It is a settled law that the prosecution cannot be deprived of the opportunity of producing evidence under the garb of the power conferred by section 265-K Cr.P.C, especially in such cases where allegations against the accused require recording of evidence.

2022 LHC 9073

 Two provisions of the law through which an accused is summoned to stand the trial and a formal charge is framed against him by the court of Sessions. In a criminal case after submission of report under section 173 Cr.P.C., learned trial court summons an accused under section 204(1) Cr.P.C, thereafter, copies of required documents are supplied under section 265-C Cr.P.C. and charge is formally framed against him under section 265-D Cr.P.C. Sections 204(1) and 265-D Cr.P.C.

From bare perusal of section 204(1) Cr.P.C, it becomes abundantly clear that summoning of an accused is not a mechanical process rather trial court applies its judicious mind and only summons an accused when there is sufficient ground available to further proceed with the trial. The expressions „existence of sufficient ground‟ and „prima facie case‟ have been construed by the Courts interchangeably. 1Furthermore, section 265-D Cr.P.C. is a self-explanatory provision of law that empowers a court of sessions to frame the charge against an accused, after perusing the police report, all the other documents and statements filed by the prosecution, if in its opinion there is ground for proceeding with the trial of the accused.

No doubt section 265-K Cr.P.C. empowers the trial court to acquit the accused person(s) at any stage of the case if, after hearing the accused and prosecutor, the court considers that there is no probability of conviction of the accused. But, before rendering such an opinion, the court must give reasons as to its satisfaction regarding the non-probability of conviction of the accused. Power under this section can only be used in exceptional cases where the court reaches the conclusion that the prosecution has no case against the accused and there is not an iota of the probability of his conviction. It is a settled law that the prosecution cannot be deprived of the opportunity of producing evidence under the garb of the power conferred by section 265-K Cr.P.C, especially in such cases where allegations against the accused require recording of evidence. Depriving a complainant to prove his case through oral or documentary evidence is not a fair exercise of jurisdiction under aforementioned section. Stifling the prosecution is not the purpose of this section. Section 265-K Cr.P.C. is an exception to the general rule therefore, it must be construed strictly. 5Provisions of sections 249-A & 265-K Cr.P.C. contain an exception to the general rule that an accused should be declared guilty or innocent after affording full opportunity to prosecution and defense to prove their case.

Crl. Appeal-Against Acquittal-CNSA
1026-16
STATE VS
MUHAMAMD SHAHID @ SHADA
Mr. Justice Ali Zia Bajwa
01-06-2022
2022 LHC 9073