by producing evidence and matters should be decided on merits as envisaged u/S. 245 of Cr.P.C. after providing a proper opportunity to prosecution for producing its evidence and recording statements of accused persons u/S. 342 of Cr.P.C. [Para 12] C
Inquiry into Offences--
----When law provides a detailed inquiry into offences for which an accused has been sent up for a trial, then ordinarily and normally procedure prescribed by law for deciding fate of criminal case should be followed unless some extraordinary circumstances are shown to exist to abandon regular course and follow exceptional routes. [Para 13] D
2005 SCMR 1544.
Syed Ayaz Zahoor. Advocate for Appellant.
Mr. Ahsan Rafique Rana Advocate for Respondent No. 3.
Mr. Muhammad Younus Mengal, Assistant Prosecutor General (“APG”) for State.
Date of hearing: 1.12.2020.
PLJ 2022 Cr.C. (Note) 42
[Balochistan High Court, Quetta]
Present: Muhammad Kamran Khan Mulakhail and Rozi Khan Barrech, JJ.
Dr. MUHAMMAD ARIF--Appellant
versus
MUHAMMAD ANWAR and 3 others--Respondents
Crl. Acq. A. No. 461 of 2019, decided on 21.12.2020.
Judgment
Rozi Khan Barrech, J.--This criminal acquittal appeal was filed to question the validity of the order dated 21.10.2019 (hereinafter “the impugned Order”) passed by learned Additional Sessions Judge-VII, Quetta, (hereinafter “the trial Court”) whereby the application under Section 265-K, Cr.P.C., filed by the accused/ Respondent Nos. 1 to 3 was accepted, and the accused/respondents were acquitted of the charge by the trial Court in FIR No. 66 of 2018 of Police Station Gowalmandi District Quetta under Section 324, 34, PPC.
2. Relevant facts for the disposal of the instant appeal are that on 03.04.2018, the complainant Dr. Muhammad Arif son of Muhammad Umar lodged FIR No. 66 of 2018 at Police Station Gowalmandi District Quetta for an offence under Section 324, 34, PPC with the averments that on 03.04.2018 at 12:05 a.m., (night) he along with his other family members were sleeping in his house situated at Shaista Khan Chowk Haji Ghaibi Road, Quetta, the accused persons Muhammad Anwar, Muhammad Ashraf, Muhammad Akbar and Muhammad Usama entered in his house and attempted to cause injury to his brother Muhammad Ayub, and when the complainant tried to rescue them, the accused persons made firing at him, due to which, he received a bullet injury. Hence the crime report.
3. After completion of the usual investigation, challan of the case was submitted before the learned trial Court. The charge was framed against the accused/respondents to which they pleaded not guilty and claimed trial. During the trial, the prosecution produced four (04) witnesses, when the case was fixed for further prosecution evidence, the learned counsel for the accused/respondents filed an application under Section 265-K, Cr.P.C. After hearing arguments of the learned counsel for the parties, the learned trial Court accepted the application under Section 265-K, Cr.P.C., and acquitted the accused/respondents from the charge on 21.10.2019, whereafter the instant appeal has been filed.
4. We have heard arguments advanced on behalf of the learned counsel for the parties and also perused the record.
5. There is no embargo on the appellate Court reviewing the evidence, upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with, because the presumption of innocence of the accused is further strengthened by acquittal. However, in appeal or revisional proceedings, the order of acquittal of the accused under Section 249-A or Section 265-K, Cr.P.C., would not have the same sanctity as orders of acquittal on merits. Consequently, the principles, which are to be observed and applied in setting aside the findings of acquittal, or the principles, relating to the presumption of double innocence, when an accused is acquitted after a full-fledged inquiry and trial to acquittals under Section 265-K, Cr.P.C., would not be applicable. The paramount consideration of the Court is to ensure that miscarriage of justice if prevented. A miscarriage of justice, which may arise from acquittal of the guilty, is no less than from the conviction of an innocent. In a case, where admissible evidence is ignored, a duty is cast upon the appellate Court to re-appreciate the evidence in a case, where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused committed any offence or not.
6. Before analyzing factual aspects, it may be stated that for a crime to be proved, it is not necessary that the crime must be seen to have been committed and must in all circumstances be proved by direct ocular evidence by examining before the Court those persons, who had seen its commission. The offence can be proved by circumstantial evidence also. The principal fact or factum probandum may be proved indirectly by means of certain inferences drawn from factum probans, that is, the evidentiary facts. To put it differently, circumstantial evidence is not direct to the point in issue but consists of evidence of various other facts, which are so closely associated with the fact in issue if taken together they form a chain of circumstances, from which the existence of a principal fact can be legally inferred or presumed.
7. The impugned order shows that the trial Court has given the findings on the report of so-called medical board, but despite the fact that no evidence has been recorded. The learned trial Court acquitted the accused on the basis of the report of the medical board. That the “Medical Certificate issued by Dr. Ali Mardan in favour of victim Muhammad Arif is bogus, and fabricated one as no injury is caused by firearm to the victim and it is self-inflicted simple injury”. After receiving a report of a medical board, the learned counsel for the complainant issued a legal notice dated 21.02.2019 to the members of the medical board and on the basis of said legal notice one of the members namely Dr. Ehsanullah Shah submitted his reply which is attached with the petition, it is clearly mentioned in para 2 of the reply “that in reply of the contents of para 2 it is staled that are not aware about the fact that the MLC of Civil Hospital was challenged before the MLO BMC Hospital while the replying doctors are not qualified for deciding the same, whereas, neither they examined the injured persons, nor any medical board was constituted. Whereas, being the MLOs of same grade we cannot adjudicate upon the MLC of other MLO”.
8. In such circumstances, the learned trial Court would have examined the doctors in this behalf and then would have turned its conclusion as to whether the medical opinion issued by the medical board was rightly issued or it was a forged document. There is a question mark on the authenticity of the medical board, the learned trial Court without considering the authentic of the medical board act in a haphazard manner. The genuineness of the medical certificate issued by the police surgeon in favour of complainant or subsequent constitution of the medical board is concerned; the authenticity whereof at this stage cannot be ascertained without recording their evidence. There was no occasion for the trial Court to make or express adverse remarks and observations relating to the antecedents, credibility and reliability of the medical certificate issued by the police surgeon and subsequently constitution of the medical board. We find that in this manner, the appellant has been condemned unheard. Moreover, the law favours the disposal of cases on merits. It is in the interest of justice that both the parties be provided an opportunity to prove their versions by producing evidence. Duty of the Court is not only to protect innocent but also to punish the guilty.
9. Perusal of the available record in the light of arguments advanced before us show that the jurisdiction under Section 265-K of the Cr.P.C., has not been exercised properly by the trial Court; the chances are that those who are alleged in the offence might go scot- free.
10. The object of the exercise of the powers is to prevent abuse of law available to the learned trial Court under sections 265-K and 249-A of the Cr.P.C., however, in a case where sufficient, prima facie, evidence is available, the powers may not be exercised as to throttle the process of justice. The primary consideration to be kept in view would be whether the continuance of the proceedings before the could be a futile exercise, wastage of time and abuse of process of Court or not. If on the basis of facts admitted and a patent on record no offence can be made out, then it would amount to abuse of process of law to allow the prosecution to continue with the trial.
11. If the facts of the present case are scrutinized on the touchstones of the above criteria, then it would be obvious that there was sufficient oral and documentary evidence, i.e. medical certificate and the same would be established through evidence, and no fair opportunity was provided to the prosecution to prove its version by producing evidence.
12. We have also observed that the trial Court had erred in entertaining the application under Section 265-K of the Cr.P.C., on behalf of accused/Respondent Nos. 1 to 3 and ordering their acquittal at a time when the prosecution evidence was yet to be recorded against the accused/respondents. We are conscious of the fact that there was no bar of limitation as to the trial or the stage of the proceedings for filing an application for acquittal of the accused, but propriety required that fair opportunity should be provided to the prosecution to prove its case by producing evidence and the matters should be decided on merits as envisaged under Section 245 of the Cr.P.C. after providing a proper opportunity to the prosecution for producing its evidence and recording the statements of the accused persons under Section 342 of the Cr.P.C.
13. The Hon'ble Supreme Court has held in the case of The State through Advocate General, Sindh High Court of Karachi v. Raja Abdul Rehman (2005 SCMR 1544) that when the law provides a detailed inquiry into offences for which an accused has been sent up for a trial, then ordinarily and normally the procedure prescribed by law for deciding the fate of the criminal case should be followed unless some extraordinary circumstances are shown to exist to abandon the regular course and follow the exceptional routes.
For the foregoing facts and discussion, this appeal is partly allowed. Consequently, while setting aside the impugned order dated 21.10.2019 passed by the trial Court in FIR No. 66 of 2018, the case of accused/Respondent Nos. 1 to 3 is remanded to the trial Court, which shall proceed from the stage, at which the case stood when the application of accused/Respondent Nos. 1 to 3 under Section 265-K of the Cr.P.C. was decided. The parties are directed to appear before the trial Court on 23.12.2020.
(A.A.K.) Appeal partly allowed
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