PLJ 2022 Cr.C. 1074
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302 / 324 / 364 / 337-A(v) / 337-A(i) / 337-F(ii) / 148/149--Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2006, S. 9(5)--Scope of Section 265-D of Cr.P.C.--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--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--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.--A discharged accused can be summoned at any subsequent stage if any evidence worth appreciation is made available against him--This revision petition is dismissed--However, trial Court before framing of charge against the petitioner and others shall see and weigh the incriminating material in the light of legal requirement as settled above--Revision dismissed.
[Pp. 1077, 1081 & 1082] A, B, C, D & E
PLD 2012 SC 179; 2013 PCr.LJ 1411; 2012 PCr.LJ 1823; PLD 2005 SC 408; PLD 1982 Lahore 120; 1983 PCr.LJ 1428 Kar; 1993 PCr.LJ 1606 Kar; 1997 PCr.LJ 741 Lahore; 1998 MLD 209 (Pesh); 2000 PCr.LJ 534 FSC; 2017 MLD 916 GB; 2021 MLD 1532 (Pesh); 2004 YLR 1802 (Lahore); 2004 MLD 1762 (AJ&K) ref.
Mr. Muhammad Tariq Khan, Advocate for Petitioner.
Mr. Hassan Mehmood Khan Tareen, Deputy Prosecutor General for State.
Rana Muhammad Nadeem Kanju, Advocate for Respondent No. 2.
Date of hearing 14.2.2022.
PLJ 2022 Cr.C. 1074
[Lahore High Court, Multan Bench]
Present: Muhammad Amjad Rafiq, J.
MUHAMMAD USMAN GHANI--Petitioner
versus
STATE etc.--Respondents
Crl. Rev. No. 5 of 2022, decided on 14.2.2022.
Judgment
Through this revision, the petitioner has challenged the order dated 09.11.2021, passed during the trial in case FIR No. 119/20 dated 19.02.2020 u/S. 302/324/364/337-A(i)/337-A(v)/337F(ii)/148/149, PPC, P/S Jahanian, District Khanewal whereby the learned Additional Sessions Judge, has summoned the petitioner/accused and others without examining the material available on record, though their names were placed in Column No. 2 of the Challan.
2. Learned counsel for the petitioner contends that it was incumbent upon the learned trial Court to go through the relevant material before summoning the petitioner and others which stance was controverted by the learned respondent's counsel, stating that the petitioner and others were missed in summoning despite their names were placed in Column No. 2 of the Challan. Petitioner's proponent however, prayed that at least at this stage learned trial Court should see the material available on record before framing of charge as contemplated under Section 265-D, Cr.P.C. which prayer was not opposed by the other side. Allegedly question arises as to what material should be examined before framing of charge within the scope of Section 265-D, Cr.P.C. and does it authorizes the Court to discharge the accused if sufficient incriminating material is not available.
3. 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. For reference it is reproduced:
"4. (1) To enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen. Wherever he may be, and of every other person for the time being within Pakistan.
(2) In particular--
(a) no action detrimental to the life, liberty, body, reputation or property of any person shall be-taken except in accordance with law;
(b) no person shall be prevented from or be hindered in doing that which is not prohibited by law; and
(c) no person shall be compelled to do that which the law does not required him to do."
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. To better appreciate the question, let's see what Section 265-D, Cr.P.C. says;
265-D When charge 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.
5. Before proceeding further, it is to be seen the way a duty cast upon the police to prepare the report u/S. 173, Cr.P.C. 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; relevant sub-Articles of Article 18 are as under;
(9) The supervisory officers--
(a) shall ensure timely completion and verification of investigation; and
(b) may summon the investigation officer or team of officers, review the case file, evaluate the evidence and, in that case, shall issue instructions to the investigation officer or team of officers in the form of case diary.
(10) A supervisory officer not below the rank of a Deputy Superintendent of Police may verify the correctness of the investigation and accuracy of conclusions of investigation by writing a case diary before submission of report in the Court.
6. 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. Section 9(7) of CPS Act requires from the prosecutor to submit case review in following terms;
(7) The Prosecutor shall submit, in writing, to the Magistrate or the Court, the result of his assessment as to the available evidence and applicability of offences against all or any of the accused as per facts and circumstances of the case and the Magistrate or the Court shall give due consideration to such submission."
7. 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 which is as under;
5.1 The Full Code Test comprises two tests applied one after the other. These tests are the Evidential Test and the Public Interest Test.
5.2 The Full Code Evidential test must be applied when the investigation is complete and no key evidence remains to be collected. The Public Interest test should be applied when a case clears the Full Code Evidential Test. Exceptions to this rule are cases in which public interest is clear and no amount of evidence will override the public interest.
5.3 A case, which does not pass the evidential stage, must not proceed, no matter how serious or sensitive it may be.
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 as under; para 5.6 is relevant;
a) Can the evidence be relied upon?
In determining the reliability of evidence, the prosecutor must bear in mind the process of collection of evidence and the credibility of witnesses. Any violations of the legally acceptable or mandated process of collection/recording may lead to its becoming unreliable. Witnesses may be unreliable because of various factors such as old age, inability to remember past events, relationship with the victims and/or the complainant; any likely motives for the commission of perjury, such as financial gain, duress, past histoiy of witnesses, lack of requisite knowledge or experience etc. However, the prosecutor must not deem evidence collected by police to be inadmissible and/or tainted unless its unreliability is clear and obvious.
b) Is the evidence sufficient?
Evidence must be present on all counts and sufficient to bring home the point. For instance, if the same event has been seen by a large number of witnesses, a lesser level of scrutiny may suffice. However single witnesses must pass a higher level of scrutiny. Similarly, the prosecutor must ensure that the requisite tests have been conducted on physical evidence.
c) The defence perspective
When a line of defence is adopted or is open to be adopted by a suspect or accused, the Prosecutor should also consider it, and in an objective manner. In other words, a line of defence or potential line of defence should be reasonably taken into account by the Prosecutor on the basis of available evidence.
5.7 In the institution of criminal proceedings, prosecutors will only proceed when a case is well founded upon evidence reasonably believed to be reliable and admissible, and will not continue with a prosecution in the absence of such evidence; throughout the course of proceedings, the case will be firmly but fairly prosecuted; and not beyond what is indicated by the evidence.
8. Once the prosecutor considers that case passes the evidential test, he shall apply public interest test which has been explained in the code of conduct as under:
The Public Interest Test
5.8 In every case where there is sufficient evidence to justify a prosecution a prosecutor must go on to consider whether a prosecution is required in the public interest.
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.
9. 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.
"Since in these matters, respondents have been discharged under Section 265-D, Cr.P.C., though applications were moved by them for their acquittal under Section 265-K, Cr.P.C. Undoubtedly, it is within the domain of trial Court to examine the entire material placed on record by prosecution before exercising the powers under Section 265-D, Cr.P.C. It was in exercise of the powers conferred under this provision of law, learned Ehtesab Bench has arrived to the conclusion that even prima, facie case for framing of charge against respondents was not made out."
Some more judicial precedents also carry similar findings which are mentioned below for reference and reliance.
"Sarfraz Ahmed versus Pakistan and 2 others" (PLD 1982 Lahore 120), "Mst. Ashrafunnisa versus The State and 8 others" (1983 PCr.LJ 1428 KAR), "Umubyeyiu Christine versus The State" (1993 PCr.LJ 1606 KAR), "Abdur Razzaq and another versus The State" (1997 PCr.LJ 741 Lahore), "The State versus Aftab Ahmed Khan Sherpao and another" (1998 MLD 209 (Pesh), "Mahazulla versus The State" (2000 PCr.LJ 534 FSC), "The State versus Shukoor Jan and another" (2017 MLD 916 GB), "Nasir Ali versus Mst. Zakia" (2021 MLD 1532 (Pesh), "Monia Jee and others versus The State and another" (2004 YLR 1802 (Lahore), "Idrees Kiani and others versus The State through Advocate General" (2004 MLD 1762 (AJ & K).
13. 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. which says as under:
249. Power to stop proceeding when no complaint: In any case instituted otherwise than upon complaint, a Magistrate of the First Class, or with the previous-sanction of the Sessions Judge, any other Magistrate may for reasons to be recorded by him, stop the proceedings at any stage without pronouncing any judgment either of acquittal or conviction; and may thereupon release the accused.
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).
against the petitioner and others shall see and weigh the incriminating material in the light of legal requirement as settled above.
(K.Q.B.) Revision dismissed
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